Office of Public Sector Information
PART 1 continued CHAPTER 1 continued
(1) As soon as practicable after the end of each relevant financial year, the Secretary of State must prepare a statement of the Nuclear Decommissioning Funding Account.
(2) The statement must show—
(a) the credits and debits made to the account during the period for which it is prepared; and
(b) the determinations made or revised during that period for the purposes of section 31(4)(c).
(3) The period for which each statement is to be prepared is the period which—
(a) begins—
(i) in the case of the first statement, with the establishment of the Account; and
(ii) in any other case, immediately after the end of the period for which the previous statement was prepared; and
(b) ends with the last day of the last relevant financial year to end before the statement’s preparation.
(4) A statement prepared under this section must be sent to the Comptroller and Auditor General before the 30th September in the financial year in which it is prepared.
(5) The Comptroller and Auditor General must, before 31st December in the financial year in which he receives a statement under this section—
(a) examine and report on it; and
(b) lay copies of it, and of his report on it, before Parliament.
(6) In this section “relevant financial year” means a financial year in the course of which the Secretary of State has made or revised a determination for the purposes of section 31(4)(c).
(1) A person who enters into a transaction with the NDA is not required to see or to enquire whether the transaction constitutes or involves—
(a) conduct by the NDA which is for the purposes of, or conducive or incidental to, the carrying out of its functions;
(b) a contravention of section 7(6) or 9; or
(c) a contravention of a direction given by the Secretary of State.
(2) A transaction entered into by the NDA is not invalidated because the transaction constitutes or involves—
(a) conduct by the NDA which is neither for the purposes of, nor conducive or incidental to, the carrying out of its functions;
(b) a contravention of section 7(6) or 9; or
(c) a contravention of a direction given by the Secretary of State.
(1) In sub-paragraph (1) of paragraph 1 of Schedule 12 to the 1989 Act (financial assistance by the Secretary of State in respect of nuclear liabilities), for paragraph (c) and the word “or” immediately preceding it substitute—
“(ba) the cleaning-up of a principal nuclear site; or
(c) the decommissioning of a nuclear installation.”
(2) After sub-paragraph (4) of paragraph 1 of that Schedule insert—
“(5) In this paragraph “cleaning-up”, “decommissioning”, “nuclear installation” and “principal nuclear site” have the same meanings as in Chapter 1 of Part 1 of the Energy Act 2004.”
(3) After paragraph 3 of that Schedule insert—
“3A The Secretary of State shall not—
(a) make any grant or loan under this Schedule for the purpose of meeting any expenditure, or
(b) give any guarantee in respect of borrowing undertaken for the purpose of meeting any expenditure,
if the expenditure is expenditure on anything for which the Nuclear Decommissioning Authority has a financial responsibility under section 21 of the Energy Act 2004.”
(1) The Secretary of State may by order modify the following provisions of this Chapter—
(a) section 2 and Schedule 1;
(b) sections 11 and 12 and Schedule 2; and
(c) section 13 and Schedule 3.
(2) Before making an order under this section the Secretary of State must consult the Scottish Ministers.
(3) The consent of the Scottish Ministers is required for the making of an order under this section that modifies any of those Ministers' functions under this Chapter.
(4) The power to make an order containing provision authorised by this section is subject to the affirmative resolution procedure.
(1) In this Chapter “nuclear site” means a principal nuclear site or a contaminated site.
(2) In this Chapter—
“contaminated site” means the whole or a part of a site which is not a principal nuclear site but—
has been and remains contaminated (whether radioactively or chemically) as a result of nuclear activities; or
is the location of hazardous material;
“principal nuclear site” means the whole or a part of a site of any of the following descriptions—
a site in respect of which a nuclear site licence is or is required to be in force;
a site in respect of which such a licence would be required to be in force if the licensing requirements of the 1965 Act applied to the Crown;
a site not falling within paragraph (a) or (b) in or on which there is an NDA facility;
a site on which there is an installation used for practical research into the production of energy by the fusion of atomic nuclei;
a site which has been a site falling within paragraphs (a) to (d) but which, without being such a site, remains contaminated (whether radioactively or chemically) as a result of nuclear activities carried on while it was such a site or before it became one.
(3) References in this Chapter to the person with control of an installation, site or facility are references—
(a) in the case of—
(i) a site in relation to which a nuclear site licence is held by a person whose period of responsibility (within the meaning of the 1965 Act) is still current, or
(ii) a nuclear installation in or on such a site,
to that person;
(b) in the case of an installation or site which—
(i) is an installation in or on a site occupied by or on behalf of the Crown or is itself such a site, and
(ii) is an installation or site in the case of which there is a person appointed by an order made by the Secretary of State to be the person with control,
to that person;
(c) in the case of a facility which—
(i) is not an installation to which paragraph (a) or (b) applies; but
(ii) is operated on a single site to which one of those paragraphs does apply,
to the person with control of the site;
(d) in the case of an installation or facility which—
(i) is not an installation or facility to which paragraph (a), (b) or (c) applies; but
(ii) is operated on a single site by a person who (without being the owner of the site) is in occupation of it,
to the occupier of the site;
(e) in the case of a facility which is operated otherwise than on a single site, to the operator of the facility;
(f) in the case of anything in or under the territorial sea adjacent to the United Kingdom, to the Secretary of State;
(g) in the case of a site to which none of the preceding paragraphs applies, to the owner of the site;
(h) in the case of an installation or facility to which none of those paragraphs applies, to the occupier of the site where the installation or facility is located.
(4) An order for the purposes of subsection (3)(b) is subject to the negative resolution procedure.
(5) For the purposes of this section something is contaminated as a result of nuclear activities if the contamination (whenever occurring), or any of it, is the direct or indirect result of one or more of the following—
(a) activities carried on in or on an installation, site or facility which was at the time, or subsequently became, a nuclear installation, a principal nuclear site or an NDA facility;
(b) the storage or disposal of any matter or substance in or on an installation, site or facility which was at the time, or subsequently became, a nuclear installation, a principal nuclear site or an NDA facility;
(c) an incident occurring in or on an installation, site or facility which was at the time, or subsequently became, a nuclear installation, a principal nuclear site or an NDA facility;
(d) the discharge of anything from an installation, site or facility which was at the time, or subsequently became, a nuclear installation, a principal nuclear site or an NDA facility;
(e) the transportation of hazardous material to or from a principal nuclear site or an installation or facility in or on such a site;
(f) an incident affecting hazardous material being transported to or from a principal nuclear site or an installation or facility in or on such a site.
(1) In this Chapter—
“apparatus” includes machinery, equipment, appliances, tanks, containers, pipes and conduits;
“cleaning-up” and “decommissioning”, in relation to a site or installation, includes—
the treatment, storage, transportation and disposal of hazardous material and of other matter and substances that need to be dealt with or removed in or towards making the site or installation suitable to be used for other purposes; and
the construction of buildings and other structures to be used in connection with the cleaning-up or decommissioning of the site or installation;
“contaminated site” has the meaning given by section 36(2);
“control”, in relation to an installation, site or facility, is to be construed in accordance with section 36(3);
“Crown appointee”, in relation to an installation, site or facility, means—
a Minister of the Crown; or
a person for the time being holding an appointment under section 36(3)(b) as the person with control of it;
“designated”, in relation to an installation, site or facility, is to be construed in accordance with subsection (2);
“facility” includes a business or other undertaking and installations, vehicles or other property comprised in or used for the purposes of a business or other undertaking;
“hazardous material” means—
nuclear matter;
radioactive waste; and
any other article or substance that has been and remains contaminated (whether radioactively or chemically) as a result (within the meaning of section 36) of nuclear activities;
“installation” includes buildings, structures and apparatus (whether or not fixed to land);
“NDA facility” means a facility which—
is being or has been used for or in connection with the storage, disposal or treatment of hazardous material; and
is a facility for the operation of which the NDA has or has had a responsibility;
“nuclear installation” means—
an installation which is situated in or on a principal nuclear site but is not comprised in an NDA facility;
pipes, conduits and other apparatus which are not situated in or on a principal nuclear site but are connected to an installation falling within paragraph (a);
“nuclear security” has the meaning given by section 9(9);
“nuclear site” has the meaning given by section 36(1);
“principal nuclear site” has the meaning given by section 36(2);
“publicly owned”, in relation to a company, is to be construed in accordance with subsection (3);
“site” includes—
land within the United Kingdom;
an area of territorial waters adjacent to the United Kingdom;
the seabed and subsoil in any such area;
“treat”, in relation to any matter or substance, includes processing and reprocessing (including any use as a material in a process for the manufacture of nuclear fuel), and cognate expressions are to be construed accordingly;
“vehicle” includes vessel;
“voting rights” is to be construed in accordance with subsection (5).
(2) An installation, site or facility is designated for the purposes of this Chapter if—
(a) it is designated by a direction under section 3; or
(b) the NDA otherwise has responsibilities in relation to it by virtue of such a direction.
(3) For the purposes of this Chapter a body corporate is a publicly owned company if it is a company limited by shares and that company is one in which—
(a) a person specified in subsection (4) holds all the shares; or
(b) two or more persons so specified, taken together, hold all the shares.
(4) The persons mentioned in subsection (3) are—
(a) the Treasury;
(b) a Minister of the Crown;
(c) the NDA;
(d) the UKAEA;
(e) a publicly owned company; or
(f) a nominee of a person falling within paragraphs (a) to (e).
(5) Section 736A of the Companies Act 1985 (c. 6) (meaning of “voting rights” etc.) applies for construing references in this Chapter to holding voting rights in a company as it applies for construing section 736(1)(a) of that Act.
(6) Sections 17 to 20 bind the Crown.
(7) In this section—
“company” has the same meaning as in the Companies Act 1985;
“nuclear matter” means material which—
is nuclear matter within the meaning of the 1965 Act; or
would be such matter if it did not fall within an exception prescribed by regulations under that Act;
“radioactive waste” has the same meaning as in the 1993 Act.
(1) The Secretary of State may make a scheme providing for one or more transfers authorised by this Chapter (a “nuclear transfer scheme”).
(2) Nothing in this Chapter authorises the transfer in accordance with a nuclear transfer scheme of a nuclear site licence.
(3) Before making—
(a) a nuclear transfer scheme which transfers property, rights or liabilities to or from the NDA or a subsidiary of the NDA, or
(b) a nuclear transfer scheme not falling within paragraph (a) which he is proposing to make for purposes connected with the carrying out of the NDA’s functions,
the Secretary of State must consult the NDA.
(4) Before making a nuclear transfer scheme which transfers property, rights or liabilities to any person—
(a) from BNFL, or
(b) from a wholly-owned subsidiary of BNFL,
the Secretary of State must consult BNFL.
(5) Before making a nuclear transfer scheme that transfers property, rights or liabilities to any person—
(a) from the UKAEA, or
(b) from a wholly-owned subsidiary of the UKAEA,
the Secretary of State must consult the UKAEA.
(6) The consent of the Treasury is required for the making of a nuclear transfer scheme.
(7) A nuclear transfer scheme shall come into force at such time as the Secretary of State may appoint, whether in the scheme or subsequently.
(8) Schedule 5 (which makes further provision about nuclear transfer schemes) has effect.
(1) A nuclear transfer scheme may provide for a transfer to—
(a) a publicly owned company,
(b) the NDA, or
(c) a consenting person,
of property, rights and liabilities falling within subsection (2) that are set out in the scheme.
(2) The property, rights and liabilities that may be transferred are—
(a) securities of BNFL;
(b) securities of a company falling within subsection (3);
(c) property, rights and liabilities of BNFL or the UKAEA;
(d) property, rights and liabilities of a company falling within subsection (3);
(e) property, rights and liabilities of a wholly-owned subsidiary of BNFL, of the UKAEA or of a company falling within that subsection.
(3) A company falls within this subsection if—
(a) it is a nuclear company that is publicly owned; or
(b) it is a company designated for the purposes of this section by an order made by the Secretary of State.
(4) The Secretary of State may designate a company for the purposes of this section only if it is a publicly owned company to which—
(a) securities of BNFL,
(b) property, rights or liabilities of BNFL, or
(c) property, rights or liabilities of a wholly-owned subsidiary of BNFL,
were transferred (whether in accordance with a nuclear transfer scheme or otherwise) at a time when both the company and BNFL were publicly owned.
(5) The Secretary of State must lay a copy of every order under subsection (3) before Parliament.
(6) Nothing in this section authorises—
(a) a transfer of securities of BNFL, or
(b) a transfer of property, rights or liabilities of BNFL or of a wholly-owned subsidiary of BNFL,
at a time when BNFL is no longer publicly owned.
(7) Nothing in this section authorises—
(a) a transfer of securities of a company designated for the purposes of this section, or
(b) a transfer of property, rights or liabilities of such a company or of a wholly-owned subsidiary of such a company,
at a time when the company is no longer publicly owned.
(8) Schedule 6 (which makes provision about the structure etc. of publicly owned companies to which transfers are made that are authorised by this section) has effect.
(9) For the purposes of this section a person is a consenting person, in relation to a nuclear transfer scheme, if he has consented to the provisions of the scheme so far as they relate to him.
(1) A nuclear transfer scheme may provide for a transfer to—
(a) a publicly owned company, or
(b) the NDA,
of property, rights and liabilities falling within subsection (3) that are set out in the scheme.
(2) But property, rights and liabilities may be transferred by virtue of this section only if the person who is entitled or subject to them has consented to their transfer in accordance with a nuclear transfer scheme.
(3) The property, rights and liabilities that may be transferred are—
(a) securities of a nuclear company that is not publicly owned;
(b) property and rights of such a company in or in relation to a nuclear site or an installation in or on such a site; or
(c) property, rights and liabilities to which such a company is entitled or subject—
(i) in respect of such a site or installation;
(ii) in connection with or by reference to activities carried on in or on such a site or installation; or
(iii) for purposes connected with that site or installation or with any such activities.
(4) In subsection (3) references to the property, rights and liabilities of a company, or to which a company is entitled or subject, include references to the property, rights and liabilities of any of its wholly-owned subsidiaries.
(1) This section applies in the case of a nuclear company (“the transferred company”) all the shares in which were transferred for the purposes of a management contract to the contractor or to a subsidiary of the contractor where—
(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
(c) a consenting contractor,
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.
(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.
(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.
Energy Act 2004