Functions of ONR: general
Section 78: Principal function
393.This section places the ONR under a general duty to do whatever it considers appropriate for its purposes including to assist others to further those purposes. This gives the ONR a general power to act to further its purposes in addition to the specific powers provided in the Act. This will ensure the ONR is capable of being flexible in its approach to regulation and adapting to a changing industry.
Section 79: Codes of practice
394.This section enables the ONR to issue, revise or withdraw codes of practice, which give practical guidance about the requirements of the relevant statutory provisions (defined in section 82(2)).
395.Failure to follow a code of practice will not be a criminal offence nor make a person liable to civil proceedings, but a relevant provision of the code will be admissible in evidence in criminal proceedings where a relevant statutory provision has allegedly been contravened and the code of practice was in place at the time of the alleged contravention (see subsections (4) to (6)).
396.Where an approved code of practice is used in court and the prosecution proves that the code was not followed, the defendant is taken to have failed to meet the requirement of the relevant statutory provision in question unless they can prove that they have complied in some other way (see subsection (7)).
Section 80: Procedure for issue, revision or withdrawal of codes of practice.
397.This section makes provision for a code of practice issued or revised by the ONR to be subject to a parliamentary process, akin to the negative procedure (see subsection (8)). The ONR will submit a draft code of practice, or a draft amendment to an existing code of practice, to the Secretary of State who may approve the draft code or amendment, with or without modification (see subsection (6)). Any modifications will require the consent of the ONR before they can be approved. Once approved, the Secretary of State will be required to lay the draft code or amendment before both Houses of Parliament for 40 days. If no resolution is made to oppose the code during that period, the ONR will be able to issue the code or (where what was submitted was an amendment to an existing code) revise the existing code together with a notice saying that the code has been revised. To withdraw a code, the ONR must seek approval from the Secretary of State (see subsection (11)) and publish a notice saying that the code has been withdrawn (see subsection (12)(c)).
Section 81: Proposals about orders and regulations
398.This section enables the ONR to submit proposals to the Secretary of State or the Health and Safety Executive for a number of different types of secondary legislation. First, proposals can be made to the Secretary of State for nuclear regulations (see Chapter 2 above), for orders or regulations under the “relevant enactments” listed in subsection (2) of the section, as well as proposals for regulations about fees to be made either under the Act or section 43 of the Health and Safety at Work etc. Act 1974. “Relevant enactments” captures legislation that relates to nuclear security and safeguards. The ONR may also submit proposals to the Health and Safety Executive for regulations to be made under section 15 of the Health and Safety at Work etc. Act 1974 where the proposals relate to the nuclear site health and safety purposes.
399.Before submitting any proposals to the Secretary of State or the Health and Safety Executive, the ONR must consult such persons (including government departments) as they are directed to by the Secretary of State and those persons who the ONR consider it is appropriate to consult (see subsections (3) and (4)).
Section 82: Enforcement of relevant statutory provisions
400.This section imposes a duty on the ONR to make adequate arrangements to enforce the “relevant statutory provisions”, for example to employ sufficient inspectors and to ensure they are adequately resourced or, where the ONR makes arrangements for another to carry out the ONR’s functions on its behalf (under section 95), that that person makes suitable arrangements and suitable financial provision etc. For these purposes “relevant statutory provisions” are the provisions of Part 3 of the Act and nuclear regulations as well as certain specified sections of the Nuclear Installations Act 1965 relating to the licensing of nuclear sites and the provisions of the Nuclear Safeguards Act 2000.
Section 83: Inspectors
401.This section introduces Schedule 8 which enables the ONR to appoint inspectors to inspect, investigate breaches of, and otherwise carry into effect, the “relevant statutory provisions” (as defined in section 82(2)). The Schedule also enables connected powers to be conferred on inspectors.
402.Part 1 of the Schedule provides the ONR with the power to appoint as inspectors such persons as appear to the ONR to be suitably qualified individuals. Inspectors must be appointed by a written instrument. This instrument will specify the powers in the Schedule (and may specify powers conferred upon that inspector by other legislation) that a particular inspector is able to exercise and the purpose for which that inspector may exercise the powers. Inspectors may only exercise powers specified in their instruments of appointment.
403.Part 2 of the Schedule gives authorised ONR inspectors (that is, authorised by their instruments of appointment) the power to issue improvement and prohibition notices. It also sets out the process for how such notices are to be issued, provides for the possibility of appeals against them and makes it a criminal offence to contravene these notices.
404.Improvement notices may be issued when, in the inspector’s opinion, a person is breaching a relevant statutory provision or has breached a relevant statutory provision in circumstances that make it likely that such breach will continue. The notice will require the person to take action to remedy this situation within a stated period of time.
405.Prohibition notices may be issued when, in the inspector’s opinion, relevant activities which are being carried out, or are likely to be carried out, pose a risk of serious personal injury. A prohibition notice would direct a person to ensure that the activities are stopped either immediately or within a specified period and are not resumed or carried out until the matters specified in the notice have been resolved.
406.Improvement and prohibition notices cannot be issued for matters relating to provisions of the Nuclear Safeguards Act 2000 or more generally for the safeguards or security purposes dealt with in nuclear regulations. This is because there are other specific powers that inspectors will use instead. These include the powers to issue notices to require the disclosure of information.
407.Paragraph 5 permits remedial action to be required under improvement and prohibition notices. For instance, a notice might include directions for remedying a situation that could refer to an approved code of practice and/or give a choice as to how to remedy the situation (see sub-paragraph (3)). The paragraph also sets out limitations that apply when an improvement notice is served that relates to the structure of a building (sub-paragraphs (4)–(7)). Unless the relevant statutory provision being breached imposes specific requirements which are stricter than relevant building regulations, a notice may not propose measures which are more onerous than those in the building regulations.
408.The arrangements for appealing against an improvement or prohibition notice are set out in paragraph 6 of Schedule 8. An appeal may be made to an employment tribunal which can cancel a notice or confirm it (with or without modifications). The period within which an appeal must be made will be specified by the Secretary of State in regulations made under this paragraph. The operation of an improvement notice is automatically suspended until an appeal is withdrawn or finally determined. The operation of a prohibition notice instead can be suspended at the discretion of the tribunal, on an application from the appellant (see sub-paragraphs (5) and (6)). Paragraph 7 of Schedule 8 sets out the offences associated with non-compliance with improvement and prohibition notices.
409.Part 3 of the Schedule sets out other powers that authorised inspectors may exercise in order to enforce, and otherwise carry into effect, the regulatory regime. These powers are broadly the same as those conferred on inspectors by the existing regulatory regime under the Health and Safety at Work etc. Act 1974. These include powers of entry, powers to seize or otherwise deal with articles or substances that are an imminent danger, and powers to take samples and to require information and documents.
410.The power of entry allows an authorised inspector to enter any non-domestic premises where the inspector considers it is necessary to carry out his or her duties. Entry is only possible at a reasonable time unless there is or may be a dangerous situation or to delay would be detrimental to the nuclear security purposes (see paragraph 8). This power of entry does not extend to domestic premises. Entry to such premises may be gained only by consent, with a warrant issued by a justice of the peace or in a situation judged by the inspector to be dangerous (see sub-paragraphs (2) and (3)). “Domestic premises” is defined in sub-paragraph (5).
411.Part 4 of the Schedule deals with supplementary matters. Paragraph 23 places a duty on inspectors to provide certain information to employees relevant to their health, safety or wellbeing. This information might include, for example, that a prohibition notice had been served on a particular activity. Where information is provided to employees or representatives, the inspector must provide the same information to the employer.
412.Paragraph 24 provides definitions for terms used in the Schedule.
413.In addition to the above, paragraph 10 of Schedule 10 also makes provisions in relation to ONR inspectors to allow authorised inspectors to prosecute before a magistrates’ court in England and Wales an offence under any of the relevant statutory provisions.
Section 84: Investigations
414.This section empowers the ONR to, or to authorise another person to, investigate and produce a special report on certain defined matters, called “relevant matters”. These matters include any accident or occurrence or situation which it considers it is desirable to investigate for any of its purposes. They also cover any matter which the ONR considers it is desirable to investigate with a view to making nuclear regulations or regulations under section 15 of the Health and Safety at Work etc. Act 1974 for the nuclear site health and safety purposes. Thus, for example, the ONR might ask a third party to carry out a study and report to it about the effectiveness of regulations in ensuring the safe and secure transport of nuclear materials in Great Britain.
415.Under subsection (2), the ONR may publish all or part of a special report. However, subsection (7) provides that this is subject to section 94, and the consent of the Secretary of State must be sought for the publication of any communication which falls within section 94 (see subsection (2) of this section).
416.This section also gives the ONR the necessary powers to make payments to anyone (provided they are not a member of the ONR or a member of its staff) who carries out (or assists in) an investigation or makes (or assists in the making of) a special report (see subsections (4) and (5)).
417.Before investigating a matter which appears to the ONR to be, or is likely to be, relevant to the “railway safety purposes”, it must consult the Office of Rail Regulation (see subsection (6)). “Railway safety purposes” is defined in paragraph 1 of Schedule 3 to the Railways Act 2005 and relates, for example, to protecting the public or people at work from risks arising from the operation of railways.
Section 85: Inquiries
418.This section gives the ONR the power to arrange for an inquiry to be held, where it considers it necessary or desirable for any of its purposes. However, the Secretary of State’s approval must be given for an inquiry to take place (see subsection (1)). In addition, any such inquiry must be held in accordance with regulations made by the Secretary of State (see subsection (3)). Regulations here may confer powers on the person holding the inquiry (or anyone assisting) to enter premises to acquire information or take evidence on oath and summon witnesses.
419.Unless provided otherwise in regulations, the inquiry must be held in public and the report arising from the inquiry published (subsections (4) and (5)(b)). No inquiry is to be held under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, into a matter arising is Scotland which causes the death of a person, unless the Lord Advocate directs otherwise (subsection (8)).
Section 86: Inquiries: payments and charges
420.This section allows the ONR to make payments to anyone who holds an inquiry under section 85 or an assessor who assists in such an inquiry. Payments may take the form of remuneration or allowances or expenses.
421.In addition, subsection (2), allows the ONR to pay expenses to witnesses attending inquiries and subsection (3) allows the ONR to make other payments to meet the costs of an inquiry.
422.Subsections (4) to (6) enable the ONR, with the consent of the Secretary of State, to require such persons as it considers appropriate to make payments in connection with an ONR inquiry. The costs recovered under this provision cannot exceed the ONR’s costs associated with the inquiry (subsection (5)) and the underlying purpose of the section is to enable the ONR to pass the connected cost on to industry. For example, if an inquiry related to a specific nuclear site, it might be appropriate for the ONR to apportion some or all of the costs of an inquiry to the holder of the licence for the relevant site.