 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-terrorism |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
Public Bill CommitteeThursday 15 May 2008(Afternoon)[Mr. Edward O'Hara in the Chair]Counter-Terrorism Bill1
pm
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
On a point of order,
Mr. O’Hara. It is more a point of information.
Members of the Committee will see that I have tabled a letter to you
and to Mr. Bercow, your co-Chairman. I am glad to see that
the hon. Member for Somerton and Frome has a copy, because, as I
promised, it refers specifically to “noxious things”.
There is also a reference to jurisdiction and the retrospective nature.
But I draw the Committee’s attention to the comments on
jurisdiction in relation to Northern Ireland: there is a remote
possibility that such a transfer of jurisdiction could include the
Diplock provisions. I do not want that to be the case, and nor does the
Committee. I therefore draw the Committee’s attention to the
part of the letter that says that I shall table an amendment on Report
to ensure that that potential, however remote, does not occur in the
context of the relevant clauses. I hope that that is helpful to the
Committee.
The
Chairman:
I shall treat that as a request to make a
statement for the information of the
Committee.
Mr.
David Heath (Somerton and Frome) (LD):
Further to that point of order, Mr.
O’Hara. The Minister’s statement was extremely helpful.
It is essential that we have sufficient time on Report to cover this
now expansive range of issues. If there is any attempt to truncate the
time available on Report, we will be in the same situation as we were
with proceedings on the Criminal Justice and Immigration Act
2008.
Clause 78 ordered
to stand part of the
Bill.
Clause 79Designated
gas
transporters
Mr.
Dominic Grieve (Beaconsfield) (Con): I beg to move
amendment No. 202, in clause 79, page 56, line 19, leave out
‘negative resolution procedure’ and insert
‘affirmative
procedure’.
We
continue our consideration of gas transporters and utilities. The
amendment raises the question of whether the designation of
“a person who is the holder of a
licence”
as a
“designated gas transporter” should be done by the
affirmative or negative procedure. There are some serious financial
implications to being so designated. I
hope that we do not end up with someone challenging the designation and
applying for judicial review. The provision might have serious
financial implications for companies; I therefore believe that it ought
to be given proper scrutiny by Parliament.
Mr.
Heath:
I tend to agree with the hon. and learned
Gentleman. If anyone had any doubt about the deficiencies of the
negative procedure, they would only have to have been at business
questions this morning. My hon. Friend the Member for North
Southwark and Bermondsey (Simon Hughes) pointed out how
extraordinary it is that orders can be made that are
subject to that procedure, and despite there being a
prayer against such orders, they can come into effect and be in effect
for some time prior to any debate taking place in the House. On Tuesday
evening, a Minister agreed that an order was deficient and offered to
come back with a new one, despite the fact that it had been in place
for some time. Such procedural matters are not for the Committee, but
they nevertheless need to be addressed in the near
future.
Mr.
Grieve:
When I was a member of the Joint
Committee on Statutory Instruments, I learned that although the
Committee can consider an instrument and regard it as defective, it
does not prevent the Government from going ahead and implementing it
under the negative procedure.
Mr.
Heath:
The hon. and learned Gentleman is
absolutely right. These are not matters that we can consider now, but
he underlines the point that the negative procedure is not satisfactory
for making rules and regulations that could materially affect the
interests of an individual or a
company.
Mr.
McNulty:
It is an interesting debate, and one for which I
have some degree of sympathy. Any number of times on Committee I have
flipped from the negative to the affirmative in the interests of
scrutiny, but I am not going to do so on this one. The matters
concerned are of such importance that the sooner, for example, the
police are deployed to a particular location, the better.
The negative procedure approval mechanism is
appropriate in this case. However, I do have a lot of sympathy for what
has been said.
I never
had the dubious pleasure of being on the Joint Committee on Statutory
Instruments, but I am sure that it is very interesting. We have had
some fun quite recently with a statutory instrument that it sent back
about 10 times as deficient, and we did not lay it until we got it in
order for the JCSI—that is the Home Office being cutting-edge as
usual in terms of the primacy of parliamentary scrutiny.
On the
substance of the amendment, notwithstanding the importance of the
potential impact on a designated individual, the negative procedure is
appropriate. While the Under-Secretary of State for the Home
Department, my hon. Friend the Member for Gedling and I have anything
to do with it, we will deal with the matter when and if such an order
is prayed against. For all the reasons outlined, I would rather resist
the amendment and stick with the negative procedure in this case,
although I have some sympathy with the broader ideals.
Mr.
Grieve:
I will not press this matter to the vote. I
suppose that if we ever get a situation in which the Secretary of State
makes a designation, it is challenged by the gas transporter and the
issue subsequently gets raised on the Floor of the House, I shall say
to the Minister, “I told you so.” Subject to that, I beg
to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 79 ordered to stand
part of the Bill.
Clause 80Costs
of policing at gas facilities: recovery of
costs
No. 204, in
clause 80, page 57, line 1, leave
out paragraph
(a).
Mr.
Grieve:
These are more in the nature of probing
amendments. I do not find the implications of the clause particularly
easy to follow. Will the Minister explain how the system will treat the
payment or costs, and how he will be able to determine or designate
them?
Mr.
McNulty:
I am very happy to do that and will, if I may,
treat this as a clause stand part debate as well,
effectively.
Clause 80
provides the means for a designated gas transporter to recover any
payment or cost that he has incurred with respect to the provision of
extra policing at gas facilities. A designated gas transporter will be
able to recover any payments he has made or costs that he has incurred
from consumers via the regulatory arrangements in place for the term of
the gas transporter’s transmission charges. We wish to ensure
that the recovery of any payments made or costs incurred by a
transporter is without detriment to the transporter’s finances
and is not at risk of a future change of view as to how those payments
or costs are to be treated by the industry regulator.
In crafting
the recovery mechanism, we have provided that the mechanism applies
despite anything in the gas transporter’s licence, issued under
section 7 of the Gas Act 1986, that would prevent the transporter from
recovering such payments or
costs.
Amendment No.
203 would remove the provision in subsection (3) which disapplies any
licence condition that would hinder or obstruct the recovery of payment
or costs made or incurred by the gas transporter. In addition, our
consultations with the industry show that they desire
certainty—quite naturally—and have agreed to this
recovery mechanism on the assurance that there would be no obstacles to
them being able to get reimbursement of the policing costs placed on
them by the Secretary of State. As a result, removal of the provision
could seriously impede the ability of the Secretary of State to recover
the costs of extra policing.
Amendment No. 204 appears to
attempt to restrict the Secretary of State’s means to implement
cost recovery for police deployment. To facilitate the recovery of
payments made or charges incurred by the gas transporter, subsection
(4) of clause 80 provides a means for the Secretary of State to direct
the industry regulator to allow the payments made and costs incurred by
the gas transporter to be taken into account in determining the
transporter’s charges, either in determining its current year
charges or by allowing the designated transporter to take the costs
into account as an allowable regulatory cost over an agreed longer
period.
In short, the
provision allows the Secretary of State to direct the regulator to
ensure that the designated gas transporter is able to recover its costs
for policing. The amendment removes the ability of the Secretary of
State to direct the regulator to treat the costs of the designated gas
transporter in a particular way—for example, as if they were
operating expenditure for the purposes of the regular price control
mechanism. That would negate the proposed recovery mechanisms of
clauses 79 to 82, so I would ask that the amendment be
withdrawn.
The
difficulty is imposing a recovery mechanism on an
industry that, quite rightly, already has a rather complex regulatory
framework under Ofgem. I apologise for the clumsiness of the
architecture, but we are trying to deal with existing law, the
regulatory framework and the new elements, and that explains the
complexity. In that context, I would ask that the amendment be
withdrawn.
Mr.
Grieve:
The Minister has done a good job of explaining
what was previously somewhat opaque, and I am most grateful to him. I
beg to ask to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
80 ordered to stand part of the
Bill.
Clause 81Costs
of policing at gas facilities: supplementary
provisions
Mr.
Grieve:
I beg to move amendment No.
205, page 57, line 22, leave out ‘28
days’ and insert ‘6
months’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 206, page 57, line 26, leave
out subsection
(3).
“the Secretary of
State is not required...to take into account representations made
after the end of the period of 28 days beginning with the day on which
the person making the representations was
consulted”.
The first
question is: is that long enough? The amendment we suggest is to
substitute six months. On the second matter, we considered whether we
should leave out subsection (3) simply because I would like the
Minister to tell me what subsection (3) actually
means.
Mr.
McNulty:
Clause 81 places on the Secretary of State the
statutory obligation to consult both the
regulator—Ofgem—and the designated gas transporter before
requiring the payment of any costs under clauses 77 or 78. In so
consulting, the Secretary of State is not required by subsection (2)(a)
of this clause to take into account, as the hon. and learned Gentleman
says, any representations made after 28 days. In effect, this provision
sets a 28-day cut-off date for representations to the Secretary of
State, so that discussions of the details of the cost recovery
mechanism can proceed quickly—which, I think, is in
everybody’s interests—based on the issues raised by the
affected main parties, namely the transporter and the regulator, during
the consultation period. The hon. and learned Gentleman asked quite
fairly whether that was enough: in our view, the answer is
yes.
Amendment No. 206 seeks to
remove the relevant subsection entirely. That would create a conflict
between the principal objective and general duties of the Secretary of
State and the authority in this area, and the exercise of the functions
under clauses 77 to 81 of the Bill. The deletion of the subsection
might prevent the Secretary of State and the industry regulator from
using the powers under these provisions. The subsection allows the
regulator to permit the cost of recovery arrangement for the specific
purpose, without being in breach of its own obligations.
As with the complexities we talked of earlier, we now have
not only the law governing gas regulators but the
provisions in this Bill; not only the regulatory framework that the
designated transporter operates on, but the law and the statutory
obligations that the regulator has. Despite its complexities, the
provision is intended to afford the regulator the right to disapply its
own obligations in the course of allowing the designated transporter to
recover its policing costs. That sounded complex even when I said it,
and the drafting of it is equally complex. I apologise for that, but it
needs to be that way to allow choreography between the position and
obligations of the Secretary of State and the regulator, and to allow
their relationship with the designated
transporter.
1.15
pm
Mr.
Grieve:
I am most grateful to the Minister for his
answers on amendment No. 206. To return to amendment No. 205, has he
consulted the industry about whether 28 days is
sufficient?
Mr.
McNulty:
As I understand it, we have certainly consulted
about the overall architecture. I am not entirely sure whether we have
consulted specifically on 28 days, but I shall provide the hon. and
learned Gentleman with the answer before Report. As I have indicated,
we have certainly consulted on the broad thrust of how the whole thing
will work. I ask that the amendment be
withdrawn.
Mr.
Grieve:
I am grateful to the Minister for his replies on
both matters. I look forward to hearing from him about the consultation
period and to hearing his explanations of the operation of various
sections of the Gas Act 1986. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 81 ordered to stand
part of the Bill.
Clauses 82 to 89 ordered to
stand part of the
Bill.
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