Postal Services Bill [HL]

House of Commons

Session 2008 - 09
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Postal Services Bill [HL]

Postal Services Bill [HL]
Part 4 — General
37

(3)
Subject to that, the provisions of this Act come into force on such day as the
Secretary of State or the Treasury may by order appoint (and different days
may be appointed for different purposes).
(4)
The Secretary of State or the Treasury may by order make such transitional
provision and savings as they consider necessary or expedient in connection
5
with the commencement of any provision made by this Act.
(5)
The provisions of this Act extend to the United Kingdom.
(6)
Nothing in this Act shall impose any charge on the people or on public
funds, or vary the amount or incidence of or otherwise alter any such charge
in any manner, or affect the assessment, levying, administration or
10
application of any money raised by any such charge.

38
Postal Services Bill [HL]
Schedule 1 — Transfer schemes

Schedules
Schedule 1
Section 7

Transfer schemes
Introduction
1     (1)
In this Schedule—
5
“transfer scheme” means a transfer scheme under section 7;
“transferee”—
(a)
in relation to a transfer scheme, means a person to whom
property, rights or liabilities are transferred in accordance
with the scheme;
10
(b)
in relation to particular property, rights or liabilities
transferred or created in accordance with a transfer scheme,
means the person to whom that property or those rights or
liabilities are transferred or in whose favour, or in relation to
whom, they are created;
15
“transferor”—
(a)
in relation to a transfer scheme, means a person from whom
property, rights or liabilities are transferred in accordance
with the scheme;
(b)
in relation to particular property, rights or liabilities
20
transferred or created in accordance with a transfer scheme,
means the person from whom that property or those rights or
liabilities are transferred or the person who or whose
property is subject to the interest or right created by the
scheme or for whose benefit the liability is created; and
25
“third party”, in relation to a transfer scheme, means any person except
the transferor or transferee.
      (2)
Any reference in this Schedule to a right or to an entitlement to a right
includes an entitlement to exercise a right, and any reference to a right’s
arising accordingly includes its becoming exercisable.
30
Identification of property etc to be transferred
2     (1)
A transfer scheme may identify the property, rights and liabilities to be
transferred by specifying or describing them.
      (2)
A transfer scheme may provide for the way in which property, rights or
liabilities of any description are to be identified.
35
Property, rights and liabilities that may be transferred
3     (1)
A transfer scheme may transfer—

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Schedule 1 — Transfer schemes
39

(a)
property situated in any part of the world;
(b)
rights and liabilities arising (in any way) under the law of any
country or territory.
      (2)
The property, rights and liabilities that may be transferred by a transfer
scheme include—
5
(a)
property, rights and liabilities acquired or arising after the scheme
has been made but before the time specified under paragraph 6(1);
(b)
rights and liabilities arising after that time in respect of matters
occurring before that time;
(c)
property, rights and liabilities that would not otherwise be capable
10
of being transferred or assigned.
      (3)
The transfers to which effect may be given by a transfer scheme include
transfers that are to take effect in accordance with the scheme as if there
were—
(a)
no such requirement to obtain a person's consent or concurrence,
15
(b)
no such liability in respect of a contravention of any other
requirement, and
(c)
no such interference with any interest or right,

as there would be, in the case of a transaction apart from the scheme, by
reason of any provision having effect (whether under an enactment or
20
agreement or otherwise) in relation to the terms on which the transferor is
entitled or subject to anything to which the transfer relates.
      (4)
Sub-paragraph (3) has effect where shares in a subsidiary of the transferor
are transferred as if the reference to the terms on which the transferor is
entitled or subject to anything to which the transfer relates included a
25
reference to the terms on which the subsidiary is entitled or subject to
anything immediately before the transfer takes effect.
Dividing and modifying transferor’s property, rights and liabilities
4     (1)
A transfer scheme may contain provision—
(a)
for the creation, in favour of a transferor or transferee, of an interest
30
or right in or in relation to property or rights transferred in
accordance with the scheme;
(b)
for giving effect to a transfer by the creation, in favour of the
transferee, of an interest or right in or in relation to property or rights
retained by a transferor;
35
(c)
for the creation of new rights and liabilities (including rights of
indemnity and duties to indemnify) as between different transferees
and as between a transferee and a transferor.
      (2)
A transfer scheme may contain provision for the creation of rights and
liabilities for the purpose of converting arrangements between different
40
parts of a transferor's undertaking into a contract between different
transferees or between a transferee and a transferor.
      (3)
A transfer scheme may contain provision—
(a)
for rights and liabilities to be transferred so as to be enforceable by or
against more than one transferee or by or against both the transferee
45
and the transferor; and
(b)
for rights and liabilities enforceable against more than one person in
accordance with provision falling within paragraph (a) to be

Postal Services Bill [HL]
Schedule 1 — Transfer schemes
40

enforceable in different or modified respects by or against each or
any of them.
      (4)
A transfer scheme may contain provision for interests, rights or liabilities of
third parties in relation to anything to which the scheme relates to be
modified in the manner set out in the scheme.
5
      (5)
Paragraph 3(2)(c) and (3) apply to the creation of interests and rights as they
apply to the transfer of interests and rights.
Obligation to effect transfers etc
5     (1)
A transfer scheme may impose on a transferee or transferor an obligation—
(a)
to enter into an agreement (specified or described in the scheme)
10
with another person on whom a corresponding obligation is, could
be or has been imposed by virtue of this paragraph (whether in the
same or a different scheme), or
(b)
to execute an instrument (specified or described in the scheme) in
favour of such a person.
15
      (2)
A transfer scheme that imposes such an obligation may provide that
paragraph 3(3) applies (to the extent specified in the scheme) in relation to—
(a)
a transfer made by or under an agreement or instrument made in
pursuance of the obligation;
(b)
interests or rights created by or under such an agreement or
20
instrument.
      (3)
Subject to that, nothing in paragraph 3 enables—
(a)
an agreement or instrument made in pursuance of such an
obligation, or
(b)
anything done under such an agreement or instrument,
25

to give effect to a transfer, or to create an interest or right, that could not
otherwise have been made or created by or under the agreement or
instrument.
      (4)
An obligation imposed by virtue of sub-paragraph (1) may be enforced by
the person with (or in favour of) whom the agreement or instrument is to be
30
entered into or executed, in proceedings for any of the following—
(a)
an injunction;
(b)
specific performance of a statutory duty under section 45 of the
Court of Session Act 1988 (c. 36);
(c)
any other appropriate remedy or relief.
35
Effect of transfer scheme: general
6     (1)
At the time specified in the scheme, the relevant property, interests, rights
and liabilities vest (by virtue of this sub-paragraph) in the transferee.
      (2)
“The relevant property, interests, rights and liabilities” are—
(a)
the property, rights and liabilities that are, in accordance with the
40
scheme, to be transferred, and
(b)
the interests, rights and liabilities that are, in accordance with the
scheme, to be created.

Postal Services Bill [HL]
Schedule 1 — Transfer schemes
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      (3)
Sub-paragraph (1) is subject to any provision of the scheme that provides
that the transfer or creation of any property, interests, rights or liabilities is
to be effected by or under an agreement or instrument entered into or
executed in pursuance of an obligation imposed by virtue of paragraph 5(1).
Effect of transfer scheme on right to terminate or modify interest etc
5
7     (1)
This paragraph applies where a person would otherwise be entitled, in
consequence of anything done or likely to be done by or under this Act in
connection with a transfer scheme—
(a)
to terminate, modify, acquire or claim an interest or right, or
(b)
to treat an interest or right as modified or terminated.
10
      (2)
The entitlement—
(a)
is not enforceable in relation to the interest or right until after the
transfer of the interest or right by the scheme, and
(b)
after that transfer, is enforceable in relation to the interest or right
only in so far as the scheme contains provision for the interest or
15
right to be transferred subject to whatever confers the entitlement.
      (3)
Where shares in a subsidiary of the transferor are transferred, sub-
paragraph (2) has effect in relation to an interest or right of the subsidiary as
if the references to the transfer of the interest or right included a reference to
the transfer of the shares.
20
      (4)
A transfer scheme that (by virtue of paragraph 5(1)) contains an obligation
to enter into or execute an agreement or instrument may provide for sub-
paragraphs (1) to (3) to apply to interests or rights affected by—
(a)
the agreement or instrument, or
(b)
a proposal for the agreement or for the execution of the instrument.
25
      (5)
Where the scheme does so provide, sub-paragraphs (1) to (3) apply in
relation to the interests or rights as if references there to the transfer scheme
included the agreement or instrument.
Supplementary provisions of schemes
8     (1)
A transfer scheme may contain incidental, supplemental, consequential and
30
transitional provision; and different provision may be made for different
purposes.
      (2)
Nothing in paragraphs 9 to 13 limits sub-paragraph (1).
      (3)
In those paragraphs any reference to a transfer in accordance with a transfer
scheme includes the creation in accordance with such a scheme of an
35
interest, right or liability.
9
A transfer scheme may provide, in relation to transfers in accordance with
the scheme—
(a)
for the transferee to be treated as the same person in law as the
transferor;
40
(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
made, effected or done by or in relation to the transferee;

Postal Services Bill [HL]
Schedule 1 — Transfer schemes
42

(c)
for references in an agreement, instrument or other document (but
not in an enactment) 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 specified in the scheme; and
5
(d)
for proceedings commenced by or against the transferor to be
continued by or against the transferee.
10    (1)
A transfer scheme may contain provision about—
(a)
the transfer of foreign property, rights and liabilities;
(b)
the creation of foreign rights and interests.
10
      (2)
For the purposes of this paragraph property, or a right, interest or liability,
is “foreign” if an issue relating to it arising in any proceedings would (in
accordance with the rules of private international law) be determined under
the law of a country or territory outside the United Kingdom.
11    (1)
A transfer scheme may contain provision for and in connection with the
15
payment of compensation to third parties whose property, rights, interests
or liabilities have been affected by (or by virtue of) a transfer scheme.
      (2)
The provision may provide for the appointment of an arbitrator (or, in
Scotland, arbiter) to determine disputes about compensation.
12
A transfer scheme may make provision for disputes as to the effect of the
20
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.
25
13    (1)
Where a person is entitled, in consequence of a 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
30
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) has effect accordingly, and on the basis
35
that the acknowledgement did not contain an expression of contrary
intention.
      (2)
Where a person is entitled, in consequence of a 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,
40
section 16(1) of the Land Registration (Scotland) Act 1979 (c. 33) (omission of
certain clauses in deeds) has effect in relation to the transfer as if—
(a)
the transfer had been effected by deed; and
(b)
in that provision, the words “unless specially qualified” were
omitted.
45

Postal Services Bill [HL]
Schedule 1 — Transfer schemes
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Proof of title by certificate
14
A certificate issued by the Secretary of State to the effect that any property,
interest, right or liability vested (in accordance with a transfer scheme) in a
person specified in the certificate at a time so specified is conclusive
evidence of the matters so specified.
5
Staff
15
The Transfer of Undertakings (Protection of Employment) Regulations 2006
(S.I. 2006/246) apply to a transfer (under a transfer scheme) of rights and
liabilities under a contract of employment (whether or not the transfer
would otherwise be a relevant transfer for the purposes of those
10
regulations).
16
Where an employee of the transferor becomes an employee of the transferee
by virtue of a transfer scheme—
(a)
a period of employment with the transferor is to be treated as a
period of employment with the transferee, and
15
(b)
the transfer to the transferee is not to be treated as a break in service.
Modification of scheme
17    (1)
If—
(a)
before the end of the period of three years beginning with the time
specified under paragraph 6(1), the transferor and transferee agree in
20
writing that the scheme is to be treated as having come into force at
that time with such modifications as are specified in the agreement,
and
(b)
the Secretary of State, with the consent of the Treasury, approves the
agreement,
25

the scheme as modified is to be treated for all purposes as having come into
force at that time.
      (2)
An agreement under this paragraph may, in connection with giving effect to
modifications to the scheme, contain incidental, supplemental,
consequential and transitional provision (and different provision may be
30
made for different purposes).
Disapplication of certain company law provisions
18
Nothing in—
(a)
Part 23 of the Companies Act 2006 (c. 46) (distributions),
(b)
any rule of law relating to distributions by companies, or
35
(c)
any rule of law relating to the maintenance of capital by companies,

applies in relation to a transfer of property, rights or liabilities, or the
creation of rights or interests, by or under a transfer scheme.