House of Commons - Explanatory Note
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Clause 48 and Schedule 7: Further provisions applying to transferee companies

183.     Clause 48 gives effect to Schedule 7, and provides that directors of publicly controlled companies to which transfers have been made in accordance with nuclear transfer schemes are disqualified from membership of the House of Commons. An equivalent provision is made in relation to the Northern Ireland Assembly.

184.     Schedule 7 makes provision about the finances and accounts of transferee companies. These provisions are required primarily for the restructuring of BNFL via the proposed transfer of its commercial businesses to New BNFL. The Schedule makes it clear that UKAEA subsidiaries (e.g. site licensee companies created from UKAEA) do not fall within the scope of its provisions, and remain subject to the borrowing and guarantee provisions of the Atomic Energy Act 1986. The Schedule sets out borrowing limits on transferee companies; and the basis on which the Secretary of State may issue loans or guarantee to such companies. The borrowing limits may be increased by order, which order is subject to affirmative resolution procedure in the House of Commons. Existing legislation concerning loans and guarantees to BNFL is extended to cover New BNFL. Paragraph 7 makes provision for the exercise by a Minister of the Crown of any powers given to him by the articles of association of a transferee company to restrict the sums of money which may be borrowed or raised by the group to which the company belongs, in the public interest. Finally, Schedule 7 also sets out the basis for preparing statutory accounts of transferee and transferor companies, and the requirement on companies wholly owned by the Crown to lay annual accounts before Parliament.

Clause 49 and Schedule 8: Pensions

185.     Clause 49 gives effect to Schedule 8 which relates to pensions.

186.     The Schedule has two main purposes:

  • to enable BNFL and UKAEA employees who are currently members of the UKAEA pension scheme to retain their membership of the scheme in the event that they are transferred for NDA purposes to a relevant public sector employer; and

  • to ensure that in the event of employees being transferred for NDA purposes to the private sector, or within the private sector, and, as a consequence, having to leave their current pension scheme, they have the option of joining a new scheme which (taken as a whole) confers benefits which are no less favourable than those offered by their original pension scheme.

187.     It thus gives effect to the assurances set out in the White Paper that the Government would protect the pensions position of BNFL and UKAEA staff who might be affected by the restructuring of BNFL and any changes which the NDA might make to current arrangements for the management of BNFL and UKAEA sites. Further information can be found in the explanatory note for Schedule 8.

Clause 50 and Schedule 9: Taxation

     188.     Clause 50 gives effect to Schedule 9, which establishes the tax provisions that will apply to transfers by way of a nuclear transfer scheme. These provisions supplement existing tax legislation. The Bill provides flexibility for transfer schemes to take a variety of possible forms and Schedule 9 has been drawn up to cater for this flexibility. The main intention of Schedule 9 is to ensure that tax charges and reliefs on either party are not triggered as a result of a nuclear transfer scheme and that such schemes should, as far as possible, be tax neutral for both parties.

     189.     Schedule 9 mainly deals with transfers made under nuclear transfer schemes to the NDA, an NDA company and from BNFL to publicly owned companies that are not subsidiaries of the NDA. However, there are other tax provisions dealing with the transfer of the Nuclear Liabilities Investment Portfolio, stamp duty and miscellaneous supplemental provisions. Further information can be found at the notes to Schedule 9.

Clause 51: Supplementary powers of the Secretary of State, the NDA and UKAEA

     190.     Clause 51 provides powers for the Secretary of State, the NDA, and the UKAEA in relation to the making of nuclear transfer schemes, and other functions under the Bill. Those powers include powers to enter into agreements in connection with nuclear transfer schemes. The consent of the Treasury is required before the Secretary of State and UKAEA enter into such agreements, and the consent of the Secretary of State is required before UKAEA enters into such agreements. Subsection (8) removes certain statutory restrictions on the powers of UKAEA to dispose of shares. Subsection (7) requires the UKAEA to consult the Secretary of State before disposing of securities, where (a) such disposal is in connection with the carrying out by the NDA of the NDA's functions (b) in the opinion of UKAEA, such disposal would be inconsistent with the UKAEA's statutory functions; and (c) the Secretary of State's consent has not already been obtained.

Clause 52: Duty to assist the Secretary of State

191.     Clause 52 is a provision designed to ensure that the Secretary of State can secure all the information required to make a transfer scheme. It puts an obligation on the transferor - i.e. the company or person from whom the transfer is to be made - to provide the Secretary of State with, and so far as practicable, to secure that its subsidiaries similarly provide, all such information and other assistance as the Secretary of State may require for the making or modification of a scheme. The obligation applies to all transfer schemes made under Chapter 2 of Part 2 of the Bill including those made under clause 43 where transfers are made with the consent of the transferor.

Clause 53: Interpretation of Chapter 2 of Part 2

     192.     Clause 53 defines the terms "nuclear company" and "publicly controlled" which were not previously defined in Chapter 1.


Clause 54 and Schedule 10: The Civil Nuclear Police Authority

193.     Clause 54 should be read in conjunction with Schedule 10. It establishes the Civil Nuclear Police Authority as a body corporate, and gives the Authority the power to employ persons and to determine their pay and conditions. The Secretary of State will be responsible for appointing the members of the Authority, including the Chairman. The Bill does not prescribe the detailed composition of the Authority, but the intention is that membership will consist of independent members and representatives of the civil nuclear industry. The intention is to achieve a balanced membership containing a clear independent element, including members with specialised policing knowledge, whilst retaining representatives of the industry in the majority. The Government intends that the rules on appointment set out by the Office of the Commissioner for Public Appointments (OCPA) will be followed in making appointments to the Police Authority.

194.     The Police Authority will be able to determine the pay and conditions of its employees. The intention is that employees of the Police Authority will be eligible for membership of the UKAEA pension scheme, but there is also power for the Authority, with the Secretary of State's consent, to set up a new pension scheme for its employees.

195.     Part 4 of Schedule 10 sets out the financial arrangements and responsibilities of the Police Authority. It sets a borrowing limit and allows the Secretary of State to guarantee loans, to make grants and determine the financial duties of the Police Authority. In the normal course the Government's expectation is that the Police Authority will, as now, recover its costs from those to whom it provides services. Provision for grants and borrowing is being made so that large capital items can be provided for in this way if necessary. The Police Authority's accounts will be audited by the Comptroller and Auditor General, and laid before Parliament.

196.     Part 5 of the Schedule makes it clear that the Police Authority is not part of the Crown, and designates it as a public authority for the purposes of the Freedom of Information Act 2000.

Clause 55: The Civil Nuclear Constabulary

197.     Clause 55 places an obligation on the Police Authority to secure the maintenance of the Civil Nuclear Constabulary, in similar terms to the obligation on police authorities for Home Office police forces under section 6 of the Police Act 1996 (c.16). It also defines the primary function of the Constabulary as the protection of civil licensed nuclear sites and the safeguarding of nuclear material.

Clause 56 and Schedule 11: Chief Constable and other senior officers

198.     Clause 56 should be read in conjunction with Schedule 11. It requires the Police Authority, with the approval of the Secretary of State, to appoint a Chief Constable and a Deputy Chief Constable. (The Police Authority must consult the Chief Constable before appointing the Deputy.)

199.     Schedule 11 sets out the circumstances in which the Police Authority may suspend a senior officer in order to maintain public confidence, and enables the Police Authority to require such an officer to retire or resign in the interests of inefficiency or effectiveness. It also gives the Secretary of State a power to require the Police Authority to exercise these powers in relation to the Chief Constable. These provisions mirror those for Home Office Forces.

Clause 57: Functions of Senior Officers

200.     Clause 57 sets out the circumstances in which other senior officers (Deputy Chief Constable or Assistant Chief Constables) may stand in for the Chief Constable. These mirror provisions in other police legislation.

Clause 58: Members of the Constabulary

201.     Clause 58 makes it clear that members of the Constabulary will be under the direction and control of the Chief Constable. Unlike area forces all members of the Constabulary will be employees of the Police Authority, as well as office holders. A member of the Civil Nuclear Constabulary who makes the appropriate declaration under this clause in either England & Wales or Scotland will have police powers and privileges throughout Great Britain within the jurisdiction set out in Clause 58.

Clause 59: Jurisdiction of Constabulary

202.     Clause 59 sets out the jurisdiction of members of the Constabulary in terms similar to that set out in section 76 of the Anti-Terrorism, Crime and Security Act 2001 (c.24). Whilst the jurisdiction will remain broadly the same as at present, three adjustments are being made. The first of these will remove the Constabulary's jurisdiction on premises which are not nuclear sites but are in the possession or under the control of UKAEA (by virtue of Schedule 3 to the Atomic Energy Act 1954 (c.11)) or of certain nuclear operators (by virtue of paragraph 4 of Schedule 1 to the Nuclear Installations Act 1965 (c.11) or section 19 of the Atomic Energy Act 1971 (c.11)). There is no longer any need for the Constabulary to protect premises which do not hold nuclear material. The second will remove the Constabulary's jurisdiction to exercise police powers in respect of the property of UKAEA or certain nuclear operators within a 15 mile radius of their premises (which the Constabulary has by virtue of section 2 of the Metropolitan Police Act 1860 (c.135), as adapted by the provisions mentioned above). The third extends police powers and privileges to members of the Civil Nuclear Constabulary beyond their 'core jurisdiction' (as set out in clause 59(1) to 59(4)) to anywhere else in Great Britain, essentially so long as they are exercising powers and privileges there in connection with their core jurisdiction. The purpose is to ensure that, for example, members of the Constabulary can escort someone who has committed an offence within their core jurisdiction to a police station outside their core jurisdiction, or they can pursue someone outside their core jurisdiction who has committed an offence within their core jurisdiction whether or not that crime relates to the security of nuclear material the Constabulary is safeguarding.

203.     Members of the Constabulary have general policing powers within their jurisdiction. Operational arrangements are set out in a national policing protocol and in individual MOU's between the Constabulary and the Home Office and Scottish forces.

Clause 60: Stop and Search Under Terrorism Act 2000

204.     Clause 60 enables members of the Civil Nuclear Constabulary to be authorised by a senior officer of the Constabulary, under section 44 of the Terrorism Act 2000 (c.11), to stop and search for articles which could be used in connection with terrorism without grounds for suspicion. In practice such powers are likely to be used mainly in connection with securing trans-shipment sites as part of a joint operation with local police forces, and subject to agreed arrangements between the respective chief constables. The authorisation will lapse during any period in which the Constabulary ceases to have jurisdiction in the place or area specified in the authorisation.

Clause 61: Government, Administration and Conditions of Service

205.     The Home Secretary has powers under section 50 of the Police Act 1996 (c.16) to make regulations regarding the government, administration and conditions of service of Home Office police forces. These regulations will not apply to the Civil Nuclear Constabulary although the relevant provisions are currently adopted for the UKAEA Constabulary as a matter of practice. Clause 61 places a statutory obligation on the Police Authority to ensure that, where it makes provision about conditions of service of the Constabulary, these only differ from Police Act regulations which contain provision about such matters in so far as is necessary to reflect the circumstances and structure of the Constabulary. This will ensure close alignment of common conditions and standards with other police forces, whilst enabling recognition of the distinct circumstances of the Constabulary. Before making provision about such matters, the Police Authority will have to consult the Chief Constable, the Police Federation and any approved ranks related associations.

206.     Schedule 13 provides the Secretary of State with a power to give directions to the Police Authority on matters covered by section 50 of the Police Act 1996 (c.16). This is a fallback power, intended for use in circumstances where the Secretary of State believes the Police Authority has failed to implement any relevant regulations correctly.

Clause 62: Members of the Constabulary Serving with Other Forces

207.     Clause 62 ensures that, where members of the Constabulary are seconded to other police forces with the agreement of the respective Chief officers, they shall have the same powers and privileges as members of the force to which they are seconded. This mirrors arrangements that already exist between other forces, but from which the Constabulary has thus far been excluded.

Clause 63: Charges

208.     The Government's intention is that the Police Authority will, as now, recover its costs from those to whom it provides services. Clause 63 essentially requires those organisations to whom the Constabulary provides services to meet the costs incurred by the Police Authority in or in connection with the provision of those services. In other words, the intention is that the Police Authority should set its charges at the level that will enable it to recover fully the costs of providing such services. As is standard practice for Non Departmental Public Bodies, the detailed financial arrangements of the Authority will be set out in its Financial Memorandum.

Clause 64 and Schedule 12: Planning and Reports

209.     Clause 64 should be read in conjunction with Schedule 12. The Schedule is based on provisions of the Police Act 1996 (c.16), differing only where necessary to meet the specific needs of the Civil Nuclear Police Authority. The intention is to ensure that, as far as possible within the NDPB framework and the interests of national security, the Authority operates under the same framework of governance and openness as Home Office and other forces. The Police Authority is required to produce annual policing objectives for the Constabulary, which must be consistent with directions issued by the Secretary of State, and to have regard to the National Policing Plan and general policing objectives set by the Home Office. The Government also intends that the Police Authority should have regard to any similar document describing national policing priorities in Scotland.

210.     The Schedule also requires the Police Authority to produce an annual policing plan setting out the means by which the objectives are to be met and the financial resources available. The Police Authority will also have to issue a three-year strategy plan. These plans are to be published.

211.     Part 2 of Schedule 12 sets out the reports that the Police Authority and the Chief Constable are obliged to provide. Again the intention is to replicate the requirements on other police forces as far as is practicable within the constraints of national security. The Police Authority will be required to issue an annual report, which the Secretary of State will publish and lay before both Houses of Parliament.

212.     The Police Authority will also be able to require the Chief Constable to report to it on any policing matter. The Secretary of State will have a similar power to require the Police Authority and the Chief Constable to report to her on any policing matter. These provisions mirror those for other police forces.

Clause 65: Inspection

213.     Clause 65 puts on a mandatory, statutory footing the current arrangements whereby the UKAEA Constabulary is subject to voluntary inspection by Her Majesty's Inspectors of Constabulary (HMIC). It also allows the Secretary of State to initiate an inspection, and places a duty on the Secretary of State to make the report of an inspection public, subject to national security considerations. Where an inspection covers the Constabulary's activities in Scotland then HMIC must consult the Scottish inspectors about the Scottish aspects of the inspection.

Clause 66 and Schedule 13: Supervision by Secretary of State

214.     Clause 66 should be read in conjunction with Schedule 13. Schedule 13 gives the Secretary of State the power (amongst other things) to issue to the Police Authority directions setting out objectives for it, directions relating to the activities of the Constabulary, and directions relating to the Constabulary's conditions of service. The main purposes of these powers are:

  • to allow the Secretary of State to set strategic and policing objectives for the Police Authority. This is broadly equivalent to the power to set such objectives for Home Office forces in section 37 of the Police Act 1996 (c.16);

  • to ensure that the Police Authority and the Constabulary implement the security standards, guidelines and procedures set by the Secretary of State, including:

    -     the tasks which the Constabulary is to perform;

    -     the nuclear sites which the Constabulary is to protect, and the minimum number of constables which should be deployed there.

    -     detailed requirements on protection of information and security vetting.

    -     certain qualitative criteria such as training, intelligence matters, special operations and exercises.

    This preserves the current arrangements whereby the Secretary of State, through the Office for Civil Nuclear Security, sets the security framework and agrees and monitors the security arrangements for all civil nuclear sites;

  • to allow the Secretary of State to ensure that the Authority's employment practices retain parity with other police forces. Where directions deal with matters which are dealt with by regulations under section 50 of the Police Act 1996 (c.16) (police force regulations), the direction may differ from those regulations only in so far as is necessary to reflect the circumstances and structure of the Constabulary;

  • to allow the Secretary of State to require specific remedial action where she believes the Police Authority is failing to meet objectives she has set or has failed to comply with a direction she has given or where a HMIC report is critical of the Authority's efficiency or effectiveness.

Clause 67: Civil Nuclear Police Federation

215.     Clause 67 gives statutory recognition to the Civil Nuclear Police Federation to represent members of the Constabulary in matters affecting their welfare and efficiency. The arrangements mirror those for other police forces and put on a statutory footing the current arrangements whereby members of the UKAEA Constabulary are represented by a non-statutory police federation.

Clause 68: Rank - related associations

216.     Clause 68 allows the Secretary of State to approve further associations to represent certain ranks of the Constabulary who are not members of the Civil Nuclear Police Federation in welfare and efficiency matters. This is to allow flexibility in the event that, for example, some ranks of the Constabulary wish to establish an alternative approved body (such as a superintendents' association).

Clause 69: Representation at certain disciplinary proceedings

217.     Clause 69 mirrors the arrangements for area police forces and the British Transport Police. Currently the UKAEA Constabulary implements on a voluntary basis disciplinary procedures closely based on those set out in regulations under section 50 of the Police Act 1996 (c.16). These (or similar) arrangements will continue.

Clause 70: Trade Union Membership

218.     Clause 70 prevents members of the Constabulary from being a member of a trade union (subject to certain limited exceptions). This puts on a statutory footing the current informal arrangements, and brings the Constabulary into line with long established principles incorporated in other police legislation.

Clause 71: Application of offences etc applying to constables

219.     Clause 71 extends the offences of assault on constables and impersonation of police to members of the Civil Nuclear Constabulary. It also makes it an offence to cause disaffection within the Constabulary. Again the policy intention is to ensure that the same offences that apply in relation to other police forces apply in relation to the Constabulary.

Clause 72 and Schedule 14: Minor amendments relating to the Constabulary

220.     Clause 72 should be read in conjunction with Schedule 14. It substitutes in a number of Acts the Civil Nuclear Constabulary for the UKAEA Constabulary. This is largely to maintain the existing position. Paragraph 4 of Schedule 14 extends the definition of "Crown servant" in the Official Secrets Act 1989 to ensure that that Act applies in relation to the Civil Nuclear Constabulary in the same way that it applies in relation to Home Office and Scottish police forces.

Clause 73: Nuclear transfer scheme for UKAEA Constabulary

221.     Clause 73 requires the transfer of constables in the current UKAEA Constabulary, and of certain civilian employees of UKAEA, to the Police Authority. Constables transferred under these arrangements will not need to make another declaration following transfer.


Clause 75: Transfer of authorisations

222.     Clause 75 inserts a new section 16A in the Radioactive Substances Act 1993 (c.12) (RSA 93). Section 16A will provide a process whereby an authorisation to dispose of radioactive waste from a nuclear site can be transferred from one operator to another. At present, RSA 93 requires the new operator to apply for a new authorisation and the authorising authority will then go through its full determination process for that application which, on nuclear sites, tends to be protracted and resource intensive. Section 16A allows for the transfer of an authorisation either wholly or in part. The process provided for in section 16A would apply when there is a new operator at a nuclear site but there is otherwise no need for the existing limitations and conditions of the authorisation to change.

223.     Subsections (1) to (4) of section 16A define the circumstances in which the new section will apply; the charges that must accompany any application that is made under this section; and require appropriate local authorities to be informed of applications. Subsection (5) imposes a duty on the authorising authority to consult every body it would have been required to consult had the application been for a new authorisation, although subsection (6) allows certain authorities or bodies not to be consulted if it appears to the authorising authority that the transfer is unlikely to result in changes to the arrangements for the disposal of radioactive waste that would be of interest to that authority or body. Subsections (7) and (8) set down the conditions which must be met for a transfer of authorisation to be granted and lay down certain procedures which must be followed if the application is granted. Subsection (9) sets a minimum time for a transfer to take effect, although subsection (10) allows this minimum time to be set aside if the authorising authority believes the coming into effect of the transfer needs to be expedited. Subsections (10) and (11) define "authorising authority" and "the occupier of the premises" respectively.

Clause 76: Applications for variation of authorisations

224.     Clause 76, by means of new provisions to be inserted in section 17 of RSA 93, provides a mechanism for an authorised person to apply for a variation to the authorisation, while sustaining the existing position that, in relation to the revocation or variation of authorisations, the authorising authority can exercise its powers without such an application. The new provisions also set out the charges that must accompany any application that is made. They apply to all authorisations granted under sections 13 and 14 of the RSA 93, whether for nuclear sites or for other premises.

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Prepared: 23 April 2004