Energy Act 2004 (c. 20)

(The document as of February, 2008)

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(a) the contractor is in breach of that contract; or

(b) that contract has come to an end, whether by the expiry of the period for which it was in force or otherwise.

(2) A nuclear transfer scheme may provide for the transfer to--

(a) a publicly owned company,

(b) the NDA, or

of the property, rights and liabilities falling within subsection (3) that are set out in the scheme.

(3) The property, rights and liabilities that may be transferred are--

(a) securities of the transferred company (whether transferred as mentioned in subsection (1) or issued afterwards);

(b) property, rights and liabilities to which the transferred company was entitled or subject immediately before the transfer so mentioned;

(c) property, rights and liabilities transferred for the purposes of the management contract, to the contractor, to a subsidiary of the contractor or to the transferred company or a wholly-owned subsidiary of the transferred company;

(d) property, rights and liabilities to which the transferred company or a wholly-owned subsidiary of the transferred company first became entitled or subject while that contract was in force.

(4) Subsection (3) does not apply to property, rights or liabilities to the extent that they have been excluded from that subsection by--

(a) provision contained in an agreement between the NDA and the person entitled to or subject to them; or

(b) provision contained in a nuclear transfer scheme by virtue of which the property, rights and liabilities or the shares mentioned in subsection (1) were vested in any person.

(5) A transfer is authorised by this section notwithstanding that what is transferred has ceased, before the transfer, to be the property or a right or liability--

(a) of a person to whom anything was transferred for the purposes of the management contract mentioned in subsection (1);

(b) of the transferred company or of a wholly-owned subsidiary of that company; or

(c) in the case of securities issued after the transfer mentioned in that subsection, of the person to whom they were issued.

(6) Nothing in this section authorises the transfer of property, rights or liabilities from a company at a time when it is publicly owned.

(7) For the purposes of this section a person is a consenting contractor, in relation to a nuclear transfer scheme, if--

(a) he is a contractor under a management contract other than the one that has been broken or come to an end; and

(b) he has consented to the provisions of the scheme so far as they relate to him.

(8) In this section--

"contractor", in relation to a management contract, means a party to the contract who is not the NDA;
"management contract" means a contract between the NDA and another person under which the other person is required to do or secure anything that the NDA is required to secure for the purpose of discharging its responsibilities; and
"transferred", in relation to shares, property, rights or liabilities, means transferred in accordance with a nuclear transfer scheme.

42 Transfer of Nuclear Liabilities Investment Portfolio

(1) A nuclear transfer scheme may provide for the transfer from BNFL to the Secretary of State of--

(a) the Nuclear Liabilities Investment Portfolio; or

(b) so much of that Portfolio as may be specified in the scheme.

(2) Nothing in this section authorises a transfer at a time when BNFL is no longer publicly owned.

(3) Where cash is transferred to the Secretary of State by a transfer authorised by this section, he must pay it into the Consolidated Fund.

(4) Where the Secretary of State receives--

(a) sums by way of income on property or rights transferred to him by a transfer authorised by this section, or

(b) sums in respect of the disposal of any such property or rights,

he must pay those sums into the Consolidated Fund.

(5) The Secretary of State must comply with every direction given to him by the Treasury with respect to--

(a) the disposal of property or rights transferred to him by a transfer authorised by this section; or

(b) the exercise of any other right attached to, or arising in respect of, such property;

and (in a case where there is no applicable direction) the Secretary of State must not dispose of or exercise any property or rights with respect to which he may be given a direction except with the consent of the Treasury.

(6) In this section "the Nuclear Liabilities Investment Portfolio" means property and rights to which BNFL is entitled and which appear to the Secretary of State, from BNFL's published accounts, to represent assets held by BNFL for the purpose of being able to meet costs or liabilities for which the NDA has a financial responsibility under Chapter 1 of this Part.

Extinguishment of undertakings and tax losses

43 Undertakings given by the Secretary of State

(1) This section applies where--

(a) the Secretary of State has given an undertaking to a publicly owned company to make payments to that company or a subsidiary of that company; and

(b) it appears to him that (apart from section 21(8)) the financial responsibilities of the NDA under Chapter 1 of this Part would make it unnecessary for those amounts to be paid.

(2) The Secretary of State may extinguish the undertaking, and every liability of his that has arisen under the undertaking, with effect from such date as he may notify to the other parties to it.

(3) Nothing in this section authorises the extinguishment of an undertaking at a time when the company to whom payments would fall to be made under the undertaking is not publicly owned.

(4) The extinguishment of an undertaking under this section shall neither require nor enable any sum to be brought into account in any person's case for the purposes of corporation tax.

(5) In this section "undertaking" includes any agreement in which an undertaking to make payments is contained.

44 Extinguishment of BNFL losses for tax purposes

(1) In relation to accounting periods beginning on or after the trigger date, all the relevant losses of every BNFL company arising before that date shall be treated for the purposes of corporation tax as extinguished.

(2) The following are relevant losses of a BNFL company for the purposes of this section--

(a) losses incurred by the company in a trade;

(b) losses incurred by the company in a transaction a profit or gain from which would have been chargeable to tax under Case VI of Schedule D;

(c) excesses to be carried forward in the company's case under section 75(3) of the Income and Corporation Taxes Act 1988 (c. 1);

(d) Schedule A losses (within the meaning of section 392A of that Act) incurred by the company;

(e) losses to be carried forward in the company's case under section 392B(1) of that Act;

(f) any tax loss of the company falling within section 400(2)(d) of that Act;

(g) allowable losses (within the meaning of section 8 of the Taxation of Chargeable Gains Act 1992 (c. 12)) that have accrued to the company;

(h) deficits of the kind mentioned in subsection (1) of section 83 of the Finance Act 1996 (c. 8) to the extent that they are to be carried forward in the company's case under subsection (3A) of that section;

(i) excesses of the kind mentioned in section 260 of the Capital Allowances Act 2001 (c. 2) in relation to the company;

(j) losses of the kind mentioned in paragraph 35(1) of Schedule 29 to the Finance Act 2002 (c. 23) incurred by the company;

(k) unrelieved surplus advance corporation tax of the company (within the meaning of section 32 of the Finance Act 1998 (c. 36)).

(3) This section applies to the relevant losses of a BNFL company only if it is publicly owned on the day before the trigger date.

(4) In this section--

"BNFL company" means--
(a)
BNFL;
(b)
a company that is a 75 per cent subsidiary of BNFL at a time during the qualifying period; or
(c)
a company (other than BNFL) that is a 75 per cent subsidiary of a BNFL parent company at a time during the qualifying period;
"BNFL parent company" means a company of which BNFL is a 75 per cent subsidiary;
"qualifying period" means the period beginning with 16th March 2004 and ending with the trigger date;
"trigger date" means whichever is the earlier of the following--
(a)
the date of the first occasion on which section 21 operates so as to confer financial responsibilities on the NDA in relation to an installation, site or facility the person with control of which is a BNFL company that is publicly owned; and
(b)
the date of the first occasion on which a transfer takes effect which is a transfer to the NDA or a subsidiary of the NDA in accordance with a nuclear transfer scheme authorised by section 39 of property, rights or liabilities of a BNFL company.

(5) This section is to be construed as one with the Corporation Tax Acts.

Provisions relating to transfers

45 Further provision applying to transferee companies

(1) Schedule 7 (which makes provision about the finances and accounts of publicly controlled companies to which property, rights and liabilities are transferred) has effect.

(2) In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (c. 24) (other disqualifying offices), insert (at the appropriate place)--

" Director of a publicly controlled company (within the meaning of Chapter 2 of Part 1 of the Energy Act 2004) to which transfers have been made in accordance with provisions of nuclear transfer schemes authorised by that Chapter. " ;

and the corresponding amendment shall also be made in Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (c. 25).

46 Pensions

Schedule 8 (which makes provision about pensions in connection with transfers affecting nuclear undertakings) has effect.

47 Taxation

Schedule 9 (which makes taxation provision in relation to nuclear transfer schemes) has effect.

48 Supplementary powers of the Secretary of State, the NDA and the UKAEA

(1) The Secretary of State shall have power to enter into agreements for the purpose of accepting or imposing such contractual obligations as he thinks fit with respect to--

(a) nuclear transfer schemes and proposals for such schemes;

(b) anything connected with such a scheme or proposal; or

(2) The NDA and the UKAEA shall each have power to enter into agreements for the purpose of accepting or imposing such contractual obligations as it or they think fit with respect to--

(a) nuclear transfer schemes and proposals for such schemes;

(b) anything connected with such a scheme or proposal; or

(3) The NDA and the UKAEA shall also each have power to do anything else which, in its or their opinion, is appropriate for facilitating--

(a) a transfer which is or is proposed to be effected in accordance with a nuclear transfer scheme; or

(b) any other transfer of property, rights or liabilities of the NDA or (as the case may be) the UKAEA which is or is proposed to be effected for purposes connected with the carrying out by any person of any functions conferred on that person by or under this Part.

(4) Agreements entered into in exercise of the powers conferred by subsection (1) or (2) may, in particular, include provision for the making of payments (whether by way of consideration or otherwise)--

(a) to the Secretary of State, or

(b) to the NDA or the UKAEA,

in respect of anything transferred or created in accordance with a nuclear transfer scheme.

(5) The consent of the Treasury is required for the Secretary of State or the UKAEA to enter into an agreement in exercise of those powers.

(6) The consent of the Secretary of State is also required for the UKAEA to enter into an agreement in exercise of those powers.

(7) Before making any disposal of securities of a company in a case in which--

(a) the disposal is made in accordance with arrangements entered into by the UKAEA for purposes connected with the carrying out of its functions by the NDA,

(b) those arrangements are not arrangements to which the Secretary of State has consented under subsection (6), and

(c) in the opinion of the UKAEA, the disposal is one which they would not have power to make but for section 1(2) of the Atomic Energy (Miscellaneous Provisions) Act 1981 (c. 48) (disposal otherwise inconsistent with UKAEA functions),

the UKAEA must consult the Secretary of State.

(8) Subsection (4) of section 1 of the Atomic Energy (Miscellaneous Provisions) Act 1981 (which limits the cases in which the UKAEA may make share disposals that are inconsistent with its functions) shall not apply--

(a) to anything done by the UKAEA in exercise of powers conferred on them by or under this Chapter; or

(b) to any disposal of securities in accordance with arrangements entered into by the UKAEA for purposes connected with the carrying out of its functions by the NDA.

(9) Sums received by the Secretary of State in pursuance of an agreement under this section must be paid into the Consolidated Fund.

(10) The powers conferred on the Secretary of State, the NDA and the UKAEA by this section--

(a) are in addition to their powers apart from this section; and

(b) are to be disregarded in determining the extent of those powers.

Supplementary provisions of Chapter 2 of Part 1

49 Duty to assist the Secretary of State

(1) This section applies where the Secretary of State proposes to make a nuclear transfer scheme.

(2) The transferor shall have the duty, within such period as the Secretary of State may allow--

(a) to provide the Secretary of State, and

(b) to secure, so far as practicable, that its subsidiaries provide the Secretary of State,

with all such information and other assistance as the Secretary of State may require for the purposes of, or in connection with, the making of the scheme.

(3) The duties of the transferor under this section are duties owed to the Secretary of State.

(4) Those duties are to be enforceable by the Secretary of State in civil proceedings--

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

(5) In this section "the transferor", in relation to a nuclear transfer scheme, means a person from whom it is proposed that property, rights or liabilities are transferred by the scheme.

50 Interpretation of Chapter 2 of Part 1

(1) In this Chapter --

"nuclear company" means a body corporate with control of a designated installation, designated site or designated facility;
"publicly controlled" is to be construed in accordance with subsection (3).

(2) Expressions used in this Chapter and in Chapter 1 of this Part have the same meanings in this Chapter as in that Chapter.

(3) For the purposes of this Chapter a body corporate is a publicly controlled company if it is a company limited by shares that is either publicly owned or is otherwise a company in which--

(a) a person specified in subsection (4) holds a majority of the voting rights; or

(b) two or more persons so specified, taken together, hold a majority of the voting rights.

(4) The persons mentioned in subsection (3) are--

(a) the Treasury;

(b) a Minister of the Crown;

(d) the UKAEA;

(e) a publicly owned company; or

(f) a nominee of a person falling within paragraphs (a) to (e).

(5) In this section "company" has the same meaning as in the Companies Act 1985 (c. 6).

Chapter 3 Civil Nuclear Constabulary

Civil Nuclear Police Authority

51 The Civil Nuclear Police Authority

(1) There shall be a body corporate to be known as the Civil Nuclear Police Authority ("the Police Authority").

(2) Schedule 10 (which makes further provision about the Police Authority) has effect.

Civil Nuclear Constabulary

52 The Civil Nuclear Constabulary

(1) It shall be the function of the Police Authority to secure the maintenance of an efficient and effective constabulary, to be known as the Civil Nuclear Constabulary ("the Constabulary").

(2) The primary function of the Constabulary is--

(a) the protection of licensed nuclear sites which are not used wholly or mainly for defence purposes; and

(b) safeguarding nuclear material in Great Britain and elsewhere.

(3) The Police Authority may allocate to the Constabulary the function of carrying on such other activities relating to, or connected with, the security of--

(a) nuclear material, or

(b) sites where such material is being, has been or is to be used, processed or stored,

as the Police Authority thinks fit.

(4) The Constabulary shall have the function of carrying on such other activities as may be allocated to it by the Police Authority in accordance with directions given to that Authority for the purposes of this section by the Secretary of State.

(5) The Secretary of State may give the Police Authority directions restricting the exercise of its powers under subsection (3).

(6) Subject to the provisions of this Chapter, the Police Authority may do anything which appears to it to be likely to facilitate the carrying out of its functions, or to be incidental to carrying them out.

(7) Nothing in this section limits what a member of the Constabulary may do in the exercise of the powers and privileges conferred on him by section 56.

53 Chief constable and other senior officers

(1) The Police Authority--

(a) must appoint a chief constable of the Constabulary and a deputy chief constable of the Constabulary; and

(b) may appoint one or more assistant chief constables of the Constabulary.

(2) Before appointing the deputy chief constable or an assistant chief constable, the Police Authority must consult the chief constable.

(3) The chief constable, the deputy chief constable and every assistant chief constable are to be members of the Constabulary.

(4) The approval of the Secretary of State is required for the making of an appointment under this section.

(5) Schedule 11 (which makes provision about the removal and suspension of the chief constable and other senior officers) has effect.

54 Functions of senior officers

(1) In carrying out his functions in any financial year, the chief constable must have regard to--

(a) the annual policing plan for that year issued by the Police Authority under paragraph 2 of Schedule 12; and

(b) the three-year strategy plan most recently issued by the Police Authority under paragraph 3 of that Schedule for a period that includes that year.

(2) The deputy chief constable may perform a function of the chief constable--

(a) while the chief constable is unable to act or unavailable;

(b) during a vacancy in the office of chief constable; or

(3) A consent for the purposes of subsection (2)(c) may be either general or specific.

(4) The Police Authority may authorise an assistant chief constable to perform a function of the chief constable--

(a) while both the chief constable and the deputy chief constable are unable to act or unavailable; or

(b) while the offices of chief constable and deputy chief constable are both vacant.

(5) At any one time, only one person may be authorised to act under subsection (4).

(6) No person shall be entitled by virtue of subsection (2)(a) or (b) or an authorisation under subsection (4) to act for a continuous period exceeding three months, except with the consent of the Secretary of State.

55 Members of the Constabulary

(1) The Police Authority may appoint persons to be members of the Constabulary.

(2) Members of the Constabulary are to be employees of the Police Authority and (apart from the chief constable himself) under the direction and control of the chief constable.

(3) A person appointed as a member of the Constabulary must, on appointment--

(a) be attested as a constable by making the required declaration before a justice of the peace in England and Wales; or

(b) make the required declaration before a sheriff or a justice of the peace in Scotland.

(4) The required declaration is--

(a) in the case of a declaration before a justice of the peace in England and Wales, the declaration required by section 29 of the Police Act 1996 (c. 16) in the case of a member of a police force maintained under that Act; and

(b) in the case of a declaration before a sheriff or a justice of the peace in Scotland, a declaration faithfully to execute the duties of the office of a member of the Civil Nuclear Constabulary.

Jurisdiction and powers of Constabulary

56 Jurisdiction of Constabulary

(1) A member of the Constabulary shall have the powers and privileges of a constable--

(a) at every place comprised in a relevant nuclear site; and

(b) everywhere within 5 kilometres of such a place.

(2) A member of the Constabulary shall have the powers and privileges of a constable at every trans-shipment site where it appears to him expedient to be in order to safeguard nuclear material while it is at the site.

(3) A member of the Constabulary shall have the powers and privileges of a constable at every other place where it appears to him expedient to be in order to safeguard nuclear material which is in transit.

(4) A member of the Constabulary shall have the powers and privileges of a constable at every place where it appears to him expedient to be in order to pursue or to detain a person whom he reasonably believes--

(a) to have unlawfully removed or interfered with nuclear material being safeguarded by members of the Constabulary; or

(b) to have attempted to do so.

(5) A member of the Constabulary shall have the powers and privileges of a constable throughout Great Britain for purposes connected with--

(a) a place mentioned in subsections (1) to (4);

(b) anything that he or another member of the Constabulary is proposing to do, or has done, at such a place; or

(c) anything which he reasonably believes to have been done, or to be likely to be done, by another person at or in relation to such a place.

(6) This section has effect in United Kingdom waters adjacent to Great Britain as it has effect in Great Britain, but as if references to the powers and privileges of a constable were references to the powers and privileges of a constable in the nearest part of Great Britain.

(7) In this section--

"detain", in relation to a person, includes transferring him to the custody of another or to a place where he may be held in custody;
"relevant nuclear site" means a licensed nuclear site other than a designated defence site;
"trans-shipment site" means a place which a member of the Constabulary reasonably believes to be--
(a)
a place where a consignment of nuclear material in transit is trans-shipped or stored; or
(b)
a place to which a consignment of nuclear material may be brought to be trans-shipped or stored while it is in transit;
"United Kingdom waters" means waters within the seaward limits of the territorial sea;

and nuclear material is "in transit" for the purposes of this section if it is being carried (or is being trans-shipped or stored incidentally to carriage) before its delivery at its final destination.

(8) In subsection (7) "designated defence site" means a site designated by order made by the Secretary of State as a site which appears to him to be used wholly or mainly for defence purposes.

(9) An order under subsection (8) must be laid before Parliament after being made.

(10) Where an order designating a site for the purposes of section 76(2) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (jurisdiction of Atomic Energy Authority special constables) is in force immediately before the commencement of this section, that order shall have effect after the commencement of this section as an order made under and for the purposes of subsection (8).

57 Stop and search under Terrorism Act 2000

(1) The Terrorism Act 2000 (c. 11) is amended as follows.

(2) In section 44 (authorisation to stop and search in connection with terrorism)--

(a) after subsection (4B) insert--

" (4BA) In a case in which the specified area or place is a place in which members of the Civil Nuclear Constabulary have the powers and privileges of a constable, an authorisation may also be given by a member of that Constabulary who is of at least the rank of assistant chief constable. " ;

(b) in subsection (4C), after paragraph (b) insert " or

(3) In section 46 (duration of authorisation), after subsection (2) insert--

" (2A) An authorisation under section 44(4BA) does not have effect except in relation to times when the specified area or place is a place where members of the Civil Nuclear Constabulary have the powers and privileges of a constable. "

Administration of Constabulary

58 Government, administration and conditions of service

(1) Where--

(a) the Police Authority makes provision about the government, administration or conditions of service of the Constabulary or its members, and

(b) the provision relates to matters which are the subject of regulations under section 50 of the Police Act 1996 (c. 16) (regulations about the government, administration and conditions of service of police forces),

the provision made by the Police Authority may differ from those regulations only so far as necessary to take account of differences relating to the structure and circumstances of the Constabulary.

(2) Before making provision about the government, administration or conditions of service of the Constabulary or its members, the Police Authority must consult--

(a) the chief constable;

(b) the Civil Nuclear Police Federation; and

59 Members of Constabulary serving with other forces

(1) This section applies where a member of the Constabulary serves with a relevant force under arrangements made between the chief officer of that force and the chief constable.

(2) The member of the Constabulary--

(a) shall be under the direction and control of the chief officer of the relevant force; and

(b) shall have the same powers and privileges as a member of that force.

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