Energy Bill (HC Bill 135)

connection with imposing the certificate purchase obligation on the
purchasing body of NI certificates.

32Z Certificate purchase orders: procedure

(1) Before making a certificate purchase order, the Secretary of State must
5consult—

(a) the Authority,

(b) the Northern Ireland authority,

(c) the Council,

(d) the General Consumer Council for Northern Ireland,

(e) 10such electricity suppliers and Northern Ireland suppliers that
may be required to pay the certificate purchase levy as the
Secretary of State considers appropriate,

(f) such generators of electricity from renewable sources as the
Secretary of State considers appropriate, and

(g) 15such other persons, if any, as the Secretary of State considers
appropriate.

(2) A certificate purchase order is not to be made unless a draft of the
instrument containing it has been laid before and approved by a
resolution of each House of Parliament.

(3) 20The Secretary of State must, subject to subsection (5), consult the
Scottish Ministers before making a certificate purchase order that
extends to Scotland.

(4) The Secretary of State must, subject to subsection (5), obtain the consent
of the Northern Ireland department before making a certificate
25purchase order that extends to Northern Ireland.

(5) Except as provided by subsection (6), the Secretary of State is not
required to—

(a) consult the Scottish Ministers under subsection (3), or

(b) obtain the consent of the Northern Ireland department under
30subsection (4),

in respect of any provision of a certificate purchase order that is made
by virtue of section 32O(2)(m), 32P or 32Q (which together confer
power to make provision about the certificate purchase levy).

(6) Designation of the Northern Ireland department as the administrator of
35the certificate purchase levy by virtue of section 32P(8)(b) requires the
consent of that department.

32Z1 Interpretation of sections 32N to 32Z1

(1) In this section and sections 32N to 32Z (“the relevant sections”), the
following terms have the meanings given in section 32M(1)—

• 40“fossil fuel” (but see subsection (4));

• “generated”;

• “Northern Ireland authority”;

• “Northern Ireland supplier”;

• “renewables obligation certificate”;

• 45“renewables obligation order”.

(2) In the relevant sections—

Energy BillPage 41

• “administrator”, in relation to the certificate purchase levy, is to be
  construed in accordance with section 32P(7) to (10);

• “banding provision” is to be construed in accordance with section
  32V(3)

• 5“CFD counterparty” has the same meaning as in Chapter 2 of Part
  2 of the Energy Act 2013 (see section 7 of that Act);

• “certificate purchase levy” is to be construed in accordance with
  section 32P;

• “certificate purchase order” is to be construed in accordance with
  10section 32N;

• “the certificate purchase obligation” is to be construed in
  accordance with section 32N(3);

• “distribution system” includes a distribution system within the
  meaning of Part 2 of the Electricity (Northern Ireland) Order
  151992, and “distributing” is to be construed accordingly;

• “GB certificate” is to be construed in accordance with section 32S;

• “NI certificate” is to be construed in accordance with section 32T;

• “the Northern Ireland department” means the Department of
  Enterprise, Trade and Investment;

• 20“Northern Ireland RO certificate” means a certificate issued by the
  Northern Ireland authority in accordance with provision
  included in an order under Article 52 of the Energy (Northern
  Ireland) Order 2003;

• “the purchasing body of GB certificates” is to be construed in
  25accordance with section 32N(4);

• “the purchasing body of NI certificates” is to be construed in
  accordance with section 32N(5);

• “relevant authority” means—

  (a)

  in relation to GB certificates, the Authority;

  (b)

  30in relation to NI certificates, the Northern Ireland
  authority;

• “relevant purchasing body” means—

  (a)

  in relation to GB certificates, the purchasing body of GB
  certificates;

  (b)

  35in relation to NI certificates, the purchasing body of NI
  certificates;

• “renewable sources” means sources of energy other than fossil fuel
  or nuclear fuel, but includes waste of which not more than a
  specified proportion is waste which is, or is derived from, fossil
  40fuel;

• “specified”, in relation to a certificate purchase order, means
  specified in the order;

• “transmission system” includes a transmission system within the
  meaning of Part 2 of the Electricity (Northern Ireland) Order
  451992, and “transmitting” is to be construed accordingly.

(3) For the purposes of the definition of “renewable sources”, a certificate
purchase order may make provision—

(a) about what constitutes “waste”;

(b) about how the proportion of waste which is, or is derived from,
50fossil fuel is to be determined;

(c) about what, subject to such exceptions as may be specified,
constitutes sufficient evidence of that proportion in any
particular case;

(d) authorising the relevant authority, in specified circumstances,
5to require an operator of a generating station to arrange—

(i) for samples of any fuel used (or to be used) in the
generating station, or of any gas or other substance
produced as a result of the use of such fuel, to be taken
by a person, and analysed in a manner, approved by the
10relevant authority;

(ii) for the results of that analysis to be made available to the
relevant authority.

(4) In the application of the relevant sections to Northern Ireland, “fossil
fuel” includes peat.

(5) 15In the relevant sections “Northern Ireland” does not include any part of
the territorial sea of the United Kingdom, but this is subject to
subsection (6).

(6) A certificate purchase order may provide that “Northern Ireland”
includes the territorial sea adjacent to Northern Ireland.

(7) 20An Order in council under section 98(8) of the Northern Ireland Act
1998 (apportionment of sea areas) has effect for the purposes of this
section if, or to the extent that, the Order is expressed to apply—

(a) by virtue of this subsection, for those purposes, or

(b) if no provision has been made by virtue of paragraph (a), for the
25general or residual purposes of that Act.

(8) References in the relevant sections to the supply of electricity to
customers in Northern Ireland are to be construed in accordance with
the definition of “supply” in Article 3 of the Electricity (Northern
Ireland) Order 1992.

(9) 30A certificate purchase order may make provision, for the purposes of
the relevant sections, about the circumstances in which electricity is to
be regarded as having been supplied—

(a) to customers in Great Britain;

(b) to customers in Northern Ireland.”

(3) 35In section 106 (regulations and orders), in subsection (2)(b) after “32,” insert
“32N, 32R(4),”.

(4) In section 113 (extent etc), in subsection (3), at the beginning of the list (before
the entry for sections 65 to 70) insert “Sections 32N to 32Z1;”.

CHAPTER 8 Emissions performance standard

42 Duty not to exceed annual carbon dioxide emissions limit

(1) The operator of any fossil fuel plant must secure that the emissions of carbon
dioxide from it that are attributable to the use of fossil fuel do not exceed EL
5tonnes of carbon dioxide (“the emissions limit”) in any year, where—

and—

(2) Until (and including) 2044, the statutory rate of emissions is 450 g/kWh.

(3) In this Chapter, “fossil fuel plant” means an electricity generating station which
10satisfies the conditions in subsection (4), together with any associated
gasification plant and any associated CCS plant.

(4) Those conditions are that the generating station—

(a) is constructed pursuant to a relevant consent given or made on or after
the date on which subsection (1) comes into force, and

(b) 15uses—

(i) fossil fuel, or

(ii) fuel produced by gasification plant.

(5) Subsection (1) is subject to any provision made by or under regulations made
under subsection (6).

(6) 20The Secretary of State may by regulations—

(a) make provision about the interpretation of the duty imposed by
subsection (1) (“the emissions limit duty”);

(b) make any provision mentioned in Schedule 4 (application of emissions
limit duty to additional cases or subject to modifications).

(7) 25Regulations under subsection (6)(a) may, in particular, make provision—

(a) for determining whether gasification plant or CCS plant (including any
CCS plant associated with gasification plant) is associated with a
generating station;

(b) for determining the emissions from fossil fuel plant;

(c) 30for the use of fossil fuel—

(i) for operating plant that is ancillary to a generating station for
safety purposes, or in an emergency, or

(ii) by a network generating station at a time when it is not
exporting to a network,

35to be disregarded for any of the purposes of this Chapter;

(d) for determining (whether by apportionment or otherwise) which
emissions from fossil fuel plant are attributable to the use of fossil fuel;

(e) for determining when plant ceases to be, or to be part of, fossil fuel
plant;

(f) 5specifying the meaning of any of the following expressions—

(i) “operator”, in relation to fossil fuel plant;

(ii) “installed generating capacity”;

(iii) “constructed pursuant to a relevant consent”, in relation to an
electricity generating station;

(g) 10specifying any category of emissions by reference to provision made, or
that may from time to time be made, by or under regulations
implementing the ETS Directive.

(8) Provision that may be made by virtue of subsection (7)(d) includes provision
for treating emissions attributable to the supply of heat to customers from
15combined heat and power plant as not being attributable to the use of fossil
fuel.

43 Suspension etc of emissions limit in exceptional circumstances

(1) This section applies where an appropriate authority considers that there is an
electricity shortfall, or a significant risk of an electricity shortfall.

(2) 20Where this section applies, the appropriate authority may direct that, in
relation to relevant plant, the emissions duty is to be treated as—

(a) suspended for a period specified in the direction, or

(b) modified for a period specified in the direction.

(3) For the purposes of this section, there is an electricity shortfall when—

(a) 25the electricity available in Great Britain is insufficient to meet demands
in Great Britain, or

(b) the electricity available in Northern Ireland is insufficient to meet
demands in Northern Ireland.

(4) For this purpose—

(a) 30electricity available in Great Britain or Northern Ireland includes
electricity that is available there by virtue of an electricity
interconnector (within the meaning of Part 1 of EA 1989), and

(b) subject to that, it is for the appropriate authority to determine what is
to be regarded as available electricity.

(5) 35Before giving a direction under this section, the Secretary of State must
consult—

(a) the Scottish Ministers,

(b) the Welsh Ministers, and

(c) such other persons as the Secretary of State considers it appropriate to
40consult.

(6) As soon as practicable after giving a direction under this section, the Secretary
of State must lay before Parliament a document containing—

(a) a copy of the direction, and

(b) a statement of the Secretary of State’s reasons for making the direction.

(7) Before giving a direction under this section, the Department of Enterprise,
Trade and Investment must consult such persons as it considers it appropriate
to consult.

(8) As soon as practicable after giving a direction under this section, the
5Department of Enterprise, Trade and Investment must lay before the Northern
Ireland Assembly a document containing—

(a) a copy of the direction, and

(b) a statement of the Department’s reasons for making the direction.

(9) A direction under this section—

(a) 10is to be made in writing;

(b) may include incidental, supplementary and transitional provision;

(c) may be varied or revoked by a further direction under this section.

(10) Provision that may be made by virtue of subsection (9)(b) includes, in
particular, provision imposing requirements on enforcing authorities (within
15the meaning of Schedule 5) for Great Britain or Northern Ireland, as the case
may be.

(11) Each appropriate authority—

(a) must issue (and may from time to time revise) a statement of the
Secretary of State’s or, as the case may be, that Department’s policy in
20relation to making directions under this section,

(b) must publish the up-to-date text of the statement whenever it is issued
or revised, and

(c) must have regard to the statement in making any direction under this
section.

(12) 25For the purposes of this section—

• “appropriate authority” means—

  (a)

  the Secretary of State, or

  (b)

  the Department of Enterprise, Trade and Investment;

• “relevant generating station” means a generating station which satisfies
  30paragraphs (a) and (b) of section 42(4);

• “relevant plant” means—

  (a)

  in relation to a direction by the Secretary of State, fossil fuel
  plant which consists of or includes a relevant generating station
  in Great Britain;

  (b)

  35in relation to a direction by the Department of Enterprise, Trade
  and Investment, fossil fuel plant which consists of or includes a
  relevant generating station in Northern Ireland.

44 Monitoring and enforcement

(1) It is the duty of the appropriate national authority to make arrangements for
40monitoring compliance with, and enforcement of, the emissions limit duty.

(2) The appropriate national authority may by regulations make any provision
mentioned in Schedule 5 (monitoring compliance with, and enforcement of,
the emissions limit duty).

(3) The arrangements under subsection (1) must include arrangements for giving
45effect to directions under section 43 (and, in particular, for compliance by

enforcing authorities with any requirements imposed on them under
subsection (9) of that section).

(4) In this section (and Schedule 5), the “appropriate national authority” means—

(a) in relation to England, the Secretary of State;

(b) 5in relation to Scotland, the Scottish Ministers;

(c) in relation to Wales, the Welsh Ministers;

(d) in relation to Northern Ireland, the Department of Environment.

(5) Subsection (4) is subject to paragraph 5 of Schedule 5 (which provides for the
Secretary of State to make certain provision for Scotland, Wales and Northern
10Ireland).

45 Interpretation of Chapter 8

(1) In this Chapter—

• “carbon capture and storage technology” means technology for doing, or
  contributing to the doing of, any of the following things—

  (a)

  15capturing carbon dioxide (or any substance consisting
  primarily of carbon dioxide) that has been produced by, or in
  connection with, generation of electricity on a commercial scale;

  (b)

  transporting such carbon dioxide (or substance) that has been
  captured;

  (c)

  20disposing of such carbon dioxide (or substance) that has been
  captured, by way of permanent storage;

• “CCS plant” means plant that uses, or is capable of using, carbon capture
  and storage technology;

• “distribution system” has the meaning given by section 4(4) of EA 1989
  25(and “distributed” is to be read accordingly);

• “emissions limit duty” means the duty imposed by section 42(1);

• “ETS Directive” means Directive 2003/87/EC of the European Parliament
  and of the Council (as amended from time to time);

• “fossil fuel” means—

  (a)

  30coal;

  (b)

  lignite;

  (c)

  peat;

  (d)

  natural gas (within the meaning of the Energy Act 1976);

  (e)

  crude liquid petroleum;

  (f)

  35bitumen;

  (g)

  any substance which—

  (i)

  is produced directly or indirectly from a substance
  mentioned in paragraphs (a) to (f) for use as a fuel, and

  (ii)

  when burned, produces a greenhouse gas (within the
  40meaning given in section 92 of the Climate Change Act
  2008);

• “fossil fuel plant” has the meaning given by section 42(3);

• “gasification plant” means plant which—

  (a)

  uses fossil fuel, and

  (b)

  45produces fuel for use in an electricity generating station;

• “network generating station” means a station that exports to a network;

• “relevant consent” means—

  Energy BillPage 47

  (a)

  consent granted under section 36 of EA 1989 or Article 39 of the
  Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)S.I. 1992/231 (N.I. 1)),
  or

  (b)

  an order granting development consent under the Planning Act
  52008;

• “transmission system” has the meaning given by section 4(4) of EA 1989;

• “year” means any calendar year for which the emissions limit is defined
  by section 42.

(2) For the purposes of this Chapter, a generating station exports to a network
10when it is generating any electricity that is conveyed from it by means of a
transmission system or is distributed by means of a distribution system.

46 Regulations under Chapter 8

(1) Any regulations made by the Secretary of State or the Welsh Ministers under
this Chapter must be made by statutory instrument.

(2) 15Any power to make regulations under this Chapter that is exercisable by the
Department of Environment is to be exercisable by statutory rule for the
purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573S.I. 1979/1573
(N.I. 12)).

(3) An instrument containing—

(a) 20regulations under section 42 (whether or not also containing
regulations by the Secretary of State under section 44), or

(b) regulations by the Secretary of State under section 44 which amend or
repeal any provision of primary legislation,

may not be made unless a draft has been laid before and approved by a
25resolution of each House of Parliament.

(4) Any other instrument containing regulations made by the Secretary of State
under section 44 is subject to annulment in pursuance of a resolution of either
House of Parliament.

(5) If, but for this subsection, an instrument containing regulations by the
30Secretary of State under this Chapter would be treated for the purposes of the
standing orders of either House of Parliament as a hybrid instrument, it is to
proceed in that House as if it were not a hybrid instrument.

(6) Regulations by the Scottish Ministers under section 44 are—

(a) if they amend or repeal any provision of primary legislation, subject to
35the affirmative procedure;

(b) otherwise, subject to the negative procedure.

(7) An instrument containing regulations by the Welsh Ministers under section
44—

(a) may not be made if the regulations amend or repeal any provision of
40primary legislation unless a draft has been laid before, and approved
by a resolution of, the National Assembly for Wales;

(b) otherwise, is subject to annulment in pursuance of a resolution of the
National Assembly for Wales.

(8) Statutory rules containing regulations by the Department of Environment
45under section 44 are—

(a) if the regulations amend or repeal any provision of primary legislation,
subject to affirmative resolution (within the meaning of section 41(6) of
the Interpretation Act (Northern Ireland) 1954), and

(b) otherwise, subject to negative resolution (within the meaning of section
541(4) of that Act).

(9) Any regulations under this Chapter may—

(a) include incidental, supplementary and consequential provision;

(b) make transitory or transitional provision or savings;

(c) make different provision for different cases or circumstances or for
10different purposes;

(d) make provision subject to exceptions.

(10) Regulations under section 42 that apply in relation to Northern Ireland may be
made only with the consent of the Department of Enterprise, Trade and
Investment.

(11) 15Before making any regulations under section 42 or 44, the Secretary of State
must consult—

(a) in the case of regulations under section 42 that will apply in relation to
Scotland or Wales, the Scottish Ministers or the Welsh Ministers,
respectively, and

(b) 20in any case, such persons (or such other persons) as the Secretary of
State considers it appropriate to consult.

(12) Before making any regulations under section 44, the Scottish Ministers or the
Welsh Ministers must consult such persons as they think appropriate.

(13) Subsections (11) and (12) may be satisfied by consultation before, as well as
25after, the passing of this Act.

CHAPTER 9 Miscellaneous

47 Exemption from liability in damages

(1) The Secretary of State may include in regulations under section 6 or 21, or
under paragraph 6 of Schedule 2, provision that—

(a) 30the national system operator;

(b) any director of the national system operator;

(c) any employee, officer or agent of the national system operator,

is not liable in damages for anything done or omitted in the exercise or
purported exercise of a relevant function specified in the regulations.

(2) 35A relevant function is a function conferred by or by virtue of Chapter

2

,

3 or 4

.

(3) 40Provision made by virtue of subsection (1) may not exempt a person from
liability for an act or omission which—

(a) is shown to be in bad faith;

(b) is unlawful by virtue of section 6(1) of the Human Rights Act 1998
(public authorities not to act incompatibly with convention rights);

(c) 45is a breach of a duty owed by virtue of section 27(4) of EA 1989
(compliance with final or provisional order under that Act).

(4) Whenever—

(a) the Secretary of State makes or revokes regulations of a kind mentioned
in subsection (1) or exercises a modification power under section 20 or
29 or paragraph 19 of Schedule 2, and

(b) 5provision is not in force under subsection (1) in respect of a relevant
function,

the Secretary of State must publish a statement of the reasons why no such
provision is in force.

(5) In this section “national system operator” means the person operating the
10national transmission system for Great Britain (and for this purpose
“transmission system” has the same meaning as in EA 1989 - see section 4(4) of
that Act).

48 Licence modifications: general

(1) This section applies in relation to a power to make modifications conferred
15by—

(a) section 20, 29, 34, 38 or 39, or

(b) paragraph 19 of Schedule 2.

(2) Before making modifications under a power to which this section applies (“a
relevant power”) the Secretary of State must lay a draft of the modifications
20before Parliament.

(3) If, within the 40-day period, either House of Parliament resolves not to
approve the draft, the Secretary of State may not take any further steps in
relation to the proposed modifications.

(4) If no such resolution is made within that period, the Secretary of State may
25make the modifications in the form of the draft.

(5) Subsection (3) does not prevent a new draft of proposed modifications being
laid before Parliament.

(6) In this section “40-day period”, in relation to a draft of proposed modifications,
means the period of 40 days beginning with the day on which the draft is laid
30before Parliament (or, if it is not laid before each House of Parliament on the
same day, the later of the 2 days on which it is laid).

(7) For the purposes of calculating the 40-day period, no account is to be taken of
any period during which Parliament is dissolved or prorogued or during
which both Houses are adjourned for more than 4 days.

(8) 35A relevant power—

(a) may be exercised generally, only in relation to specified cases or subject
to exceptions (including provision for a case to be excepted only so long
as specified conditions are satisfied);

(b) may be exercised differently in different cases or circumstances;

(c) 40includes a power to make incidental, supplementary, consequential or
transitional modifications.

(9) Provision included in a licence, or in a document or agreement relating to
licences, by virtue of a relevant power—

(a) may make different provision for different cases;

(b) 45need not relate to the activities authorised by the licence;