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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.

 

 

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

171

 

      (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

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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);

 

 

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

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(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—

 

 

Energy Bill [HL]
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);

 

 

 
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