Chapter 5: Supplementary.
General duties of employers, employees and others
Section 102: General duty of employees at work in relation to requirements imposed on others
471.Subsection (1) of this section places a general duty on employees, whilst at work, to co-operate with those who have duties under the relevant provisions (defined in subsection (5)(b)), as far as is necessary, to enable those duties to be complied with. An example of such co-operation would be to comply with a nuclear safety policy implemented at a site as part of a responsibility under a relevant statutory provision.
472.Failure to comply with this provision is an offence which is triable either way. This section does not apply to duties relating to the Nuclear Safeguards Act 2000 or any regulation made under section 74(10) solely for nuclear safeguards purposes (see subsection (5)(b)).
473.Similar provision already exists in section 7 of the Health and Safety at Work etc. Act 1974 in relation to requirements imposed by or under the relevant statutory provisions of that Act. The duties under that section already apply in relation to many duties that the ONR will be responsible for enforcing under the Act (including provisions of the Nuclear Installations Act 1965 and regulations relating to the carriage of radioactive materials). Replicating this provision in the Act ensures that the regulatory framework is not changed when functions are transferred from the Health and Safety Executive to the ONR.
Section 103: Duty not to interfere with or misuse certain things provided under statutory requirements
474.This section makes it an offence (triable either way) to intentionally or recklessly interfere with anything provided in the interests of health, safety or welfare under the relevant statutory provisions. For example, it would be an offence to recklessly remove a piece of safety equipment that has been installed in the interest of nuclear safety under a requirement of a relevant statutory provision.
475.Similar provision already exists in section 8 of the Health and Safety at Work etc. Act 1974 in relation to requirements imposed by or under the relevant statutory provisions of that Act. The duties under that section already apply in relation to many duties that the ONR will be responsible for enforcing under the Act (including provisions of the Nuclear Installations Act 1965 and regulations relating to the carriage of radioactive materials). Replicating this provision in the Act ensures that the regulatory framework is not changed when functions are transferred from the Health and Safety Executive to the ONR.
Section 104: Duty not to charge employees for certain things
476.This section creates an offence for an employer to impose a charge on an employee for anything done or provided for the purposes of a specific requirement of a relevant provision (as defined in section 102(5))(b)). For example, an employer would be committing an offence if they charged employees for specific nuclear safety personal protective equipment required under nuclear regulations or for security vetting required under relevant statutory provisions.
477.Similar provision already exists in section 9 of the Health and Safety at Work etc. Act 1974 in relation to requirements imposed by or under the relevant statutory provisions of that Act. The duties under that section already apply in relation to many duties that the ONR will be responsible for enforcing under the Act (including provisions of the Nuclear Installations Act 1965 and regulations relating to the carriage of radioactive materials). Replicating this provision in the Act ensures that the regulatory framework is not changed when functions are transferred from the Health and Safety Executive to the ONR.
Offences
Section 105: Offences relating to false information and deception
478.This section creates an offence for a person to knowingly or recklessly make a false statement in response to a requirement under a relevant statutory provision or for the purpose of obtaining the issue of a document under any of those provisions. This includes information provided to the ONR or its inspectors for the purposes of those provisions. Offences are also created for the making of false statements or entries in documents issued under the relevant statutory provisions as well as using counterfeit documents with the intent to deceive (see subsections (3)(a) and (5)(a)).
Section 106: Provision relating to offences under certain relevant statutory provisions
479.This section introduces Schedule 10 which contains provisions relating to offences. The Schedule sets out provisions for determining the location where an offence has been committed (paragraph 2 of Schedule 10) and provides details of the circumstances under which the time for bringing summary proceedings can be extended such as an ongoing inquiry or investigation being carried out by the ONR (paragraphs 3 and 4 of Schedule 10). The Schedule also covers the circumstances under which an offence is deemed to continue (paragraph 5 of Schedule 10); where the offence is the fault of another person (paragraph 6 of Schedule 10); the approach to be taken in terms of liability when the offence is committed by a body corporate or a partnership (paragraphs 7 and 8 of Schedule 10); who can institute proceedings in England and Wales (paragraph 9 of Schedule 10); and that an authorised inspector may prosecute proceedings in a magistrates’ court (although not in Scotland) (paragraph 10 of Schedule 10).
480.The Schedule also provides that, if regulations under this Part create an offence consisting of a failure to comply with a duty to do something so far as practicable, then regulations may also provide that the burden of proof passes to the defendant to prove that it was not practicable to do more than was in fact done (paragraph 11 of Schedule 10). Paragraph 12 of Schedule 10 provides for the admissibility in evidence of the fact that an entry has been made on a relevant register or record, where there is a requirement to do so, or the fact that it has not been recorded in that record or register and paragraph 13 of Schedule 10 sets out how a court can order the consequences of an offence to be remedied in the event that it is possible to do so.
Supplementary
Section 107: Civil liability: saving for section 12 of the Nuclear Installations Act 1965
481.This section prevents anything in Part 3 of the Act, including in regulations made under any provision of that Part, from limiting the effect of section 12 of the Nuclear Installations Act 1965. That section ensures that compensation for damage caused by occurrences involving nuclear matter or emissions of ionising radiations on or from nuclear licensed sites are payable only in accordance with the provisions of the 1965 Act.
Section 108: Reporting requirements of Secretary of State
482.Under this section, the Secretary of State must make a report to both Houses of Parliament, in respect of each financial year and as soon as reasonably practicable after the end of the relevant financial year, on how the Secretary of State’s powers under the Act in relation to the ONR have been exercised. The report must be laid before each House.
483.The purpose of this annual reporting is to facilitate Parliamentary scrutiny of powers exercised by the Secretary of State in relation to the ONR, for instance, the appointment or dismissal of ONR non-executive members, approving the appointment of the Chief Nuclear Inspector or the Chief Executive Officer, the modification of the ONR’s strategy or annual plan or the use of the Secretary of State’s power of direction.
Section 109: Notices etc
484.This section contains a variety of provisions relating to notices served under any of the “relevant statutory provisions” other than the provisions of the Nuclear Safeguards Act 2000 (“relevant statutory provisions” is a phrase which is defined in section 82 of the Act and includes Part 3 of the Act, nuclear regulations, certain provisions of the Nuclear Installations Act and the 2000 Act).
485.The section provides that any such notice must be made in writing and sets out how valid service of a notice may be effected for example, by delivery to the person (subsection (3)(a)), to the director, manager, or secretary or other officer of a body corporate (subsection (4)(a)), or a partner or other person with control of a partnership (subsection (4)(b)).
486.Subsection (9) sets out the method of delivery for notices that are to be given to the owner or occupier of a premises. Subsection (10) allows for exceptions to this where the name or address of the owner or occupier of the premises cannot be ascertained through reasonable inquiry.
Section 110: Electronic delivery of notices etc
487.This section permits the ONR to serve notices by means of electronic communications (such as by e-mail), provided the person who is to receive the notice has consented to the method of service (see subsection (2)). In order for that consent to be validly given, or willingness as it is described in the Act, it needs to satisfy the conditions in subsections (3)(a) to (d), and it may be modified or withdrawn, see subsection (3)(e).
Section 111: Crown application: Part 3
488.This section covers the application of Part 3 of the Act to the Crown. Part 3 and regulations made under it will apply to the Crown subject to certain exceptions which are listed in subsections (2) and (3). In addition, the Secretary of State can, by means of secondary legislation, amend this section so as to alter the way in which Part 3 or provision made under it applies to the Crown (see subsection (6)).
Section 112: Interpretation of Part 3
489.This section sets out definitions for various terms used in Part 3 of the Act.
Section 113: Subordinate legislation under Part 3
490.Any orders and regulations made under Part 3 (including the Schedules introduced by this Part) will be made by statutory instrument (subsection (1)). As a general rule, such orders and regulations will be made subject to annulment by either House of Parliament (see subsection (4)). There are several exceptions to this rule relating to where regulations are the first nuclear regulations to be made; or where they modify or repeal any part of the Nuclear Installations Act 1965, or the Nuclear Safeguards Act 2000; or where they create a new offence. In these circumstances the statutory instrument containing such regulations must be approved by a resolution of each House of Parliament (see subsection (3)). Where an existing offence is revoked or re-enacted by nuclear regulations, it would not constitute the creation of a new offence for the purposes of this section.
491.Another exception concerns orders made under paragraph 26 of Schedule 7 to raise the limit on how much the ONR may borrow (see subsection (4)). Such orders must be positively approved by the House of Commons before they can be made.
492.In addition, orders made under section 111 must be approved by both Houses of Parliament before they can be made by the Secretary of State (see subsection (2)(b)).
Section 114: Transitional provision etc
493.This section allows for the Secretary of State by order to make provisions for transitional arrangements which appear to him or her to be appropriate in consequence of, or in connection with, Part 3. Specifically, such arrangements can include amending legislation made before the end of the session in which this Act is passed, and can include provision treating relevant existing regulations as ‘relevant statutory provisions’, regulations made under section 85 (inquiries) or under section 101 (fees) (see subsection 2(b)). Only regulations which are relevant to the ONR’s purposes or fees payable in respect of functions relating to them are within scope of this provision (see subsection (3)). This provision will allow the statutory ONR to continue to enforce these existing regulations or charge fees under them for a transitional period, to ensure continuity following its creation if there is not time to amend or replace the regulations in advance of that event.
Section 115: Transfer of staff etc
494.This section introduces Schedule 11 which makes provision for the Secretary of State to make schemes transferring staff and property from the Health and Safety Executive to the ONR and property from the Secretary of State to the ONR.
495.Part 2 of Schedule 11 provides the Secretary of State with the power to make “staff transfer schemes”. That is to say schemes to transfer staff into the ONR who are employees of the Health and Safety Executive and have been assigned to work in the interim ONR (see paragraph 3(2) of Schedule 11). Staff transfer schemes may include any provisions that have the same or similar effect as the Transfer of Undertakings (Protection of Employment) Regulations 2006. The transfer may include the transfer of employee’s records from the Health and Safety Executive to the ONR, this is included in the broad power to create a transfer under paragraph 4(1) of Schedule 11.
496.Part 3 of Schedule 11 provides the Secretary of State with the power to make schemes transferring qualifying property, rights and liabilities from the Health and Safety Executive or the Secretary of State to the ONR. All transfers of this type will be associated with the functions that the ONR will carry out in future. The property transfer scheme may include provision in respect of the continuity of legal proceedings, to apportion rights and liabilities and to transfer property rights or liabilities that could not otherwise be transferred or assigned (see paragraph 10(1)(d) of Schedule 11). No provision can be made in such a scheme in connection with rights or liabilities arising under or in connection with contracts of employment (see paragraph 9(2) of Schedule 11).
497.Part 4 of Schedule 11 requires that the Secretary of State must consult those likely to be affected by a staff or property transfer, and where consultation has already taken place prior to such a transfer, he or she must have regard to the results of that consultation (see paragraph 12 of Schedule 11). This consultation may be carried out by a person other than the Secretary of State. This allows the interim ONR to engage in consultation on these key issues prior to Royal Assent. The Secretary of State also has the power to modify transfer schemes before they come into force, as long as appropriate consultation can be shown to have taken place. Modifications can be made to such schemes after they have come into force but only with the agreement of the persons affected by those modifications (section 153(3)).
Section 116: Minor and consequential amendments
498.Schedule 12, which subsection (1) of this section gives effect to, contains a number of minor and consequential amendments to various enactments. In addition, subsection (2) confers a power on the Secretary of State to, by order, make further consequential amendments to legislation in consequence of Part 3 of the Act.
499.Part 1 of the Schedule makes various amendments to the Health and Safety at Work etc. Act 1974 which are consequential on functions in respect of nuclear safety, nuclear site health and safety, security, safeguards and transport of radioactive materials being carried out in future by the ONR and not the Health and Safety Executive.
500.These amendments include, among others, amendments to section 18 of the Health and Safety at Work etc. Act 1974, to make ONR responsible for the enforcement of any of the relevant statutory provisions of that Act, in relation to GB nuclear sites (see paragraph 6 of Schedule 12) except where health and safety regulations provide for the Office of Rail Regulation to be responsible for enforcement. The amendments made by paragraph 6(3)(d) of Schedule 12 to section 18 ensure provision can be made for responsibility for enforcement to be assigned to either the ONR or the Office of Rail Regulation in cases of uncertainty. In addition, the amendments provide for the ONR to be made an enforcing authority by means of regulations made under that Act. This will allow the ONR to take responsibility for the enforcement of provisions of the 1974 Act at sites other than GB nuclear sites. These sites could include, for example, the non-licensed, defence-related nuclear sites where the interim ONR currently enforces certain statutory provisions of the 1974 Act as part of Health and Safety Executive, as well as sites which are intended to become nuclear sites.
501.The Schedule also makes amendments to Schedule 2 of the 1974 Act to enable the appointment of an ONR member of the Health and Safety Executive (see paragraph 15 of Schedule 12), just as paragraph 4(4) of Schedule 7 enables the Executive to appoint a member of the ONR.
502.Part 2 of the Schedule makes minor and consequential amendments to other legislation. Part 2 restates sections 1, 3 to 6 and 22 of the Nuclear Installations Act 1965, and in doing so incorporates changes to various nuclear safety functions of the Health and Safety Executive under those sections to the ONR. The replacement text restates the terms of the Act. In restating section 4, paragraph 19 does not replicate the offence of failing to display licence conditions on a nuclear site as is no longer considered appropriate.
503.Parts 3 and 4 of Schedule 12 confer functions on the ONR in the same manner, but in relation to Security and Safeguards respectively.
504.Part 5 of the Schedule amends primary legislation to ensure that the ONR’s functions are clearly defined from those of the Secretary of State or the Health and Safety Executive, particularly in respect of the ability of the ONR to be an enforcing authority under some health and safety legislation in Scotland and Wales. It also repeals the Radioactive Material (Road Transport) Act 1991, with the exception of section 1(1) (see paragraph 63(1) of Schedule 12). This is preserved because Section E5 of Part II of Schedule 5 to the Scotland Act 1998 uses the definition of ‘radioactive material’ in this provision.
505.In addition, paragraph 71 of Schedule 12 ensures that the power to repeal or revoke nuclear safety provisions in section 37 of the Deregulation and Contracting Out Act 1994 is preserved. This power can only be exercised following consultation with the ONR. Paragraph 81 of Schedule 12 confirms the ONR as a Category 2 responder under the Civil Contingencies Act 2004.
Section 117: Application of Part 3
506.This section sets out that Her Majesty may, by Order in Council, extend the application of Part 3 of this Act outside the United Kingdom. This power is necessary because some aspects of Part 3 (and nuclear regulations) will apply to acts and things done outside the United Kingdom as a consequence of nuclear material being transported outside of the United Kingdom. The power gives flexibility to amend the application of Part 3 to ensure that the provisions of this Part apply to persons, premises, activities, articles, substances or other matters outside the United Kingdom just as they would if they were within the United Kingdom.
Section 118: Review of Part 3
507.This section requires the Secretary of State to carry out a review of the provisions of Part 3 of the Act after the ONR has been in existence for five years. The conclusions of the review must be set out in report and laid before Parliament.
