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Lord Jenkin of Roding: I should like to respond briefly to the Minister's opening remarks. I do not know what has been the experience of other noble Lords, but I have found trying to deal with this Bill, trying to understand its structure and to work out where its amendments fit, and trying to understand the Government's proposal on the order in which the clauses and schedules are to be dealt with, extremely difficult.
While working on the Bill last weekend, I had to come to the conclusion that this is not a good way to try to bring legislation before Parliament. No doubt the minute that passed from parliamentary counsel to the Minister in charge of the Bill in another place explained why it was necessary to legislate extensively by reference to the existing Acts rather than simply to write a new Bill. I can understand that Ministers may have decided to accept the situation without perhaps fully appreciating quite how complicated this was going to become. Every time a change is proposed, it has to be done twice, using two amendments. Finding one's way around the provisions has proved to be a difficult problem.
It may be perfectly acceptable to the noble Lord and his advisers who have lived with the legislation from the start and now understand how to negotiate their way through it. However, I should like to put on the record that for Back-Benchers, and perhaps even more acutely for my noble friends on the Front Bench, this Bill contains several hurdles over which one must leap even before one can begin to address its substance. I hope that those in high places who will need to make decisions on matters such as this in the future may perhaps take note of my remarks.
Lord McIntosh of Haringey: I am very sympathetic to what has been said by the noble Lord, Lord Jenkin. Indeed, I made many of the same comments when I first encountered the Bill. If the Gas Act and the Electricity Act are, in effect, being repealed and replaced with a new Act, why not simply repeal those Acts and then introduce new legislation?
Unfortunately, the situation is more complicated than that. This legislation repeals only one part of the Gas Act and of the Electricity Act; namely, the regulatory elements. The two Acts each contain a great many more provisions that are not to be repealed. Furthermore, the two Acts are not aligned with each other. They were introduced three years apart--understandably, I do not blame the previous government for that. Conditions were different and the industries were constituted in very different ways. The Acts could not be brought into line.
We have tried to effect a compromise here. We have taken out whole chunks of the Gas and Electricity Acts and replaced them with whole chunks as set out in this Bill. We felt that it was better to do that than to amend words in certain lines through certain clauses and so forth. Thus we have tried to meet the problem half
way. I hope, therefore, that negotiating the Bill is a little easier than it might otherwise have been. Had we gone in the direction of amending in minute detail rather than gross replacement of entire sections, so to speak, we would have needed to introduce Keeling schedules to every one of the amendments as well. That would have further increased the complexity of the exercise.I believe that on the whole we have come to the right conclusion on how to handle the matter. However, I am sure that parliamentary counsel and those responsible in the department will take very seriously the comments made by the noble Lord, Lord Jenkin.
As regards the order of consideration, I feel that by and large it has been successful. We are dealing with the Bill in the order in which we need to deal with it, with the amendments numbered in the right way. I may be proved wrong on this over the course of our deliberations, but I am pleased that we have worked it out in this way and that we have done so with the agreement of the Front Benches opposite.
Lord Jenkin of Roding: I understand entirely what the Minister has said. He has given a reasonably convincing explanation. Can we expect a consolidation measure fairly soon?
Lord McIntosh of Haringey: I cannot answer that question. It is not even a matter for the Government; it is for the Law Commission to consider.
On Question, amendment agreed to.
5.30 p.m.
Lord McIntosh of Haringey moved Amendment No. 22:
- Page 4, line 24, at end insert--
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendments Nos. 24 and 25:
On Question, amendments agreed to.
Clause 6, as amended, agreed to.
Clause 8 [Payments by licence holders relating to new arrangements]:
[Amendments Nos. 26 and 27 not moved.]
Lord McIntosh of Haringey moved Amendments Nos. 28 and 29:
On Question, amendments agreed to.
Clause 8, as amended, agreed to.
Baroness Wilcox moved Amendment No. 30:
("(4) In this section "consumers" includes both existing and future consumers."").
Page 4, line 33, leave out from ("matter") to end of line 35 and insert ("which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.").
Page 4, line 38, at end insert--
("( ) After subsection (3) of that section there is inserted--
"(4) In this section "consumers" includes both existing and future consumers.".").
Page 5, line 21, leave out ("or") and insert ("and").
Page 5, line 36, leave out from ("may") to ("of") in line 39 and insert ("give directions to the Authority for the purpose of securing that sums relating to any of the expenses mentioned in subsection (3) are included in the sums payable by virtue").
After Clause 8, insert the following new clause--
(" .--(1) A person who is not a licence holder may appeal to the Authority to withdraw or vary a decision (other than that in section 47 of the Competition Act 1998).
(2) In this section "decision" means--
(a) the introduction of a new licence condition;
(b) the modification of an existing licence condition;
(c) any other decision prescribed by the Secretary of State in regulations made under this section.
(3) The application must--
(a) be made in writing, within such period as may be specified in guidance issued by the Secretary of State under subsection (9);
(b) give the applicant's reasons for considering that the relevant decision should be withdrawn or (as the case may be) varied.
(4) The Authority may decide--
(a) that the applicant does not have a sufficient interest in the relevant decision;
(b) that, in the case of an applicant claiming to represent persons who have such an interest, the applicant does not represent such persons, or
(c) that the persons represented by the applicant do not have such an interest.
(5) The Authority, having considered the application, may--
(a) withdraw or vary the relevant decision;
(b) decide that sufficient reasons have not been shown why it should withdraw or vary the relevant decision.
(6) Where a decision has been made under subsections (4) or (5), the Authority must notify the applicant of its decision, give reasons for that decision and make them public.
(7) The applicant may appeal to the Competition Commission against a decision of the Authority notified under subsection (4) or (5).
(8) The making of an application does not suspend the effect of the relevant decision.
(9) The Secretary of State shall issue guidance about the procedures for applicants for making an appeal under this section.").
The noble Baroness said: At Second Reading, I raised the matter of third parties having the right to appeal against the decisions of the authority. I raised the distinction between this legislation and the Competition Act 1998, under which consumer bodies, for example, have the right to challenge competition
My proposed new clause would give bodies other than licence holders the opportunity to appeal against the non-competition decisions of the authority. Such decisions could include the introduction of new price controls or new licence conditions, or the modification of existing ones. The new clause is modelled on Section 47 of the Competition Act which sets out the procedures for third party appeals.
I am most interested in consumer bodies having this opportunity. The gas and electricity consumer council would be a particularly appropriate body for this. I believe that the consumer councils in the different sectors are vital in advocating the interests of consumers. An effective framework in which they can operate is important for us all. Having the right to challenge a decision made by a regulator should be a part of that framework.
After I raised this point at Second Reading, the Minister kindly sent me a letter setting out the reasons why it would not be appropriate for such a right to be made available for energy regulation. I understand that the same letter was sent to some other Members of the Committee. I am most grateful to the Minister for letting me know the Government's thinking and that they considered the issue important. It was very helpful. I understood the Minister's point that competition decisions are different in nature from those of an energy regulator.
However, I tabled the new clause because I wanted to raise the fact that there is an inherent unfairness in the regulatory system in that it is tipped in favour of the companies and against consumers. Companies can challenge the decisions of a regulator, but consumer bodies cannot. So, when the regulatory authority is making decisions, it will be concerned about who can challenge those decisions. The companies' right to do so must make them a continuous presence in the decision-making process. Potentially, therefore, consumers could lose out. Having this right of appeal would even out the imbalance.
This is an issue that applies to other areas, not just to energy. The regulatory model in this Bill is likely to be followed in other areas such as the forthcoming Bill and even communications regulation. It could apply to such areas as postal services and rail, where both a regulatory and a consumer body exist. I have been pressed by the National Consumer Council, the National Federation of Consumer Groups and various other bodies to take this matter on board and think for the future. It is an important issue. Once more, I urge the Government to reconsider their position. I beg to move.
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