(iii) to both;

(b) on conviction on indictment—

(i) to imprisonment for a term not exceeding 2 years,

(ii) to a fine, or

(iii) to both.

(8) 5In the application of sub-paragraph (7) to England and Wales in relation to
an offence committed before the commencement of section 154(1) of the
Criminal Justice Act 2003 (general limit on magistrates’ court’s powers to
imprison), the reference in sub-paragraph (7)(a)(i) to 12 months is to be read
as a reference to 6 months.

Section 103

10SCHEDULE 11 Transfers to the Office for Nuclear Regulation

Part 1 Introductory

1 In this Schedule—

• 15“the HSE” means the Health and Safety Executive;

• “the interim ONR” means the agency of the HSE currently known as
  the Office for Nuclear Regulation;

• “TUPE regulations” means the Transfer of Undertakings (Protection of
  Employment) Regulations 2006 (S.I. 2006/246S.I. 2006/246).

20Part 2 Staff transfer schemes

Power to make staff transfer schemes

2 (1) The Secretary of State may make one or more schemes under which an
employee to whom the scheme applies becomes an employee of the ONR
25(but this is subject to provision contained in the scheme by virtue of
paragraph 6).

(2) A scheme under sub-paragraph (1) is referred to in this Schedule as a “staff
transfer scheme”.

Staff to whom a transfer may apply

3 (1) 30The employees to whom a transfer scheme may apply are those employees
who fall within sub-paragraph (2).

(2) An employee falls within this sub-paragraph if, immediately before the staff
transfer scheme takes effect, the employee—

(a) was employed by the HSE under a contract of employment, and

(b) 35was assigned to work in the interim ONR.

(3) Sub-paragraph (4) applies for the purposes of determining whether an
employee was assigned as mentioned in sub-paragraph (2) where,
immediately before the transfer scheme takes effect, the employee—

(a) is on secondment,

(b) is temporarily assigned to work in another part of the HSE, or

(c) is otherwise temporarily absent.

(4) That sub-paragraph is to be read as if it operated immediately before the
5date of the secondment or temporary assignment, or the date when the
absence began, instead of immediately before the date on which the scheme
takes effect.

Content of a staff transfer scheme

4 (1) A staff transfer scheme may make provision for giving full effect to an
10employee’s transfer into the employment of the ONR as a result of the
scheme.

(2) Provision made by virtue of sub-paragraph (1) may include provision—

(a) that has the same or similar effect as the TUPE regulations (so far as
those regulations do not apply in relation to the transfer);

(b) 15modifying the law (including provision made by an Act or
subordinate legislation) applicable to the employee’s employment;

(c) about the pension entitlements of the employee enjoyed
immediately before the transfer.

5 (1) A staff transfer scheme may apply to all, or to any specified class or
20description of, the employees falling within paragraph 4(2) or to specified
employees so falling.

(2) “Specified” means specified in the scheme.

6 (1) A staff transfer scheme may make provision enabling an employee to object
to the transfer which would otherwise be effected by the scheme including
25provision as to how such an objection is to be made and as to the
consequences of it.

(2) A staff transfer scheme may make provision allowing an employee to be
treated as being temporarily assigned to the ONR for a period limited by the
scheme, whether at the employee’s election or in the exercise of a discretion
30conferred on the Secretary of State by the scheme.

(3) Provision made by virtue of sub-paragraph (2) may include provision—

(a) allowing the employee to elect to end the period of temporary
assignment by agreeing to become an employee of the ONR or by
objecting to the transfer under sub-paragraph (1);

(b) 35as to the consequences of the expiry of the period of temporary
assignment without such an election having been made;

(c) as to the employee’s pay (and the liability to pay it) and the terms
and conditions on which the employee is engaged.

Part 3 40Property transfer schemes

Power to make property transfer schemes

7 (1) The Secretary of State may make one or more schemes transferring
qualifying property, rights and liabilities of the HSE to the ONR.

(2) The Secretary of State may make one or more schemes transferring
qualifying property, rights and liabilities of the Secretary of State to the
ONR.

(3) A scheme under sub-paragraph (1) or (2) is referred to in this Schedule as a
5“property transfer scheme”.

8 The HSE may submit to the Secretary of State proposals about the exercise
of the power to make property transfer schemes.

Qualifying property

9 (1) References in this Part to “qualifying property, rights and liabilities” are to
10property held, and rights and liabilities arising, in connection with—

(a) functions under any enactment which were functions of the
Secretary of State or the HSE and as a result of this Act have or are to
become functions of the ONR;

(b) functions which were functions of the Secretary of State or the HSE
15which have been or are to be replaced by a function of the ONR
under this Act;

(c) functions which were carried out by the HSE under an agreement
under section 13 of the 1974 Act and which are to be carried out by
ONR under an agreement under section 78.

(2) 20Rights and liabilities arising under or in connection with a contract of
employment in effect when the scheme comes into force are excluded from
the rights and liabilities which may be transferred under a property transfer
scheme.

Content of a property transfer scheme

10 (1) 25A property transfer scheme may, in particular, make provision—

(a) for anything done by or in relation to the HSE or the Secretary of
State in connection with any property, rights or liabilities transferred
by the scheme to be treated as done, or to be continued, by or in
relation to the ONR;

(b) 30for references to the HSE or the Secretary of State in any agreement
(whether written or not), instrument or other document relating to
any property, rights or liabilities transferred by the scheme to be
treated as references to the ONR;

(c) about the continuation of legal proceedings;

(d) 35for transferring property, rights or liabilities which could not
otherwise be transferred or assigned;

(e) for transferring property, rights and liabilities irrespective of any
requirement for consent which would otherwise apply;

(f) for preventing a right of pre-emption, right of reverter, right of
40forfeiture, right to compensation or other similar right from arising
or becoming exercisable as a result of the transfer of property, rights
or liabilities;

(g) for dispensing with any formality in relation to the transfer of
property, rights or liabilities by the scheme

(h) 45for transferring property acquired, or rights or liabilities arising,
after the scheme is made but before it takes effect;

(i) for apportioning property, rights or liabilities;

(j) for creating rights, or imposing liabilities, in connection with
property, rights or liabilities transferred by the scheme;

(k) for requiring the ONR to enter into any agreement of any kind, or for
a purpose, specified in or determined in accordance with the scheme.

(2) 5Sub-paragraph (1)(b) does not apply to references in primary legislation or
in subordinate legislation.

(3) In this Part “property” includes interests of any description.

Compensation

11 A scheme may contain provision for the payment of compensation by the
10Secretary of State to any person whose interests are adversely affected by it.

Part 4 Procedure for making or modifying schemes under this Schedule

12 (1) Before making a staff transfer scheme or a property transfer scheme, the
Secretary of State must be satisfied that—

(a) 15those persons that the Secretary of State considers likely to be
affected by the making of the scheme, and

(b) such other persons as appear to the Secretary of State to represent the
interests of such persons,

have been consulted (whether by the Secretary of State or another person)
20and must have regard to the results of the consultation in determining
whether to make the scheme.

(2) Sub-paragraph (3) applies where—

(a) the Secretary of State is proposing to make a modification to a staff
transfer scheme or a property transfer scheme under section 138,

(b) 25it appears to the Secretary of State that the modification is likely to
have a material effect on any person, and

(c) the Secretary of State is not required under subsection (3) of that
section to obtain the agreement of those persons before making the
modification.

(3) 30Before making the modification, the Secretary of State must be satisfied
that—

(a) any person or persons falling within sub-paragraph (2)(b), and

(b) such other persons as appear to the Secretary of State to represent the
interests of such persons,

35have been consulted (whether by the Secretary of State or another person)
and must have regard to the results of the consultation in determining
whether to make the modification.

(4) For the purposes of this paragraph it does not matter whether consultation
takes place before or after the passing of this Act.

Section 104

SCHEDULE 12 Minor and consequential amendments relating to Part 3

Part 1 Amendments of the Health and Safety at Work etc. Act 1974

5Health and Safety at Work etc. Act 1974 (c.37)1974 (c.37)

1 The Health and Safety at Work etc. Act 1974 is amended as follows.

2 (1) Section 11 (functions of the Health and Safety Executive) is amended as
follows.

(2) In subsection (4)—

(a) 10in paragraph (a), for “the railway safety purposes” substitute “any of
the transferred purposes”, and

(b) in paragraph (b), for the words following “made” substitute “—

(i) for any of the transferred purposes, or

(ii) under section 43 and concern fees relating to
15nuclear site regulation.”

(3) After that subsection insert—

“(4A) In subsection (4)—

(a) “the transferred purposes” means—

(i) the railway safety purposes;

(ii) 20the nuclear safety purposes;

(iii) the nuclear security purposes;

(iv) the nuclear safeguards purposes;

(v) the radioactive material transport purposes;

(b) “fees relating to nuclear site regulation” means fees payable
25for or in connection with the performance of a function by or
on behalf of—

(i) the Office for Nuclear Regulation, or

(ii) any inspector appointed by the Office for Nuclear
Regulation.

(4B) 30The Executive may submit to the Secretary of State any proposal
submitted to it by the Office for Nuclear Regulation under section 69
of the Energy Act 2013 (proposals about orders and regulations).”

3 In section 13 (powers of the Executive), after subsection (6) insert—

“(6A) The reference in subsection (6) to the general purposes of this Part
35does not include a reference to any of the following—

(a) the nuclear safety purposes;

(b) the nuclear security purposes;

(c) the nuclear safeguards purposes;

(d) the radioactive material transport purposes.”

4 (1) 40Section 14 (power of the Executive to direct investigations and inquiries) is
amended as follows.

(2) In subsection (1)(a), after “railway safety purposes” insert “or the ONR’s
purposes”.

(3) After subsection (4) insert—

“(4A) Provision that may be made by virtue of subsection (4)(a) includes in
5particular, provision conferring functions on the Office for Nuclear
Regulation in relation to powers of entry and inspection in relation
to any premises for which it is an enforcing authority.”

5 (1) Section 15 (health and safety regulations) is amended as follows.

(2) After subsection (1) insert—

“(1A) 10In subsection (1), the reference to the general purposes of this Part
does not include a reference to any of the following—

(a) the nuclear safety purposes;

(b) the nuclear security purposes;

(c) the nuclear safeguards purposes;

(d) 15the radioactive material transport purposes.

(1B) Subsection (1A) does not preclude health and safety regulations
from including provision merely because the provision could be
made for any of the purposes mentioned in paragraphs (a) to (d) of
that subsection.”

(3) 20In subsection (2), for “the preceding subsection” substitute “subsection (1)”.

(4) In subsection (3)(c), after “may” insert “, subject to subsection (3A),”.

(5) After subsection (3) insert—

“(3A) Nothing in this section is to be taken to permit health and safety
regulations to make provision about responsibility for the
25enforcement of any of the relevant statutory provisions as they apply
in relation to any GB nuclear site.

(3B) Subsection (3A) does not prevent health and safety regulations
providing for the Office of Rail Regulation to be responsible for the
enforcement, in relation to GB nuclear sites, of any of the relevant
30statutory provisions that are made for the railway safety purposes.

(3C) In subsections (3A) and (3B), “GB nuclear site” has the same meaning
as in section 57 of the Energy Act 2013 (nuclear safety purposes).”

6 (1) Section 18 (authorities responsible for enforcement of the relevant statutory
provisions) is amended as follows.

(2) 35After subsection (1) insert—

“(1A) The Office for Nuclear Regulation is responsible for the enforcement
of the relevant statutory provisions as they apply in relation to GB
nuclear sites (within the meaning given in section 57 of the Energy
Act 2013 (nuclear safety purposes)).

(1B) 40Subsection (1A) is subject to any provision of health and safety
regulations making the Office of Rail Regulation responsible for the
enforcement of any of the relevant statutory provisions to any extent
in relation to such sites.”