text:
Citation, commencement and application
1
1
These Regulations may be cited as the Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) Regulations 2009 and shall come into force on the 6 th April 2009.
2
These Regulations apply to England only.
Revocation
2
Subject to regulation 4, the Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) Regulations 2001 are revoked.
Interpretation
3
In these Regulations —
“the 1984 Act ” means the Road Traffic Regulation Act 1984 ;
“the 1991 Act ” means the New Roads and Street Works Act 1991;
“the 1992 Regulations ” means the Street Works (Registers, Notices, Directions and Designations) Regulations 1992 ;
“the 2004 Act ” means the Traffic Management Act 2004 ;
“address”, in relation to a particular method for transmitting an electronic communication, means any number or address used for the purposes of such method of transmission;
“bridleway”, “footpath” and “footway” have respectively the meaning given in section 329(1) of the Highways Act 1980 ;
“day” means a working day;
“electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000 ;
“immediate works” means urgent works or emergency works ;
“limited designation” means a designation in accordance with regulation 16(3) of the Street Works (Registers, Notices, Directions and Designations) (England) Regulations 2007 , for particular times or on particular dates;
“major works” means —
street works which have been identified in the annual operating programme of an undertaker, or which, though not specifically identified in such programme, would normally be planned or known about at least six months in advance of the date proposed for the works;
street works, other than immediate works, where —
the street authority has indicated to an undertaker, or
the undertaker considers,
that an order under section 14 of the 1984 Act (temporary prohibition or restriction on roads) is required; or
street works, other than immediate works, the planned duration of which exceeds ten days;
“minor works” means, save as provided in regulation 9(8), street works, other than immediate works or major works, the planned duration of which does not exceed three days;
“ msa ” means million standard axles;
“pedestrian planning order” means an order made under section 249(2) or (2A) of the Town and Country Planning Act 1990 ;
“permit” and “permit scheme” are to be construed in accordance with section 32 of the 2004 Act;
“Permit Authority” means —
a local highway authority in respect of which an order has been made under section 34(4) of the 2004 Act; or
the Secretary of State, as a highway authority or the person with responsibility for the management and control of streets in the Royal Parks, in respect of whom an order has been made under section 35(2) of that Act,
giving effect to a permit scheme;
“prescribed period” means the period prescribed by regulation 7;
“remedial works” are works carried out under section 72(3) of the 1991 Act;
“road category” means one of the road categories specified in paragraph 1.3.1 of Chapter S1 of the code of practice entitled “Specification for the Reinstatement of Openings in Highways” dated June 2002 and approved by the Secretary of State for Transport on 30 th June 2002, as revised or re-issued from time to time;
“Royal Park” has the meaning given in section 39(1) of the 2004 Act;
“standard axle” means an axle which exerts a force of 80 kilo Newtons;
“standard works” means, save as provided in regulation 9(8), street works, other than immediate works or major works, the planned duration of which exceeds three days but does not exceed ten days;
“statutory undertaker” means a person entitled by virtue of a statutory right to carry out street works;
“the Technical Specification ” means the Technical Specification for the Electronic Transfer of Notifications produced by the Department for Transport and dated December 2008, as revised or re-issued from time to time;
“traffic order” means an order made under section 1, 6 or 9 of the 1984 Act;
“traffic-sensitive street” means a street designated as traffic-sensitive under section 64 of the 1991 Act;
“traffic-sensitive time”, in relation to a traffic-sensitive street, means —
the times or dates specified in the case of a limited designation; and
any time in any other case; and
“urgent works” —
means street works, other than emergency works, whose execution at the time when they are executed is required (or which the person responsible for the works believes on reasonable grounds to be required) —
to prevent or put an end to an unplanned interruption of any supply or service provided by an undertaker;
to avoid substantial loss to an undertaker in relation to an existing service; or
to reconnect supplies or services where an undertaker would be under a civil or criminal liability if the reconnection is delayed until after the expiry of the appropriate notice period; and
includes works which cannot reasonably be severed from such works.
Transitional arrangements
4
These Regulations do not apply to street works in England in respect of which an undertaker has given notice under section 54(1), 55(1) or 57 of the 1991 Act before the date on which they come into force and the Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) Regulations 2001 shall continue to have effect in relation to those works as if they had not been revoked.
Application of Regulations
5
These Regulations apply to every maintainable highway, other than a footpath, a bridleway, a highway in relation to which a pedestrian planning order is in force and a highway whose use by vehicular traffic is prohibited by a traffic order, unless that prohibition is only at particular times.
Notices
6
1
Subject to paragraph (2), an undertaker executing street works in a highway to which these Regulations apply shall give the highway authority for that highway notice in writing of the beginning of those works specifying the street in which the works are to be carried out (“actual start of works notice”) not later than the end of the next day following the date on which the works begin.
2
Where works are executed under a permit granted by a Permit Authority in a traffic-sensitive street or in a street in road category 0, 1 or 2 which is not a traffic-sensitive street, the period within which the actual start of works notice must be given in accordance with paragraph (1) shall be the period applicable by virtue of paragraph 16.7 of the Code of Practice for Permits dated March 2008 , as revised or re-issued from time to time.
3
When an undertaker has —
a
completed interim reinstatement of a highway;
b
removed —
i
all signing, lighting and guarding, and
ii
all remaining spoil, unused materials and other plant; and
c
returned the highway fully to public use,
that undertaker shall give the highway authority notice that this has been done (“works clear notice”) not later than the end of the next day following the date on which the highway was returned fully to public use.
4
When an undertaker has —
a
completed permanent reinstatement of a highway;
b
removed —
i
all signing, lighting and guarding, and
ii
all remaining spoil, unused materials and other plant; and
c
returned the highway fully to public use,
that undertaker shall give the highway authority notice that this has been done (“works closed notice”) not later than the end of the next day following the date on which the highway was returned fully to public use.
Prescribed period
7
In relation to an undertaker executing street works in a highway to which these Regulations apply, the period prescribed under section 74(1)(a) of the 1991 Act shall be two days, starting on the date on which the works begin.
Duration of works
8
For the purposes of these Regulations, the duration of street works will only come to an end when the undertaker has —
a
completed interim reinstatement, or as the case may be permanent reinstatement, of a highway;
b
removed —
i
all signing, lighting and guarding, and
ii
all remaining spoil, unused materials and other plant; and
c
returned the highway fully to public use.
Prescribed charges
9
1
Subject to paragraphs (2), (12) and (13), an undertaker executing street works in a highway to which these Regulations apply shall pay the highway authority a charge to be determined in accordance with paragraphs (3) to (11).
2
Paragraph (1) shall not apply to —
a
works —
i
in a street which is not a traffic-sensitive street,
ii
in the footway of a traffic-sensitive street at a traffic-sensitive time, or
iii
in a traffic-sensitive street, other than at a traffic-sensitive time,
if the works do not involve breaking up the street or tunnelling or boring under it;
b
works consisting only of the creation of holes of less than 3 centimetres in diameter, for investigatory purposes;
c
replacing poles, lamp columns or signs in the same location; or
d
pole testing.
3
Subject to paragraphs (5) and (9), the charge shall be of an amount calculated in accordance with paragraph (4) and shall be payable for each day, or part of a day, by which the duration of the works exceeds the longer of —
a
the prescribed period, or
b
a reasonable period .
4
In relation to street works of a category set out in column (3) of Table 1, executed in a street of a description referred to in column 2 in relation to that category, the amount of the charge shall be the amount set out in column 4.
Table 1
1. 2. 3. 4. Item No. Description of street. Category of street works. Amount of charge (£).
1. Street not being a street in road category 2, 3 or 4. Major works
Standard works
Minor works
Immediate works
2,500
2,500
500
500
2. Street in road category 2. Major works
Standard works
Minor works
Immediate works
2,000
2,000
500
500
3. Street in road category 3 or 4, being a traffic-sensitive street. Major works
Standard works
Minor works
Immediate works
750
750
250
250
4. Street in road category 3 or 4, not being a traffic-sensitive street. Major works
Standard works
Minor works
Immediate works
250
250
100
100
5
Subject to paragraphs (7) and (9), the charge in relation to remedial works will be calculated as if those works were street works of the same category as the works set out in paragraph (6).
6
The works referred to in paragraph (5) are those works in respect of which —
a
there has been a failure to comply with the undertaker’s duties with respect to reinstatement; and
b
the street authority has required the undertaker to carry out the remedial works.
7
Where the works referred to in paragraph (6) were, at the time notice was given in respect of them under section 54(1), 55(1) or 57 of the 1991 Act, works which fell into one of the categories set out in column 2 of Table 2 for the purposes of the 1992 Regulations, those works shall be treated, for the purposes of paragraph (5), as if they were in the equivalent category set out in column 3 in relation to that category.
Table 2
1. 2. 3. Item No. Category of street works for the purposes of the 1992 Regulations. Equivalent category of street works.
1. Major projects Major works 2. Standard works Standard works 3. Minor works Minor works 4. Urgent works Immediate works 5. Emergency works Immediate works
8
In paragraph (7), the expressions used in items 1 to 4 in column 2 of Table 2 have the meaning given in regulation 2 of the 1992 Regulations.
9
The charge will consist of a single payment of £100 in respect of any works in the circumstances set out in paragraph (10), if the requirements of paragraph (11) are met.
10
The circumstances referred to in paragraph (9) are that —
a
subject to sub-paragraph (c), the undertaker has —
i
completed interim reinstatement, or as the case may be permanent reinstatement, of a highway,
ii
endeavoured to remove all signing, lighting and guarding, and
iii
removed all remaining spoil, unused materials and other plant;
b
but for paragraph (c), the duration of the works would not have exceeded the longer of the prescribed period or a reasonable period; and
c
a single item of signing, lighting or guarding remains on the highway.
11
The requirements referred to in paragraph (9) are that —
a
the highway authority has —
i
informed the undertaker of the identity and location of the single item referred to in paragraph (10)(c); and
ii
requested the undertaker to remove it; and
b
the undertaker has complied with the request by the end of the next day following the date on which the request was received.
12
A highway authority may reduce the amount, or waive payment, of a charge —
a
in any particular case,
b
in such classes of case as they may decide,
c
in all cases,
d
in all cases other than a particular case, or
e
in all cases other than such class of case as they may decide.
13
Charges are only payable in respect of street works where the highway authority has given the undertaker, not later than three months after receipt of a works clear notice or a works closed notice, an account in writing setting out the charges payable.
Estimates of duration of works
10
1
Subject to paragraph (5), if an undertaker has reason to believe that the duration of the works will exceed the prescribed period, that undertaker shall give the highway authority notice containing an estimate of their likely duration —
a
in the case of works in connection with the initial placing of apparatus in the street in pursuance of a street works licence, together with the application for the licence;
b
in the case of works (not being emergency works) together with —
i
the notice under section 55 of the 1991 Act (notice of starting date), or
ii
the notification under paragraph 2(1)(d) of Schedule 3A to that Act (notification of proposed works) ; or
c
in the case of emergency works, as soon as reasonably practicable after the works are begun.
2
The period of duration contained in a notice given under paragraph (1) shall be taken to be agreed by the authority to be reasonable unless they give written notice to the undertaker, within the relevant period set out in paragraph (3), that they object to the estimate.
3
The relevant period referred to in paragraph (2) is —
a
5 days, in the case of major or standard works, and
b
2 days, in the case of minor or immediate works,
beginning with the date on which the authority receives the notice containing the estimate.
4
A notice of objection given by an authority under paragraph (2) shall contain their own estimate of a reasonable period for the duration of the works.
5
This regulation shall not apply where an undertaker proposes to carry out street works in respect of which a permit must be obtained from a Permit Authority.
Further and revised estimates of duration of works
11
1
Subject to paragraph (4), if it appears to an undertaker that, by reason of matters not previously foreseen or reasonably foreseeable, the duration of the works is likely to exceed —
a
the prescribed period,
b
the period stated in that undertaker’s previous estimate, or
c
the period previously agreed or determined under section 74(2) of the 1991 Act to be a reasonable period,
the undertaker shall give the highway authority written notice containing an estimate or revised estimate.
2
Where notice is given under paragraph (1), any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the highway authority to be reasonable, unless they give written notice to the undertaker, within the period set out in paragraph (3), that they object to the estimate.
3
The period referred to in paragraph (2) shall be 2 days beginning with the date on which the authority received the notice containing the estimate or revised estimate.
4
This regulation shall not apply where a permit to carry out proposed street works has been granted by a Permit Authority.
Application of charges and keeping of accounts
12
1
A local highway authority may deduct from prescribed charges received from an undertaker the reasonable costs of operating the scheme under which they are paid and shall apply the net proceeds for the purpose of developing or implementing policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities and services to, from and within their area.
2
A local highway authority shall keep accounts of sums paid by way of charges.
Offence
13
An undertaker who, without reasonable cause, fails to give any notice required by these Regulations commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Form of notice
14
1
Any notice required by these Regulations shall be in, or to the like effect as, the form contained in the Technical Specification.
2
A notice shall also include such other information as may be required by the Technical Specification to complete the parts of the form referred to in paragraph (1) which are indicated in that form as being relevant to the notice.
Manner of service of notice
15
1
Subject to paragraphs (2), (5) and (7), where an undertaker is required to give notice to a highway authority in accordance with regulation 6, such notice shall be given by —
a
sending it to the highway authority at its proper address by using an electronic communication in accordance with the condition set out in paragraph (4);
b
delivering it to that authority at that address; or
c
any other means agreed between the undertaker and the authority.
2
Where a highway authority to whom an undertaker is obliged to give such notice does not have arrangements for receiving and responding to notices for any period after 4.30 pm and before 8.00 am the following day, the undertaker shall have complied with that obligation if a notice is served by 10.00 am on that following day.
3
Subject to paragraphs (5) and (7), in any other case where a person is required to give a notice under these Regulations, such notice shall be given by —
a
sending it to the person to whom it is to be given at that person’s proper address by using an electronic communication in accordance with the condition set out in paragraph (4);
b
sending it by first class post to that person at that address;
c
delivering it to that person;
d
leaving it at that person’s proper address; or
e
any other means agreed between the person giving it and the person to whom it is to be given.
4
The condition referred to in paragraphs (1)(a) and (3)(a) is that the notice shall be —
a
capable of being accessed by the person to whom it is being sent;
b
legible in all material respects; and
c
in a form which permits the notice to be retained for subsequent reference,
and for this purpose “legible in all material respects” means that the information contained in the notice is available to that person to no lesser extent than it would be if given by means of a notice in printed form.
5
Subject to paragraph (7), from and including 1 st April 2009 all notices required to be given under these Regulations by a highway authority or a statutory undertaker shall be exchanged between one highway authority and another, one statutory undertaker and another and between a highway authority and a statutory undertaker by using electronic communications in accordance with the condition set out in paragraph (4).
6
Subject to section 98(2) of the 1991 Act (reckoning of periods), where an electronic communication is used for the purpose of serving a notice, then, unless the contrary is proved, the notice shall be deemed to be given on the day and at the time recorded by the transmitting apparatus as being the day and time of satisfactory completion of transmission.
7
Where, after three attempts (duly recorded by the person serving the notice) to effect service by using one particular method for transmitting an electronic communication, service cannot be effected, the notice may be given by serving it upon the person to whom it is to be given by any other such method for which there is a proper address, or by any of the other means referred to in paragraph (1) or, as the case may be, paragraph (3).
8
Subject to paragraph (9), for the purposes of this regulation, the proper address of any person to whom notice is to be given shall be —
a
where such person —
i
has provided the person giving the notice with an address for service of notices under these Regulations by using a particular method for transmitting an electronic communication; and
ii
has not notified the latter that the address is withdrawn for that purpose,
that address in relation to that method of transmission;
b
where such person has provided the person giving the notice with an address for postal service of such notices, that address in relation to postal service;
c
where such person has provided the person giving the notice with an address for service of such notices by any other means, that address in relation to such other means; and
d
otherwise —
i
in the case of a body corporate, the registered or principal office of that body corporate; and
ii
in any other case, the last known address of such person.
9
A person may provide different addresses for different notices or different classes of notice.
Signed by authority of the Secretary of State for Transport
Paul Clark
Parliamentary Under Secretary of State
Department for Transport
14th February 2009


type: legislation

jurisdiction: UK

text:
Title and Commencement
1
The title of this Order is the Welsh College of Horticulture (Dissolution) Order 2009 and comes into force on 1 August 2009.
Dissolution and ransfer
2
On 1 August 2009 WCoH is dissolved and —
a
all of WCoH’s property, rights and liabilities specified in Part 1 of the Schedule to this Order are transferred to Glyndŵr University, being a body corporate established for purposes which include the provision of educational facilities or services;
b
all of WCoH’s property, rights and liabilities specified in Part 2 of the Schedule are transferred to Glyndŵr University and Deeside College to hold on trust for themselves as tenants in common in equal shares and on trust to be used for charitable purposes which are exclusively educational purposes;
c
all other property, rights and liabilities of WCoH not included in paragraphs (a) and (b) of this Article are transferred to Deeside College.
Transfer of Staff
3
Section 26(2), (3) and (4) of the Act applies to any person employed by WCoH immediately before 1 August 2009 as if the references in that section —
a
to a person to whom that section applies were to a person so employed;
b
to the operative date were to 1 August 2009;
c
to the transferor were to WCoH;
d
to the corporation were to Deeside College, save in relation to those employees designated in Part 3 of the Schedule (“the Part 3 Employees”);
e
to the corporation in relation to the Part 3 Employees were to Glyndŵr University.
J Griffiths
Deputy Minister for Skills under authority of the Minister for Children, Education, Lifelong Learning and Skills, one of the Welsh Ministers
9 July 2009


text:
Citation and commencement
1
1
This Order may be cited as the Official Statistics Order 2009.
2
This Order comes into force on 1st April 2009 or, if made on or after that date, the day after it is made.
Revocation
2
The Official Statistics Order 2008 is revoked.
Official Statistics
3
1
To the extent that they are not otherwise official statistics by virtue of section 6(1)(a) of the Statistics and Registration Service Act 2007, the statistics produced, or to be produced, by the persons listed in the Schedule are specified as official statistics for the purposes of section 6(1)(b) of that Act.
2
Paragraph (1) does not apply to statistics which are wholly Scottish devolved statistics.
Liam Byrne
Minister for the Cabinet Office
19th March 2009


text:
This Order may be cited as the Health Professions Council (Practice Committees and Miscellaneous Amendments) Rules Order of Council 2009 and comes into force on 1st July 2009.
Judith Simpson
Clerk of the Privy Council


text:
Citation and commencement
1
This Order may be cited as the Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 2009 and shall come into force on 31 st October 2009.
Interpretation
2
1
In this Order —
“ the Act ” means the Youth Justice and Criminal Evidence Act 1999;
“the 2006 Act ” means the Armed Forces Act 2006 ;
“ Court Martial Rules ” means rules made under section 163 of the 2006 Act;
“ CMAC Rules ” means rules made under section 49 of the Court Martial Appeals Act 1968 ;
“ SCC Rules ” means rules made under section 288 of the 2006 Act;
“the competence of witnesses and capacity to be sworn provisions” has the meaning given by article 9(4);
“the general and final provisions” has the meaning given by article 11(2);
“judge advocate” has the same meaning as in section 362 of the 2006 Act;
“lay members” has the same meaning as in section 155(1) of the 2006 Act;
“the protection of complainants in proceedings for sexual offences provisions” has the meaning given by article 7(2);
“the protection of witnesses from cross-examination provisions” has the meaning given by article 5(3);
“Rules of court” means rules of evidence and procedure for proceedings before —
the Court Martial;
the Service Civilian Court; and
the Court Martial Appeal Court;
“the special measures provisions” has the meaning given by article 3(3).
2
Any reference in this Order to a special measures direction is to be read —
a
in relation to proceedings before the Court Martial, as a reference to a special measures direction within the meaning of Court Martial Rules;
b
in relation to proceedings before the Service Civilian Court, as a reference to a special measures direction within the meaning of SCC Rules;
c
in relation to proceedings before the Court Martial Appeal Court, as a reference to a direction under section 19 of the Act.
Application of special measures provisions
3
1
The special measures provisions in paragraph (3)(a) to (g), (i), (k), (n), (p) and (s) shall apply in relation to proceedings before the Court Martial Appeal Court as they apply in relation to criminal proceedings, subject to the modifications specified in article 4.
2
The special measures provisions in paragraph (3)(h), (j), (l), (m), (o), (q) and (r) shall apply in relation to proceedings before —
a
the Court Martial,
b
the Service Civilian Court, and
c
the Court Martial Appeal Court,
as they apply in relation to criminal proceedings, subject to the modifications specified in article 4.
3
In this Order “the special measures provisions” means the following provisions of the Act —
a
section 16 (witness eligible for assistance on grounds of age or incapacity);
b
section 17 (witness eligible for assistance on grounds of fear or distress about testifying);
c
section 18 (special measures available to eligible witness);
d
section 19 (special measures direction relating to eligible witness);
e
section 20 (further provisions about directions: general);
f
section 21 (special provisions relating to child witnesses);
g
section 22 (extension of provisions of section 21 to certain witnesses over 17);
h
section 23 (screening witness from accused);
i
section 24(1) to (4) and (8) (evidence by live link);
j
section 25(1) to (3) and (5) (evidence given in private);
k
section 25(4) (evidence given in private);
l
section 26 (removal of wigs and gowns);
m
section 27(1) and (11) (video recorded evidence in chief);
n
section 27(2) to (9) (video recorded evidence in chief);
o
section 29(1), (2) and (5) to (7) (examination of witness through intermediary);
p
section 29(3) and (4) (examination of witness through intermediary);
q
section 30 (aids to communication);
r
section 31 (status of evidence given under Chapter 1 of Part 2 of the Act); and
s
section 33 (interpretation etc of Chapter 1).
Modification of special measures provisions
4
1
In their application by virtue of article 3, the special measures provisions are modified as follows.
2
Any reference to a special measures direction has the same meaning as in this Order.
3
Any reference to criminal proceedings is to be read as a reference to proceedings before the Court Martial, the Service Civilian Court or the Court Martial Appeal Court.
4
Any reference to the witness is to be read as a reference to the witness to whose evidence the special measures direction applies.
5
Any reference to the accused is to be read —
a
in relation to —
i
trial proceedings within the meaning of Court Martial Rules, or
ii
trial proceedings within the meaning of SCC Rules,
as a reference to the defendant;
b
in relation to appellate proceedings within the meaning of Court Martial Rules, as a reference to the appellant;
c
in relation to proceedings before the Court Martial Appeal Court, as a reference to the person charged with an offence to which the proceedings relate (whether or not he has been convicted).
6
Any reference to —
a
the court (except in section 25(1) of the Act), or
b
the judge,
is to be read, in relation to proceedings before the Court Martial or the Service Civilian Court, as a reference to the judge advocate.
7
Any reference to Criminal Procedure Rules is to be read as a reference to Rules of court.
8
Any reference to the jury is to be read, in relation to proceedings with lay members, as a reference to those lay members.
9
Section 20(5) of the Act has effect as if the words “and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings” were omitted.
10
Sections 21(1)(b) and 22(1)(b) of the Act have effect as if after the words “relate is” wherever they occur there were inserted “an offence under section 42 of the Armed Forces Act 2006 to which the corresponding offence under the law of England and Wales (within the meaning of that Act) is”.
11
Section 23(2)(a) of the Act has effect, in relation to proceedings before —
a
the Court Martial as if for the words “or justices (or both) and the jury (if there is one)” there were substituted “and any lay members”;
b
the Service Civilian Court or the Court Martial Appeal Court as if the words “or justices (or both) and the jury (if there is one)” were omitted.
12
Section 24(3)(b) of the Act has effect in relation to proceedings before the Court Martial or the Service Civilian Court as if for the word “its” there was substituted “his”.
13
Section 27(7)(b) of the Act has effect in relation to proceedings before the Court Martial or the Service Civilian Court as if for the word “its” there was substituted “his”.
14
In section 29 to 31 of the Act, references to a witness include a defendant or appellant who gives evidence.
15
Section 29(3) of the Act has effect as if —
a
for the words “judge or justices (or both)” in paragraph (a) there were substituted “judges”;
b
the word “and” at the end of paragraph (a) was omitted; and
c
paragraph (b) was omitted.
16
Section 29(6) of the Act has effect in relation to proceedings before the Court Martial or the Service Civilian Court as if for the word “court’s” there was substituted “judge advocate’s”.
Application of protection of witnesses from cross-examination provisions
5
1
The protection of witnesses from cross-examination provisions in paragraph (3)(a) to (e) shall apply in relation to proceedings before —
a
the Court Martial,
b
the Service Civilian Court, and
c
the Court Martial Appeal Court,
as they apply in relation to criminal proceedings, subject to the modifications specified in article 6.
2
The protection of witnesses from cross-examination provision in paragraph (3)(f) shall apply, in relation to proceedings before the Court Martial, as it applies in relation to criminal proceedings, subject to the modifications specified in article 6.
3
In this Order “the protection of witnesses from cross-examination provisions” means the following provisions of the Act —
a
section 34 (complainants in proceedings for sexual offences);
b
section 35 (child complainants and other child witnesses);
c
section 36 (direction prohibiting accused from cross-examining particular witness);
d
section 37 (further provisions about directions under section 36);
e
section 38 (defence representation for purposes of cross-examination); and
f
section 39 (warning to jury).
Modification of protection of witnesses from cross-examination provisions
6
1
In their application by virtue of article 5, the protection of witnesses from cross-examination provisions are modified as follows.
2
Any reference to criminal proceedings is to be read as a reference to proceedings before the Court Martial, the Service Civilian Court or the Court Martial Appeal Court.
3
Any reference to —
a
the court, or
b
the judge,
is to be read, in relation to proceedings before the Court Martial or the Service Civilian Court, as a reference to the judge advocate.
4
Any reference to the accused is to be read —
a
in relation to —
i
trial proceedings within the meaning of Court Martial Rules, or
ii
trial proceedings within the meaning of SCC Rules,
as a reference to the defendant;
b
in relation to appellate proceedings within the meaning of Court Martial Rules, as a reference to the appellant;
c
in relation to proceedings before the Court Martial Appeal Court, as a reference to the person charged with an offence to which the proceedings relate (whether or not he has been convicted).
5
Any reference to Criminal Procedure Rules is to be read as a reference to Rules of court.
6
Any reference to the jury is to be read, in relation to proceedings with lay members (within the meaning of Court Martial Rules), as a reference to those lay members.
7
Section 35(3) of the Act has effect as if for the words “The offences to which this section applies are — ” there were substituted “This section applies to any offence under section 42 of the Armed Forces Act 2006 to which the corresponding offence under the law of England and Wales (within the meaning of that Act) is — ” and for the word “any” in paragraph (a) there was substituted “an”.
8
Section 36(1)(b) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the words “of its” there were substituted “of his”.
9
Section 37(2)(b) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the word “its” there was substituted “his”.
10
Section 37(4) of the Act has effect, in relation to proceedings before —
a
the Court Martial or the Service Civilian Court, as if for the word “its” there was substituted “his”;
b
the Court Martial or the Court Martial Appeal Court, as if the words “and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings” were omitted;
c
the Service Civilian Court, as if for the words “and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings” there were substituted “and the judge advocate must cause them to be entered in the record of proceedings”.
11
Section 38(2) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the words “it must” there were substituted “he must” and as if for the words “it may” there were substituted “he may”.
12
Section 38(4) of the Act has effect as if the word “qualified” was omitted.
13
Section 38(8) of the Act has effect as if —
a
the word “and” in paragraph (a), and
b
paragraph (b),
were omitted.
14
Section 39(1) of the Act has effect as if the words “on a trial on indictment with a jury” were omitted.
Application of protection of complainants in proceedings for sexual offences provisions
7
1
The protection of complainants in proceedings for sexual offences provisions shall apply in relation to proceedings before —
a
the Court Martial,
b
the Service Civilian Court, and
c
the Court Martial Appeal Court,
as they apply in relation to criminal proceedings, subject to the modifications specified in article 8.
2
In this Order “the protection of complainants in proceedings for sexual offences provisions” means the following provisions of the Act —
a
section 41 (restriction on evidence or questions about complainant’s sexual history);
b
section 42(1) and (3) (interpretation and application of section 41); and
c
section 43 (procedure on applications under section 41).
Modification of protection of complainants in proceedings for sexual offences provisions
8
1
In their application by virtue of article 7, the protection of complainants in proceedings for sexual offences provisions are modified as follows.
2
Any reference to the court is to be read, in relation to proceedings before the Court Martial or the Service Civilian Court, as a reference to the judge advocate.
3
Any reference to the accused is to be read —
a
in relation to —
i
trial proceedings within the meaning of Court Martial Rules, or
ii
trial proceedings within the meaning of SCC Rules,
as a reference to the defendant;
b
in relation to appellate proceedings within the meaning of Court Martial Rules, as a reference to the appellant;
c
in relation to proceedings before the Court Martial Appeal Court, as a reference to the person charged with an offence to which the proceedings relate (whether or not he has been convicted).
4
Any reference to Criminal Procedure Rules is to be read as a reference to Rules of court.
5
Section 41(2) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the words “it is satisfied” there were substituted “he is satisfied”.
6
Section 41(2)(b) of the Act has effect as if the words “the jury or (as the case may be)” were omitted.
7
Section 42(3) of the Act has effect as if paragraphs (a), (b) and (c) were omitted.
8
Section 42(3) of the Act has effect, in relation to proceedings before the Service Civilian Court, as if —
a
the word “and” at the end of paragraph (d), and
b
paragraph (e),
were omitted.
9
Section 43(2) of the Act has effect, in relation to proceedings before —
a
the Court Martial, as if for the words “the court must state in open court (but in the absence of the jury, if there is one)” there were substituted “the judge advocate must state in open court (but in the absence of any lay members)”;
b
the Service Civilian Court or the Court Martial Appeal Court, as if the words “(but in the absence of the jury, if there is one)” were omitted;
c
the Court Martial or the Service Civilian Court, as if for the word “its” in paragraph (a) there was substituted “his” and as if for the word “it” in paragraph (b) there was substituted “he”;
d
the Service Civilian Court, as if the words “and, if it is a magistrates’ court, must cause those matters to be entered in the register of its proceedings” there were substituted “and the judge advocate must cause those matters to be entered in the record of proceedings”;
e
the Court Martial or the Court Martial Appeal Court, as if the words “and, if it is a magistrates’ court, must cause those matters to be entered in the register of its proceedings” were omitted.
10
Section 43(3)(b) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court as if for the words “it considers would assist it” there were substituted “he considers would assist him”.
Application of competence of witnesses and capacity to be sworn provisions
9
1
The competence of witnesses and capacity to be sworn provisions in paragraph (4)(a), (b), (e), (g), and (i) shall apply in relation to proceedings before —
a
the Court Martial,
b
the Service Civilian Court, and
c
the Court Martial Appeal Court,
as they apply in relation to criminal proceedings, subject to the modifications specified in article 10.
2
The competence of witnesses and capacity to be sworn provisions in paragraph (4)(d) and (h) shall apply in relation to proceedings before —
a
the Court Martial, and
b
the Service Civilian Court,
as they apply in relation to criminal proceedings, subject to the modifications specified in article 10.
3
The competence of witnesses and capacity to be sworn provisions in paragraph (4)(c) and (f) shall apply, in relation to proceedings before the Court Martial, as they apply in relation to criminal proceedings, subject to the modifications specified in article 10.
4
In this Order “the competence of witnesses and capacity to be sworn provisions” means the following provisions of the Act —
a
section 53 (competence of witnesses to give evidence);
b
section 54(1) to (3) and (5) (determining competence of witnesses);
c
section 54(4) (determining competence of witnesses);
d
section 54(6) (determining competence of witnesses);
e
section 55(1) to (4) and (6) to (8) (determining whether witness to be sworn);
f
section 55(5) (determining whether witness to be sworn);
g
section 56(1) to (4) (reception of unsworn evidence);
h
section 56(5) (reception of unsworn evidence); and
i
section 57 (penalty for giving false unsworn evidence).
Modification of competence of witnesses and capacity to be sworn provisions
10
1
In their application by virtue of article 9, the competence of witnesses and capacity to be sworn provisions are modified as follows.
2
Any reference to criminal proceedings is to be read as a reference to proceedings before the Court Martial, the Service Civilian Court or the Court Martial Appeal Court.
3
Any reference to the court is to be read —
a
in relation to proceedings before the Court Martial or the Service Civilian Court, as a reference to the judge advocate; or
b
as a reference to the Court Martial Appeal Court.
4
Section 54(1)(b) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court as if for the word “its” there was substituted “his”.
5
Section 54(4) of the Act has effect, in relation to proceedings before the Court Martial, as if for the words “jury (if there is one)” there were substituted “any lay members”.
6
Section 55(1)(b) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court as if for the word “its” there was substituted “his”.
7
Section 55(5) of the Act has effect, in relation to proceedings before the Court Martial, as if for the words “jury (if there is one)” there were substituted “any lay members”.
8
Section 56(5) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the words “any of sections 2(1), 13(1) and 16(1) of the Criminal Appeal Act 1968” there were substituted “section 12(1) of the Courts-Martial (Appeals) Act 1968” and as if for the words “Court of Appeal” there were substituted “Court Martial Appeal Court”.
Application of general and final provisions
11
1
The general and final provisions, so far as having effect for the purposes of Chapter 1 to 3 and 5 of Part 2 of the Act, shall apply in relation to proceedings before —
a
the Court Martial,
b
the Service Civilian Court, and
c
the Court Martial Appeal Court,
as they apply in relation to criminal proceedings, subject to the modifications specified in article 12.
2
In this Order “the general and final provisions” means the following provisions of the Act —
a
section 62 (meaning of “sexual offence” and other references to offences);
b
section 63 (general interpretation etc of Part 2); and
c
section 65 (general supplementary provisions).
Modification of general and final provisions
12
1
In their application by virtue of article 11, the general and final provisions are modified as follows.
2
Any reference to criminal proceedings is to be read as a reference to proceedings before the Court Martial, the Service Civilian Court or the Court Martial Appeal Court.
3
Any reference to Criminal Procedure Rules is to be read as a reference to Rules of court.
4
Section 62(1) of the Act has effect as if for the words “or any relevant superseded offence” there were substituted “, any relevant superseded offence or any offence under section 42 of the Armed Forces Act 2006 to which the corresponding offence in England and Wales (within the meaning of that Act) is such an offence”.
5
Section 63(1) of the Act has effect as if —
a
for the definition of “court” there was substituted —
“court” (except in Chapter 4 and 5 or subsection (2)) means the Court Martial Appeal Court;
; and
b
for the definition of “legal representative” there was substituted —
“legal representative” means a person appointed as a legal representative under the Court Martial Rules, the SCC Rules or the CMAC Rules;
.
6
Section 63(2) of the Act has effect as if for the word “court” there was substituted —
a
in relation to proceedings before the Court Martial or the Service Civilian Court, “judge advocate”; or
b
in relation to proceedings before the Court Martial Appeal Court, “Court Martial Appeal Court”.
7
Section 65(3) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the word “court” there was substituted “judge advocate”.
Modification of reporting restrictions provisions
13
1
Chapter 4 of Part 2 (and sections 63 and 65 so far as having effect for the purposes of that Chapter) of the Act are modified as follows.
2
Any reference to criminal proceedings is to be read as a reference to proceedings before the Court Martial, the Service Civilian Court or the Court Martial Appeal Court.
3
Any reference to Criminal Procedure Rules is to be read as a reference to Rules of court.
4
In relation to proceedings before the Court Martial or the Service Civilian Court —
a
section 45(3) to (6), (9) and (10)(b) of the Act,
b
section 46(1) to (5) and (8) to (11) of the Act,
c
section 47(2)(b)(ii) and (3) to (5) of the Act, and
d
section 52(1) of the Act,
have effect as if for the word “court” wherever it appears there were substituted “judge advocate”.
5
Section 46(4)(d)(iii) and section 47(4)(a) and (5)(a) of the Act have effect as if for the word “accused” wherever it appears there were substituted —
a
in relation to —
i
trial proceedings within the meaning of Court Martial Rules, or
ii
trial proceedings within the meaning of SCC Rules,
“defendant”;
in relation to appellate proceedings within the meaning of Court Martial Rules, “appellant”;
in relation to proceedings before the Court Martial Appeal Court, “person charged with an offence to which the proceedings relate (whether or not he has been convicted)”.
6
Section 47(2)(b) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the word “its” there was substituted “his”.
7
Section 63(2) of the Act has effect as if for the word “court” there was substituted —
a
in relation to proceedings before the Court Martial or the Service Civilian Court, “judge advocate”; or
b
in relation to proceedings before the Court Martial Appeal Court, “Court Martial Appeal Court”.
8
Section 65(3) of the Act has effect, in relation to proceedings before the Court Martial or the Service Civilian Court, as if for the word “court” there was substituted “judge advocate”.
Revocations
14
The following Orders are revoked —
a
the Youth Justice and Criminal Evidence Act 1999 (Application to Courts-Martial) Order 2006 ;
b
the Youth Justice and Criminal Evidence Act 1999 (Application to the Courts-Martial Appeal Court) Order 2006 ; and
c
the Youth Justice and Criminal Evidence Act 1999 (Application to Standing Civilian Courts) Order 2006 .
Kevan Jones
Parliamentary Under Secretary of State
Ministry of Defence
27th July 2009


text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Armed Forces Pension Scheme etc. (Amendment) Order 2009 and comes into force on 6 th April 2009.
2
In this Order —
“the EDP Scheme Order” means the Armed Forces Early Departure Payments Scheme Order 2005 ; and
“the AFPS 2005” means the Armed Forces Pension Scheme 2005 established by article 2(1) of the Armed Forces Pension Scheme Order 2005 and set out in Schedule 1 to that Order.
Amendments to the EDP Scheme Order
2
The EDP Scheme Order is amended in accordance with articles 3 5 .
Inflation adjustments in determining final relevant earnings for early departure payment awards
3
For article 7 substitute —
Inflation adjustments in determining final relevant earnings
7
1
For the purpose of determining a person’s final relevant earnings under article 6, the amount of relevant earnings, as determined in accordance with article 6, for that part of the period of 365 days that falls 365 days or more before the last day of service is adjusted for inflation.
2
If the member’s final relevant earnings are determined in accordance with paragraph (1) to be an amount for any period in relation to which any adjustment for inflation has been made under this article, then, except as provided in article 11(2) and (3), the member’s final relevant earnings are to be taken for all purposes to be the amount so determined after that adjustment.
3
The reference in paragraph (1) to adjusting for inflation the amount of relevant earnings for part of a period is a reference to increasing it by the same amount as that by which an annual pension of an amount equal to those earnings would have been increased under the Pensions (Increase) Act 1971 on the day following the last day of relevant service if the pension —
a
were eligible to be so increased, and
b
had come into payment on the day following the last day of that period.
.
Inflation adjustments: supplementary
4
1
Article 11 (increases for inflation) is amended as follows.
2
In paragraph (1) after “article 7” insert “in determining the amount of the person’s final relevant earnings”.
3
For paragraphs (2) to (4) substitute —
2
For the purposes of determining the annual amount of the payments to be calculated in accordance with article 10(6), any adjustment required by article 7 is disregarded, and accordingly, the person’s actual total relevant earnings for the 365 consecutive days applicable in the person’s case under article 6(1) is taken to be the amount of the person’s final relevant earnings.
3
But the payments calculated in accordance with article 10(6) must be increased by the same amount which they would be increased under the Pensions (Increase) Act 1971 if they were payments of pension so calculated and the pension was eligible to be increased under that Act.
.
Effect of entering further military service on early departure payment awards
5
1
Article 12 (effect of rejoining armed forces or entering certain reserve forces service on article 9 award) is amended as follows.
2
In paragraph (1) —
a
omit “or” at the end of sub-paragraph (c);
b
at the end of sub-paragraph (d) for “;” substitute “,”; and
c
after sub-paragraph (d) insert —
or
e
enters service to which Part 3 or 4 of Chapter 6 of the Territorial Army Regulations 1978 applies (non-regular permanent staff officers or soldiers);
.
3
In paragraph (5) for “paragraph (1)(c) or (d)” substitute “paragraph (1)(c), (d) or (e)”.
Amendments to the AFPS 2005
6
The AFPS 2005 is amended in accordance with articles 7 12 .
Inflation adjustments in determining final pensionable earnings for the AFPS 2005
7
For rule A.5 substitute —
Inflation adjustments in determining final pensionable earnings
A.5
1
For the purpose of determining which is the greatest amount mentioned in rule A.4(1), the amount of pensionable earnings, as determined in accordance with rule A.4, for that part of the period of 365 days that falls 365 days or more before the last day of service is adjusted for inflation.
2
Any adjustment made for the purpose of determining final pensionable earnings shall be disregarded for all other purposes of the Scheme.
3
The reference in paragraph (1) to adjusting for inflation the amount of pensionable earnings for part of a period is a reference to increasing it by the same amount as that by which an annual pension of an amount equal to those earnings would have been increased under the Pensions (Increase) Act 1971 on the day following the last day of reckonable service if the pension —
a
were eligible to be so increased, and
b
had come into payment on the day following the last day of that period.
.
Gratuity-earning service
8
1
In rule A.7 (qualifying service) in paragraph (1) —
a
omit “and” at the end of sub-paragraph (d);
b
at the end of sub-paragraph (e) substitute “,” for “.”; and
c
after sub-paragraph (e) insert —
f
in the case of a person whose service was gratuity-earning service before its terms were changed and who meets the condition in paragraph (1A), that period of gratuity-earning service, and
g
in the case of a person who was paid a gratuity on the satisfactory completion of gratuity-earning service and has repaid that gratuity together with interest at the Bank of England base rate, calculated on a monthly basis, from the day after the last day of service in respect of which the gratuity was awarded to the day before the date of re-entry within the period of one year of becoming an active member of this Scheme, that completed service.
1A
The condition referred to in paragraph (1)(f) and rule A.8(1)(h) is that the person has surrendered all rights to a gratuity in respect of the gratuity-earning service in consideration for which the person becomes eligible for membership of this Scheme.
.
2
In rule A.8 (reckonable service) in paragraph (1) —
a
omit “and” at the end of sub-paragraph (f);
b
at the end of sub-paragraph (g) substitute “,” for “.”; and
c
after sub-paragraph (g) insert —
h
in the case of a person whose service was gratuity-earning service before its terms were changed and the person meets the condition in rule A.7(1A), that period of gratuity-earning service, and
i
in the case of a person who was paid a gratuity on the satisfactory completion of gratuity-earning service (as so defined) and has repaid that gratuity together with interest at the Bank of England base rate, calculated on a monthly basis, from the day after the last day of service in respect of which the gratuity was awarded to the day before the date of re-entry within the period of one year of becoming an active member of this Scheme, that completed service.
.
3
In rule A.1 (interpretation: general) after the definition of “final pensionable earnings” insert —
“gratuity-earning service” means service on a short service commission on terms providing that the person serving is not eligible to be a member of this Scheme or the AFPS 1975, but will be eligible for the payment of a gratuity on leaving service, subject to the satisfactory completion of that person’s service;
.
Disregard of short breaks in service
9
1
Rule A.10 (disregard of short breaks in service) is amended as follows —
a
in paragraph (1) for “If” substitute “Subject to paragraph (1A), if”;
b
after paragraph (1) insert —
1A
Where an active member meets the conditions in paragraph (1)(a) and (b) and rejoins at a lower rank than the substantive rank held at the end of the earlier service, the member may opt for paragraph (1) to apply, such option may be exercised at any time during the later service.
;
c
after paragraph (3) insert —
4
Paragraph (1A) does not apply if before the time when the condition in paragraph (1)(b) is met, a pension has come into payment for the earlier period of service.
.
2
In rule E.3 (amount of pensions under rules E.1 and E.2: active members) after paragraph (4) insert —
4A
If immediately before the member’s death he was entitled to exercise the option under rule A.10(1A), then unless paragraph (5) applies, these Rules apply as if the member had exercised that option before his death.
.
Pension credit members’ pensions
10
For paragraph (3) of rule D.3 (pension credit members’ pensions) substitute —
3
The pension and any lump sum become payable —
a
where the pension sharing order is made before 6 th April 2009 —
i
immediately on the pension credit member reaching pension benefit age, or
ii
if it is later, when the pension sharing order under which the member is entitled to the pension credit takes effect;
b
where the pension sharing order is made on or after 6 th April 2009 —
i
immediately on the pension credit member reaching pension age, or
ii
if it is later, when the pension sharing order under which the member is entitled to the pension credit takes effect.
.
11
For rule D.4 (early payment of pensions with actuarial reduction) substitute —
Early payment of pensions with actuarial reduction
D.4
1
A member who is not entitled to immediate payment of a pension under rule D.1, D.2 or D.3(3)(b)(i) may opt for immediate payment of a reduced pension and lump sum if the member has reached pension age and either paragraph (2) or paragraph (3) applies.
2
This paragraph applies if the member —
a
meets the condition in rule D.2(1)(a) or (b); and
b
has ceased to be in service that qualifies him to belong to the Scheme.
3
This paragraph applies if —
a
the member is a pension credit member;
b
the pension sharing order from which the pension credit rights derive was made before 6th April 2009; and
c
that order has taken effect.
4
If a member exercises the option under this rule, the amount of the annual pension to which the member becomes entitled is first calculated as mentioned in rule D.2(3) or D.3(5) and then that amount is reduced by such amount as the Secretary of State determines after consulting the Scheme actuary.
5
If a member exercises the option under this rule, the amount of the lump sum to which the member becomes entitled is first calculated as mentioned in rule D.2(4) or D.3(5) and then that amount is reduced by such amount as the Secretary of State determines after consulting the Scheme actuary.
6
The option under this rule may only be exercised by notice in writing to the Scheme administrator in such form as the Secretary of State requires.
.
Other amendments to the AFPS 2005
12
1
In rule A.4 (meaning of “final pensionable earnings”) in paragraph (4) for “for the purposes of that paragraph” substitute “for the purposes of those paragraphs”.
2
In paragraph (3) of rule B.4 (joining the Scheme after service begins) in subparagraph (b) omit the words “after consultation with the Scheme medical adviser”.
3
In rule D.5 (early payment of benefits: active members with permanent serious ill-health) in paragraph (2) for “For the purposes of these Rules” substitute “For the purposes of this rule and rule D.8”.
4
In rule D.7 (early payment of benefits: deferred members with permanent serious ill-health) —
a
in paragraph (1)(a) for “(see rule D.5(2) and (3))” substitute “(see rule D.5(3) and paragraph (4) below),”; and
b
after paragraph (3) insert —
4
For the purposes of this Rule a member’s breakdown in health is “permanent” if, in the opinion of the Secretary of State, it will continue at least until the member reaches pension benefit age.
.
5
In rule D.8 (member’s requests for review of ill-health awards) for paragraph (7) substitute —
7
If on any review under paragraph (4), the Secretary of State is of the opinion that —
a
the member has suffered such a breakdown as is mentioned in paragraph (4)(a), but
b
the condition by virtue of which he became entitled to the pension under rule D.6 has deteriorated so that he suffered such a breakdown later,
then the member’s entitlement to a pension under rule D.6 ceases and the member is entitled to a pension calculated in accordance with paragraph (7A) from the date on which the review was requested.
7A
The pension to which a member is entitled under paragraph (7) shall consist of —
a
a pension calculated under rule D.5, and
b
an increase in that pension by an amount equivalent to the amount that a pension would be increased if the option to exchange a lump sum under rule D.10 were exercised where the amount of the lump sum exchanged is the difference between the lump sum paid to the member under rule D.6 and the lump sum which the member would have received had the member been entitled to it under rule D.5.
.
6
In rule D.10 (option to exchange lump sum for pension) in paragraph (1) for “an increase in the amount of pension payable to himself or to any other person under these Rules” substitute —
an increase —
a
in the amount of pension payable to himself under these Rules, or
b
in the amount of pension payable to himself and to any other person under these Rules as a result of his membership of the Scheme.
.
7
In rule D.11 (option for members in serious ill-health to exchange whole pension for lump sum) omit paragraph (4).
Kevan Jones
Parliamentary Under Secretary of State
Ministry of Defence
9th March 2009


text:
Citation and commencement
1
1
This Order may be cited as the Manchester Ship Canal Harbour Revision Order 2009 and comes into force on 30th September 2009.
2
Subject to the repeals referred to in article 8, the Manchester Ship Canal Acts and Orders 1885 to 1992 and this Order may be cited together as the Manchester Ship Canal Acts and Orders 1885 to 2009.
Interpretation
2
In this Order —
“the canal” means the Manchester Ship Canal;
“the Company” means the Manchester Ship Canal Company, including that company under any name to which its name may be changed; and
“the directors” means the directors of the Company.
Application of the Companies Act 1985
3
The Company shall be entitled to register as a private company limited by shares under Chapter II of Part XXII of the Companies Act 1985 , which shall have effect in relation to the Company notwithstanding that the Company would not be treated as a joint stock company for the purposes of that Chapter apart from this article.
4
Any registration of the Company under the Companies Act 1985 will not derogate from the obligations (whether express or implied) of the Company under the Harbours Act 1964 and the Manchester Ship Canal Acts and Orders 1885 to 1992 to —
a
maintain
b
operate
c
improve, and
d
take such action as it considers necessary or desirable for or incidental to the maintenance, operation and improvement of
the canal.
5
Upon the registration of the Company under the Companies Act 1985 becoming effective, the Companies Clauses Consolidation Act 1845 and the Companies Clauses Consolidation Act 1888 shall not apply to the Company.
Company’s powers
6
Upon the registration of the Company under the Companies Act 1985 becoming effective, and without prejudice to and in addition to the existing powers of the Company, the Company shall have the powers specified in Schedule 1.
7
Upon the registration of the Company under the Companies Act 1985 becoming effective and despite anything contained in any enactment or other instrument constituting or regulating the Company, the Company may adopt articles of association, provided that nothing in the articles is repugnant to or inconsistent with the provisions of the Manchester Ship Canal Acts and Orders 1885 to 1992 or any other enactment or legislation applying to the Company by virtue of it being a harbour authority.
Repeals and revocations
8
Upon any registration of the Company under the Companies Act 1985 becoming effective, the enactments and orders specified in Schedule 2 shall be repealed or revoked to the extent specified in the third column of that Schedule.
Signed by authority of the Secretary of State for Transport
R. C. Bennett
Head of Ports Division
Department for Transport
22nd September 2009


text:
Citation and commencement
1
1
These Regulations may be cited as the Town and Country Planning (Local Development) (England) (Amendment) Regulations 2009 and, subject to paragraph (2), shall come into force on 6th April 2009.
2
The amendments made by regulation 2(2)(a), (c) and (d) shall come into force on 6th April 2010.
Amendment of the Town and Country Planning (Local Development) (England) Regulations 2004
2
1
The Town and Country Planning (Local Development) (England) Regulations 2004 are amended as follows.
2
In regulation 2(1) (interpretation) in the definition of “specific consultation bodies”―
a
in paragraph (a) for “sub-paragraphs (i) to (x)” substitute “(i) to (xi)”;
b
after “Secretary of State for Transport” insert “in relation to the Secretary of State’s functions concerning railways by virtue of section 1 of the Railways Act 2005 and the Secretary of State’s functions as highway authority by virtue of section 1 of the Highways Act 1980 ,”;
c
at the end of paragraph (a) insert —
xi
the Homes and Communities Agency ;
;
d
in paragraph (b) for “paragraph (a)(i) to (x)” substitute “(a)(i) to (xi)”.
3
In regulation 6 (documents to be specified in local development schemes as local development documents)―
a
in the heading omit “Documents to be specified in local development schemes as”;
b
in paragraph (1) for “for the purposes of section 17(1)(a) which must be specified as LDDs in a local development scheme” substitute “for the purposes of section 17(7)(za) which are LDDs”; and
c
in paragraph (2) for “for the purposes of section 17(1)(a) which, if prepared, must be specified as LDDs in a local development scheme” substitute “for the purposes of section 17(7)(za) which, if prepared, are LDDs”.
4
In regulation 8 (additional matters to be specified in local development schemes and revisions of such schemes)―
a
in paragraph (a) omit “as an LDD ”;
b
omit paragraph (b); and
c
in paragraph (c) omit “as a DPD and the local planning authority’s statement of community involvement”.
5
In regulation 16(2) (application and interpretation of Part 5) in the definition of “SPD documents” omit paragraph (b).
6
In regulation 17 (public participation) omit paragraph (2)(b)(ii).
7
In regulation 24 (application and interpretation of Part 6)―
a
omit paragraph (1);
b
in paragraph (2) —
i
in the definition of “adoption statement” omit paragraph (b);
ii
in the definition of “proposed submission documents” omit paragraph (b);
iii
for the definition of “statement of the representations procedure” substitute―
“statement of the representations procedure” means a statement specifying―
the title of the DPD which the local planning authority propose to submit to the Secretary of State;
the subject-matter of, and the area covered by, that document;
the period within which representations about that document must be made in accordance with regulation 28(2);
the address to which, and the name of the person (if any) to whom, representations about that document must be made in accordance with regulation 28(2);
that representations may be made in writing or by way of electronic communications; and
that representations may be accompanied by a request to be notified at a specified address of any of the following―
that the DPD has been submitted for independent examination under section 20,
the publication of the recommendations of any person appointed to carry out an independent examination of the DPD, and
the adoption of the DPD.
.
8
In regulation 26 (public participation in the preparation of a statement of community involvement) omit paragraph (2)(a).
9
In regulation 27 (publication of a development plan document)―
a
in paragraph (c) omit “or 26(1)”;
b
in paragraph (d) omit “or regulation 26(1)”.
10
In regulation 30 (submission of documents and information to the Secretary of State)―
a
in paragraph (1)(a) and (b) omit “except in the case of a statement of community involvement,”;
b
omit sub-paragraph (c) of paragraph (1);
c
in paragraph (1)(d)―
i
omit “or regulation 26”;
ii
for the words “either of those regulations” substitute “regulation 25” in each place where they occur;
d
in paragraph (3)(c) omit “or 26(1) (as the case may be)”; and
e
in paragraph (3)(d) omit “or 26(1)”.
Signed by authority of the Secretary of State for Communities and Local Government
Iain Wright
Parliamentary Under Secretary of State
Department for Communities and Local Government
25th February 2009


text:
1
1
This Order may be cited as the A52 Trunk Road (A46 Newark to Widmerpool Improvement and Slip Roads) Order 2009 and shall come into force on 30th January 2009.
2
In this Order, all measurements of distance are measured along the route of the relevant highway.
2
The new highway which the Secretary of State proposes to construct along the route described in the Schedule to this Order shall become a trunk road from the date when this Order comes into force.
3
The centre line of the new trunk road is indicated by a heavy black line on the plan numbered HA 10/MP/091, marked “The A52 Trunk Road (A46 Newark to Widmerpool Improvement and Slip Roads) Order 2009”, signed by authority of the Secretary of State for Transport and deposited at Department of Communities and Local Government-DfT Records Management Branch, Floor 13 (IMD), Ashdown House, St Leonards on Sea, Hastings, East Sussex TN37 7GA.
4
The Secretary of State directs as respects any part of a highway which crosses the route of the new trunk road that —
a
where the highway is maintainable at the public expense by a local highway authority, the part in question shall be maintained by that authority, and
b
where the highway is not so maintainable and is not maintainable under a special enactment or by reason of tenure, enclosure or prescription, the Secretary of State shall be under no duty to maintain the part in question,
until in either case, a date to be specified in a notice given by the Secretary of State to the highway authority for that highway. The date specified will not be later than the date on which the new trunk road is opened for traffic.
Signed by authority of the Secretary of State for Transport
Colin Chadwick
A Divisional Director
Highways Agency
9th January 2009


text:
Citation and commencement
1
These Regulations may be cited as the Merchant Shipping (Implementation of Ship-Source Pollution Directive) Regulations 2009 and come into force on 1 st July 2009.
Interpretation
2
In these Regulations —
“ the Act ” means the Merchant Shipping Act 1995; and
“the Directive” means Directive 2005/35/ EC of the European Parliament and of the Council of 7 th September 2005 on ship-source pollution and on the introduction of penalties for infringements .
Amendment of section 131 of the Merchant Shipping Act 1995
3
1
Section 131 of the Act (discharge of oil from ships into certain United Kingdom waters) is amended as follows.
2
Before subsection (1) insert —
A1
In this section “relevant discharge” means —
a
a discharge of oil or a mixture containing oil which is made —
i
from a ship which is an offshore installation, and
ii
into United Kingdom national waters which are navigable by sea-going ships, or
b
a discharge of oil or a mixture containing oil which is made —
i
from a ship which is not an offshore installation, and
ii
into United Kingdom national waters which are navigable by sea-going ships but which do not form part of the sea.
3
In subsection (1) —
a
for the words from “If any oil” to “seagoing ships, then” substitute “If there is a relevant discharge”;
b
in paragraph (a), omit “if the discharge is from a ship,”; and
c
in paragraph (b), for “is from a ship but” substitute “from the ship”.
4
In subsection (2) after “any discharge” insert “from an offshore installation”.
5
After subsection (3) insert —
3A
In this section “offshore installation” means any mobile or fixed drilling or production platform or any other platform used in connection with the exploration, exploitation or associated offshore processing of sea bed mineral resources.
Amendment of the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996
4
1
The Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 are amended as follows.
2
In regulation 1(2) —
a
before the definition of “amidships” insert —
“the Act” means the Merchant Shipping Act 1995;
;
b
after the definition of “Guidelines and Specifications for oil discharge monitoring and control systems for oil tankers”, insert —
“harbour master” includes a dock master, pier master and any person specifically appointed by a harbour authority (within the meaning of section 151(1) of the Act) for the purpose of enforcing the provisions of these Regulations or of Chapter 2 of Part 6 of the Act;
;
c
after the definition of “new ship”, insert —
“offshore installation” means any mobile or fixed drilling or production platform or any other platform used in connection with the exploration, exploitation or associated offshore processing of sea bed mineral resources;
; and
d
in the definition of “ship”, after the word “but” insert “, except in relation to regulations 11 to 16,”.
3
In regulation 10(3) —
a
for “regulation 11” substitute “regulations 11 to 11B”;
b
for “that regulation” substitute “those regulations”.
4
In regulation 11(b), after the first use of the word “discharge” insert “, other than a discharge from an excepted ship,”.
5
After regulation 11, insert —
Exceptions for damage to a ship or its equipment in internal or territorial waters
11A
The provisions of regulations 12, 13 and 16 shall not apply to any discharge from an excepted ship into a part of the sea which is within the United Kingdom or its territorial waters of oil or oily mixture which results from damage to a ship or its equipment if —
a
the damage was not caused by a person connected with the excepted ship’s business acting —
i
with intent,
ii
recklessly, or
iii
with serious negligence;
b
all reasonable precautions were taken after the damage, or discovery of the discharge, to prevent or minimise the discharge; and
c
neither the owner nor the master of the excepted ship acted —
i
with intent to cause damage, or
ii
recklessly and with knowledge that damage would probably result.
Exceptions for damage to a ship or its equipment in other waters
11B
1
The provisions of regulations 12, 13 and 16 shall not apply to any discharge from a UK excepted ship into a part of the sea other than the United Kingdom or its territorial waters of oil or oily mixture which results from damage to a ship or its equipment if —
a
the damage was not caused by a person connected with the UK excepted ship’s business acting —
i
with intent,
ii
recklessly, or
iii
with serious negligence;
b
all reasonable precautions were taken after the damage, or discovery of the discharge, to prevent or minimise the discharge; and
c
neither the owner nor the master of the UK excepted ship acted —
i
with intent to cause damage, or
ii
recklessly and with knowledge that damage would probably result.
2
The provisions of regulations 12, 13 and 16 shall not apply to any discharge from a non-UK excepted ship into a part of the sea other than the United Kingdom or its territorial waters of oil or oily mixture which results from damage to a ship or its equipment if —
a
all reasonable precautions were taken after the damage, or discovery of the discharge, to prevent or minimise the discharge; and
b
neither the owner nor the master of the non-UK excepted ship acted —
i
with intent to cause damage, or
ii
recklessly and with knowledge that damage would probably result.
Definitions for the purposes of regulations 11 to 11B
11C
In regulations 11 to 11B —
a
“excepted ship” means a seagoing vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles and floating craft but does not include a structure which is a fixed or floating platform;
b
“UK excepted ship” means an excepted ship which is a United Kingdom ship;
c
“non-UK excepted ship” means an excepted ship which is not a UK excepted ship; and
d
reference to a person connected with a ship’s business includes, in particular —
i
a seafarer on the ship;
ii
the master;
iii
the owner;
iv
an owner of cargo carried on the ship; and
v
a classification society which has issued a class certificate showing that the ship conforms to the class standards stipulated by that society.
6
In regulations 12(1), 13(1), 16(2) and 22(2)(a), for “regulation 11” wherever it occurs, substitute “regulations 11 to 11B”.
7
Omit regulation 12(6).
8
For regulation 12(7) substitute —
7
Paragraphs (2) and (3) do not apply to a discharge from an offshore installation which occurs landward of the line which for the time being is the baseline for measuring the breadth of the territorial waters of the United Kingdom.
9
Omit regulation 13(6) and (7).
10
Omit regulation 32(3)(a).
11
After regulation 35, insert —
Powers of harbour masters
35A
1
In any case where a ship is liable to be detained under regulation 35(2)(a)(i) , in relation to a suspected contravention occurring in the waters over which a harbour master exercises jurisdiction, that harbour master may also detain that ship.
2
In such a case section 284(1A) to (5) and (8) of the Act shall have effect in relation to that ship as if —
a
the reference to competent authority in subsection (2) includes a reference to the harbour authority; and
b
the persons in relation to whom subsection (4) applies include the harbour master or any person acting on behalf of the harbour master.
3
Where a ship, other than a United Kingdom ship, is detained under paragraph (1), the harbour master shall immediately notify the Secretary of State, who shall immediately inform the consul or diplomatic representative of the State whose flag the ship is entitled to fly, or the appropriate maritime authorities of that State.
4
Paragraphs (3) to (10) of regulation 37 apply in relation to a detention under paragraph (1) as if for “the Secretary of State”, wherever it occurs, there were substituted “the harbour master”.
12
Omit regulation 36(2).
13
After regulation 36 insert —
Penalties for contravening regulations 12, 13 and 16
36A
1
Subject to paragraph (3), if any ship fails to comply with any requirement of regulation 12, 13 or 16, the owner and the master shall each be guilty of an offence and section 131(3) of the Act shall apply as it applies to an offence under that section, so that each of the owner and the master shall be liable on summary conviction to a fine not exceeding £250,000 or on conviction on indictment to a fine.
2
Subject to paragraph (3), if any oil or oily mixture is discharged from a ship in contravention of any requirement of regulation 12, 13 or 16, any person who causes or contributes to that discharge is guilty of an offence and section 131(3) of the Act shall apply as it applies to an offence under that section, so that such person shall be liable on summary conviction to a fine not exceeding £250,000 or on conviction on indictment to a fine.
3
Where a UK excepted ship fails to comply with any requirement of regulation 12, 13 or 16 because of a discharge into a part of the sea other than the United Kingdom or its territorial waters of oil or oily mixture which results from damage to a ship or its equipment, neither the owner nor the master nor a crew member acting under the master’s responsibility shall be guilty of an offence under this regulation in respect of that failure if —
a
all reasonable precautions were taken after the damage, or discovery of the discharge, to prevent or minimise the discharge; and
b
neither the owner nor the master acted —
i
with intent to cause damage, or
ii
recklessly and with knowledge that damage would probably result.
4
In this regulation, “UK excepted ship” has the meaning given in regulation 11C.
14
In regulation 37, except in paragraph (3)(c)(ii), for “master or owner” and “owner or master”, wherever they occur, substitute “defendant”.
15
In regulation 37(3)(c)(ii), omit “by or on behalf of the master or owner”.
Amendment of the Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations 1996
5
In regulation 14 of the Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations 1996 —
a
before paragraph (1A) insert —
1ZA
If any noxious liquid substance is discharged from a ship in contravention of regulation 5(a), then section 131(3) of the Merchant Shipping Act 1995 shall apply as it applies to an offence under that section, so that any person who causes or contributes to that discharge is guilty of an offence punishable on summary conviction by a fine not exceeding £25,000 or on conviction on indictment by a fine.
;
b
in paragraph (1A), for “regulation 5” substitute “regulation 5(b)”;
c
in paragraph (2) after “these Regulations” insert “(other than a contravention of regulation 5(a))”.
Transitional provision
6
The amendments made by regulation 3 do not apply in relation to any discharge which occurred before the coming into force of these Regulations.
Signed by authority of the Secretary of State for Transport
Jim Fitzpatrick
Parliamentary Under Secretary of State
Department for Transport
11th May 2009


text:
Citation and commencement
1
This Order may be cited as the Pensions Act 2007 (Supplementary Provision) Order 2009 and shall come into force on 6th April 2010.
Amendment of the Social Security and Child Support (Decisions and Appeals) Regulations 1999
2
In regulation 26 (decisions against which an appeal lies) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 , at the end of paragraph (d) add —
; or
e
under, or by virtue of regulations made under, section 23A (contributions credits for relevant parents and carers) of the Contributions and Benefits Act.
.
Signed by authority of the Secretary of State for Work and Pensions
Angela Eagle
Minister of State
Department for Work and Pensions
7th October 2009


text:
Citation and commencement
1
These Regulations may be cited as the M40 Motorway (M40 Junction 16 to M42 Junction 3A) (Northbound) (Variable Speed Limits) Regulations 2009 and come into force on 21st July 2009.
Interpretation
2
1
In these Regulations —
“the 1982 Regulations ” means the Motorways Traffic (England and Wales) Regulations 1982 ;
“the 2002 Regulations ” means the Traffic Signs Regulations 2002 ; and
“carriageway”, “hard shoulder”, “motorway” and “verge” have the same meaning as in the 1982 Regulations.
Variable speed limits
3
1
No person shall drive a vehicle on a section of a road which is subject to a variable speed limit at a speed exceeding that indicated by a speed limit sign.
2
A section of a road is subject to a variable speed limit in relation to a vehicle being driven along it if —
a
the road is specified in the Schedule;
b
the vehicle has passed a speed limit sign; and
c
the vehicle has not passed —
i
another speed limit sign indicating a different speed limit; or
ii
a traffic sign which indicates that the national speed limit is in force.
3
In relation to a vehicle, the speed limit indicated by a speed limit sign is the speed shown at the time the vehicle passes the sign, or, if higher, the speed limit shown by the sign ten seconds before the vehicle passed the sign.
4
For the purpose of this regulation a speed limit sign is to be taken as not indicating any speed limit if, ten seconds before the vehicle passed it, the sign had indicated no speed limit or that the national speed limit was in force.
5
In this regulation —
“national speed limit” has the meaning given by regulation 5(2) of the 2002 Regulations;
“road” includes the adjacent hard shoulder and verge;
“speed limit sign”, in relation to a vehicle, means a traffic sign of the type shown in diagram 670 in Schedule 2 to the 2002 Regulations which is —
situated on or near any part of a road specified in the Schedule; and
directed at traffic on the carriageway on which the vehicle is being driven.
Signed by authority of the Secretary of State for Transport
C. D. Mole
Parliamentary Under Secretary of State
Department for Transport
22nd June 2009


text:
Citation and commencement
1
These Regulations may be cited as the Armed Forces (Service of Process in Maintenance Proceedings) Regulations 2009 and shall come into force on 31st October 2009.
Interpretation
2
1
In these Regulations —
“ the Act ” means the Armed Forces Act 2006;
“maintenance order” means an order made by a court in the United Kingdom or Channel Islands or registered in or confirmed by such a court under the provisions of the Maintenance Orders (Facilities for Enforcement) Act 1920 or registered in such a court under Part 1 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 or Part 1 of the Civil Jurisdiction and Judgments Act 1982 or Council Regulation (EEC) No 44/2001 being an order for the payment of any periodical or other sum specified therein for or in respect of —
the maintenance of the spouse or civil partner of the person against whom the order is made;
the maintenance of any child of that person or that person’s spouse or civil partner or of any other child who has been treated by them both as a child of their family;
any costs incurred in obtaining the order; or
any costs incurred in proceedings on appeal against or for the variation, revocation or revival of any such order;
“relevant person” means a person who is a relevant person, within the meaning of section 355 of the Act, by virtue of subsection (3)(a) of that section.
2
In the definition of “maintenance order” in paragraph (1) references to a person’s spouse or civil partner include, in relation to an order made in proceedings in connection with the dissolution or annulment of a marriage or civil partnership, a person who would have been that person’s spouse or civil partner if the marriage or civil partnership had subsisted.
Service of proceedings
3
Subject to regulations 4 and 5 any process served on the commanding officer of a relevant person in connection with proceedings for a maintenance order, or for the variation, revocation or revival of such an order, shall be treated as duly served on the relevant person.
Circumstances in which service of process shall be of no effect
4
1
This regulation applies where any process in connection with proceedings for a maintenance order, or for the variation, revocation or revival of such an order, is served on the commanding officer of a relevant person.
2
Service of process shall be of no effect if within 21 days of the date on which the process is served upon him the commanding officer certifies to the issuing court that —
a
the relevant person is on active service, or is under orders for active service, and that in his opinion it would not be reasonably practicable for the relevant person to comply with the requirements stipulated in the process; or
b
the relevant person is absent without leave.
3
In paragraph (2), “active service” has the same meaning as in section 8(3) of the Act.
Proceedings in a court of summary jurisdiction
5
Nothing in these Regulations shall enable process to be served in connection with proceedings in a court of summary jurisdiction unless the relevant person is within the United Kingdom.
Transitional Provisions
6
1
This regulation applies where prior to commencement —
a
process was served on a commanding officer under section 153(1) of the Army Act 1955 , section 153(1) of the Air Force Act 1955 or section 101(1) of the Naval Discipline Act 1957 ; and
b
the commanding officer had the power to certify to the issuing court under section 153(3) or (3A) of the Army Act 1955, section 153(3) or (3A) of the Air Force Act 1955 or section 101(4) or (4A) of the Naval Discipline Act 1957 that service shall be of no effect, but has not done so.
2
Subject to paragraph (3), where paragraph (1) applies the commanding officer may certify to the issuing court under regulation 4(2) that service shall be of no effect.
3
The certification mentioned in paragraph (2) must occur —
a
within 21 days of commencement, or
b
by the date of the hearing stipulated in the process at which the person to be served was to attend,
whichever is the earlier.
4
In this regulation “commencement” means the date on which these Regulations come into force.
Kevan Jones
Parliamentary Under Secretary of State
Ministry of Defence
28th April 2009