|
Clause 81 and Schedule 4: Power to amend licence conditions: gas
429. In transferring these legal metrology functions, it is necessary to ensure that the NWML can recover the costs of carrying out the transferred functions. To make this possible, licence payment conditions need to be modified to allow the Authority to recover funds from the licence fee and pass them to the NWML.
430. This clause therefore gives the Secretary of State the power to modify gas transporter licence conditions under sections 7 and 8 of the Gas Act 1986 (c.44). Section 7 covers the requirements for licensing gas transporters, whilst section 8 covers standard conditions of such licences.
431. The effect of the clause is that, following licence modifications made by the Secretary of State, the Authority will be able to recover from gas transporters costs incurred by the NWML in respect of functions in relation to gas meters, and pay those costs into the Consolidated Fund.
432. There are a number of checks and balances built into the clause by virtue of subsections (4) to (9). They require the Secretary of State to consult licence holders, the Authority and any other persons as appropriate before making licence modifications. The Secretary of State must also publish the modifications, and ensure that the modifications made apply to all future licences.
433. Subsection (9) has the effect that modifications can only be made to licence conditions by the Secretary of State for six months after subsection (1) comes into force. The deadline is to provide certainty to the gas transporters that the power will only be used once for the purpose of allowing the Authority to recover funds and pass them onto NWML. Given the technical nature, it is not considered appropriate to detail the licence modification on the face of the Bill.
434. Paragraph 9 of Schedule 4 makes amendments to the Utilities Act 2000 (c.27) which are consequential on the transfer of functions from the Authority to the Secretary of State.
Clause 82: Electricity meters
435. Schedule 7 to the Electricity Act 1989 (c.29) describes, amongst other things, how electricity meters must be examined and certified. The Schedule further sets out requirements in relation to electricity meter examiners. The Schedule allows the Authority to make regulations which relate to, for example:
- the requirements new meter designs must meet to be approved, which include the performance and routes to demonstrating conformity;
- the requirements on manufacturers or repairers when submitting meters for certification which include meter performance, testing equipment and reporting; and
- audit arrangements for manufacturers and repairers when seeking authorisation to self certify meters.
436. Subsection (1) transfers to the Secretary of State the Authority's functions under Schedule 7 (other than paragraph 12) to the Electricity Act 1989 (c.29) and certain regulations relating to electricity meters made under that Schedule or under section 2(2) of the European Communities Act 1972 ("electricity meter regulations", as defined in subsection (5)). Subsection (2) ensures that references to the Authority in Schedule 7 to the Electricity Act will be read as references to the Secretary of State. The omission of paragraph 12 to Schedule 7 from the transfer means that the Authority will continue to have responsibility for policy decisions about how and when pre-payment meters should be used.
437. Subsections (3) and (4) will ensure that existing regulations made at any time under Schedule 7 to the Electricity Act, and other regulatory actions of the Authority in relation to meters, have effect as if made or done by the Secretary of State.
Clause 83: Section 82: consequential amendments
438. This clause makes amendments to Schedule 7 to the Electricity Act 1989 (c.29) which are consequential on the transfer of functions from the Authority to the Secretary of State.
439. Meter examiners are appointed by the Authority (in future, by the Secretary of State) under Schedule 7. Examiners carry out much of the technical work done under that Schedule and electricity meter regulations. At present, most meter examiners are not civil servants.
440. By inserting a new paragraph 4(2A) into Schedule 7, subsection (4)(b) makes provision for the Secretary of State to contribute towards the remuneration and pensions of non-civil service meter examiners and the maintenance of the equipment they use to perform their statutory functions. The new paragraph is to provide clarity about payments to non-civil servant meter examiners (and, in some cases, their employers) in respect of the carrying out of statutory functions.
441. Paragraph 12 of Schedule 7 allows the Authority to make regulations which permit sums owed to be recovered from customers using a pre-payment meter. This power will remain with the Authority. As such, policy decisions on how and when pre-payment meters should be used will continue to rest with the Authority, although the NWML will be responsible for the accuracy of pre-payment meters.
Clause 84 and Schedule 4 : Power to amend licence conditions: electricity
442. In transferring these legal metrology functions, it is necessary to ensure that the NWML can recover the costs of carrying out these transferred functions. To make this possible, licence payment conditions therefore need to be modified to allow the Authority to recover funds from the licence fee and pass them through the Consolidated Fund to the NWML.
443. This clause therefore allows the Secretary of State to modify electricity transmission and distribution licence conditions under section 6(1)(b) or (c) and section 8A of the Electricity Act 1989 (c.29). Section 6(1)(b) covers the requirements for licensing electricity transmitters and section 6(1)(c) covers the requirements for licensing electricity distributors, whilst section 8A covers standard conditions of such licences.
444. It has the effect that following licence modifications, the Authority will be able to recover from electricity transmission and distribution operators costs incurred by the NWML in respect of functions in relation to electricity meters, and pay those costs into the Consolidated Fund.
445. There are a number of checks and balances built into the clause by virtue of subsections (4) to (9). They require the Secretary of State to consult licence holders, the Authority and any other persons as appropriate before making licence modifications, which must be published, and ensure those modifications apply to all future licences.
446. Subsection (9) has the effect that modifications can only be made to licence conditions by the Secretary of State for 6 months after subsection (1) comes into force. The deadline is to provide certainty to the gas transporters that the power will only be used once for the purpose of allowing the Authority to recover funds and pass them onto NWML. Given the technical nature of the licence modification, it is not considered appropriate to set it out on the face of the Bill.
447. Paragraph 8 of Schedule 4 makes amendments to the Utilities Act 2000 (c.27) which are consequential on the transfer of functions from the Authority to the Secretary of State.
ELECTRICITY SAFETY
SUMMARY AND BACKGROUND
448. This element of the Bill relates to electricity safety standards, which are aimed at protecting the general public and consumers from danger. The purpose is to allow for stronger sanctions where there is a breach of electricity safety standards and also to complete the implementation of a recommendation made by Philip Hampton in his March 2005 report, Reducing Administrative Burdens: Effective Inspection and Enforcement.
449. In October 2006, following the Hampton report, there was an administrative transfer of the responsibility for electricity safety standards, from the Secretary of State to the Health and Safety Executive (HSE) which provided for the HSE to exercise functions on the Secretary of State's behalf. Electricity safety standards are set out in the Electricity Safety, Quality and Continuity Regulations 2002 (S.I. 2002/2665) (as amended) (made under the Electricity Act 1989 (c.29)), and include such things as the correct minimum height of overhead lines, appropriate controls on the use of underground cables, and earthing of metalwork.
450. This element of the Bill formalises the administrative transfer and creates a consistent approach to the enforcement of safety regulation by giving overall responsibility to one regulatory body. This is in line with the wider Hampton recommendation for HSE to become the overall regulator for safety matters, to reduce the administrative burden of more than one regulator having similar functions.
451. The changes also allow HSE inspectors to use the sanctions available to them under the Health and Safety at Work etc. Act 1974, when enforcing electricity safety standards. These sanctions are considered by the government to better reflect the seriousness of a breach of electricity safety standards and are the same as sanctions available for a breach of other safety legislation enforced by the HSE.
452. The Electricity Safety, Quality and Continuity Regulations 2002 deal with issues of both electricity safety and security of supply. This element of the Bill deals only with electricity safety. Responsibility for regulating security of supply will remain with the Secretary of State.
COMMENTARY ON CLAUSES
Clause 85: Electricity Safety
453. Section 29 of the Electricity Act 1989 allows the Secretary of State to make regulations relating to electricity safety and supply. The regulations relating to electricity safety and security of electricity supply that are made under section 29, are the Electricity Safety, Quality and Continuity Regulations 2002 (as amended). Part 1 of the Health and Safety at Work etc. Act 1974 sets out provisions for the purpose of enabling the Health and Safety Executive (HSE) to secure the health, safety and welfare of persons.
454. This clause makes section 29 of the Electricity Act 1989 (c.29), and regulations made under it, existing statutory provisions under Part 1 of the Health and Safety at Work etc. Act 1974 (c.37), so far as they relate to safety. This has the effect that section 29 and any associated Regulations will be considered as always having existed as statutory provisions of the Health and Safety at Work etc. Act 1974.
455. The effect of this clause is to pass responsibility for electricity safety standards, including the inspection and enforcement of them, from the Secretary of State to the HSE. This therefore gives the HSE the power to amend those electricity safety standards should it see fit.
456. By making section 29 an existing statutory provision, HSE inspectors will be able to use existing statutory powers, available under the Health and Safety at Work etc. Act 1974 (c. 37), to prosecute for a breach of electricity safety standards. This provides an alternative, stronger sanction than any of those available under the Electricity Safety, Quality and Continuity Regulations 2002.
457. The sanctions available under the regulations are, on summary conviction, a fine not exceeding level 5 on the standard scale for each breach (currently £5,000 in England, Wales and Northern Ireland and £10,000 in Scotland). Once section 29 is made an existing statutory provision, the maximum sanction would be a £20,000 fine, on summary conviction, or an unlimited fine, on conviction on indictment. This is in line with existing health and safety penalties.
458. The Health and Safety at Work etc. Act 1974 also allows for prosecution for non-compliance where an Improvement Notice under section 21 or a Prohibition Notice under section 22 has been issued. Where there has been non-compliance with an enforcement notice, inspectors could prosecute on indictment with an unlimited fine or 2 years imprisonment, or both.
459. Section 15 of the Health and Safety at Work etc. Act 1974 gives the Secretary of State the power to make health and safety regulations. Subsection (2) of this clause sets out that regulations made under section 15 of the Health and Safety at Work etc. Act 1974 can remove or amend section 29 of the Electricity Act 1989, or any regulations made under it, or make new regulations that could have been made under section 29.
NUCLEAR INFORMATION
SUMMARY AND BACKGROUND
460. This element of the Bill and paragraph 16 of Schedule 4 propose minor legislative changes to ensure that the civil nuclear security regulator, the Office for Civil Nuclear Security (OCNS), is able to carry out its functions effectively. The proposed changes update the legislation to reflect recent changes in the nuclear sector. Those recent changes are:
- The use of subcontracting following restructuring of the nuclear industry, made possible by the Energy Act 2004; and,
- the administrative transfer in April 2007 of the OCNS to the Health and Safety Executive to sit alongside the civil nuclear safety regulator, the Nuclear Installations Inspectorate (NII).
461. The amendments in this element of the Bill will ensure there are sufficiently serious sanctions available for those attempting to steal sensitive nuclear information. Minor and consequential amendments also re-establish the OCNS's ability to gain access to Civil Nuclear Police Authority premises following its transfer from the Department for Business, Enterprise & Regulatory Reform to the Health and Safety Executive.
COMMENTARY ON CLAUSES
Clause 86 and Schedule 4: Security of Nuclear Information
462. This clause relates to the securing of sensitive nuclear information pertaining to uranium enrichment. Previously, such information could only be kept on licensed nuclear sites which also held a permit to undertake the enrichment of uranium. Restructuring of the nuclear industry following the Energy Act 2004 means that sensitive nuclear information pertaining to uranium enrichment may now be taken, and stored, away from those licensed sites (for example, at research facilities).
463. To ensure the security of that sensitive nuclear information, there is already appropriate legislation in place which applies to anyone lawfully holding such information, and which prohibits disclosure of it by that person. However, the sanctions available against persons stealing or attempting to steal such information from premises which are not licensed to undertake uranium enrichment, are only those available for the offences of burglary or theft.
464. The Government does not feel these sanctions are strong enough. This is because theft and onward dissemination to others of information pertaining to uranium enrichment has implications for national security.
465. The overall effect of the clause is to allow the offences and stronger sanctions that exist under the Official Secrets Acts to be used to prosecute persons stealing or attempting to steal sensitive nuclear information from designated premises. The clause achieves this through a number of steps that are set out below.
466. The Anti-Terrorism, Crime and Security Act 2001 (c.24) makes provisions about terrorism and security. This clause adds a new section, 80A, to the 2001 Act.
New section 80A Extension of the Official Secrets Acts to certain places
467. Subsection (1) of this new section provides that certain premises holding sensitive nuclear information, should be deemed as belonging to, or used for the purposes of, the Crown. This will allow the Secretary of State to make an order designating those premises holding uranium enrichment technology as "prohibited places" by virtue of section 3(c) of the Official Secrets Act 1911 (c.28). Subsection (1) is a necessary part of the section because only premises belonging to, or used for the purposes of, the Crown may be designated as "prohibited places" under section 3(c) of the Official Secrets Act 1911.
468. The overall effect of designating these premises as prohibited places is to extend the Official Secrets Acts' offences and sanctions to persons gaining entry, or attempting to gain entry, to those premises.
469. The penalty for breach of the Official Secrets Act 1911 (c.28), by virtue of section 8(1) of the Official Secrets Act 1920 (c.75), is a custodial sentence of not less than 3 years and not more than 14 years. Section 1(2) of the Official Secrets Act 1911 sets out that in prosecuting persons under the Act, it is not necessary to prove that a person broke into that "prohibited place" for a purpose which would adversely affect the security interests of the State. Once orders are made by the Secretary of State designating certain premises as prohibited places, the protection afforded by section 1(2) will apply. This reflects the potential impact on national security.
Energy Act 2004 (c.20): amendment made by Schedule 4
470. The Energy Act 2004 (c.20) established the Civil Nuclear Constabulary to protect civil nuclear sites and nuclear materials. The Civil Nuclear Police Authority was established at the same time to ensure the Civil Nuclear Constabulary carries out its policing functions effectively and efficiently.
471. Paragraph 2 of Schedule 13 to the Energy Act sets out the directions which the Secretary of State may give to the Civil Nuclear Police Authority. These include making sure the Civil Nuclear Constabulary completes tasks as it is required, and allowing authorised persons access to Civil Nuclear Police Authority premises. Paragraph 2(1)(h) of that Schedule provides that "officers of the Secretary of State's department" are authorised to access Civil Nuclear Police Authority premises for the purposes of enabling them to monitor and inspect their activities.
472. Until the Office for Civil Nuclear Security was transferred to the Health and Safety Executive in April 2007, it was a division of the then Department of Trade and Industry and as such, its inspectors were "officers of the Secretary of State's department". This meant they had a statutory right to access Civil Nuclear Police Authority premises. This right of access is necessary to allow them to ensure the security of all licensed civil nuclear sites and sensitive nuclear information wherever it may be, including on Civil Nuclear Police Authority premises. However, when the regulator transferred to the Health and Safety Executive in April 2007, they ceased to be "officers of the Secretary of State's department". As a result, they no longer have an automatic right of access to Civil Nuclear Police Authority premises.
473. To rectify this, paragraph 16 of Schedule 4 substitutes "persons authorised by the Secretary of State" for "officers of the Secretary of State's department". The effect of the paragraph is that the civil nuclear security regulator can once again access Civil Nuclear Police Authority premises, since the Secretary of State will issue a letter specifically confirming that officers of the OCNS are authorised persons.
PART 6: GENERAL
COMMENTARY ON CLAUSES
Clause 87: Offences by bodies corporate etc
474. This clause sets out the attribution of responsibility for offences under the Bill by corporate bodies. Subsection (1) provides that an officer of a corporate body as well as the corporate body will be guilty of an offence if the officer agreed to, or knew about, the conduct constituting the offence, or if the offence was attributable to the officer's negligence.
475. Where a body corporate is managed by its members (for example, a limited liability partnership), by virtue of subsection (2), subsection (1) applies to a member of the body corporate as it applies to an officer of a body corporate, provided the act or default in question was connected with the member's functions of management.
476. Subsection (3) provides for a partner in a firm, as well as the firm, to be liable for an offence, if the offence is committed by a Scottish firm.
Clause 88: Subordinate legislation
477. This clause provides for the Secretary of State to make Orders in Council, orders or regulations under the Act by statutory instrument.
478. The statutory instrument may include incidental, supplementary and consequential provision and make transitory or transitional provision and savings.
479. These powers permit the Secretary of State to modify Acts of Parliament, but where the Secretary of State does so the resulting instrument is always subject to affirmative resolution procedure (see clause 89).
Clause 89: Parliamentary control of subordinate legislation
480. This clause provides that Orders in Council, orders and regulations under the Bill are generally subject to the negative resolution procedure. However, the affirmative resolution procedure applies to instruments which modify primary legislation under clauses 88, 91 or 93, or which apply Chapter 1 of Part 3 to other nuclear installations under clause 58.
Clause 91 and Schedule 4: Minor and consequential amendments
481. This clause introduces Schedule 4, which contains minor and consequential amendments, described in the Explanatory Notes under the Parts to which they pertain. It also confers on the Secretary of State powers to make any further amendments to Acts or instruments in consequence of the Bill by order. These orders are subject to negative resolution procedure, unless they modify an Act in which case they are subject to affirmative resolution procedure (see clause 89).
Clause 93: Transitional provision etc
482. This clause gives the Secretary State the power, by order, to make transitional or savings provisions which may appear appropriate as a consequence of the Bill's passage. These may include amendments to primary legislation which, by virtue of clause 89, would be subject to the affirmative resolution procedure.
Clause 94: Commencement
483. This clause provides for the Secretary of State to commence the provisions of the Bill by order, which by subsection (6) may include consequential and transitional provisions as well as making different provision for different cases. The clause also provides that the amendments relating to the renewables obligation may not be brought into force in relation to Scotland until the making of an Order in Council under section 63 of the Scotland Act 1998, providing for the functions under the new provisions relating to the renewables obligations, in so far as these are exercisable in or as regards Scotland, to be exercisable by Scottish Ministers. Such an Order in Council would require the approval of both the Westminster and Scottish Parliaments.
Clause 95:Financial provisions
484. This clause provides for the payment out of money provided by Parliament of expenditure incurred by the Secretary of State or the Authority, or of increases in expenditure under legislation caused by the Bill.
Clause 96: Extent
485. This clause provides that the Bill extends to England and Wales, Scotland and Northern Ireland. However, amendments which the Bill makes to existing legislation (such as the Electricity Act 1989) will have the same extent as that legislation. Furthermore, a number of provisions, including those relating to gas and electricity meters and electricity safety, do not extend to Northern Ireland, and Chapter 1 of Part 3 (decommissioning and clean-up of nuclear sites) does not extend to Scotland. Provisions relating to the Northern Ireland renewables obligation extend to Northern Ireland only.
| 
