Energy Bill [HL]

House of Commons

Session 2003 - 04
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Energy Bill [HL]

Energy Bill [HL]
Schedule 5 — Supplementary provisions about nuclear transfer schemes
169

(a)
for an injunction;
(b)
for specific performance of a statutory duty under section 45 of the
Court of Session Act 1988 (c. 36); or
(c)
for any other appropriate remedy or relief.
      (7)
The relevant person for the purposes of sub-paragraph (6) is the person with,
5
or in favour of whom, the agreement or instrument is to be entered into or
executed.
Effect of nuclear transfer schemes
5     (1)
In relation to each provision of a nuclear transfer scheme for the transfer of
property, rights or liabilities, or for the creation of interests, rights or
10
liabilities—
(a)
this Act shall have effect so as, without further assurance, to vest the
property or interests, or the rights or liabilities, in the transferee at
the time at which the scheme comes into force; and
(b)
the provisions of that scheme in relation to that property or those
15
interests, or in relation to those rights or liabilities, shall have effect
from that time.
      (2)
Sub-paragraph (1) is subject to so much of a nuclear transfer scheme as
provides for—
(a)
the transfer of property, rights or liabilities which are to be
20
transferred in accordance with the scheme, or
(b)
the creation of interests, rights and liabilities which are to be created
in accordance with the scheme,

to be effected by or under an agreement or instrument entered into or
executed in pursuance of an obligation imposed by virtue of paragraph 4(1).
25
      (3)
In its application to Scotland, sub-paragraph (1) has effect with the omission
of the words “without further assurance”.
Supplementary provisions of schemes
6     (1)
A nuclear transfer scheme may make incidental, supplemental,
consequential and transitional provision in connection with the transfers to
30
be made in accordance with the scheme.
      (2)
Such provision may include different provision for different cases or
different purposes.
      (3)
In particular, a nuclear transfer scheme may make provision, in relation to
transfers in accordance with the scheme—
35
(a)
for the transferee to be treated as the same person in law as the
transferor;
(b)
for agreements made, transactions effected or other things done by
or in relation to the transferor to be treated, so far as may be
necessary for the purposes of or in connection with the transfers, as
40
made, effected or done by or in relation to the transferee;
(c)
for references in an agreement, instrument or other document to the
transferor or to an employee or office holder with the transferor to
have effect, so far as may be necessary for the purposes of or in
connection with any of the transfers, with such modifications as are
45
specified in the scheme; and

Energy Bill [HL]
Schedule 5 — Supplementary provisions about nuclear transfer schemes
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(d)
for proceedings commenced by or against the transferor to be
continued by or against the transferee.
      (4)
Sub-paragraph (3)(c) does not apply to references in an enactment or in
subordinate legislation.
      (5)
A nuclear transfer scheme may make provision for disputes as to the effect
5
of the scheme—
(a)
between different transferees, or
(b)
between a transferee and a transferor,

to be referred to such arbitration as may be specified in or determined under
the scheme.
10
      (6)
Where a person is entitled, in consequence of a nuclear transfer scheme, to
possession of a document relating in part to the title to land or other
property in England and Wales, or to the management of such land or other
property—
(a)
the scheme may provide for that person to be treated as having given
15
another person an acknowledgement in writing of the right of that
other person to production of the document and to delivery of copies
of it; and
(b)
section 64 of the Law of Property Act 1925 (c. 20) (production and
safe custody of documents) shall have effect accordingly, and on the
20
basis that the acknowledgement did not contain an expression of
contrary intention.
      (7)
Where a person is entitled, in consequence of a nuclear transfer scheme, to
possession of a document relating in part to the title to land or other
property in Scotland or to the management of such land or other property,
25
subsections (1) and (2) of section 16 of the Land Registration (Scotland) Act
1979 (c. 33) (omission of certain clauses in deeds) shall have effect in relation
to the transfer—
(a)
as if the transfer had been effected by deed; and
(b)
as if the words “unless specially qualified” were omitted from each
30
of those subsections.
      (8)
In this paragraph references to a transfer in accordance with a nuclear
transfer scheme include references to the creation in accordance with such a
scheme of an interest, right or liability.
Proof of title by certificate
35
7
A certificate issued by the Secretary of State to the effect that any property,
right or liability vested at a particular time in accordance with a nuclear
transfer scheme in a person specified in the certificate shall be conclusive
evidence of the matters specified in the certificate.
Duties in relation to foreign property
40
8     (1)
Where there is a transfer in accordance with a nuclear transfer scheme of—
(a)
foreign property, or
(b)
a foreign right or liability,

the transferor and the transferee must take all requisite steps to secure that
the vesting of the foreign property, right or liability in the transferee by this
45
Act is effective under the relevant foreign law.

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Schedule 5 — Supplementary provisions about nuclear transfer schemes
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      (2)
Until the vesting of the foreign property, right or liability in the transferee in
accordance with the scheme is effective under the relevant foreign law, the
transferor must—
(a)
hold the property or right for the benefit of the transferee; or
(b)
discharge the liability on behalf of the transferee.
5
      (3)
Nothing in sub-paragraph (1) or (2) prejudices the effect under the law of a
part of the United Kingdom of the vesting of any foreign property, right or
liability in the transferee in accordance with a nuclear transfer scheme.
      (4)
Where—
(a)
any foreign property, right or liability is acquired or incurred by the
10
transferor in respect of any other property, right or liability, and
(b)
by virtue of this paragraph, the transferor holds the other property
or right for the benefit of another person or is required to discharge
the liability on behalf of another person,

the property, right or liability acquired or incurred shall immediately
15
become the property, right or liability of that other person.
      (5)
The provisions of sub-paragraphs (1) to (4) shall have effect in relation to
foreign property, rights or liabilities transferred to a person under sub-
paragraph (4) as they have effect in the case of property, rights and liabilities
transferred in accordance with a nuclear transfer scheme.
20
      (6)
Where the transferor of foreign property, or of a foreign right or liability, is
the NDA or the UKAEA—
(a)
the transferor shall have all such powers as it or they may require for
the performance of obligations imposed on it or them under this
paragraph; but
25
(b)
the transferee must, so far as practicable, act on behalf of the
transferor in performing the obligations imposed on the transferor
by this paragraph.
      (7)
References in this paragraph to foreign property, or to a foreign right or
liability, are references to any property, right or liability as respects which an
30
issue arising in any proceedings would be determined (in accordance with
the rules of private international law) by reference to the law of a country or
territory outside the United Kingdom.
      (8)
Expenses incurred by a transferor under this paragraph shall be met by the
transferee.
35
      (9)
An obligation imposed under this paragraph in relation to property, rights
or liabilities shall be enforceable as if contained in a contract between the
transferor and the transferee.
Modification of scheme by agreement
9     (1)
This paragraph applies in the case of a nuclear transfer scheme where a
40
transferee agrees in writing—
(a)
with the transferor,
(b)
with another transferee under that scheme, or
(c)
with a transferor or transferee under another nuclear transfer
scheme,
45

that provision falling within sub-paragraph (2) be made for the purpose of
modifying the effect of the scheme or (as the case may be) the effect of either
or both of the schemes.

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Schedule 5 — Supplementary provisions about nuclear transfer schemes
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      (2)
That provision is provision that—
(a)
property, rights or liabilities transferred in accordance with the
scheme or either of them, and
(b)
property, rights or liabilities acquired or incurred since the transfer
in respect of the transferred property, rights or liabilities,
5

be transferred from one party to the agreement to the other as from a date
appointed by the agreement.
      (3)
If—
(a)
the agreement is entered into within the period of three years after
the coming into force of any transfer made in accordance with either
10
of the schemes to a party to the agreement, and
(b)
the Secretary of State has given his approval to the transfer for which
the agreement provides, and to its terms and conditions,

the transfer for which the agreement provides shall take effect on the date
appointed by the agreement as if it were a transfer in accordance with a
15
nuclear transfer scheme.
      (4)
Subject to the approval of the Secretary of State and to sub-paragraph (5), the
provisions that may be contained in a modification agreement include any
provision in relation to a transfer for which it provides as is capable of being
contained in a nuclear transfer scheme in relation to a transfer for which the
20
scheme provides.
      (5)
Nothing in a modification agreement is to provide for interests, rights or
liabilities to be created, as opposed to transferred, except as between persons
who are parties to the agreement.
      (6)
Before—
25
(a)
refusing his approval for the purposes of this paragraph, or
(b)
giving his approval for those purposes in a case where the NDA is
not a party to the proposed agreement,

the Secretary of State must consult the NDA.
      (7)
The consent of the Treasury is required for the giving of an approval by the
30
Secretary of State for the purposes of this paragraph.
      (8)
In this paragraph references to a transfer in accordance with a nuclear
transfer scheme include references to the creation of an interest, right or
liability in accordance with such a scheme.
The Transfer of Undertakings (Protection of Employment) Regulations 1981
35
10    (1)
The 1981 regulations apply to a transfer of an undertaking or part of an
undertaking—
(a)
in accordance with a nuclear transfer scheme, or
(b)
in accordance with a modification agreement,

as if (in so far as that would not otherwise be the case) the references in those
40
regulations to the transferor were references to the person in whom that
undertaking or part was vested immediately before the coming into force of
the transfer.
      (2)
It shall be the duty of the Secretary of State, before—
(a)
making a nuclear transfer scheme, or
45
(b)
approving a modification agreement,

to give such notice of his proposals to such persons as he considers
appropriate for enabling the provisions of the 1981 regulations applicable to

Energy Bill [HL]
Schedule 5 — Supplementary provisions about nuclear transfer schemes
173

a transfer in accordance with the scheme or agreement to be complied with
by the transferor.
      (3)
In sub-paragraph (2) “the transferor”, in relation to a transfer, means the
person who is the transferor in relation to that transfer for the purposes of
the 1981 regulations.
5
      (4)
In this paragraph—
“the 1981 regulations” means the Transfer of Undertakings (Protection
of Employment) Regulations 1981 (S.I. 1981/1794);
“undertaking” has the same meaning as in the 1981 regulations.
Compensation for third parties
10
11    (1)
Where—
(a)
an entitlement of a third party to an interest or right would, apart
from a provision of a nuclear transfer scheme or paragraph 2(4) and
(5), arise in respect of the transfer or creation in accordance with a
nuclear transfer scheme of any property, rights or liabilities,
15
(b)
the provisions of that scheme or of paragraph 2(4) and (5) have the
effect of preventing the third party’s entitlement to that interest or
right from arising in respect of anything for which the scheme
provides, and
(c)
provision is not made by the scheme for securing that an entitlement
20
to that interest or right, or to an equivalent interest or right, is
preserved or created so as to arise in respect of the first occasion
when corresponding circumstances next occur after the coming into
force of the transfers for which the scheme provides,

the third party shall be entitled to such compensation as may be just in
25
respect of the extinguishment of his entitlement.
      (2)
Where, in consequence of provisions included in a nuclear transfer scheme,
the interests, rights or liabilities of a third party are modified as mentioned
in sub-paragraph (3), the third party shall be entitled to such compensation
as may be just in respect of—
30
(a)
any diminution in the value of his interests or rights, or
(b)
any increase in the burden of his liabilities,

which is attributable to that modification.
      (3)
Those modifications are modifications by virtue of which—
(a)
an interest of the third party in property is transformed into, or
35
replaced by, an interest in only part of that property;
(b)
an interest of the third party in property is transformed into, or
replaced by, separate interests in different parts of that property;
(c)
a right of the third party against the transferor is transformed into, or
replaced by, two or more rights which do not include a right which,
40
on its own, is equivalent (disregarding the person against whom it is
enforceable) to the right against the transferor; or
(d)
a liability of the third party to the transferor is transformed into, or
replaced by, two or more separate liabilities at least one of which is a
liability enforceable by a person other than the transferor.
45
      (4)
A liability to pay compensation under this paragraph shall fall on such
persons mentioned in sub-paragraphs (5) and (6) as—
(a)
benefit from the extinguishment of the entitlement mentioned in
sub-paragraph (1);

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Schedule 5 — Supplementary provisions about nuclear transfer schemes
174

(b)
have interests in the whole or any part of the property affected by the
modification in question;
(c)
are subject to the rights of the person to be compensated which are
affected by that modification; or
(d)
are entitled to enforce the liabilities of the person to be compensated
5
which are affected by that modification.
      (5)
Those persons are—
(a)
a Minister of the Crown;
(b)
the NDA;
(c)
the UKAEA;
10
(d)
a publicly owned company which is a transferor or a transferee for
the purposes of the provisions of the scheme giving rise to the
compensation;
(e)
a person who consented to the provisions of the scheme giving rise
to the compensation.
15
      (6)
Where in the case of a recovery scheme the transferor is not a publicly owned
company, those persons also include—
(a)
the relevant contractor; and
(b)
the transferor.
      (7)
A liability to pay compensation under this paragraph must be apportioned
20
between the persons liable to pay it in such manner as may be appropriate
having regard to the extent of—
(a)
the benefit they respectively obtain from the extinguishment; or
(b)
the interests, rights or liabilities in respect of which they are liable to
pay compensation.
25
      (8)
Where compensation is paid by any person in connection with provisions of
a recovery scheme, the person paying the compensation may, if and to the
extent that the Secretary of State so directs, recover the amount paid from—
(a)
the relevant contractor; and
(b)
the transferor.
30
      (9)
A dispute as to—
(a)
whether any compensation is to be paid under this paragraph,
(b)
the person to or by whom it is to be paid, or
(c)
the amount to be paid by any person,

shall be referred to and determined by the person mentioned in sub-
35
paragraph (10).
     (10)
That person is—
(a)
where the claimant requires the matter to be determined in England
and Wales or in Northern Ireland, an arbitrator appointed by the
Lord Chancellor; and
40
(b)
where the claimant requires the matter to be determined in Scotland,
an arbiter appointed by the Lord President of the Court of Session.
     (11)
In the preceding provisions of this paragraph “third party”, in relation to a
nuclear transfer scheme, means a person other than the transferor or the
transferee.
45
     (12)
This paragraph shall have effect in relation to—

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Schedule 5 — Supplementary provisions about nuclear transfer schemes
175

(a)
the provisions of an agreement or instrument entered into or
executed in pursuance of an obligation imposed in a nuclear transfer
scheme, and
(b)
the provisions of a modification agreement relating to property,
rights or liabilities transferred or created in accordance with a
5
nuclear transfer scheme,

as it has effect in relation to the scheme but as if, in the case of a modification
agreement, everyone who is not a party to the agreement were a third party.
Compensation for transferor in case of a recovery scheme
12    (1)
If the Secretary of State is satisfied in the case of a recovery scheme that it is
10
just to do so he may—
(a)
pay compensation to the transferor in respect of property or rights of
which he is deprived in accordance with the scheme; or
(b)
direct the NDA to pay such compensation.
      (2)
No compensation shall be payable under this paragraph to the relevant
15
contractor.
      (3)
Where compensation is paid under this paragraph and the Secretary of State
so directs, so much of the compensation as may be specified in the direction
may be recovered by him or (as the case may be) by the NDA from the
relevant contractor.
20
      (4)
The amount of any compensation under this paragraph shall be determined
by the Secretary of State.
      (5)
A dispute as to—
(a)
whether any compensation is to be paid under this paragraph,
(b)
the person to or by whom it is to be paid, or
25
(c)
the amount to be paid by any person,

shall be referred to and determined by the person mentioned in sub-
paragraph (6).
      (6)
That person is—
(a)
where the claimant requires the matter to be determined in England
30
and Wales or in Northern Ireland, an arbitrator appointed by the
Lord Chancellor; and
(b)
where the claimant requires the matter to be determined in Scotland,
an arbiter appointed by the Lord President of the Court of Session.
      (7)
This paragraph shall have effect in relation to—
35
(a)
the provisions of an agreement or instrument entered into or
executed in pursuance of an obligation imposed in a recovery
scheme, and
(b)
the provisions of a modification agreement relating to property,
rights and liabilities transferred or created in accordance with a
40
recovery scheme,

as it has effect in relation to the scheme.
Interpretation
13    (1)
In this Schedule—
“modification agreement” means an agreement for a transfer that is to
45
have effect in accordance with paragraph 9(3);