Office of Public Sector Information

• “atomic energy” has the meaning assigned by the M2Atomic Energy Act 1946;

• “nuclear reactor” means any plant (including any machinery, equipment or appliance, whether affixed to land or not) designed or adapted for the production of atomic energy by a fission process in which a controlled chain reaction can be maintained without an additional source of neutrons.

45 Default powers

(1)Where, in the case of a local authority who are an enforcing authority, the Commission is of the opinion that an investigation should be made as to whether that local authority have failed to perform any of their enforcement functions the Commission may make a report to the Secretary of State.

(2)The Secretary of State may, after considering a report submitted to him under the preceding subsection, cause a local inquiry to be held; and the provisions of subsections (2) to (5) of section 250 of the M1Local Government Act 1972 as to local inquiries shall, without prejudice to the generality of subsection (1) of that section, apply to a local inquiry so held as they apply to a local inquiry held in pursuance of that section.

(3)If the Secretary of State is satisfied, after having caused a local inquiry to be held into the matter, that a local authority have failed to perform any of their enforcement functions, he may make an order declaring the authority to be in default.

(4)An order made by virtue of the preceding subsection which declares an authority to be in default may, for the purpose of remedying the default, direct the authority (hereafter in this section referred to as “the defaulting authority”) to perform such of their enforcement functions as are specified in the order in such manner as may be so specified and may specify the time or times within which those functions are to be performed by the authority.

(5)If the defaulting authority fail to comply with any direction contained in such an order the Secretary of State may, instead of enforcing the order by mandamus, make an order transferring to the Executive such of the enforcement functions of the defaulting authority as he thinks fit.

(6)Where any enforcement functions of the defaulting authority are transferred in pursuance of the preceding subsection, the amount of any expenses which the Executive certifies were incurred by it in performing those functions shall on demand be paid to it by the defaulting authority.

(7)Any expenses which in pursuance of the preceding subsection are required to be paid by the defaulting authority in respect of any enforcement functions transferred in pursuance of this section shall be defrayed by the authority in the like manner, and shall be debited to the like account, as if the enforcement functions had not been transferred and the expenses had been incurred by the authority in performing them.

(8)Where the defaulting authority are required to defray any such expenses the authority shall have the like powers for the purpose of raising the money for defraying those expenses as they would have had for the purpose of raising money required for defraying expenses incurred for the purpose of the enforcement functions in question.

(9)An order transferring any enforcement functions of the defaulting authority in pursuance of subsection (5) above may provide for the transfer to the Executive of such of the rights, liabilities and obligations of the authority as the Secretary of State considers appropriate; and where such an order is revoked the Secretary of State may, by the revoking order or a subsequent order, make such provision as he considers appropriate with respect to any rights, liabilities and obligations held by the Executive for the purposes of the transferred enforcement functions.

(10)The Secretary of State may by order vary or revoke any order previously made by him in pursuance of this section.

(11)In this section “enforcement functions”, in relation to a local authority, means the functions of the authority as an enforcing authority.

(12)In the application of this section to Scotland—

(a)in subsection (2) for the words “subsections (2) to (5) of section 250 of the M2Local Government Act 1972” there shall be substituted the words “subsections (2) to (8) of section 210 of the M3Local Government (Scotland) Act 1973”, except that before 16th May 1975 for the said words there shall be substituted the words “subsections (2) to (9) of section 355 of the M4Local Government (Scotland) Act 1947”;

(b)in subsection (5) the words “instead of enforcing the order by mandamus” shall be omitted.

46 Service of notices

(1)Any notice required or authorised by any of the relevant statutory provisions to be served on or given to an inspector may be served or given by delivering it to him or by leaving it at, or sending it by post to, his office.

(2)Any such notice required or authorised to be served on or given to a person other than an inspector may be served or given by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.

(3)Any such notice may—

(a)in the case of a body corporate, be served on or given to the secretary or clerk of that body;

(b)in the case of a partnership, be served on or given to a partner or a person having the control or management of the partnership business or, in Scotland, the firm.

(4)For the purposes of this section and of [F1section 7 of the M1Interpretation Act 1978] (service of documents by post) in its application to this section, the proper address of any person on or to whom any such notice is to be served or given shall be his last known address, except that—

(a)in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body;

(b)in the case of a partnership or a person having the control or the management of the partnership business, it shall be the principal office of the partnership;

and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.

(5)If the person to be served with or given any such notice has specified an address within the United Kingdom other than his proper address within the meaning of subsection (4) above as the one at which he or someone on his behalf will accept notices of the same description as that notice, that address shall also be treated for the purposes of this section and [F1section 7 of the Interpretation Act 1978] as his proper address.

(6)Without prejudice to any other provision of this section, any such notice required or authorised to be served on or given to the owner or occupier of any premises (whether a body corporate or not) may be served or given by sending it by post to him at those premises, or by addressing it by name to the person on or to whom it is to be served or given and delivering it to some responsible person who is or appears to be resident or employed in the premises.

(7)If the name or the address of any owner or occupier of premises on or to whom any such notice as aforesaid is to be served or given cannot after reasonable inquiry be ascertained, the notice may be served or given by addressing it to the person on or to whom it is to be served or given by the description of “owner” or “occupier” of the premises (describing them) to which the notice relates, and by delivering it to some responsible person who is or appears to be resident or employed in the premises, or, if there is no such person to whom it can be delivered, by affixing it or a copy of it to some conspicuous part of the premises.

(8)The preceding provisions of this section shall apply to the sending or giving of a document as they apply to the giving of a notice.

47 Civil liability

(1)Nothing in this Part shall be construed—

(a)as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by sections 2 to 7 or any contravention of section 8; or

(b)as affecting the extent (if any) to which breach of a duty imposed by any of the existing statutory provisions is actionable; or

(c)as affecting the operation of section 12 of the M1Nuclear Installations Act 1965 (right to compensation by virtue of certain provisions of that Act).

(2)Breach of a duty imposed by health and safety regulations . . . F1 shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.

(3)No provision made by virtue of section 15(6)(b) shall afford a defence in any civil proceedings, whether brought by virtue of subsection (2) above or not; but as regards any duty imposed as mentioned in subsection (2) above health and safety regulations . . . F1 may provide for any defence specified in the regulations to be available in any action for breach of that duty.

(4)Subsections (1)(a) and (2) above are without prejudice to any right of action which exists apart from the provisions of this Act, and subsection (3) above is without prejudice to any defence which may be available apart from the provisions of the regulations there mentioned.

(5)Any term of an agreement which purports to exclude or restrict the operation of subsection (2) above, or any liability arising by virtue of that subsection shall be void, except in so far as health and safety regulations . . . F1 provide otherwise.

(6)In this section “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).

48 Application to Crown

(1)Subject to the provisions of this section, the provisions of this Part, except sections 21 to 25 and 33 to 42, and of regulations made under this Part shall bind the Crown.

(2)Although they do not bind the Crown, sections 33 to 42 shall apply to persons in the public service of the Crown as they apply to other persons.

(3)For the purposes of this Part and regulations made thereunder persons in the service of the Crown shall be treated as employees of the Crown whether or not they would be so treated apart from this subsection.

(4)Without prejudice to section 15(5), the Secretary of State may, to the extent that it appears to him requisite or expedient to do so in the interests of the safety of the State or the safe custody of persons lawfully detained, by order exempt the Crown either generally or in particular respects from all or any of the provisions of this Part which would, by virtue of subsection (1) above, bind the Crown.

(5)The power to make orders under this section shall be exercisable by statutory instrument, and any such order may be varied or revoked by a subsequent order.

(6)Nothing in this section shall authorise proceedings to be brought against Her Majesty in her private capacity, and this subsection shall be construed as if section 38(3) of the M1Crown Proceedings Act 1947 (interpretation of references in that Act to Her Majesty in her private capacity) were contained in this Act.

49 Adaptation of enactments to metric units or appropriate metric units

(1)[F1Regulations made under this subsection may amend]—

(a)any of the relevant statutory provisions; or

(b)any provision of an enactment which relates to any matter relevant to any of the general purposes of this Part but is not among the relevant statutory provisions; or

(c)any provision of an instrument made or having effect under any such enactment as is mentioned in the preceding paragraph,

by substituting an amount or quantity expressed in metric units for an amount or quantity not so expressed or by substituting an amount or quantity expressed in metric units of a description specified in the regulations for an amount or quantity expressed in metric units of a different description.

(2)The amendments shall be such as to preserve the effect of the provisions mentioned except to such extent as in the opinion of the [F1authority making the regulations] is necessary to obtain amounts expressed in convenient and suitable terms.

(3)Regulations made . . . F2 under this subsection may, in the case of a provision which falls within any of paragraphs (a) to (c) of subsection (1) above and contains words which refer to units other than metric units, repeal those words [F1if the authority making the regulations] is of the opinion that those words could be omitted without altering the effect of that provision.

[F3(4)The power to make regulations under this section shall be exercisable by the Secretary of State F4. . .].

50 Regulations under the relevant statutory provisions

[F1(1)Where any power to make regulations under any of the relevant statutory provisions is exercisable by the Secretary of State, the Minister of Agriculture, Fisheries and Food or both of them acting jointly that power may be exercised either so as to give effect (with or without modifications) to proposals submitted by the Commission under section 11(2)(d) or independently of any such proposals; but the authority who is to exercise the power shall not exercise it independently of proposals from the Commission unless he has consulted the Commission and such other bodies as appear to him to be appropriate.]

[F2(1A)Subsection (1) does not apply to the exercise of a power to make regulations so far as it is exercised—

(a)for giving effect (with or without modifications) to proposals submitted by the Office of Rail Regulation under paragraph 2(5) of Schedule 3 to the Railways Act 2005; or

(b)otherwise for or in connection with the railway safety purposes.]

(2)Where the [F3authority who is to exercise any such power as is mentioned in subsection (1) above proposes to exercise that power] so as to give effect to any such proposals as are there mentioned with modifications, he shall, before making the regulations, consult the Commission.

(3)Where the Commission proposes to submit [F4under section 11(2)(d)] any such proposals as are mentioned in subsection (1) above except proposals for the making of regulations under section 43(2), it shall, before so submitting them, consult—

(a)any government department or other body that appears to the Commission to be appropriate (and, in particular, in the case of proposals for the making of regulations under section 18(2), any body representing local authorities that so appears, and, in the case of proposals for the making of regulations relating to the electro-magnetic radiations, [F5the Health Protection Agency]);

(b)such government departments and other bodies, if any, as, in relation to any matter dealt with in the proposals, the Commission is required to consult under this subsection by virtue of directions given to it by the Secretary of State.

(4), (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

51 Exclusion of application to domestic employment

Nothing in this Part shall apply in relation to a person by reason only that he employs another, or is himself employed, as a domestic servant in a private household.

[F151A Application of Part to police

(1)For the purposes of this Part, a person who, otherwise than under a contract of employment, holds the office of constable or an appointment as police cadet shall be treated as an employee of the relevant officer.

(2)In this section “the relevant officer”—

(a)in relation to a member of a police force or a special constable or police cadet appointed for a police area, means the chief officer of police,

[F2(b)in relation to a member of a police force seconded to the Serious Organised Crime Agency to serve as a member of its staff, means that Agency, and]

(c)in relation to any other person holding the office of constable or an appointment as police cadet, means the person who has the direction and control of the body of constables or cadets in question.

[F3(2A)For the purposes of this Part the relevant officer, as defined by subsection (2)(a) or (c) above, shall be treated as a corporation sole.

(2B)Where, in a case in which the relevant officer, as so defined, is guilty of an offence by virtue of this section, it is proved—

(a)that the officer-holder personally consented to the commission of the offence,

(b)that he personally connived in its commission, or

(c)that the commission of the offence was attributable to personal neglect on his part,

the office-holder (as well as the corporation sole) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(2C)In subsection (2B) above “the office-holder”, in relation to the relevant officer, means an individual who, at the time of the consent, connivance or neglect—

(a)held the office or other position mentioned in subsection (2) above as the office or position of that officer; or

(b)was for the time being responsible for exercising and performing the powers and duties of that office or position.

(2D)The provisions mentioned in subsection (2E) below (which impose the same liability for unlawful conduct of constables on persons having their direction or control as would arise if the constables were employees of those persons) do not apply to any liability by virtue of this Part.

(2E)Those provisions are—

(a)section 39 of the Police (Scotland) Act 1967;

(b)section 88(1) of the Police Act 1996;

(c)F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)paragraph 14(1) of Schedule 3 to the Criminal Justice and Police Act 2001;

(f)section 28 of the Serious Organised Crime and Police Act 2005.

[F5(g)paragraph 20 of Schedule 1 to the Police and Justice Act 2006;]