Postal Services Bill

House of Commons

Session 2010 - 11
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Postal Services Bill

56
Postal Services Bill
Schedule 1 — Transfer schemes

Schedules
Schedule 1
Section 8

Transfer schemes
Introduction
1
In this Schedule—
5
“transfer scheme” means a transfer scheme under section 8,
“transferee”—
(a)
in relation to a transfer scheme, means a person to whom
property, rights or liabilities are transferred in accordance
with the scheme, and
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, and
(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 other
than a transferor or transferee.
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.
30
      (2)
A transfer scheme may provide for the way in which property, rights or
liabilities of any description are to be identified.
Property, rights and liabilities that may be transferred
3     (1)
A transfer scheme may transfer—
(a)
property situated in any part of the world,
35
(b)
rights and liabilities arising (in any way) under the law of any
country or territory.

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Schedule 1 — Transfer schemes
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      (2)
The property, rights and liabilities that may be transferred by a transfer
scheme include—
(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
5
occurring before that time,
(c)
property, rights and liabilities that would not otherwise be capable
of being transferred or assigned.
      (3)
The transfers to which effect may be given by a transfer scheme include ones
that are to take effect as if there were no such contravention, liability or
10
interference with any interest or right as there would otherwise be by reason
of any provision having effect in relation to the terms on which the
transferor is entitled or subject to anything to which the transfer relates.
      (4)
In sub-paragraph (3) the reference to any provision is a reference to any
provision, whether under an enactment or agreement or otherwise.
15
      (5)
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
reference to the terms on which the subsidiary is entitled or subject to
anything immediately before the transfer takes effect.
20
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
or right in or in relation to property or rights transferred in
accordance with the scheme,
25
(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, and
(c)
for the creation of new rights and liabilities (including rights of
indemnity and duties to indemnify) as between different transferees
30
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
parts of a transferor’s undertaking into a contract—
(a)
between different transferees, or
35
(b)
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
and the transferor, and
40
(b)
for rights and liabilities enforceable against more than one person in
accordance with provision falling within paragraph (a) to be
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
45
third parties in relation to anything to which the scheme relates to be
modified in the manner set out in the scheme.

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Schedule 1 — Transfer schemes
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      (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)
5
with another person on whom a corresponding obligation is, could
be or has been imposed as a result 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.
10
      (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, and
(b)
interests or rights created by or under such an agreement or
15
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,
20

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 as a result of sub-paragraph (1) may be enforced by
the person with, or in favour of, whom the agreement or instrument is to be
25
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)
any other appropriate remedy or relief.
30
Effect of transfer scheme: general
6     (1)
At the time specified in the scheme—
(a)
the property, rights and liabilities to be transferred in accordance
with the scheme, and
(b)
the interests, rights and liabilities to be created in accordance with
35
the scheme,

are, as a result of this sub-paragraph, to vest in the transferee.
      (2)
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
40
executed in pursuance of an obligation imposed by virtue of paragraph 5(1).

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Schedule 1 — Transfer schemes
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Effect of transfer scheme on right to terminate or modify interest etc
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
5
(b)
to treat an interest or right as modified or terminated.
      (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
10
only in so far as the scheme contains provision for the interest or
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
15
the transfer of the shares.
      (4)
A transfer scheme that (as a result 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
20
(b)
a proposal for the agreement or for the execution of the instrument.
      (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
25
8     (1)
A transfer scheme may—
(a)
contain incidental, supplementary, consequential, transitional,
transitory or saving provision, and
(b)
make different provision for different cases or circumstances.
      (2)
Nothing in paragraphs 9 to 13 limits sub-paragraph (1).
30
      (3)
In those paragraphs any reference to a transfer in accordance with a transfer
scheme includes the creation in accordance with a transfer scheme of an
interest, right or liability.
9     (1)
A transfer scheme may provide, in relation to transfers in accordance with
the scheme—
35
(a)
for a 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 a transferee,
(c)
for references in any document to the transferor, or to an employee
or office holder of 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
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Schedule 1 — Transfer schemes
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(d)
for proceedings commenced by or against the transferor to be
continued by or against a transferee.
      (2)
In sub-paragraph (1)(c) “document” includes an agreement or instrument,
but does not include an enactment.
10    (1)
A transfer scheme may contain provision about—
5
(a)
the transfer of foreign property, rights and liabilities,
(b)
the creation of foreign rights, interests and liabilities.
      (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
10
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
payment of compensation to third parties whose property, rights, interests
or liabilities have been affected by (or as a result of) a transfer scheme.
      (2)
The provision may provide for the appointment of an arbitrator to
15
determine disputes about compensation.
12
A transfer scheme may make provision for disputes as to the effect of the
scheme—
(a)
between different transferees, or
(b)
between a transferee and a transferor,
20

to be referred to such arbitration as may be specified in or determined under
the scheme.
13    (1)
This paragraph applies if, in consequence of a transfer scheme, a person
(“P”) is entitled to possession of a document relating in part to the title to, or
to the management of, land or other property.
25
      (2)
If the land or other property is in England and Wales—
(a)
the scheme may provide for P to be treated as having given another
person an acknowledgement in writing of the other person’s right to
production of the document and to delivery of copies of it, and
(b)
section 64 of the Law of Property Act 1925 (production and safe
30
custody of documents) is to apply to the acknowledgement and is to
apply on the basis that the acknowledgement does not contain an
expression of contrary intention.
      (3)
If the land or other property is in Scotland, section 16(1) of the Land
Registration (Scotland) Act 1979 (omission of certain clauses in deeds) has
35
effect in relation to the transfer as if—
(a)
the transfer had been effected by deed, and
(b)
the words “unless specially qualified” were omitted from that
subsection.
      (4)
If the land or other property is in Northern Ireland—
40
(a)
the scheme may provide for P to be treated as having given another
person an acknowledgement in writing of the other person’s right to
production of the document and to delivery of copies of it, and
(b)
section 9 of the Conveyancing Act 1881 (which corresponds to
section 64 of the 1925 Act) is to apply to the acknowledgement and is
45
to apply on the basis that the acknowledgement does not contain an
expression of contrary intention.

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Schedule 1 — Transfer schemes
61

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
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 regulations).
10
16
If an employee of the transferor becomes an employee of a transferee as a
result 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
(b)
the transfer to the transferee is not to be treated as a break in service.
15
Modification of scheme
17    (1)
If—
(a)
before the end of the period of 3 years beginning with the time
specified under paragraph 6(1), the transferor and transferee agree in
writing that the scheme is to be treated as having come into force at
20
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,

the scheme as modified is to be treated for all purposes as having come into
25
force at that time.
      (2)
An agreement under this paragraph may, in connection with giving effect to
modifications to the scheme—
(a)
contain incidental, supplementary, consequential, transitional,
transitory or saving provision, and
30
(b)
make different provision for different cases or circumstances.
Disapplication of certain company law provisions etc
18
Nothing in—
(a)
Part 23 of the Companies Act 2006 (distributions), or
(b)
any rule of law relating to distributions by companies or the
35
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.
19
For the purposes of any enactment none of the following persons are to be
regarded as shadow directors of a transferor or transferee in relation to
40
anything done by or under a transfer scheme—
(a)
the Secretary of State or the Treasury (or a nominee of either of them),
or

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Schedule 2 — Taxation provisions relating to re-structuring etc
62

(b)
a person employed by, or acting on behalf of, anyone within
paragraph (a).
Schedule 2
Section 10

Taxation provisions relating to re-structuring etc
Transfer of securities of subsidiaries of original holding company to Crown etc
5
1     (1)
This paragraph applies where—
(a)
there is a disposal of securities of a subsidiary of the original holding
company to the Secretary of State or the Treasury (or a nominee of
either of them) or to a company wholly owned by the Crown, and
(b)
immediately before the disposal, the subsidiary was wholly owned
10
by the original holding company.
      (2)
For the purposes of the Taxation of Chargeable Gains Act 1992 the disposal
is to be treated in relation to—
(a)
the person making the disposal, and
(b)
the person to whom the disposal is made,
15

as made for a consideration such that no gain or loss accrues to the person
making the disposal.
      (3)
The degrouping provisions are not to apply by reason of the disposal or any
agreement to make the disposal (if they otherwise would).
      (4)
In this Schedule a “degrouping provision” means—
20
(a)
section 179 of the Taxation of Chargeable Gains Act 1992 (company
ceasing to be member of group), or
(b)
paragraph 3 of Schedule 7 to the Finance Act 2003 (withdrawal of
SDLT group relief).
      (5)
Stamp duty is not chargeable on the instrument effecting the disposal.
25
      (6)
This paragraph applies whether or not the disposal is made by or under a
transfer scheme under section 8.
2     (1)
This paragraph applies where—
(a)
paragraph 1(3) has applied at any time in relation to a disposal or an
agreement to make a disposal,
30
(b)
there is a subsequent disposal of securities of the subsidiary in
relation to which paragraph 1(3) does not apply, and
(c)
immediately before the subsequent disposal or the making of an
agreement to make it, the subsidiary was a member of a new group.
      (2)
For the purposes of the application of a degrouping provision in the case of
35
that disposal or agreement—
(a)
the company from which the subsidiary acquired relevant assets or
chargeable interests is to be treated as if it had been a member of the
new group at the time the relevant assets or chargeable interests
were acquired, and
40