Energy Bill (HL Bill 48)

51 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) Where this section applies, the appropriate authority may direct that, in
5relation 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) the electricity available in Great Britain is insufficient to meet demands
10in Great Britain, or

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

(4) For this purpose—

(a) electricity available in Great Britain or Northern Ireland includes
15electricity 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) Before giving a direction under this section, the Secretary of State must
20consult—

(a) the Scottish Ministers,

(b) the Welsh Ministers, and

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

(6) 25As 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,
30Trade 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
Department of Enterprise, Trade and Investment must lay before the Northern
Ireland Assembly a document containing—

(a) 35a copy of the direction, and

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

(9) A direction under this section—

(a) is to be made in writing;

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

(c) 40may 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
the meaning of Schedule 5) for Great Britain or Northern Ireland, as the case
may be.

(11) 45Each 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
relation to making directions under this section,

(b) must publish the up-to-date text of the statement whenever it is issued
5or revised, and

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

(12) For the purposes of this section—

• “appropriate authority” means—

  (a)

  10the Secretary of State, or

  (b)

  the Department of Enterprise, Trade and Investment;

• “relevant generating station” means a generating station which satisfies
  paragraphs (a) and (b) of section 50(4);

• “relevant plant” means—

  (a)

  15in 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)

  in relation to a direction by the Department of Enterprise, Trade
  and Investment, fossil fuel plant which consists of or includes a
  20relevant generating station in Northern Ireland.

52 Monitoring and enforcement

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

(2) The appropriate national authority may by regulations make any provision
25mentioned in Schedule 5 (monitoring compliance with, and enforcement of,
the emissions limit duty).

(3) The arrangements under subsection (1) must include arrangements for giving
effect to directions under section 51 (and, in particular, for compliance by
enforcing authorities with any requirements imposed on them under
30subsection (10) 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) in relation to Scotland, the Scottish Ministers;

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

(d) 35in 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
Ireland).

53 Interpretation of Chapter 8

(1) 40In this Chapter—

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

  (a)

  capturing carbon dioxide (or any substance consisting
  primarily of carbon dioxide) that has been produced by, or in
  45connection with, generation of electricity on a commercial scale;

  Energy BillPage 52

  (b)

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

  (c)

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

• 5“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
  (and “distributed” is to be read accordingly);

• “emissions limit duty” means the duty imposed by section 50(1);

• 10“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)

  coal;

  (b)

  lignite;

  (c)

  15peat;

  (d)

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

  (e)

  crude liquid petroleum;

  (f)

  bitumen;

  (g)

  any substance which—

  (i)

  20is 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
  meaning given in section 92 of the Climate Change Act
  2008);

• 25“fossil fuel plant” has the meaning given by section 50(3);

• “gasification plant” means plant which—

  (a)

  uses fossil fuel, and

  (b)

  produces fuel for use in an electricity generating station;

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

• 30“relevant consent” means—

  (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
  352008;

• “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 50.

(2) For the purposes of this Chapter, a generating station exports to a network
40when 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.

54 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) 45Any 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) regulations under section 50 (whether or not also containing
5regulations by the Secretary of State under section 52), or

(b) regulations by the Secretary of State under section 52 which amend or
repeal any provision of primary legislation,

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

(4) 10Any other instrument containing regulations made by the Secretary of State
under section 52 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
Secretary of State under this Chapter would be treated for the purposes of the
15standing 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 52 are—

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

(b) 20otherwise, subject to the negative procedure.

(7) An instrument containing regulations by the Welsh Ministers under section
52—

(a) may not be made if the regulations amend or repeal any provision of
primary legislation unless a draft has been laid before, and approved
25by 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
under section 52 are—

(a) 30if 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
41(4) of that Act).

(9) 35Any 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
different purposes;

(d) 40make provision subject to exceptions.

(10) Regulations under section 50 that apply in relation to Northern Ireland may be
made only with the consent of the Department of Enterprise, Trade and
Investment.

(11) Before making any regulations under section 50 or 52, the Secretary of State
45must consult—

(a) in the case of regulations under section 50 that will apply in relation to
Scotland or Wales, the Scottish Ministers or the Welsh Ministers,
respectively, and

(b) in any case, such persons (or such other persons) as the Secretary of
5State considers it appropriate to consult.

(12) Before making any regulations under section 52, 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
after, the passing of this Act.

CHAPTER 9 10Miscellaneous

55 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) the national system operator;

(b) 15any 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) A relevant function is a function conferred by or by virtue of Chapter

202

,

3 or 4

.

(3) Provision made by virtue of subsection (1) may not exempt a person from
25liability 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) is a breach of a duty owed by virtue of section 27(4) of EA 1989
30(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
31 or paragraph 19 of Schedule 2, and

(b) 35provision 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
40national 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).

56 Licence modifications: general

(1) This section applies in relation to a power to make modifications conferred
45by—

(a) section 20, 31, 39, 43 or 44, 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
5before 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
10make 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
15before 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) 20A 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) 25includes 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) 30need not relate to the activities authorised by the licence;

(c) may do any of the things authorised for licences of that type by section
7(2A), (3), (4) or (6A) of EA 1989.

(10) The Secretary of State must publish details of any modifications made under a
relevant power as soon as reasonably practicable after they are made.

(11) 35If under a relevant power the Secretary of State makes modifications of the
standard conditions of a licence, the Authority must—

(a) make the same modification of those standard conditions for the
purposes of their incorporation in licences of that type granted after
that time, and

(b) 40publish the modification.

(12) A modification made under a relevant power of part of a standard condition of
a licence does not prevent any other part of the condition from continuing to
be regarded as a standard condition for the purposes of Part 1 of EA 1989.

(13) The power conferred by a relevant power to “modify” (in relation to licence
45conditions or a document) includes a power to amend, add to or remove, and
references to modifications are to be construed accordingly.

57 Consequential amendments

(1) In section 3A of EA 1989 (principal objective and general duties), in subsection
(2)(b) for “or sections 26 to 29 of the Energy Act 2010” substitute “, sections 26
to 29 of the Energy Act 2010 or Part 2 of the Energy Act 2013”.

(2) 5In section 33(1) of the Utilities Act 2000 (standard conditions of electricity
licences)—

(a) after paragraph (e) omit “or”;

(b) after paragraph (f) insert “or

(g) under the Energy Act 2013.”.

(3) 10In section 137(3) of the Energy Act 2004 (standard conditions of transmission
licences)—

(a) after paragraph (d) omit “or”;

(b) after paragraph (e) insert “, or

(f) under the Energy Act 2013,”.

(4) 15In section 146(5) of the Energy Act 2004 (standard conditions for electricity
interconnectors), for “or under section 98 of the Energy Act 2011” substitute “,
under section 98 of the Energy Act 2011 or section 31 or 39 of the Energy Act
2013.”.

58 Review of certain provisions of Part 2

(1) 20As soon as reasonably practicable after the end of the period of 5 years
beginning with the day on which this Act is passed, the Secretary of State must
carry out a review of the provisions of the following Chapters of this Part—

(a) Chapter 2 (contracts for difference);

(b) Chapter 3 (capacity market);

(c) 25Chapter 5 (conflicts of interest and contingency arrangements);

(d) Chapter 6 (access to markets);

(e) Chapter 7 (the renewables obligation: transitional arrangements);

(f) Chapter 8 (emissions performance standard).

(2) The Secretary of State must set out the conclusions of the review in a report.

(3) 30The report must, in particular—

(a) set out the objectives of the provisions of each Chapter subject to
review,

(b) assess the extent to which those objectives have been achieved, and

(c) assess whether those objectives remain appropriate and, if so, the
35extent to which those objectives could be achieved in a way that
imposes less regulation.

(4) The Secretary of State must lay the report before Parliament.

Part 3 Nuclear Regulation

CHAPTER 1 The ONR’s purposes

59 The ONR’s purposes

5In this Part, “the ONR’s purposes” means—

(a) the nuclear safety purposes (see section 60),

(b) the nuclear site health and safety purposes (see section 61),

(c) the nuclear security purposes (see section 62),

(d) the nuclear safeguards purposes (see section 64), and

(e) 10the transport purposes (see section 65).

60 Nuclear safety purposes

(1) In this Part, the “nuclear safety purposes” means the purposes of protecting
persons against risks of harm from ionising radiations from GB nuclear sites,
including through—

(a) 15the design and construction of relevant nuclear installations and
associated sites,

(b) arrangements for the operation and decommissioning of, and other
processes connected with, relevant nuclear installations,

(c) arrangements for the storage and use of nuclear matter on GB nuclear
20sites, and

(d) arrangements to minimise those risks in the event of an escape or
release of such ionising radiations.

(2) For this purpose, ionising radiations from GB nuclear sites are ionising
radiations from—

(a) 25relevant nuclear installations, or

(b) nuclear matter stored or used on a GB nuclear site;

and an escape or release of ionising radiations from a GB nuclear site includes
ionising radiations from nuclear matter that has escaped or been released on or
from a GB nuclear site.

(3) 30In this section—

• “GB nuclear site” means a nuclear site in England, Wales or Scotland;

• “nuclear installation” has the same meaning as in the Nuclear Installations
  Act 1965 (see section 26 of that Act);

• “nuclear matter” has the same meaning as in that Act (see section 26 of
  35that Act);

• “relevant nuclear installation” means a nuclear installation on a site in
  England, Wales or Scotland for which a nuclear site licence is required
  by virtue of the installation (and includes a proposed or former nuclear
  installation in respect of which such a licence would be or has ever been
  40so required).

61 Nuclear site health and safety purposes

(1) In this Part, the “nuclear site health and safety purposes” means so much of the
general purposes of Part 1 of the 1974 Act as consists of the following
purposes—

(a) 5securing the health, safety and welfare of persons at work on GB
nuclear sites;

(b) protecting persons, other than persons at work on GB nuclear sites,
against risks to health or safety arising out of or in connection with the
activities of persons at work on GB nuclear sites;

(c) 10controlling the storage and use on GB nuclear sites of dangerous
substances and generally preventing the unlawful acquisition,
possession and use of such substances on or from such sites.

(2) In this section—

(a) “dangerous substances” means radioactive, explosive, highly
15flammable or otherwise dangerous substances, other than nuclear
matter;

(b) “GB nuclear site” and “nuclear matter” have the same meanings as in
section 60.

(3) Section 1(3) of the 1974 Act (interpretation of references to risks relating to
20persons at work) applies for the purposes of this section as it applies for the
purposes of Part 1 of the 1974 Act.

62 Nuclear security purposes

(1) In this Part, the “nuclear security purposes” means the purposes of ensuring
the security of—

(a) 25civil nuclear premises;

(b) nuclear material used or stored on civil nuclear premises and
equipment or software used or stored on such premises in connection
with activities involving nuclear material;

(c) other radioactive material used or stored on civil nuclear sites and
30equipment or software used or stored on civil nuclear sites in
connection with activities involving such other radioactive material;

(d) civil nuclear construction sites and equipment used or stored on civil
nuclear construction sites;

(e) equipment or software in the United Kingdom which—

(i) 35is capable of being used in, or in connection with, the
enrichment of uranium, and

(ii) is in the possession or control of a person involved in uranium
enrichment activities;

(f) sensitive nuclear information which is in the United Kingdom in the
40possession or control of—

(i) a person who is involved in activities on or in relation to civil
nuclear premises or who is proposing or likely to become so
involved;

(ii) a person involved in uranium enrichment activities; or

(iii) 45a person who is storing, transporting or transmitting the
information for or on behalf of a person falling within sub-
paragraph (i) or (ii);

(g) nuclear material which is being (or is expected to be)—

(i) transported within the United Kingdom or its territorial sea,

(ii) transported (outside the United Kingdom and its territorial sea)
to or from any civil nuclear premises in the United Kingdom, or

(iii) carried on board a United Kingdom ship,

5other than material being (or expected to be) so transported or carried
for defence purposes;

(h) information relating to the security of anything mentioned in
paragraphs (a) to (g).

(2) For the purposes of subsection (1), ensuring the security of any site or premises
10includes doing so by means of the design of, or of anything on, the site or
premises.

(3) In this section—

• “civil nuclear construction site” means a site—

  (a)

  on which works are being carried out with a view to its
  15becoming a civil nuclear site, and

  (b)

  which is situated within 5 kilometres of an existing nuclear site;

• “civil nuclear premises” means—

  (a)

  a civil nuclear site, or

  (b)

  other premises on which nuclear material is used or stored
  20which are not controlled or operated wholly or mainly for
  defence purposes;

• “civil nuclear site” means a nuclear site other than one controlled or
  operated wholly or mainly for defence purposes;

• “defence purposes” means the purposes of the department of the
  25Secretary of State with responsibility for defence;

• “enrichment of uranium” means a treatment of uranium that increases the
  proportion of isotope 235 contained in the uranium;

• “equipment” includes equipment that has not been assembled and its
  components;

• 30“nuclear material” means any fissile material in the form of—

  (a)

  uranium metal, alloy or compound, or

  (b)

  plutonium metal, alloy or compound,

  or any other fissile material prescribed by regulations made by the
  Secretary of State;

• 35“sensitive nuclear information” means—

  (a)

  information relating to, or capable of use in connection with, the
  enrichment of uranium, or

  (b)

  information of a description for the time being specified in a
  notice under section 63;

• 40“United Kingdom ship” means a ship registered in the United Kingdom
  under Part 2 of the Merchant Shipping Act 1995.

63 Notice by Secretary of State to ONR specifying sensitive nuclear information

(1) This section applies where the Secretary of State considers that information of
any description relating to activities carried out on or in relation to civil nuclear
45premises is information which needs to be protected in the interests of national
security.