Energy Bill (HC Bill 128)

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(c) gives details of the failure to comply with the petroleum-related
requirement,

(d) informs the person or persons to whom it is given that the person or
persons may, within the period specified in the notice (“the
5representations period”), make representations to the OGA in relation
to the matters dealt with in the notice.

(4) The representations period is to be such period as the OGA considers
appropriate in the circumstances.

(5) Subsections (6) and (7) apply where the OGA gives a sanction warning notice
10to a person or persons in respect of a petroleum-related requirement.

(6) The OGA must not give a sanction notice to the person or persons in respect of
a failure to comply with the requirement until after the end of the
representations period specified in the sanction warning notice.

(7) Having regard to representations made during the representations period
15specified in the sanction warning notice, the OGA may decide—

(a) to give the person or persons a sanction notice in respect of the failure
to comply with the requirement detailed in the sanction warning notice
under subsection (3)(c),

(b) to give the person or persons a sanction notice in respect of a failure to
20comply with the requirement which differs from the failure detailed in
the sanction warning notice under subsection (3)(c), or

(c) not to give the person or persons a sanction notice in respect of a failure
to comply with the requirement.

Appeals

50 25Appeals in relation to sanction notices

(1) Where a sanction notice is given under this Chapter in respect of a failure to
comply with a petroleum-related requirement, an appeal may be made—

(a) under section 51 (on the grounds that there was no such failure to
comply);

(b) 30under section 52 (against the sanction imposed by the notice).

(2) Where an appeal is made in relation to a sanction notice, the notice ceases to
have effect until a decision is made by the Tribunal to confirm, vary or cancel
the notice.

(3) Where, on an appeal made in relation to a sanction notice—

(a) 35the Tribunal makes a decision to confirm or vary the notice, and

(b) an appeal is or may be made in relation to that decision,

the Tribunal, or the Upper Tribunal, may further suspend the effect of the
notice pending a decision which disposes of proceedings on such an appeal.

51 Appeals against finding of failure to comply

(1) 40This section applies where a sanction notice is given in respect of a failure to
comply with a petroleum-related requirement.

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(2) An appeal may be made to the Tribunal by the person, or by any of the persons,
to whom the notice was given, on the grounds that the person, or persons, did
not fail to comply with the petroleum-related requirement.

(3) On an appeal under this section, the Tribunal may confirm or cancel the
5sanction notice.

(4) Where sanction notices are given on more than one occasion in respect of the
same failure to comply with a petroleum-related requirement—

(a) an appeal under this section may be made only in relation to the
sanction notice, or any of the sanction notices, given on the first of those
10occasions, and

(b) appeals in relation to sanction notices given on subsequent occasions in
respect of that failure to comply may be made only under section 52
(appeals against sanction imposed).

52 Appeals against sanction imposed

(1) 15This section applies where a sanction notice is given in respect of a failure to
comply with a petroleum-related requirement.

(2) An appeal may be made to the Tribunal—

(a) by the person, or by any of the persons, to whom the notice was given,
and

(b) 20in the case of an operator removal notice under section 48, by the
licensee under whose licence the operator operates,

against any of the decisions of the OGA mentioned in subsection (3) (as to the
sanction imposed by the notice) on the grounds mentioned in subsection (4).

(3) Those decisions are—

(a) 25in a case where an enforcement notice has been given, the decision as
to—

(i) the measures that are required to be taken for the purposes of
compliance with the petroleum-related requirement, or

(ii) the period for compliance with the petroleum-related
30requirement;

(b) in a case where a financial penalty notice has been given, the decision—

(i) to impose a financial penalty, or

(ii) as to the amount of the financial penalty imposed;

(c) in a case where a revocation of licence notice has been given, the
35decision to revoke the licence, whether in relation to some or all of the
persons to whom it was granted;

(d) in a case where an operator removal notice has been given, the decision
to require the removal of the operator.

(4) The grounds are that the decision of the OGA—

(a) 40was unreasonable, or

(b) was not within the powers of the OGA.

(5) On an appeal under this section against a decision made in relation to an
enforcement notice, the Tribunal may—

(a) confirm or quash the decision, in the case of a decision as mentioned in
45subsection (3)(a)(i) (remedial action), or

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(b) confirm or vary the decision, in the case of a decision as mentioned in
subsection (3)(a)(ii) (period for compliance),

and confirm, vary or cancel the enforcement notice accordingly

(6) On an appeal under this section against a decision made in relation to a
5financial penalty notice, the Tribunal may—

(a) confirm or quash the decision, in the case of a decision as mentioned in
subsection (3)(b)(i) (imposition of penalty), or

(b) confirm or vary the decision, in the case of a decision as mentioned in
subsection (3)(b)(ii) (amount of penalty),

10and confirm, vary or cancel the financial penalty notice accordingly.

(7) The Tribunal must have regard to any guidance issued by the OGA under
section 45(2)(a) when deciding whether to confirm or vary a decision as to the
amount of a financial penalty under subsection (6)(b).

(8) On an appeal under this section against a decision to revoke a licence or to
15require the removal of an operator the Tribunal may—

(a) confirm the decision,

(b) vary the decision by changing the revocation date or the removal date,
as the case may be, or

(c) quash the decision, and

20confirm, vary or cancel the sanction notice in question accordingly.

(9) Where a decision is quashed under subsection (5)(a), (6)(a) or (8), the Tribunal
may remit the decision to the OGA for reconsideration with such directions (if
any) as the Tribunal considers appropriate.

Supplementary

53 25Publication of details of sanctions

(1) The OGA may publish details of any sanction notice given in accordance with
this Chapter.

(2) But the OGA may not publish anything that, in the OGA’s opinion—

(a) is commercially sensitive,

(b) 30is not in the public interest to publish, or

(c) is otherwise not appropriate for publication.

(3) If, after details of a sanction notice are published by the OGA, the sanction
notice is—

(a) cancelled on appeal, or

(b) 35withdrawn under section 55,

the OGA must publish details of the cancellation or withdrawal.

54 Subsequent sanction notices

(1) This section applies where the OGA gives a sanction notice in respect of a
particular failure to comply with a petroleum-related requirement (whether
40the notice is given alone or at the same time as another type of sanction notice).

(2) If the sanction notice given is a revocation notice or an operator removal notice,
no further sanction notices may be given in respect of the failure to comply.

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(3) If the sanction notice given is a financial penalty notice which does not require
compliance with the petroleum-related requirement, no further sanction
notices may be given in respect of the failure to comply.

(4) Subsection (5) applies if the sanction notice given is—

(a) 5an enforcement notice, or

(b) a financial penalty notice which requires compliance with the
petroleum-related requirement.

(5) No further sanction notices may be given in respect of the failure to comply
before the end of the period specified under section 43(2)(c) or 44(2)(c)(i), as the
10case may be (period for compliance with petroleum-related requirement).

55 Withdrawal of sanction notices

(1) The OGA may, at any time after giving a sanction notice, withdraw the
sanction notice.

(2) If a sanction notice is withdrawn by the OGA—

(a) 15the notice ceases to have effect, and

(b) the OGA must notify the following persons of the withdrawal of the
notice—

(i) the person or persons to whom the notice was given,

(ii) in the case of a revocation notice, the persons who were
20required to be informed of the giving of the revocation notice
under section 47(8), and

(iii) in the case of an operator removal notice, the licensee under
whose licence the operator operates.

56 Alternative means of enforcement

(1) 25Where the OGA gives a sanction notice to an offshore licensee in respect of a
failure to comply with a petroleum-related requirement, the matter is to be
dealt with in accordance with this Chapter.

(2) Any requirement under the licensee’s licence to deal with the matter in a
certain way (including by arbitration) does not apply in respect of that failure
30to comply.

Information

57 Sanctions: information powers

(1) This section applies for the purposes of an investigation by the OGA which—

(a) concerns whether a person has failed to comply with a petroleum-
35related requirement, and

(b) is carried out for the purpose of enabling the OGA to decide whether to
give the person a sanction notice, or on what terms a sanction notice
should be given to the person.

(2) The OGA may by notice in writing, for the purposes of that investigation,
40require the person to provide specified documents or other information.

(3) A requirement under subsection (2) only applies to the extent that the
documents or information requested are—

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(a) documents that are in the person’s possession or control, or

(b) other information that is in the person’s possession or control.

(4) A requirement imposed by a notice under subsection (2) is sanctionable in
accordance with this Chapter.

(5) 5The documents or information requested—

(a) may include documents or information held in any form (including in
electronic form);

(b) may include documents or information that may be regarded as
commercially sensitive;

(c) 10may not include items that are subject to legal privilege.

(6) The notice must specify—

(a) to whom the information is to be provided;

(b) where it is to be provided;

(c) when it is to be provided;

(d) 15the form and manner in which it is to be provided.

(7) In this section, “specified” in a notice, means specified, or of a description
specified, in the notice.

58 Appeals against information requests

(1) A person to whom a notice is given under section 57 may appeal against it to
20the Tribunal on the grounds that—

(a) the giving of the notice is not within the powers of the OGA, or

(b) the length of time given to comply with the notice is unreasonable.

(2) On an appeal under this section the Tribunal may—

(a) confirm, vary or cancel the notice, or

(b) 25remit the matter under appeal to the OGA for reconsideration with
such directions (if any) as the Tribunal considers appropriate.

The OGA’s procedures

59 Procedure for enforcement decisions

(1) The OGA must determine the procedure that it proposes to follow in relation
30to enforcement decisions.

(2) That procedure must be designed to secure, among other things, that an
enforcement decision is taken—

(a) by a person falling within subsection (3), or

(b) by two or more persons, each of whom falls within subsection (3).

(3) 35A person falls within this subsection if the person was not directly involved in
establishing the evidence on which the enforcement decision is based.

(4) The OGA must issue a statement of its proposals.

(5) The statement must be published in a way appearing to the OGA to be best
calculated to bring the statement to the attention of the public.

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(6) When the OGA takes an enforcement decision, the OGA must follow its stated
procedure.

(7) If the OGA changes its procedure in a material way, it must publish a revised
statement.

(8) 5A failure of the OGA in a particular case to follow its procedure as set out in
the latest published statement does not affect the validity of an enforcement
decision taken in that case.

(9) But subsection (8) does not prevent the Tribunal from taking into account any
such failure in considering an appeal under section 51 or 52 in relation to a
10sanction notice.

(10) In this section “enforcement decision” means either of the following—

(a) a decision to give a sanction notice in respect of a failure to comply with
a petroleum-related requirement;

(b) a decision as to the details of the sanction to be imposed by the notice.

15Interpretation

60 Sanctions: interpretation

In this Chapter—

  • “operator under a petroleum licence” has the meaning given in section
    48(9);

  • 20“petroleum-related requirement” has the meaning given in section 42(3);

  • “sanction notice” has the meaning given in section 42(4).

CHAPTER 6 Disclosure

General prohibition

61 Prohibition on disclosure

25Protected material must not be disclosed—

(a) by the OGA, or

(b) by a subsequent holder,

except in accordance with this Chapter.

62 Meaning of “protected material” and related terms

(1) 30In this Chapter “protected material” means information or samples which have
been obtained by the OGA under this Part.

(2) In this Chapter—

  • “original owner”, in relation to protected material provided to the OGA
    under this Part, means the person by whom, or on whose behalf, the
    35protected material was so provided;

  • “subsequent holder”, in relation to protected material, means a person
    holding protected material who has received it directly or indirectly

    Energy BillPage 36

    from the OGA by virtue of a disclosure, or disclosures, in accordance
    with this Chapter.

(3) References to disclosing protected material include references to making the
protected material available to other persons (in a case where the protected
5material includes samples).

Permitted disclosures

63 Disclosure by OGA to certain persons

(1) Section 61 does not prohibit a disclosure of protected material by the OGA
which—

(a) 10is made to a person mentioned in column 1 of the table below,

(b) is made for the purpose of facilitating the carrying out of that person’s
functions, and

(c) is a disclosure of information obtained by the OGA under a Chapter
mentioned in the corresponding entry of column 2 of the table.

Column 1 15Column 2
A Minister of the Crown Chapters 2 to 5
Her Majesty’s Revenue and Customs Chapters 2 to 4
The Competition and Markets Authority Chapters 2 to 5
The Scottish Ministers Chapter 3
The Welsh Ministers 20Chapter 3
A Northern Ireland Department Chapter 3
The Coal Authority Chapter 3
The Office for Budget Responsibility Chapter 3
An enforcing authority Chapters 2 to 5
The competent authority under article 8 of
the Offshore Safety Directive
25Chapters 2 to 5
The Statistics Board Chapters 2 to 5

(2) In the table—

  • “enforcing authority” has the same meaning as in Part 1 of the Health and
    30Safety at Work etc Act 1974 (see section 18(7)(a) of that Act);

  • “Minister of the Crown” has the same meaning as in the Ministers of the
    Crown Act 1975;

  • “Offshore Safety Directive” means Directive 2013/30/EU of the European
    Parliament and of the Council of 12 June 2013 on safety of offshore oil
    35and gas operations.

(3) Section 61 does not prohibit a disclosure of protected material by the OGA
which—

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(a) is a disclosure of protected material obtained by it under Chapter 3
(information and samples),

(b) is made to the Natural Environment Research Council, or any other
similar body carrying on geological activities, and

(c) 5is made for the purpose of enabling the body to prepare and publish
reports and surveys of a general nature using information derived from
the protected material.

(4) A person to whom protected material is disclosed by virtue of subsection (1) or
(3) may use the protected material only for the purpose mentioned in
10subsection (1)(b) or (3)(c) (as the case may be).

(5) Section 61 does not prohibit such a person from disclosing the protected
material so far as necessary for that purpose.

(6) The Secretary of State may by regulations amend the table in subsection (1)—

(a) to remove a person from column 1,

(b) 15to add to column 1 a person to whom subsection (7) applies, or

(c) to add, remove or change entries in column 2.

(7) This subsection applies to—

(a) persons holding office under the Crown;

(b) persons in the service or employment of the Crown;

(c) 20persons acting on behalf of the Crown;

(d) government departments;

(e) publicly owned companies as defined in section 6 of the Freedom of
Information Act 2000.

64 Disclosure required for returns and reports prepared by OGA

(1) 25Section 61 does not prohibit the OGA from using protected material obtained
by the OGA under Chapter

3

(information and samples) for the purpose of—

(a) preparing such returns and reports as may be required under
30obligations imposed by or under any Act;

(b) preparing and publishing reports and surveys of a general nature using
information derived from the protected material.

(2) Section 61 does not prohibit the OGA from disclosing protected material so far
as necessary for those purposes.

65 35Disclosure in exercise of certain OGA powers

(1) Section 61 does not prohibit a disclosure of protected material if—

(a) the protected material was obtained by the OGA under Chapter

2


40(disputes), and

(b) the disclosure is made in the exercise of the OGA’s powers under
section 23(6) (publication of recommendations for resolving disputes).

(2) Section 61 does not prohibit a disclosure of protected material if it is made in
the exercise of the OGA’s powers under section 53 (publication of details of
45sanctions).

(3) Section 61 does not prohibit a disclosure of protected material which is
permitted by section 75 (international oil and gas agreements: information
exchange).

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66 Disclosure after specified period

(1) Section 61 does not prohibit protected material obtained by the OGA under
Chapter

3

5 (information and samples) from being—

(a) published, or

(b) made available to the public (in a case where the protected material
includes samples),

by the OGA or a subsequent holder at such time as may be specified in
10regulations made by the Secretary of State.

(2) Regulations under subsection (1) may include provision permitting protected
material to be published, or made available to the public, immediately after it
is provided to a person.

(3) Before making regulations under subsection (1), the Secretary of State must
15consult such persons as the Secretary of State considers appropriate.

(4) Subsection (3) does not apply if the Secretary of State is satisfied that
consultation is unnecessary having regard to consultation carried out by the
OGA in relation to what time should be specified in regulations under
subsection (1).

(5) 20In determining the time to be specified in respect of protected material in
regulations under subsection (1), the Secretary of State must have regard to the
following factors—

(a) whether the specified time will allow owners of protected material a
reasonable period of time to satisfy the main purpose for which they
25acquired or created the material;

(b) any potential benefits to the petroleum industry of protected material
being published or made available at the specified time;

(c) any potential risk that the specified time may discourage persons from
acquiring or creating petroleum-related information or petroleum-
30related samples (as defined in section 27);

(d) any other factors the Secretary of State considers relevant.

(6) In balancing the factors mentioned in subsection (5)(a) to (d), the Secretary of
State must take into account the principal objective.

(7) For the purposes of subsection (5)(a), the owner of protected material is the
35person by whom, or on whose behalf, the protected material was provided to
the OGA under Chapter

3

(information and samples).

67 Disclosure with appropriate consent

(1) 40Section 61 does not prohibit a disclosure of protected material if it is made with
the appropriate consent.

(2) For this purpose a disclosure is made with the appropriate consent if—

(a) in the case of disclosure by the OGA, the original owner consents to the
disclosure;

(b) 45in the case of disclosure by a subsequent holder—

(i) the OGA consents to the disclosure, and

(ii) in a case where the protected material in question was provided
to the OGA under this Part, the OGA confirms that the original
owner of the material also consents to the disclosure.

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68 Disclosure required by legislation

Section 61 does not prohibit a disclosure of protected material required by
virtue of an obligation imposed by or under any Act.

69 Disclosure for purpose of proceedings

(1) 5Section 61 does not prohibit a disclosure of protected material by the OGA for
the purposes of, or in connection with—

(a) civil proceedings, or

(b) arbitration proceedings.

(2) Section 61 does not prohibit a disclosure of protected material by the OGA for
10the purposes of, or in connection with—

(a) the investigation or prosecution of criminal offences, or

(b) the prevention of criminal activity.

Part 3 Infrastructure and Information

15Rights to use upstream petroleum infrastructure

70 Requirements to provide information

(1) The Energy Act 2011 is amended as follows.

(2) In section 87 (powers to require information), after subsection (5) insert—

(5A) A notice under subsection (1), (2) or (3) that imposes a requirement on
20a person must specify when the requirement is to be complied with.”

(3) After that section insert—

87A Appeals against requirements to provide information

(1) Any person on whom a requirement is imposed by a notice under
section 87(1), (2) or (3) may appeal against the notice to the Tribunal on
25the grounds that—

(a) the information required by the notice is not relevant to the
exercise by the OGA of its functions under this Chapter, or

(b) the length of time given to comply with the notice is
unreasonable.

(2) 30On an appeal under this section the Tribunal may—

(a) confirm, vary or cancel the notice, or

(b) remit the matter under appeal to the OGA for reconsideration
with such directions (if any) as the Tribunal considers
appropriate.

(3) 35In this section “the Tribunal” means the First-tier Tribunal.

87B Sanctions for failure to provide information

(1) A requirement imposed by a notice under section 87(1), (2) or (3) is to
be treated for the purposes of Chapter 5 of Part 2 of the Energy Act 2016