The Electricity (Protected Persons) (Scotland) Pension Regulations 1990

Citation and Commencement

1.  These Regulations may be cited as the Electricity (Protected Persons) (Scotland) Pension Regulations 1990 and shall come into force on 31st March 1990.

Interpretation

2.—(1) In these Regulations–

“the Act” means the Electricity Act 1989;

“accrue” means to become entitled to pension rights in respect of employment while a member of a relevant scheme, including increases in accrued pension rights under that relevant scheme arising pursuant to increases in remuneration;

“accrued pension rights” means the pension rights, other than future pension rights and (except where the context otherwise requires) any pension rights provided by a state pension scheme, to which a protected person is from time to time entitled;

“alternative scheme” means a scheme to which regulation 8 applies;

“company group” means any holding company and its subsidiaries which are treated as a group for the purposes of Part VII of Schedule 4 to the Companies Act 1985(1) as originally enacted;

“employer” includes, in respect of a protected beneficiary, the person within a pension group to whom the protected beneficiary is treated as allocated for the purpose of valuing the accrued pension rights of that beneficiary within that group, and employment shall be construed accordingly;

“future pension rights” means the pension rights referred to in regulation 7;

“the North Scheme” means the Hydroboard Superannuation Fund;

“parent company” means, in respect of a company which is wholly owned by any other company, that other company;

“participate” means–

(a)

in respect of a protected employee, being a member of a relevant scheme for the purpose of accruing pension rights;

(b)

in respect of a protected beneficiary, being entitled either prospectively or contingently (otherwise than as a result of the death of another protected person) or currently to a pension under a relevant scheme; and

(c)

in respect of an employer, adhering to a relevant scheme for the purpose of providing pension rights;

and cognate expressions shall be construed accordingly;

“pension group” means a company or two or more companies which are required to be treated as a single entity within a relevant scheme for the purpose of valuing the assets and liabilities of that scheme;

“protected beneficiary” means any person to whom regulation 4 applies;

“protected employee” means any person to whom regulation 3 applies;

“protected person” means any person who is a protected beneficiary or a protected employee;

“relevant scheme” means the North Scheme, the South Scheme or an alternative scheme;

“the Scheme” means the North Scheme or as the case may be the South Scheme;

“the South Scheme” means the South of Scotland Electricity Board’s Superannuation Scheme;

“successor company” means a company nominated for the purposes of section 67(1) of the Act;

“the Taxes Act” means the Income and Corporation Taxes Act 1988(2);

“transfer date rights” means the future pension rights provided by the North Scheme or as the case may be the South Scheme in the form in which the Scheme is on the transfer date, together with all amendments to the Scheme which are made –

(a)

by the North Board to the North Scheme or the South Board to the South Scheme before the transfer date (regardless of the date on which the amendments take effect); or

(b)

by regulations under the Act;

but excluding any amendments made otherwise and expressed to take effect before or on the transfer date.

(2) Unless the context otherwise requires, any reference in these Regulations to a numbered regulation or Schedule is a reference to the regulation in, or the Schedule to, these Regulations bearing that number; and any reference in a regulation to a numbered paragraph is a reference to the paragraph of that regulation bearing that number.

(3) Where an employer is a member of a pension group in a relevant scheme, any reference in these Regulations to that scheme shall be construed as a reference to the provisions of that scheme which relate to that pension group and any reference in these Regulations to protected persons in, the accrued pension rights under, or the future pension rights provided by, that scheme shall be construed as a reference to protected persons in, the accrued pension rights under, or the future pension rights provided by, that scheme in respect of the pension group of which that employer is a member.

(4) Where a relevant scheme provides different benefits for different categories of protected persons, any reference in these Regulations to that scheme shall be construed as a reference to that part of that scheme which relates to the category of which the protected person is a member or (in the case of a person transferring to that scheme) would be entitled to be a member.

Protected Employee

3.—(1) Subject to paragraphs (2) and (3), this regulation applies to any person who–

(a) immediately before the transfer date is an existing employee of the Scottish Boards or of a Consultative Council and is a participant in the North Scheme or the South Scheme;

(b) is an existing employee of the Scottish Boards and, on or after that date participates in the North Scheme or the South Scheme within three months of his attaining the minimum age for such participation;

(c) was formerly a member of the North Scheme or the South Scheme and, on or after that date, participates in or accrues pension rights under the Scheme in circumstances which, if the date upon which he had ceased to accrue pension rights in the Scheme had been after the transfer date, would not have been treated as a break in his continuity of employment under regulation 5; or

(d) is a person who participates in the North Scheme or the South Scheme in pursuance of regulations made under paragraph 1(1)(a) of Schedule 15 to the Act.

(2) Paragraph (1) shall cease to apply to any person–

(a) who elects under regulation 17(1)(a) or (b) to cease to be a protected person or a protected employee;

(b) who ceases to be in continuous employment for the purposes of regulation 5; or

(c) as provided in the following paragraph.

(3) Paragraph (1) shall, except in the circumstances described in paragraph (4)(d), cease to apply to any person who ceases, other than at the requirement of his employer, to participate in a relevant scheme (except as provided in paragraph (4)(b) or (c)) and does not, forthwith, become a participant in another such scheme, and transfer to that scheme at any time within a period of 2 years the pension rights which accrued to him before that time under the scheme from which he is withdrawing.

(4) A person shall not cease to be a protected employee–

(a) if, after ceasing to participate in a relevant scheme as a protected employee, he subsequently participates in another relevant scheme as a protected employee and has not, during the period in which he did not participate, ceased to be in continuous employment:

• Provided that he transfers to that scheme within a period of 2 years the pension rights which accrued to him under the relevant scheme in which he formerly participated;

(b) if he would have ceased to be a protected employee as a result of a representation by or on behalf of his employer or prospective employer that the action by that person which would but for this sub-paragraph have caused him to cease to be a protected employee would not have that effect;

(c) if, following any resolution to wind up the relevant scheme in which that person participates, he transfers to the relevant scheme provided under regulation 10, 11 or 12; or

(d) if that person is a person who is enabled by virtue of provisions in regulations made under paragraph 1(1)(a) of Schedule 15 to the Act to continue to participate in the North Scheme and if, after ceasing to participate in a relevant scheme as a protected employee, he forthwith participates in another such relevant scheme as a protected employee and has not ceased to be in continuous employment and whether or not he has transferred to that scheme the pension rights which have accrued to him before that time under the scheme from which he is withdrawing:

• Provided that a person enabled by virtue of provisions in regulations made under paragraph 1(1)(a) of Schedule 15 to the Act to continue to participate in the North Scheme shall cease to be a protected employee in the circumstances where he has moved, other than at the requirement of his employer, from the post ascribed to him on the transfer date and within 2 years of the operative date of such a move, he does not transfer the pension rights which have accrued to him under the scheme from which he has withdrawn to another relevant scheme.

Protected Beneficiary

4.—(1) Subject to paragraph (2) this regulation applies to any person–

(a) who immediately before the transfer date is entitled to accrued pension rights under the North Scheme or the South Scheme but does not otherwise participate in the Scheme;

(b) to whom regulation 3 has ceased to apply pursuant to paragraphs (2) and (3) and the proviso to paragraph (4)(d) of that regulation but who is entitled to accrued pension rights under a relevant scheme; or

(c) who, on or after the transfer date, acquires pension rights under a relevant scheme by reason of the death of a person who was at the date of his death –

(i) a protected employee; or

(ii) a person falling within sub-paragraphs (a) or (b) of this paragraph.

(2) Paragraph (1) shall cease to apply to any person who–

(a) elects under regulation 17 to cease to be a protected beneficiary; or

(b) withdraws or requires a transfer payment to be made in respect of all or any part of his accrued pension rights from a relevant scheme otherwise than by way of a transfer to another relevant scheme provided by his employer, except in respect of the accrued pension rights not so withdrawn or transferred.

Continuity of Employment

5.—(1) Subject to paragraph (2), references in these Regulations to a protected employee being in continuous employment shall be construed in accordance with paragraph 4 of Schedule 15 to the Act.

(2) No account shall be taken for the purpose of paragraph (1) of any period–

(a) not exceeding six months during which a protected employee is not employed by a person who would be treated as an associated employer of the last person who employed him and would have been so treated; or

(b) (i) prior to the commencement of which the employer (“employer A”) of the protected employee agreed that if he took up employment with another employer (“employer B”) he would, upon the termination of the employment with employer B, be expected to return to employment with employer A;

(ii) which would not include employment by employer B for more than 3 years or such longer period as may be approved by the Inland Revenue;

(iii) during which the protected employee was not employed by any other employer;

(iv) during which employer B was not an associated employer of employer A; and

(v) during which the protected employee was not a member of any approved retirement benefits scheme of an employer other than employer A or an associated employer of employer A or of any approved personal pension scheme.

(3) During any period referred to in paragraph (2)(a), a protected employee shall not be entitled to accrue future pension rights under a relevant scheme.

(4) In sub-paragraph (v) of paragraph (2)(b)–

• “approved retirement benefits scheme” has the same meaning as in Chapter 1 of Part XIV of the Taxes Act;

• “approved personal pension scheme” has the same meaning as in Chapter IV of that Part of that Act.

Accrued Pension Rights

6.—(1) Subject to paragraphs (2) and (3), the employer of a protected person shall at all times ensure that, in respect of each protected person in his employment, the assets of the relevant scheme provided by the employer in respect of that person are such that, in the event of the winding up of that scheme , there would be available to provide accrued pension rights for such protected person a sum equal to or exceeding the liability of that scheme in respect of those accrued pension rights.

(2) It shall not be a breach of the employer’s duty under paragraph (1) if the assets of the relevant scheme mentioned in that paragraph at any time do not equal or exceed that liability where–

(a) a valuation of that scheme has been produced by a Fellow of the Institute of Actuaries or the Faculty of Actuaries having its effective date within the previous 3 1/2 years or such lesser period (if any) as may be prescribed under sections 56A and 56E of the Social Security PensionsAct 1975(3) (disclosure of information about schemes to members); and

(b) the employer has taken and continues to take such steps as are reasonable in all the circumstances (having regard to good actuarial practice) to make good any deficiency in respect of the accrued pension rights of that protected person (calculated on the same basis as that applicable under paragraph (1)) stated, whether expressly or by implication, in that valuation.

(3) In the event of the total or partial winding up of a relevant scheme, each employer who will, as a result of that total or partial winding up, cease to participate in that scheme, shall cause a valuation to be made by a Fellow of the Institute of Actuaries or the Faculty of Actuaries of the assets and liabilities of that scheme in respect of the protected persons in his employment and if–

(a) the accrued pension rights of any protected person in that scheme shall not be transferred to a relevant scheme; or

(b) the rules of the relevant scheme to which such rights are transferred do not require such a valuation to be produced within the period specified in paragraph (2)(a), calculated from the effective date of the last such valuation of the scheme being wound up, (unless the employer procures a valuation of that scheme within that period);

and if the valuation required under this paragraph shall indicate that the assets held to provide the accrued pension rights are insufficient to meet the liabilities of that scheme in respect of those accrued pension rights, the employer shall forthwith apply a sum equal to the amount of the deficit in respect of each protected person to the purchase of an annuity or the provision of other suitable means in accordance with regulation 9 for the benefit of such person.

(4) If a protected person shall transfer or be transferred to a relevant scheme, and a transfer payment shall be made in respect of his accrued pension rights to that scheme, the employer providing that scheme shall procure that the rules of that scheme will secure accrued pension rights which, on the basis of good actuarial practice, are at least equivalent in value to his accrued pension rights so transferred from the former scheme.

(5) Any new employer shall also procure that if the protected person notifies or is deemed to have notified his new employer in accordance with the terms (if any) of the relevant scheme provided by the new employer, and otherwise within 2 years of transferring to the new employer, that he desires to transfer his accrued pension rights to the relevant scheme provided by the new employer, he shall be entitled to transfer to that relevant scheme in accordance with paragraph (4) any accrued pension rights which are capable of being transferred.

(6) To the extent that an employer is unable to provide a relevant scheme which satisfies paragraphs (4) and (5), he shall ensure that the accrued pension rights of each protected person in his employment are secured by other suitable means in accordance with regulation 9 to the same extent and at the same level as such rights would have been secured if he had provided a relevant scheme.

Future Pension Rights

7.—(1) The rights described in paragraphs (2) and (3) are the future pension rights for the purpose of these Regulations.

(2) The right of a protected employee to participate in a relevant scheme and (subject to paragraph (5))–

(a) where that scheme is the North Scheme or the South Scheme, to accrue pension rights in accordance with the rules from time to time of the Scheme;

(b) where that scheme is an alternative scheme, to accrue pension rights on the same basis as that applicable to other protected employees in that scheme;

(c) in the event of a change of employer to an employer who participates in the North Scheme or the South Scheme, to accrue pension rights in accordance with the rules applicable to protected employees in the Scheme in which that employer participates;

(d) in the event of a change of employer to an employer who participates in an alternative scheme, to accrue pension rights on the same basis as that applicable to protected employees in that scheme;

and in each case, where any pension rights are provided by other suitable means under regulation 9 to protected employees in that relevant scheme, to accrue such pension rights:

Provided that the pension rights referred to in sub-paragraphs (b) and (d) of this paragraph do not include any addition to, or improvement of, the pension rights provided by the alternative scheme in question which is made after the date upon which it is provided pursuant to these Regulations.

(3) Subject to paragraph (4), the right of a protected employee, who is participating in a relevant scheme and who changes employer to an employer who provides a relevant scheme in which no protected employees are then participating, to accrue pension rights which are no worse than transfer date rights.

(4) Where an employer has no protected employees participating in a relevant scheme which he provides to a protected employee pursuant to these Regulations at any time after the date upon which the North Scheme or, as the case may be, the South Scheme is wound up and–

(a) he has at any time since that winding up provided a relevant scheme for protected employees who participated in the Scheme on that date; or

(b) if he has not provided such a scheme but is a wholly owned subsidiary of a parent company which has provided such a scheme;

there shall be substituted in paragraph (3) for the reference to transfer date rights a reference to the rights so provided.

(5) Where the pension rights of protected employees in a relevant scheme are worse than the transfer date rights, any reference in these Regulations, in relation to a protected employee joining that scheme, to the pension rights of protected employees in that scheme shall be construed as a reference to the transfer date rights.

(6) In paragraphs (3) and (5) the transfer date rights are, in the case of a protected employee transferring to the South Scheme or to the North Scheme, those provided by the Scheme which he is joining; and in the case of a protected employee transferring to a relevant scheme other than the North Scheme or the South Scheme, they are those provided by the Scheme which that relevant scheme replaces.

Alternative Scheme

8.—(1) This regulation applies to any retirement benefits scheme which–

(a) is provided pursuant to these Regulations;

(b) is approved or designed so as to be capable of being approved by the Inland Revenue for the purposes of Chapter I of Part XIV of the Taxes Act;

(c) provides at the request or with the consent of the protected person for the receipt of any transfer payment in respect of accrued pension rights in accordance with regulation 6(4);

(d) contains provision for payment of contributions by protected employees and for valuations of the scheme on a basis both as to the amount of such contributions and as to valuation, frequency and funding of deficits or disposal of surpluses which would not cause the protected person to be in any worse position than under the corresponding provisions contained in the North Scheme or the South Scheme at the time the scheme became a relevant scheme or, if that occurred after the winding up of the North Scheme or the South Scheme, immediately prior to such winding up;

(e) provides future pension rights in accordance with regulation 7; and

(f) may provide benefits for persons other than protected persons upon such terms (not being terms which prejudice sub-paragraph (b) of this paragraph) as the employer or other person having the right to make or change the rules of the scheme may determine and may include additional benefits for the benefit of any one or more of the protected persons who participate in the scheme with or without any obligation to pay additional contributions but so that it cannot be a condition of membership of that scheme that a protected person shall be obliged to accept such additional benefits and make additional contributions; and

(g) is nominated by the employer as an alternative scheme for the purpose of this regulation by notice to any protected person for whom the employer is required to provide an alternative scheme.

(2) Subject to regulation 9, any scheme which ceases to satisfy the provisions of any sub-paragraph of paragraph (1) shall cease to be an alternative scheme for the purposes of these Regulations.

Other Suitable Means

9.—(1) Where an employer is required by any provision of these Regulations to provide a relevant scheme and–

(a) (i) it is not reasonably practicable to provide the relevant scheme required in the circumstances specified in that provision; and

(ii) the employer complies with paragraphs (2) and (3); or

(b) the circumstances specified in paragraph (6) apply;

he shall be deemed to have fulfilled the duty imposed by the provision in question.

(2) The employer shall–

(a) provide a retirement benefits scheme which satisfies the obligations contained in the provision in question to the extent that it is reasonably practicable to do so; and

(b) satisfy the remainder of those obligations, which are not included in the scheme provided under sub-paragraph (a) of this paragraph, by other suitable means which will secure for the benefit of the protected person concerned pension rights at least equivalent to those which would have been provided by the relevant scheme.

(3) If it shall subsequently become reasonably practicable for the requirements mentioned in paragraph (2)(b) to be satisfied by the scheme referred to in paragraph (2)(a) or another relevant scheme, the employer may arrange that they are so satisfied.

(4) During any period in which the employer complies with this regulation, any scheme provided under paragraph (2)(a) and any relevant scheme in replacement thereof or provided pursuant to regulation 11 or 12 shall be deemed to be a relevant scheme for the purposes of the provision referred to in paragraph (1).

(5) Where on a total or partial winding up of a relevant scheme–

(a) the employer has made any payment required under regulation 6(3); and

(b) in respect of the accrued pension rights of the protected beneficiaries under that relevant scheme, the trustees of that scheme have applied the assets of the scheme in accordance with the rules for the distribution of the assets of the scheme in the winding up;

the employer shall be deemed to have fulfilled his obligation in respect of those accrued pension rights under these Regulations, except to the extent that those accrued pension rights are either secured by assets retained under the control of the trustees or are transferred to a new relevant scheme provided by the employer.

(6) The circumstances specified are that–

(a) the whole or a part of either the accrued pension rights of the protected person or the future pension rights of the protected employee, or of both of these rights, are or will be provided by the earnings related component of any pension provided by a state pension scheme;

(b) to the extent (if any) that the accrued pension rights or future pension rights referred to in sub-paragraph (a) of this paragraph are not provided on a basis equivalent to that mentioned in that sub-paragraph, the employer complies with paragraph (2) in respect of the balance of those pension rights; and

(c) the contributions payable by the protected employee under any scheme required to be provided by the employer make due allowance for the amount which the protected employee is required to pay in order to accrue those future pension rights under that state scheme.

Partial Winding Up of North Scheme or South Scheme

10.—(1) If the employer of a protected employee shall under the rules of the North Scheme or the South Scheme not be permitted to continue to be a participating employer in that Scheme (except by reason of his liquidation, otherwise than for the purposes of reconstruction or amalgamation) that employer shall on the date on which he ceases to be a participating employer provide an alternative scheme and enable each protected employee to participate in that scheme.

(2) If any participating employer in the South Scheme ceases to participate in that scheme in accordance with the rules of the scheme as amended by the provisions in regulations made under paragraph 1(1)(c) of Schedule 15 to the Act, that employer shall at the expiry of the notice given under those rules provide an alternative scheme and enable each protected employee to participate in that scheme.

(3) For the purposes of paragraphs (1) and (2), the future pension rights to be provided by the alternative scheme for protected employees shall be no worse than the future pension rights provided for those employees under the North Scheme or, as the case may be, the South Scheme immediately prior to the date upon which they cease to participate in that Scheme.

Total Winding Up of North Scheme or South Scheme

11.—(1) If any action is taken under the rules of the North Scheme or the South Scheme to cause the total winding up of that Scheme, each employer who–

(a) participates in that Scheme; and

(b) employs a protected employee who participates in that Scheme;

shall forthwith notify each of his protected employees of the alternative arrangements he proposes to make and as soon as practicable provide an alternative scheme.

(2) Any employer who has provided an alternative scheme for the purpose of paragraph (1) may at any time thereafter, and shall upon the total winding up of the Scheme, enable all protected employees in his employment to participate in the alternative scheme which he has provided.

(3) For the purpose of this regulation the future pension rights to be provided by the alternative scheme of each employer for his protected employees shall be no worse than the future pension rights provided for those employees under the North Scheme or, as the case may be, the South Scheme immediately prior to the date upon which they cease to participate in that Scheme.

Total or partial winding up of an alternative scheme

12.—(1) If an alternative scheme is partially or totally wound up, each employer of protected employees who participates in that scheme shall forthwith notify each of his protected employees of the alternative arrangements he proposes to make and shall as soon as practicable provide a relevant scheme and enable such employees to participate in that scheme.

(2) Subject to paragraph (3), the future pension rights to be provided by the relevant scheme provided under paragraph (1) shall be no worse than those required to be provided by these Regulations under the scheme which the relevant scheme is provided to replace.

(3) If–

(a) the relevant scheme provided under paragraph (1) is the North Scheme or the South Scheme; and

(b) the employer joins a pension group other participants in which employ protected employees;

the future pension rights of the persons for whom the scheme is provided under this regulation shall be no worse than those provided for the existing protected employees of that pension group in the Scheme.

Change of Employer

13.—(1) This regulation shall apply for the benefit of any protected employee, who prior to the total winding up of the North Scheme or the South Scheme–

(a) is a participant in the Scheme;

(b) changes his employer otherwise than in circumstances specified in paragraph (5); and

(c) whose new employer is a participant in the Scheme or is wholly owned by one or more companies which or each of which is such a participant.

(2) A new employer to whom this regulation applies who is not a participant in the North Scheme or, as the case may be, the South Scheme shall forthwith make application to join that Scheme and shall carry out the procedural requirements of the Scheme to enable such an application to be accepted and–

(a) any parent company of the employer; and

(b) any two or more successor companies which together control the employer;

which, in either case, participates or participate in the Scheme shall use its or their best endeavours to procure that such an application shall be accepted.

(3) If the application under paragraph (2) is accepted, and the new employer forms a pension group or joins an existing pension group or joins with any other employers to form a pension group in the Scheme, he shall provide or procure the provision of future pension rights to the protected employee which–

(a) if the pension group already contains protected employees, are the same as the future pension rights of those employees; or

(b) if the pension group contains no protected employees, are no worse than the transfer date rights of the Scheme in respect of which the new employer’s application is accepted.

(4) If the new employer is already a participant in the North Scheme or the South Scheme, he shall provide or procure the provision of future pension rights which would have satisfied the requirements of paragraph (3) if that paragraph had applied to him.

(5) This regulation shall not apply in respect of any change of employment which is made other than at the requirement of the employer, to a new employer which is not a company in the same company group as the former employer.

Provision of alternative scheme

14.—(1) If the application of the new employer under paragraph (2) of regulation 13 to participate in the North Scheme or the South Scheme is refused, the new employer shall, so far as reasonably practicable, provide an alternative scheme for the benefit of the protected employee.

(2) For the purpose of paragraph (1) the future pension rights to be provided by the alternative scheme shall be–

(a) those provided by an existing alternative scheme of the new employer previously provided by that employer pursuant to these Regulations; or

(b) if no such scheme shall have been provided, no worse than the transfer date rights of the Scheme in respect of which the new employer’s application is refused.

(3) If it shall not be reasonably practicable for the new employer to provide an alternative scheme under paragraph (1), he shall secure by other suitable means in accordance with regulation 9 that the protected employee continues to be able to acquire future pension rights at least equivalent to those required under paragraph (2).

Provision of relevant scheme

15.—(1) This regulation applies where a protected employee changes his employer–

(a) in the circumstances referred to in paragraph (5) of regulation 13; or

(b) in any other circumstances not falling within paragraph (1) of regulation 13 or within regulation 14.

(2) If the new employer participates in a relevant scheme, the new employer shall enable the protected employee to participate in that scheme and shall provide future pension rights for the protected employee in accordance with paragraph (4) of regulation 13.

(3) If the new employer does not participate in a relevant scheme, the new employer shall so far as reasonably practicable provide an alternative scheme.

(4) The future pension rights to be provided by any scheme required under this regulation shall be no worse than the transfer date rights of the Scheme in which the majority of the employees of any company in the same company group as the new employer participate or have participated.

Amendment of relevant scheme rules

16.—(1) Subject to paragraph (2), no amendment shall be made to a relevant scheme which would result in the accrued pension rights or future pension rights of protected persons in that scheme being reduced or the contributions to that scheme to be made by protected employees being increased.

(2) Paragraph (1) shall not apply to an amendment to the North Scheme or the South Scheme affecting the interests of protected employees (including any interests contingent upon their death) if–

(a) the person entitled to amend the North Scheme or the South Scheme has given notice to all those protected employees who would be affected by the amendment of a meeting to consider the amendment;

(b) that notice specifies the proposed amendment, states the effect of that amendment and gives not less than 21 days notice of the meeting specifying the time and place at which it will be held and the arrangements by which any person who is unable to attend can register a vote by proxy; and

(c) the amendment is approved at that meeting by a majority of not less than two thirds of those persons to whom notice of the meeting has been given under sub-paragraph (a) of this paragraph who vote, whether in person or by proxy, on the resolution in respect of that amendment.

Termination of Protection

17.—(1) A protected employee may at any time elect –

(a) that he does not wish to be a protected person; or

(b) that he does not wish to be a protected employee;

and a protected beneficiary may at any time elect that he does not wish to be a protected beneficiary.

(2) Any person who wishes to make an election under paragraph (1) (“the elector”) shall complete a notice in the form set out in Schedule 1 and shall serve it on his employer.

(3) Subject to paragraph (4), an election under paragraph (1) shall have effect from the date specified in the notice served under paragraph (2), and thereafter the elector shall cease to be a protected employee, a protected beneficiary or a protected person (as the case may be) for the purpose of these Regulations.

(4) Upon receipt of any notice under paragraph (2), the employer shall within 21 days send to the elector an acknowledgement in the form set out in Schedule 2.

(5) Unless the elector, within 21 days of the receipt of such acknowledgement, notifies the employer in writing that he wishes to withdraw the notice served under paragraph (2) (in which event the notice shall be deemed never to have been given) such notice shall take effect upon the date stated therein and shall thereafter be irrevocable.

Methods of providing a relevant scheme

18.  Any duty imposed by these Regulations to provide a relevant scheme for a protected person may be satisfied by the employer as soon as reasonably practicable–

(a) participating in the North Scheme or, as the case may be, the South Scheme; or

(b) (i) amending or procuring the amendment of an existing retirement benefits scheme to the extent (if any) necessary to cause that scheme to be a relevant scheme; or

(ii) establishing a new relevant scheme;

and in either case being or becoming a participant in that scheme;

and, in any such case enabling the protected person to participate in that scheme with effect, whether actual or deemed, from the date upon which the duty to provide that scheme arose.

Persons Owing a Duty

19.  Any duty imposed by these Regulations on the employer of a protected person shall also be a duty owed by–

(a) the parent company (if any) of the employer of the protected person;

(b) if neither the employer nor the parent company is a successor company, the last successor company before that duty arose to have been the employer (or the parent company of the employer) of that person;

(c) any parent company of a successor company within sub-paragraph (b) of this paragraph in respect only of the liability of that successor company under that sub-paragraph; and

(d) any two or more successor companies which together own the whole of the ordinary issued share capital of a successor company within sub-paragraph (b) of this paragraph (“company A”), in respect only of the liability of company A under that sub-paragraph jointly but, in respect of any monetary obligation of the employer, severally divided in the proportions which the ordinary issued share capital in company A of each such successor company bears to the aggregate ordinary issued share capital of company A upon the date on which those companies become the owners of the whole of the ordinary issued share capital of company A.

Indemnities in relation to breaches of duty

20.—(1) The following provisions of this regulation shall have effect in the event of any employer of a protected person being in breach of any duty imposed by these Regulations.

(2) In this regulation–

“relevant duty” means a duty imposed by these Regulations; and

“relevant employer” means an employer who is in breach of a relevant duty.

(3) If any parent company mentioned in paragraph (1)(a) of regulation 19 is required to fulfil a relevant duty, that parent company shall be entitled to an indemnity from the relevant employer.

(4) If any successor company mentioned in paragraph (1)(b) of regulation 19 is required to fulfil a relevant duty, that successor company shall be entitled to a joint and several indemnity from the relevant employer and the parent company (if any) of that employer.

(5) If any parent company of a successor company mentioned in paragraph (1)(c) of regulation 19 is required to fulfil a relevant duty, that parent company shall be entitled to a joint and several indemnity from the relevant employer, the parent company (if any) of that employer and any successor company mentioned in paragraph (1)(b) of that regulation.

(6) If any successor company mentioned in paragraph (1)(d) of regulation 19 is required to fulfil a relevant duty, that successor company shall be entitled to a joint and several indemnity from the relevant employer, the parent company (if any) of that employer, any successor company mentioned in paragraph (1)(b) of that regulation and any parent company of any such successor company.

Arbitration

21.—(1) Any dispute arising under these Regulations between a protected person and the employer of that protected person or a person owing a duty to that protected person under regulation 19, or between the persons referred to in regulation 19, shall be referred to arbitration in accordance with the provisions of this regulation.

(2) Any party to a dispute (“the applicant”) may serve notice on the other party (“the defender”)–

(a) specifying the nature of the dispute;

(b) referring to this regulation; and

(c) nominating a person who is willing to act as arbiter of the dispute.

(3) The defender shall, within 28 days of the serving of any notice under the preceding paragraph, notify the applicant in writing either that he approves the person nominated as arbiter or that he wishes to nominate an alternative arbiter who is willing to act, specifying that person.

(4) If the applicant and the defender have not agreed the person to be appointed as arbiter within 56 days of the serving of notice under paragraph (2), either party may request the President of the Law Society of Scotland to appoint a person to act as arbiter of the dispute.

(5) Any person to whom regulation 19 applies who gives or receives a notice under this regulation shall as soon as reasonably practicable thereafter send a copy of any such notice to any other person to whom regulation 19 applies.

(6) Any notice given by a protected person shall, in addition to any other matter required by this regulation, specify the successor company referred to in regulation 19(1)(b).

Malcolm Rifkind

One of Her Majesty’s Principal Secretaries of State

St. Andrew’s House,

Edinburgh

8th March 1990