Energy Bill [HL]

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Energy Bill [HL]

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 4 — Further provisions about regulation
128

167
Determination of appeals
(1)
This section applies to every appeal brought under section 165 of this Act.
(2)
In determining the appeal the Competition Commission must have regard, to
the same extent as is required of GEMA, to the matters to which GEMA must
have regard—
5
(a)
in the carrying out of its principal objectives under section 4AA of the
Gas Act 1986 (c. 44) and section 3A of the 1989 Act (principal objectives
and general duties);
(b)
in the performance of its duties under those sections; and
(c)
in the performance of its duties under sections 4AB and 4A of that Act
10
of 1986 and sections 3B and 3C of the 1989 Act (environmental and
health and safety considerations).
(3)
In determining the appeal the Competition Commission—
(a)
may have regard to any matter to which GEMA was not able to have
regard in the case of the decision appealed against; but
15
(b)
must not, in the exercise of that power, have regard to any matter to
which GEMA would not have been entitled to have regard in that case
had it had the opportunity of doing so.
(4)
The Competition Commission may allow the appeal only if it is satisfied that
the decision appealed against was wrong on one or more of the following
20
grounds—
(a)
that GEMA failed properly to have regard to the matters mentioned in
subsection (2);
(b)
that GEMA failed properly to have regard to the purposes for which the
relevant condition has effect;
25
(c)
that GEMA failed to give the appropriate weight to one or more of
those matters or purposes;
(d)
that the decision was based, wholly or partly, on an error of fact;
(e)
that the decision was wrong in law.
(5)
Where the Competition Commission does not allow the appeal, it must
30
confirm the decision appealed against.
(6)
Where it allows the appeal, it must do one or more of the following—
(a)
quash the decision appealed against;
(b)
remit the matter to GEMA for reconsideration and determination in
accordance with the directions given by the Competition Commission;
35
(c)
where it quashes the refusal of a consent, give directions to GEMA, and
to such other persons as it considers appropriate, for securing that the
relevant condition has effect as if the consent had been given.
(7)
A person shall not be directed under subsection (6) to do anything that he
would not have power to do apart from the direction.
40
(8)
A person to whom a direction is given under subsection (6) must comply with
it; and such a direction given to a person other than GEMA shall be enforceable
as if it were an order of the High Court or (in Scotland) of the Court of Session.
(9)
The decision of the Competition Commission on the appeal—
(a)
must be contained in an order made by the Commission;
45
(b)
must set out the reasons for the decision;

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 4 — Further provisions about regulation
129

(c)
takes effect at the time specified in the order or determined in
accordance with provision set out in that order;
(d)
must be notified by the Commission to the persons who (within the
meaning of Schedule 22) were parties to the appeal; and
(e)
must be published by the Commission in such manner as it considers
5
appropriate for bringing it to the attention of other persons likely to be
affected by it.
(10)
The Competition Commission may exclude from what it publishes under
subsection (9)(e) any information which it is satisfied is—
(a)
commercial information the disclosure of which would, or might,
10
significantly harm the legitimate business interests of an undertaking
to which it relates;
(b)
information relating to the private affairs of an individual the
disclosure of which would, or might, in its opinion, significantly harm
his interests.
15
(11)
In this section—

“consent” includes an approval or direction; and

“the relevant condition”, in relation to a decision, means the licence
condition the provisions of which have effect by reference to the
document to which the decision relates.
20
168
Specialist members of Competition Commission
The Competition Commission’s functions with respect to appeals under
section 165 of this Act shall be treated as included in—
(a)
the functions for the purposes of which members of the Competition
Commission are appointed under subsection (1) of section 104 of the
25
Utilities Act 2000 (c. 27) (specialist members); and
(b)
the functions for the purposes of which the members appointed under
that subsection before the commencement of this section were
appointed.
Funding of appeals and references
30
169
Modifications of standard conditions for funding appeals and references
(1)
Where the Secretary of State considers it appropriate to do so—
(a)
in connection with the provision made by sections 165 to 167 and
Schedule 22, or
(b)
in relation to references to the Competition Commission under section
35
24 of the Gas Act 1986 (c. 44) or section 12 of the 1989 Act (modification
references),

he may make licence modifications falling within subsection (2).
(2)
Those licence modifications are—
(a)
modifications of so much of the standard conditions of gas or electricity
40
licences of any type as relates to licence charges; and
(b)
such incidental, consequential or transitional modifications in
connection with modifications falling within paragraph (a) as he thinks
fit.

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 4 — Further provisions about regulation
130

(3)
Where the standard conditions of gas or electricity licences contain provision
authorising the imposition of licence charges in respect of costs incurred by the
Competition Commission in connection with a reference mentioned in
subsection (1)(b)—
(a)
the Competition Commission shall have power, on such a reference, to
5
give directions to GEMA about the manner in which the Competition
Commission’s costs in connection with that reference are to be
recovered by means of such charges; and
(b)
GEMA must comply with any such directions.
(4)
Before making a modification under this section that applies to licences of any
10
type, the Secretary of State must consult—
(a)
the holders of the licences; and
(b)
such other persons as he considers appropriate.
(5)
Subsection (4) may be satisfied by consultation that took place wholly or partly
before the commencement of this section.
15
(6)
The Secretary of State must publish every modification made by him under this
section.
(7)
The publication must be in such manner as the Secretary of State considers
appropriate.
(8)
Where the Secretary of State makes modifications under this section of the
20
standard conditions of licences of any type, GEMA must—
(a)
make (as nearly as may be) the same modifications of those standard
conditions for the purposes of their incorporation in licences of that
type granted after that time; and
(b)
publish the modifications in such manner as it considers appropriate.
25
(9)
The Secretary of State’s powers under this section are exercisable only during
the three months beginning with the commencement of this section.
(10)
In this section—

“gas or electricity licence” has the same meaning as in section 165; and

“licence charges” means payments which—
30
(a)
under the conditions of a gas or electricity licence, are required
to be paid on the grant or during the currency of the licence by
the licence holder; and
(b)
are payments of amounts determined by or under the licence.
Best practice
35
170
Duty to have regard to best regulatory practice
In each of section 4AA of the Gas Act 1986 (c. 44) and section 3A of the 1989 Act
(principal objective and general duties), after subsection (5) insert—
“(5A)
In carrying out their respective functions under this Part in accordance
with the preceding provisions of this section the Secretary of State and
40
the Authority must each have regard to—
(a)
the principles under which regulatory activities should be
transparent, accountable, proportionate, consistent and
targeted only at cases in which action is needed; and

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 4 — Further provisions about regulation
131

(b)
any other principles appearing to him or, as the case may be, it
to represent the best regulatory practice.”
Meaning of electricity supply and high voltage lines
171
Meaning of electricity supply
(1)
For the definition of “supply” in section 4(4) of the 1989 Act, substitute—
5

“‘supply’, in relation to electricity, means its supply to premises in
cases where—
(a)
it is conveyed to the premises wholly or partly by means
of a distribution system, or
(b)
(without being so conveyed) it is supplied to the
10
premises from a substation to which it has been
conveyed by means of a transmission system,

but does not include its supply to premises occupied by a
licence holder for the purpose of carrying on activities which he
is authorised by his licence to carry on;”.
15
(2)
In each of the provisions specified in subsection (3) (which all refer to electricity
conveyed by distribution systems), after “distribution systems” insert “or
transmission systems”.
(3)
Those provisions are—
(a)
section 3A(1), (5)(a) and (7) of the 1989 Act (principal objectives and
20
general duties applying to electricity regulation);
(b)
section 46A(1) of that Act (investigations by the Consumer Council);
(c)
section 48(1) of that Act (publication of information and advice);
(d)
section 4AA(4)(a) of the Gas Act 1986 (c. 44) (principal objectives and
general duties applying to gas regulation); and
25
(e)
section 17(1) of the Utilities Act 2000 (c. 27) (functions of the Consumer
Council).
(4)
An order under section 190 for bringing into force provisions of this section
may contain any such transitional provision in connection with bringing those
provisions into force as the Secretary of State thinks appropriate.
30
(5)
The transitional provision that may be included in an order under subsection
(4) includes provision which has effect by reference to determinations made in
accordance with that provision by a person specified in the order.
172
Meaning of “high voltage line”
(1)
In subsection (1) of section 64 of the 1989 Act (interpretation of Part 1), for the
35
definitions of “high voltage line” and “low voltage line” substitute—

“‘high voltage line’ means an electric line which—
(a)
if it is in Scotland or is a relevant offshore line (as
defined in subsection (1A)), is of a nominal voltage of
132 kilovolts or more; and
40
(b)
in any other case, is of a nominal voltage of more than
132 kilovolts,

and ‘low voltage line’ shall be construed accordingly;”.

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 4 — Further provisions about regulation
132

(2)
After that subsection insert—
“(1A)
An electric line is a relevant offshore line for the purposes of the
definition in subsection (1) of ‘high voltage line’ if—
(a)
it is in an area of the territorial sea adjacent to the United
Kingdom or an area designated under section 1(7) of the
5
Continental Shelf Act 1964; and
(b)
it is used—
(i)
to convey electricity to a place in Scotland; or
(ii)
to convey, to any other place, electricity generated by a
generating station that is situated in an area mentioned
10
in paragraph (a).”
Metering
173
Prepayment meters
(1)
In Schedule 2B to the Gas Act 1986 (c. 44) (which sets out the gas code), for
paragraph 6A substitute—
15
“6A (1)
A pre-payment meter installed by an authorised supplier through
which a consumer takes his supply of gas shall not be used to recover
a sum unless—
(a)
the sum is owed to an authorised supplier in respect of the
supply of gas to the premises on which the meter is installed
20
or in respect of the provision of the meter; or
(b)
the recovery of the sum in that manner is permitted by both—
(i)
regulations made by the Authority; and
(ii)
an agreement falling within sub-paragraph (2) below
between the consumer and the person to whom the
25
sum is owed.
      (2)
An agreement falls within this sub-paragraph if—
(a)
the person to whom the sum is owed is a person who is
authorised by regulations made by the Authority to enter
into agreements falling within this sub-paragraph;
30
(b)
the agreement permits that person to use the meter in
question to recover such sums as may be specified in or
determined under the agreement; and
(c)
the agreement complies with the requirements specified for
the purposes of this sub-paragraph by regulations made by
35
the Authority.
      (3)
The sums that regulations under this paragraph may permit the
recovery of through a pre-payment meter include—
(a)
sums owed to a person other than an authorised supplier;
(b)
sums owed in respect of premises other than the premises on
40
which the meter is installed;
(c)
sums owed in respect of matters other than the supply of gas.
      (4)
Before making regulations under this paragraph the Authority must
consult—
(a)
the Council;
45
(b)
all authorised suppliers;

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 4 — Further provisions about regulation
133

(c)
such other persons as the Authority considers appropriate.
      (5)
The approval of the Secretary of State is required for the making of
regulations under this paragraph.”
(2)
In paragraph 12 of Schedule 7 to the 1989 Act (use of pre-payment meters), for
sub-paragraph (2) substitute—
5
     “(2)
A pre-payment meter installed by an authorised supplier through
which a customer of such a supplier takes his supply of electricity
shall not be used to recover a sum unless—
(a)
the sum is owed to an authorised supplier in respect of the
supply of electricity to the premises on which the meter is
10
installed or in respect of the provision of the meter; or
(b)
the recovery of the sum in that manner is permitted by both—
(i)
regulations; and
(ii)
an agreement falling within sub-paragraph (3) below
between the customer and the person to whom the
15
sum is owed.
      (3)
An agreement falls within this sub-paragraph if—
(a)
the person to whom the sum is owed is a person who is
authorised by regulations to enter into agreements falling
within this sub-paragraph;
20
(b)
the agreement permits that person to use the meter in
question to recover such sums as may be specified in or
determined under the agreement; and
(c)
the agreement complies with the requirements specified for
the purposes of this sub-paragraph by regulations.
25
      (4)
The sums that regulations under this paragraph may permit the
recovery of through a pre-payment meter include—
(a)
sums owed to a person other than an authorised supplier;
(b)
sums owed in respect of premises other than the premises on
which the meter is installed;
30
(c)
sums owed in respect of matters other than the supply of
electricity.
      (5)
Before making regulations under this paragraph the Authority must
consult—
(a)
the Council;
35
(b)
all authorised suppliers;
(c)
such other persons as the Authority considers appropriate.”
Inquiries under ss. 36 and 37 of the 1989 Act
174
Additional inspectors
(1)
In Schedule 8 to the 1989 Act (procedure for consents under sections 36 and 37
40
relating to the installation of generating stations and electric lines), after
paragraph 5 insert—
“Additional inspectors
5A    (1)
This paragraph applies in the case of—

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 4 — Further provisions about regulation
134

(a)
a public inquiry in England and Wales by virtue of paragraph
2(2) or 3(2); or
(b)
a public inquiry in England and Wales which is a
combination under section 62 of this Act into one inquiry—
(i)
of two or more such inquiries; or
5
(ii)
of one or more such inquiries and one or more other
inquiries.
      (2)
At any time after appointing a person to hold the inquiry (‘the lead
inspector’), the Secretary of State may direct him—
(a)
to consider such matters relating to the conduct of the inquiry
10
as are specified in the direction; and
(b)
to make recommendations to the Secretary of State about
those matters.
      (3)
After considering the recommendations of the lead inspector, the
Secretary of State may—
15
(a)
appoint for the purposes of the inquiry such number of
additional inspectors as he thinks appropriate; and
(b)
direct that each additional inspector must consider such of
the matters to which the inquiry relates as are allocated to
him by the lead inspector.
20
     (4)
An additional inspector must—
(a)
comply with every direction as to procedural matters given
to him by the lead inspector; and
(b)
report to the lead inspector on every matter allocated to him.
      (5)
It is to be for the lead inspector to report to the Secretary of State on
25
the consideration of both—
(a)
the matters which he considered himself; and
(b)
the matters the consideration of which was allocated to
additional inspectors.
      (6)
The power of the Secretary of State to give directions to the lead
30
inspector may be exercised on one or more different occasions after
the appointment of the lead inspector.
      (7)
Accordingly—
(a)
the recommendations that may be made by the lead inspector
following such a direction include, in particular, a
35
recommendation for varying the number of additional
inspectors; and
(b)
the power of the Secretary of State to appoint an additional
inspector includes power to revoke such an appointment.
      (8)
A direction by any person under this paragraph may be varied or
40
revoked by a subsequent direction by that person.”
(2)
This section does not extend to Scotland.
Confidential information
175
Exclusion of confidential information from registers
(1)
In section 36 of the Gas Act 1986 (c. 44) (register to be kept by GEMA), after
45