Energy Bill (HL Bill 57)

Part 3 Other powers exercisable by inspector if authorised by instrument of
appointment

Power of entry

8 (1) 5An inspector may, if authorised, enter any premises which the inspector has
reason to believe it is necessary for the inspector to enter for the relevant
purpose—

(a) at any reasonable time, or

(b) at any time, in a situation—

(i) 10which in the inspector’s opinion is or may be dangerous, or

(ii) in which, in the inspector’s opinion, delay would or might be
prejudicial to the nuclear security purposes.

(2) In relation to domestic premises, the power may be exercised only—

(a) in accordance with a warrant issued by a justice of the peace, or

(b) 15in a situation which in the inspector’s opinion is or may be
dangerous.

(3) A justice of the peace may issue a warrant under sub-paragraph (2)(a) only
if satisfied, on the application of the inspector,—

(a) that—

(i) 20there are reasonable grounds to believe that a contravention
of a relevant statutory provision is occurring on the premises,
or

(ii) the inspector has been refused consent to enter the premises
for the relevant purpose or there are reasonable grounds to
25believe that such consent will be refused, and

(b) that it is reasonable in the circumstances to issue a warrant to the
inspector.

(4) The reference to premises in sub-paragraph (1) includes any ship outside the
United Kingdom or its territorial sea.

(5) 30For the purposes of this paragraph, “domestic premises” means premises
used wholly or mainly as a private dwelling.

Power to take persons and equipment etc onto premises

9 In exercising the power of entry mentioned in paragraph 8, an inspector
may—

(a) 35be accompanied—

(i) by any person approved by the ONR for the purpose, and

(ii) if the inspector has reasonable cause to expect any serious
obstruction in the exercise of any of the inspector’s powers,
by a constable, and

(b) 40take along any equipment and materials required for any purpose
for which the inspector is exercising the power of entry.

Power to deal with cause of imminent danger

10 (1) Sub-paragraph (2) applies where an inspector finds any article or substance
in relevant premises in circumstances in which the inspector has reasonable
cause to believe it is a cause of imminent danger of serious personal injury.

(2) 5The inspector may, if authorised, do any of the following—

(a) seize the article or substance;

(b) cause it to be made harmless or the risk of harm from it to be reduced
(in either case, by destruction or otherwise);

(c) for the purpose mentioned in paragraph (b), seize any other article or
10substance.

(3) Before any article that forms part of a batch of similar articles, or any
substance, is dealt with under sub-paragraph (2)(b), the inspector must, if it
is practicable,—

(a) take a sample, and

(b) 15give a portion of the sample, marked so as to be identifiable, to a
responsible person.

(4) As soon as practicable after seizing or dealing with any article or substance
under sub-paragraph (2), the inspector must make and sign a written report
setting out the circumstances in which the article or substance was seized or
20so dealt with.

(5) The inspector must give a signed copy of the report to a responsible person.

(6) If that person is not the owner of the article or substance, the inspector must
also—

(a) give a signed copy of the report to the owner, or

(b) 25if that is not possible because—

(i) the inspector cannot find out the owner’s name or address
after making reasonable enquiries, and

(ii) the owner has not indicated a willingness in accordance with
section 110 to receive a signed copy of the report by any
30means mentioned in subsection (1)(b) of that section,

give a further signed copy of the report to that responsible person.

(7) For the purposes of this paragraph—

(a) “responsible person”, in relation to any article or substance, means a
responsible person at the premises in which the inspector finds the
35article or substance;

(b) in the case of a report in electronic form, any signature required on
the report or a copy of it may be an electronic signature (within the
meaning given in section 7(2) of the Electronic Communications Act
2000).

40Powers exercisable in relation to particular articles or substances or in particular
circumstances

11 (1) An authorised inspector may cause any article or substance in relevant
premises—

(a) to be dismantled;

(b) 45to be tested;

(c) to have any other process applied to it.

(2) The inspector may exercise any of those powers only if it appears to the
inspector—

(a) that the article or substance has caused, or is likely to cause, danger
to health or safety, or

(b) 5that it is desirable to do so for the nuclear security purposes.

(3) Before exercising a power in this paragraph, the inspector must consult
anyone whom the inspector considers it appropriate to consult about the
dangers (if any) of what is proposed.

(4) Anything done to the article or substance under this paragraph must not
10damage or destroy it unless in the circumstances that is unavoidable for the
relevant purpose.

(5) If requested by a person who has responsibilities in relation to the relevant
premises, and is on the premises, the inspector must allow anything done to
the article or substance under this paragraph to be done in that person’s
15presence, unless the inspector considers that that would be prejudicial to
national security.

12 (1) An authorised inspector may take possession of any article or substance
found on relevant premises and retain it for as long as necessary—

(a) for it to be examined;

(b) 20for anything to be done to it which the inspector may cause to be
done under paragraph 11;

(c) to ensure that it is not tampered with before any examination or
other procedure mentioned in paragraph (a) or (b) is complete;

(d) to ensure that it is available for use in—

(i) 25any proceedings for an offence under any of the relevant
statutory provisions, or

(ii) any proceedings relating to an improvement notice or a
prohibition notice.

(2) The inspector may exercise that power only if it appears to the inspector—

(a) 30that it is desirable to do so for the nuclear security purposes, or

(b) that the article or substance has caused, or is likely to cause, danger
to health or safety.

(3) Before taking possession of any substance under this paragraph, the
inspector must, if it is practicable,—

(a) 35take a sample of it, and

(b) give a portion of the sample, marked so as to be identifiable, to a
responsible person at the premises.

(4) An inspector who takes possession of any article or substance under this
paragraph must—

(a) 40if it is practicable to do so, give a notice to that effect to a responsible
person at the premises;

(b) otherwise, fix such a notice in a conspicuous position at the premises.

(5) The notice must include sufficient information about the article or substance
to identify it.

Powers of inspection and examination and to take samples

13 (1) An authorised inspector may carry out any examination or investigation
necessary for the relevant purpose and, in doing so, may—

(a) take measurements and photographs, and

(b) 5make recordings.

(2) An authorised inspector may take and deal with samples of—

(a) any article or substance found in relevant premises, or

(b) the atmosphere in or in the vicinity of relevant premises.

(3) The Secretary of State may by regulations make provision about—

(a) 10the procedure to be followed in taking any such samples, and

(b) the way in which any such samples are to be dealt with.

14 (1) An authorised inspector may direct that any relevant premises, or any article
or substance in them, must be left undisturbed for as long as reasonably
necessary for the purposes of any examination or investigation necessary for
15the purpose of any of the relevant statutory provisions.

(2) A direction under sub-paragraph (1)—

(a) may relate to part of any relevant premises;

(b) may relate to particular aspects of any premises or article or
substance.

20Powers to require information and documents

15 (1) An authorised inspector may require any person who the inspector has
reasonable cause to believe is able to give any information relevant to any
examination or investigation under paragraph 13—

(a) to answer any question the inspector thinks fit, and

(b) 25to sign a declaration of the truth of the person’s answers.

(2) Where a person required to answer questions under this paragraph has
nominated another person to be present, the person may not be required to
answer questions except in the presence of the nominated person (if any).

(3) When exercising the power in this paragraph, an inspector may allow
30another person to be present (in addition to the nominated person (if any)).

(4) No answer given by a person by virtue of this paragraph is admissible in
evidence against the person, or the person’s spouse or civil partner, in any
proceedings.

16 (1) An authorised inspector may—

(a) 35require any relevant documents to be produced, and

(b) inspect and take copies of (or of any information in) any relevant
documents.

(2) For this purpose—

(a) “document” includes information recorded in any form;

(b) 40“relevant document” means a record or other document which—

(i) is required to be kept by virtue of any of the relevant
statutory provisions, or

(ii) the inspector needs to see for the purposes of any
examination or investigation under paragraph 13.

(3) In the case of a relevant document that consists of information held in
electronic form, the inspector may—

(a) 5require it to be produced—

(i) in a legible form, or

(ii) in a form from which it can readily be produced in a legible
form, and

(b) require access to, and inspect and check the operation of, any
10computer and any associated apparatus or material which is or has
been used in connection with the relevant document.

Offences

17 (1) It is an offence for a person to contravene any requirement imposed by an
inspector under this Part of this Schedule.

(2) 15It is an offence for a person to prevent or attempt to prevent any other person
from—

(a) appearing before an inspector, or

(b) answering any question to which an inspector may require an
answer by virtue of paragraph 15.

(3) 20A person who commits an offence under this paragraph is liable—

(a) on summary conviction—

(i) to imprisonment for a term not exceeding 12 months (in
England and Wales or Scotland) or 6 months (in Northern
Ireland),

(ii) 25to a fine (in England and Wales) or a fine not exceeding
£20,000 (in Scotland or Northern Ireland), or

(iii) to both;

(b) on conviction on indictment—

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

(ii) 30to a fine, or

(iii) to both.

(4) 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 (3)(a)(i), as it has effect
35in England and Wales, to 12 months is to be read as a reference to 6 months.

18 (1) It is an offence for a person intentionally to obstruct an inspector in the
exercise or performance of the inspector’s functions.

(2) A person who commits an offence under this paragraph is liable on
summary conviction—

(a) 40to imprisonment for a term not exceeding 51 weeks (in England and
Wales), 12 months (in Scotland) or 6 months (in Northern Ireland),

(b) to—

(i) in England and Wales, a fine, or

(ii) in Scotland or Northern Ireland a fine not exceeding level 5
45on the standard scale, or

(c) to both.

(3) In relation to an offence committed before the commencement of section
281(5) of the Criminal Justice Act 2003 (alteration of penalties for summary
offences), the reference in sub-paragraph (2)(a), as it has effect in England
and Wales, to 51 weeks is to be read as a reference to 6 months.

19 (1) 5It is an offence for a person falsely to pretend to be an inspector.

(2) A person who commits an offence under this paragraph is liable on
summary conviction to—

(a) in England and Wales, a fine, or

(b) in Scotland or Northern Ireland, a fine not exceeding level 5 on the
10standard scale.

Supplementary powers

20 A power conferred by this Schedule includes power to require any person to
provide any facilities or assistance relating to matters or things—

(a) within the person’s control, or

(b) 15in relation to which the person has responsibilities,

which are needed in order to enable an authorised inspector to exercise the
power.

21 A power conferred by this Schedule includes power to do anything
incidental that is necessary for the relevant purpose.

20Protection for documents subject to legal professional privilege etc

22 Nothing in this Part of this Schedule is to be taken to confer power to compel
the production by any person of a document or information in respect of
which—

(a) in England and Wales or Northern Ireland, a claim to legal
25professional privilege, or

(b) in Scotland, a claim to confidentiality of communications,

could be maintained in legal proceedings.

Part 4 Supplementary

30Duty to provide information to employees or their representatives

23 (1) An inspector must provide to people employed at any premises (or their
representatives) any relevant information that needs to be provided in order
for them (or their representatives) to be kept adequately informed about
matters affecting their health, safety or welfare.

(2) 35Where information is provided to employees (or their representatives)
under sub-paragraph (1), the inspector must provide the same information
to their employer.

(3) For this purpose—

(a) “relevant information”, in relation to any premises, means—

(i) 40factual information which is protected information within
the meaning of Schedule 9 and is relevant to the premises,
and

(ii) information about action which the inspector has taken or
proposes to take in relation to the premises, and

(b) “employee”, “employer” and “employed” have the same meanings
as in Part 1 of the 1974 Act.

5Interpretation

24 (1) In this Schedule—

• “authorised” is to be read in accordance with paragraph 2(4);

• “offshore installation” means any installation which is intended for
  underwater exploitation of mineral resources or exploration with a
  10view to such exploitation;

• “premises” includes any place and, in particular, includes—

  (a)

  any vehicle, ship or aircraft,

  (b)

  any installation on land (including the foreshore and other
  land intermittently covered by water), any offshore
  15installation, and any other installation (whether floating, or
  resting on the seabed or its subsoil, or resting on other land
  covered with water or its subsoil), and

  (c)

  any tent or movable structure;

• “relevant premises”, in relation to an inspector, means premises which
  20the inspector has entered—

  (a)

  with the consent of a person who reasonably appeared to the
  inspector to be an appropriate person to give consent, or

  (b)

  in exercise of the power in paragraph 8;

• “the relevant purpose”, in relation to a power, means—

  (a)

  25if an instrument of appointment authorises the inspector to
  exercise the power only for limited purposes, that purpose;

  (b)

  in any other case, the purpose of carrying into effect the
  relevant statutory provisions;

• “ship” includes every description of vessel used in navigation;

• 30“substance” means any natural or artificial substance, whether solid or
  liquid or in the form of a gas or vapour.

(2) In this Schedule, references to an inspector, in relation to any power, are to
the inspector exercising or proposing to exercise the power.

Section 100

SCHEDULE 9 35Disclosure of information

Part 1 Prohibition on disclosure of protected information

Meaning of “protected information” and related terms

1 (1) In this Schedule “protected information” means information which has
40been—

(a) obtained by the ONR under section 97,

(b) provided to the ONR, an inspector or a health and safety inspector
under section 98,

(c) obtained by an inspector as a result of the exercise of any relevant
power,

(d) 5obtained by a health and safety inspector in the exercise of any
power under section 20 of the 1974 Act (powers of persons appointed
under section 19 of that Act),

(e) obtained by an ONR inquiry official as a result of the exercise of an
ONR inquiry power,

(f) 10provided to a person pursuant to a requirement imposed by any of
the relevant statutory provisions, or

(g) provided to the ONR or a health and safety inspector pursuant to a
requirement imposed by any provision which is one of the relevant
statutory provisions for the purposes of Part 1 of the 1974 Act.

(2) 15Information is not protected information for the purposes of this Schedule if
it has been—

(a) disclosed as mentioned in paragraph 16, or

(b) otherwise made available to the public—

(i) by virtue of a disclosure in accordance with Part 3 of this
20Schedule, or

(ii) lawfully from other sources.

(3) Information received by virtue of a disclosure under paragraph 21
(anonymised information) is not protected information.

(4) Protected information includes, in particular, information with respect to a
25trade secret which an inspector, a health and safety inspector or an ONR
inquiry official has obtained as a result of entering premises in exercise of a
relevant power, a power conferred under section 20 of the 1974 Act or an
ONR inquiry power.

(5) In this Schedule—

• 30“ONR inquiry official” means a person on whom functions are
  conferred under section 85(5)(a);

• “ONR inquiry power” means a power conferred by regulations under
  under section 85(5)(a);

• “the original holder” of protected information means the person who
  35obtained the information, or to whom it was provided, as mentioned
  in sub-paragraph (1).

Part 2 Offences relating to disclosure and use of protected information

Prohibition on disclosing protected information

2 40Protected information must not be disclosed—

(a) by the original holder of the information, or

(b) by any other person holding it who has received it directly or
indirectly from the original holder by virtue of a disclosure, or
disclosures, in accordance with this Schedule,

45except in accordance with Part 3 of this Schedule.

Offence of disclosing protected information in contravention of paragraph 2

3 It is an offence for a person to disclose information in contravention of
paragraph 2.

Offence of using protected information in contravention of a restriction in Part 3

4 5It is an offence for a person to use protected information in contravention of
a restriction under paragraph 10(3), 11(2), 12(2), 13(2), 14(2) or 15(2).

Defence to offences under paragraph 3 and 4

5 It is a defence for a person charged with an offence under paragraph 3 or 4
to prove—

(a) 10that the person did not know and had no reason to suspect that the
information was protected information, or

(b) that the person took all reasonable precautions and exercised all due
diligence to avoid committing the offence.

Penalty for offences under paragraph 3 and 4

6 (1) 15A person who commits an offence under paragraph 3 or 4 is liable—

(a) on summary conviction—

(i) to imprisonment for a term not exceeding 12 months (in
England and Wales or Scotland) or 6 months (in Northern
Ireland),

(ii) 20to a fine (in England and Wales) or a fine not exceeding the
statutory maximum (in Scotland or Northern Ireland), or

(iii) to both;

(b) on conviction on indictment—

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

(ii) 25to a fine, or

(iii) to both.

(2) In the application of sub-paragraph (1) 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 power to
30imprison), the reference in sub-paragraph (1)(a)(i) to 12 months is to be read
as a reference to 6 months.

Part 3 Protected information: permitted disclosures and restrictions on use

Disclosure with appropriate consent

7 (1) 35Paragraph 2 does not prohibit a disclosure of protected information if it is
made with the appropriate consent.

(2) For this purpose “the appropriate consent” means—

(a) if the information was obtained as mentioned in paragraph 1(1) as a
result of any premises being entered—

(i) 40by an inspector in exercise of a relevant power,

(ii) by a health and safety inspector in exercise of a power under
section 20 of the 1974 Act, or

(iii) by an ONR inquiry official in exercise of an ONR inquiry
power,

5the consent of a person having responsibilities in relation to the
premises;

(b) in any other case, the consent of the person from whom the
information was obtained, or who provided it, as mentioned in
paragraph 1(1).

10Disclosure by ONR, inspectors etc

8 Paragraph 2 does not prohibit a disclosure of protected information by—

(a) the ONR,

(b) an inspector,

(c) a health and safety inspector, or

(d) 15an ONR inquiry official,

for the purposes of any of that person’s functions.

Disclosure to the ONR, inspectors etc.

9 Paragraph 2 does not prohibit a disclosure of protected information to—

(a) the ONR,

(b) 20an officer of the ONR,

(c) a person or body performing any functions of the ONR on its behalf
by virtue of section 95,

(d) an officer of such a body,

(e) a person providing advice to the ONR,

(f) 25an inspector, or

(g) a health and safety inspector.

Ministers, government departments and certain authorities

10 (1) Paragraph 2 does not prohibit the following disclosures of protected
information—

(a) 30a disclosure to—

(i) a relevant authority, or

(ii) an officer of a relevant authority, or

(b) a disclosure by a person within paragraph (a) which is necessary for
any of the purposes of the relevant authority in question.

(2) 35For this purpose, “relevant authority” means—

(a) a Minister of the Crown,

(b) the Scottish Ministers,

(c) the Welsh Ministers,

(d) a Northern Ireland Department,

(e) 40the Environment Agency,

(f) the Scottish Environment Protection Agency,

(g) the Natural Resources Body for Wales,

(h) the Office of Rail Regulation,

(i) the Civil Aviation Authority, or