Infrastructure Bill (HL Bill 53)

9F Producing and revising a strategy

(1) The Secretary of State must produce the first strategy before the end of
the period of one year beginning with the day on which this section
comes into force.

(2) 5The Secretary of State may subsequently—

(a) produce a new strategy, or

(b) revise a current strategy,

whenever the Secretary of State thinks appropriate.

(3) The Secretary of State must review each current strategy before the end
10of each relevant four year period.

(4) In reviewing a current strategy, the Secretary of State must (in
particular) take account of the results of any consideration undertaken
under section 9D in respect of reporting periods falling within the
relevant four year period.

(5) 15In this section “relevant four year period”, in relation to a current
strategy, means a period of four years beginning with—

(a) the date on which the strategy was issued, or

(b) if later, the date on which the last review under subsection (3)
was concluded.

9G 20Procedure for producing and revising a strategy

(1) Before—

(a) producing the first strategy,

(b) producing a new strategy, or

(c) revising a current strategy,

25the Secretary of State must prepare a draft of the strategy or revised
strategy.

(2) The Secretary of State must—

(a) consult such persons as the Secretary of State thinks appropriate
about the draft, and

(b) 30consider any representations made by them.

(3) If, after complying with that duty, the Secretary of State decides to
proceed with the draft (in its original form or with modifications), the
Secretary of State must lay a copy of the draft before each House of
Parliament.

(4) 35The Secretary of State may not take any further steps in relation to the
draft if, within the 40 day period, either House resolves not to approve
the draft (a “negative resolution”).

(5) If neither House passes a negative resolution, the Secretary of State may
issue the strategy or revised strategy in the form laid before Parliament.

(6) 40The strategy or revised strategy comes into force on the date specified
by the Secretary of State (which must not be before the date when it is
issued).

(7) Subsection (4) does not prevent a new draft of a strategy or revised
strategy from being laid before Parliament.

(8) In this section “40 day period”, in relation to the draft of a strategy or
revised strategy, means the period of 40 days beginning with the day
on which the draft is laid before Parliament (or if the draft is not laid
before each House on the same day, the later of the 2 days on which it
5is laid).

(9) 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 four days.

9H “Upstream petroleum infrastructure” and its owners

(1) 10In this Part “upstream petroleum infrastructure” means—

(a) a gas processing facility,

(b) an oil processing facility, or

(c) an upstream petroleum pipeline,

if and in so far as it meets conditions A and B.

(2) 15A facility or pipeline meets condition A if and in so far as it is situated
in Great Britain or relevant UK waters.

(3) A facility or pipeline meets condition B if and in so far as it is used in
relation to UK petroleum (including such petroleum after it has been
got).

(4) 20But an upstream petroleum pipeline is not “upstream petroleum
infrastructure” if it is a pipeline to which section 17GA applies
(petroleum pipelines subject to Norwegian access system).

(5) In this section, the following expressions have the same meanings as in
Chapter 3 of Part 2 of the Energy Act 2011 (see section 90 of that Act)—

(a) 25“gas processing facility”;

(b) “oil processing facility”;

(c) “upstream petroleum pipeline”.

(6) In this Part, “owner”, in relation to upstream petroleum infrastructure,
means—

(a) 30a person in whom the pipeline or facility is vested;

(b) a lessee and any person occupying or controlling the pipeline or
facility; and

(c) a person who has the right to have things conveyed by the
pipeline or processed by the facility.

9I 35Other interpretation

In this Part—

• “current strategy”, in relation to any particular time, means a
  strategy under section 9A(2) in force at that time;

• “operator under a petroleum licence” means a person who is
  40responsible for organising or supervising any of the operations
  of searching for, boring for, or getting UK petroleum in
  pursuance of the petroleum licence;

• “owner”, in relation to upstream petroleum infrastructure, has the
  meaning given in section 9H;

• 45“petroleum” has meaning given in section 1;

• “petroleum licence” means a licence granted under—

  Infrastructure BillPage 42

  (a)

  section 3 of this Act, or

  (b)

  section 2 of the Petroleum (Production) Act 1934;

• “principal objective” has the meaning given in section 9A;

• “relevant UK waters” means—

  (a)

  5the territorial sea adjacent to the United Kingdom, and

  (b)

  the sea in any area designated under section 1(7) of the
  Continental Shelf Act 1964;

• “UK petroleum” means petroleum which for the time being exists
  in its natural condition in strata beneath relevant UK waters;

• 10“upstream petroleum infrastructure” has the meaning given in
  section 9H.”

36 Levy on holders of certain energy industry licences

(1) The Secretary of State may, by regulations, provide for a levy to be imposed on,
and be payable by, one or more of the following kinds of persons—

(a) 15persons who hold licences under section 2 of the Petroleum
(Production) Act 1934 or licences under section 3 of the Petroleum Act
1998 (exploitation of petroleum);

(b) persons who hold licences under section 4 of the Energy Act 2008
(unloading and storing gas);

(c) 20persons who hold licences under section 18 of the Energy Act 2008
granted by the Secretary of State (storage of carbon dioxide).

(2) No licensing levy is to be imposed in respect of a time which falls after the end
of the period of 3 years beginning with the first day of the first charging period.

(3) The Secretary of State must exercise the power conferred by subsection (1) so
25as to secure—

(a) that the total amount of licensing levy which is payable in respect of a
charging period does not exceed the costs incurred by the Secretary of
State in exercising the relevant functions in respect of that period; and

(b) that no levy is payable in respect of costs incurred in any exercise of
30relevant functions for which a charge is payable under the Gas and
Petroleum (Consents) Charges Regulations 2013 (as those Regulations
stand when this section comes into force).

(4) In determining for the purposes of subsection (3)(a) the total amount of
licensing levy payable in respect of a charging period, an amount of levy
35payable in respect of that period may be ignored if (during that period or
subsequently)—

(a) having been paid, it is repaid or credit for it is given against other
licensing levy that is payable; or

(b) having not been paid, the requirement to pay it is cancelled.

(5) 40The “relevant functions” referred to in subsection (3) are—

(a) functions under the following enactments—

(i) the Pipe-lines Act 1962 (cross-country pipe-lines);

(ii) section 3 and the other provisions of Part 1 of the Petroleum Act
1998 (exploitation of petroleum);

(iii) 45Part 1A of the Petroleum Act 1998 (maximising economic
recovery of UK petroleum);

(iv) Part 3 of the Petroleum Act 1998 (submarine pipelines);

(v) Part 4 of the Petroleum Act 1998, in so far as the functions
concern reduction of the costs of abandonment of offshore
installations and submarine pipelines;

(vi) section 4 and the other provisions of Chapter 2 of Part 1 of the
5Energy Act 2008 (importation and storage of combustible gas);

(vii) section 18 and the other provisions of Chapter 3 of Part 1 of the
Energy Act 2008 (storage of carbon dioxide);

(viii) Chapter 3 of Part 2 of the Energy Act 2011 (upstream petroleum
infrastructure);

(b) 10carrying out policy work on matters relating to UK petroleum and its
recovery;

(c) providing advice and assistance to the petroleum industry on matters
relating to UK petroleum and its recovery;

(d) collaborating with the petroleum industry on matters relating to UK
15petroleum and its recovery;

(e) acquiring, using and supplying information on matters relating to UK
petroleum and its recovery;

(f) encouraging development of the petroleum industry in relation to the
recovery of UK petroleum;

(g) 20carrying out, or providing advice and assistance to those carrying out,
research and development in relation to technology and products
relevant to the recovery of UK petroleum;

(h) functions which relate to—

(i) the security of petroleum supplies, or

(ii) 25the resilience of the petroleum industry;

(i) international co-operation on matters relating to UK petroleum and its
recovery, including—

(i) resolution of disputes relating to the entitlements of different
countries in relation to petroleum fields, and

(ii) 30openness and accountability in the management of natural
resources.

(6) The matters relating to UK petroleum and its recovery which fall within
paragraphs (b), (c), (d) and (e) of subsection (5) include—

(a) maximising the economic recovery of UK petroleum, and

(b) 35improving the supply chain of UK petroleum.

(7) The amount or amounts of licensing levy payable by licence holders must be—

(a) set out in the regulations, or

(b) calculated in accordance with a method set out in the regulations.

(8) The licensing levy is payable to the Secretary of State.

(9) 40Schedule 6 (the licensing levy) has effect.

(10) Schedule 6 does not limit the provision that may be made by regulations under
this section.

(11) The Secretary of State may, by regulations, amend subsection (3)(b) by adding,
removing or amending a reference to any regulations made under section 188
45of the Energy Act 2004.

(12) In this section and Schedule 6—

Infrastructure BillPage 44

• “charging period” means a period in respect of which licensing levy is
  payable;

• “licensing levy” means the levy provided for in regulations under this
  section;

• 5“UK petroleum” means petroleum (within the meaning given in section 1
  of the Petroleum Act 1998) which for the time being exists in its natural
  condition in strata beneath—

  (a)

  the territorial sea adjacent to the United Kingdom, and

  (b)

  the sea in any area designated under section 1(7) of the
  10Continental Shelf Act 1964.

Petroleum and geothermal energy in deep-level land

37 Petroleum and geothermal energy: right to use deep-level land

(1) A person has the right to use deep-level land in any way for the purposes of
exploiting petroleum or deep geothermal energy.

(2) 15Land is subject to the right of use (whether for the purposes of exploiting
petroleum or deep geothermal energy) only if it is—

(a) deep-level land, and

(b) within a landward area.

(3) But that does not prevent deep-level land that is within a landward area from
20being used for the purposes of exploiting petroleum or deep geothermal
energy outside a landward area.

(4) Deep-level land is any land at a depth of at least 300 metres below surface level.

(5) This section confers the right to use Scottish deep-level land for the purposes
of exploiting deep geothermal energy only in cases where the sole, or main, use
25of that energy is to be, or is, the generation of electricity.

38 Further provision about the right of use

(1) The ways in which the right of use may be exercised include—

(a) drilling, boring, fracturing or otherwise altering deep-level land;

(b) installing infrastructure in deep-level land;

(c) 30keeping, using or removing any infrastructure installed in deep-level
land;

(d) passing any substance through, or putting any substance into, deep-
level land or infrastructure installed in deep-level land;

(e) keeping, using or removing any substance put into deep-level land or
35into infrastructure installed in deep-level land.

(2) The purposes for which the right of use may be exercised include—

(a) searching for petroleum or deep geothermal energy;

(b) assessing the feasibility of exploiting petroleum or deep geothermal
energy;

(c) 40preparing for exploiting petroleum or deep geothermal energy;

(d) decommissioning, and other activity which falls to be continued or
undertaken, in consequence of activities undertaken for the purposes of
exploiting petroleum or deep geothermal energy.

(3) The right of use includes the right to leave deep-level land in a different
condition from the condition it was in before an exercise of the right of use
(including by leaving any infrastructure or substance in the land).

(4) The right of use—

(a) 5does not give a person (“R”) any power which is greater than, or
different from, the power which R would have had if the right had been
granted by a person legally entitled to grant it; and

(b) does not relieve a person (“R”) from any obligation or liability to which
R would have been subject if the right had been granted by a person
10legally entitled to grant it.

(5) Section 37 and this section bind the Crown.

39 Payment scheme

(1) The Secretary of State may, by regulations, require relevant energy
undertakings to make payments in respect of the proposed exercise, or
15exercise, of the right of use.

(2) The regulations may require payments to be made—

(a) to owners of relevant land or interests in relevant land;

(b) to other persons for the benefit of areas in which relevant land is
situated.

(3) 20The regulations may—

(a) specify the amount or amounts of payments;

(b) make provision for determining the amount or amounts of payments.

(4) The regulations may require relevant energy undertakings to provide the
Secretary of State, or any other specified person, with specified information
25about—

(a) the proposed exercise, or exercise, of the right of use;

(b) the making of payments in accordance with regulations under this
section.

(5) Before making any regulations under this section, the Secretary of State must
30consult such persons as the Secretary of State considers appropriate.

40 Notice scheme

(1) The Secretary of State may, by regulations, require relevant energy
undertakings to give notice of the proposed exercise, or exercise, of the right of
use.

(2) 35The regulations may require relevant energy undertakings—

(a) to give notice—

(i) to owners of relevant land or interests in relevant land;

(ii) to persons of other specified descriptions;

(b) to display notice within the area in which relevant land is situated or
40elsewhere;

(c) to publish notice (otherwise than by displaying the notice).

(3) The regulations may make provision about the information which the notice is
to contain, including provision about information relating to—

(a) any payment scheme regulations which are in force;

(b) the application of any payment scheme regulations to the proposed
exercise, or exercise, of the right of use;

(c) the method for obtaining a payment under any payment scheme
5regulations.

(4) The regulations may make provision about the manner in which notice is to be
given, displayed or published, including provision requiring notice to be—

(a) displayed at specified places or places of specified descriptions;

(b) published in specified publications or publications of specified
10descriptions.

(5) The regulations may require relevant energy undertakings to provide the
Secretary of State, or any other specified person, with specified information
about—

(a) the proposed exercise, or exercise, of the right of use;

(b) 15the giving of notice in accordance with regulations under this section.

(6) Before making regulations under this section, the Secretary of State must
consult such persons as the Secretary of State considers appropriate.

(7) In this section “payment scheme regulations” means regulations under section
39.

41 20Payment and notice schemes: supplementary provision

(1) Regulations under section 39 or 40 may make provision about the enforcement
of relevant requirements, including provision for the imposition of financial
penalties in respect of breach of relevant requirements.

(2) Regulations under section 39 or 40 may confer a function on—

(a) 25the Secretary of State, or

(b) any other person, apart from the Scottish Ministers or the Welsh
Ministers.

(3) The functions that may be imposed include—

(a) a duty (including a restriction or prohibition);

(b) 30a function involving the exercise of a discretion;

(c) a requirement to consult.

(4) The provisions of sections 39 and 40 and this section which specify particular
kinds of provision that may be made in regulations under section 39 or 40 do
not limit the powers conferred by that section to make such regulations.

(5) 35The Secretary of State must carry out a review of sections 39 and 40 and the
preceding provisions of this section as soon as reasonably practicable after the
end of the period of 5 years beginning with the day on which they come into
force.

(6) The Secretary of State must by regulations—

(a) 40repeal section 39, and make any consequential amendments (including
repeals) of the other provisions of this Act that the Secretary of State
considers appropriate, if the relevant conditions are met in relation to
the power under section 39;

(b) repeal section 40, and make any consequential amendments (including
45repeals) of the other provisions of this Act that the Secretary of State

considers appropriate, if the relevant conditions are met in relation to
the power under section 40.

(7) The relevant conditions are met in relation to the power under section 39 or the
power under section 40 if—

(a) 5that power is not exercised within the period of 7 years beginning with
the day on which that section comes into force, and

(b) the Secretary of State is satisfied that there is no convincing case for
retaining that power.

42 Interpretation

(1) 10For the purposes of deciding whether land is deep-level land—

(a) the depth of a point in land below surface level is the distance between
that point and the surface of the land vertically above that point; and

(b) in determining what is the surface of the land, any building or other
structure on the land, and any water covering the land, must be
15ignored.

(2) In sections 37 to 41 and this section—

• “deep geothermal energy” means geothermal energy in deep-level land
  (including in water or any other fluid in deep-level land);

• “deep-level land” has the meaning given in section 37(4);

• 20“landward area” has the same meaning as in the Petroleum Licensing
  (Exploration and Production) (Landward Areas) Regulations 2014 (see
  regulation 1(2) of those Regulations);

• “petroleum” has the same meaning as in Part 1 of the Petroleum Act 1998
  (see section 1 of that Act);

• 25“relevant energy undertaking” means a person who proposes to exercise,
  or exercises, the right of use;

• “relevant land” means land in respect of which the right of use is
  proposed to be, or is, exercised;

• “relevant requirement” means a requirement imposed by regulations
  30under section 39 or 40;

• “right of use” means the right conferred by section 37;

• “Scottish deep-level land” means deep-level land in Scotland or beneath
  waters adjacent to Scotland;

• “specified” means specified in regulations under section 39 or 40;

• 35“substance” includes electricity and any other intangible thing.

(3) The power of the Secretary of State to make regulations under section 4 of the
Petroleum Act 1998 includes power to make such amendments of the
definition of “landward area” in subsection (2) above as the Secretary of State
considers appropriate in consequence of any other exercise of the power under
40section 4 of the 1998 Act.

Renewable heat incentives

43 Renewable heat incentives

(1) Section 100 of the Energy Act 2008 (renewable heat incentives) is amended in
accordance with subsections (2) to (4).

(2) After subsection (1) insert—

“(1A) Regulations under this section may confer any function on any person.

(1B) Regulations under this section may provide for a function conferred on
a person to be exercisable on behalf of another person.”

(3) 5In subsection (2)—

(a) in paragraph (a), for the words before sub-paragraph (i) substitute—

“(a) make provision giving any of the following persons
entitlements to payments (“RHI payments”) in specified
circumstances—”;

(b) 10in paragraph (b), for “such payments” substitute “RHI payments”;

(c) after paragraph (b) insert—

“(ba) make provision about the circumstances in which, and
descriptions of persons to whom, the whole or a part of
an entitlement to an RHI payment may be assigned
15(whether the person has the entitlement by virtue of
regulations under paragraph (a) or regulations under
this paragraph);

(bb) authorise or require the Secretary of State, the
Authority, designated fossil fuel suppliers, or any
20person with any other administration function, to make
an RHI payment—

(i) to the person who is entitled to the payment by
virtue of regulations under paragraph (a), or

(ii) where that entitlement has been wholly or partly
25assigned in accordance with regulations under
this section, to the person or persons for the time
being enjoying the entitlement or any part of it;”;

(d) in paragraph (c), for “such payments” substitute “RHI payments”;

(e) for paragraph (d) substitute—

“(d) 30authorise or require a person to provide specified
information;”;

(f) in paragraph (e), omit “to the Secretary of State or the Authority”;

(g) in paragraph (h), omit “for the Secretary of State or the Authority”;

(h) omit paragraph (i);

(i) 35at the end insert—

“(j) authorise the Secretary of State to make payments to a
person in respect of the exercise by the person of
functions under regulations under this section;

(k) make provision about the resolution of disputes relating
40to the exercise of functions under regulations under this
section, including provision about arbitration or appeals
(which may, in particular, provide for the person
conducting an arbitration or determining an appeal to
order the payment of costs or compensation).”

(4) 45In subsection (3), after the definition of “fossil fuel supplier” insert—

• ““other administration function” means a function relating to the
  administration of a scheme established under this section, other
  than a function conferred by regulations under subsection
  (2)(bb);”.

(5) Section 105 of the Energy Act 2008 (Parliamentary control of subordinate
legislation) is amended in accordance with subsections (6) to (8).

(6) In subsection (2)—

(a) in paragraph (a), omit sub-paragraph (vi);

(b) 5after paragraph (aa) insert—

“(ab) regulations which contain (whether alone or together
with other provision) affirmative resolution provision
made under section 100 (renewable heat incentives);”.

(7) In subsection (3), after “(2)(a)” insert “, (ab)”

(8) 10After subsection (3) insert—

“(3A) Provision made under section 100 is affirmative resolution provision
if—

(a) the provision is made under any of the powers which always
attract the affirmative resolution procedure, or

(b) 15the provision—

(i) is not made under any of those powers, and

(ii) meets condition A, B, C or D.

(3B) The powers which always attract the affirmative resolution procedure
are the powers conferred by—

(a) 20section 100(2)(c), (e), (f), (g), (h) and (k),

(b) section 100(5), and

(c) section 100(6).

(3C) Provision meets condition A if—

(a) it is made under the power conferred by section 100(2)(bb), and

(b) 25it requires a designated fossil fuel supplier to make a payment
under an RHI scheme.

(3D) Provision meets condition B if—

(a) it confers an administration function on a person who is not the
Secretary of State or the Authority, and

(b) 30the time when the provision comes into force will be the first
time that an administration function under the RHI scheme
concerned is exercisable by a person who is not the Secretary of
State or the Authority.

(3E) Provision meets condition C if—

(a) 35it is made under a power conferred by paragraph (ba) or (bb)(ii)
of section 100(2),

(b) it is made in relation to an RHI scheme that was in existence
immediately before the coming into force of this subsection, and

(c) it is the first provision to be made under that power in relation
40to that RHI scheme.

(3F) Provision meets condition D if—

(a) it is made under a power conferred by paragraph (a), (b), (ba),
(bb), (d) or (j) of section 100(2),

(b) it is made in relation to an RHI scheme that was not in existence
45immediately before the coming into force of this subsection, and