Select Committee on Delegated Powers and Deregulation Thirtieth Report



Memorandum by the Department of the Environment, Transport and the Regions

This memorandum explains the proposed use of delegated powers in the Warm Homes and Energy Conservation Bill and other matters relating to the Bill.

The Bill requires the Secretary of State in England and the National Assembly for Wales - "the appropriate authority" - to prepare, publish and implement a strategy setting out policies for ensuring that as far as reasonably practicable, persons do not live in fuel poverty.

The proposed use of delegated powers

1. Clause 1(1) provides a definition of fuel poverty for the purposes of the Bill. Clause 1(2) enables the appropriate authority to make further provision in respect of the definition, or substitute it, by regulations. Clause 1(3) requires consultation before any regulations are made. Clause 1(4) proposes the negative resolution procedure in relation to any regulations.

2. Clause 1 is intended to give a broad but workable definition of "fuel poverty" for the purposes of the Bill. For the reasons given below, the clause also provides the necessary powers to refine or substitute this definition in the light of further developments in this changing field. The purpose is to enable the broad definition to set the framework around which a fuel poverty strategy can be prepared immediately on Royal Assent (in England) or on commencement (in Wales) while, at the same time, providing flexibility to take account of future developments.

Reasons for proposing delegated powers

3. The definition of fuel poverty relates to the proportion of income that a householder would have to spend, for their living environment to be healthy and safe. But the definition involves a number of technical issues, such as the definition of household income for the purposes of the calculation of the proportion.

4. The Government's consultation document on the New Home Energy Efficiency Scheme invited comments on these technical issues. The consultation draft Fuel Poverty Strategy, to be prepared by an Inter-Ministerial Group on Fuel Poverty and published before Christmas, will set out the Government's conclusions. The National Assembly for Wales is a participant in the Group.

5. Meantime, the flexibility within the Bill, as currently drafted, is important to ensure that the legislation does not pre-empt the final decisions on the detail of the definition of fuel poverty and can accommodate the solutions that arise. This is particularly important with regard to the requirements in clause 2(2)(a) and (d) for the strategy to describe the households to which it applies, and to specify a target date for achieving the objective of the strategy.

6. There were two options for the Bill:

  • include a once-and-for-all definition of fuel poverty, or
  • include a broader definition, and provide for regulations to enable either
    a) more detailed provision to be made in respect of that definition, or

    b) substitute a more detailed definition for the current definition, if that was considered appropriate following consultation.

7. The inclusion of a once-and-for-all definition of fuel poverty on the face of the Bill would tie the fuel poverty strategies to a detailed definition of fuel poverty which, on closer scrutiny and in the light of the changeable nature of fuel poverty may be, or may become, inappropriate. It would pre-empt the conclusions of the Inter-Ministerial Group and would subject the Government to accusations of not properly consulting on the issues.

8. The inclusion of a broader definition as proposed would avoid that scenario. Clause 1(1) and (2) of the Bill provide an immediate framework for the preparation of a strategy with the flexibility to freely explore and agree the most appropriate definition, after proper consultation, without hindering or restricting the work of those preparing it.

9. This memorandum has been agreed with the National Assembly for Wales.

September 2000

Letter from the Association for the Conservation of Energy

Yesterday I attended your committee's cross-examination of Government officials concerning this Bill. I understand you will be meeting again on Tuesday to decide upon your recommendations to the Upper House.

You will know that in the House of Commons no less than 392 MPs have signed the Early Day Motion in support. This is the third largest number of MPs to support an EDM in the past fifty years.

For the past three years, I have chaired monthly meetings of an active consortium of organisations supporting this Bill. This has included welfare, housing, environmental and commercial organisations. We have established that this Bill has enormous support throughout the country.

I appreciate that the role of your committee is specifically to consider whether putative legislation is capable of being abused or wilfully misinterpreted by Government. I also realise that it is vital to ensure that the commitments this Bill places upon this and future governments are delivered. As you might imagine, it will continue to be an overarching concern of our coalition to ensure that the main objective of such an Act is achieved - the final abolition of the scourge of fuel poverty.

Getting this Private Members Bill to this stage has required a monumental effort from all those concerned. It is absolutely clear that, given the delays imposed to date, were the Upper House to vote to amend the Bill even marginally, that would effectively stop its becoming law in this session. The likelihood of persuading any sane MP to go through the same angst all over again in a subsequent session is pretty remote. Effectively, the fate of this Bill now lies in the hands of you and your committee colleagues.

I would, therefore, urge you certainly to press for a range of firm commitments and assurances from the Minister, either at Second Reading or in Committee.

But I would implore you not to place before the Upper House any recommendations that could only be satisfied by formal amendments to the Bill. The 5.3 million households (in England alone) currently suffering from fuel poverty do not deserve to be so treated.

I attach a copy of our newsletter 'The Fifth Fuel' which concentrates upon this Bill.

Andrew Warren
5 October 2000

Memorandum by Age Concern

I am writing to you to express the anxieties of Age Concern England over the fate of this Bill, which is to receive its final scrutiny from your Committee tomorrow. I understand that your Committee is concerned with the scope of Clause 1(2)(a) and (b) of the Bill (which allow the Secretary of State and the National Assembly for Wales to define fuel poverty by regulation) and is considering recommending amendments to the Bill in the House of Lords.

If passed these amendments would return the Bill to the House of Commons - but there are no further days left for Private Members' Bills in the Commons timetable when it returns later in the month. The Bill would therefore fail, a terrible blow to over five million of the most vulnerable people in society who suffer from fuel poverty.

For that reason, Age Concern England would urge strongly that the House of Lords should pass the Bill without amendment. We understand that your Committee has received a proposal from the Association for the Conservation of Energy and other organisations to accept an undertaking from the government to use the clauses only in ways requested by the Committee. If this suggestion found favour with the Committee, we would welcome it.

I am writing in similar terms to the other members of the Committee, and to Lord Whitty, the government Environment Minister in your House.

Richard Heller
Senior Parliamentary Officer
9 October 2000

Letter from Tom Brake MP

I am writing to you concerning the amendments to clauses 1(2)(a) and (b) in the Warm Homes and Energy Conservation Bill, which I understand are due to be drafted on Tuesday 10 October by the Delegated Powers and Deregulation Committee, of which you are a member.

Whilst understanding why these amendments are needed, I am extremely concerned that, because there are no further days left in the Commons timetable for private members' bills, their addition will mean that the Bill will not become law.

I believe it is crucially important that this Bill becomes Law. Ten million people in this country live in cold homes, and 40,000 people die every year because of it. It has been very difficult to get the Bill this far, and to have it fall because of a lack of Commons time would be a travesty.

Therefore, I ask you to follow an alternative route. You could instead strongly request and urge the Government to give firm assurances on the record in the debates on the Bill in the Lords that the clauses will only be used in ways requested by the Committee. You could also ask for the same assurances from the Opposition. This approach would address the problems in the clauses, but avoid amendments that would cause the Bill to fall, allowing the dreadful problem of cold homes to continue.

Tom Brake MP
Liberal Democrat MP for Carshalton and Wallington
5 October 2000

Letter from Friends of the Earth

I understand that you have been examining the above Bill in your role on the Delegated Powers and Deregulation Committee. I also understand the Committee has raised concerns about the powers the Bill gives Ministers to define "fuel poverty" and will be meeting tomorrow to decide upon recommendations.

Before that meeting could I ask you to revisit an earlier report by the Committee considering similar issues with regard to the Fireworks Bill in the 1997 - 98 session of Parliament. In extremely similar circumstances (the Bill gave the Government the power to define both "fireworks" and "explosives" in regulations subject to negative procedure) the Committee concluded that the Bill did not "inappropriately delegate legislative power".

I should also point out that one of the Committee's concerns in the case of the Fireworks Bill was that the regulations defining the relevant terms would not be subject to consultation. You will be aware of course that before making any regulations under clause 1(2) of the Warm Homes and Energy Conservation Bill it is stipulated that the appropriate authority "shall consult …persons appearing to represent persons living in fuel poverty…and other such persons as [he] sees fit".

I also understand that DETR officials have explained to the Committee that the longstanding conventional definition of "fuel poverty" has been the need to spend more than 10% of income in order to heat the main living area if the home to 21 deg. C and the remainder of the home to 18 deg. C. While Friends of the Earth accept the need for some flexibility in the definition included in the bill, as future survey methods may lead to a definition that can be assessed more cheaply or quickly, we would expect any change to have little effect on the number of households categorised as "fuel poor". Further Ministerial assurances to this effect would be welcomed Friends of the Earth.

You will of course be aware of the intense time pressure on this Bill. Any amendment to the Bill will of course need to be agreed by the House of Commons, and there is no longer any time available for the consideration of Private Members Bills in the Commons. Past experience shows that the Government will not make additional time available.

I therefore hope that you will use your influence to persuade the Committee to take the same line it took with the fireworks Bill, and invite the House of Lords to seek Ministerial undertakings as to the way in which the powers will be used.

Charles Secrett
Executive Director
October 2000

Letter from HODIS

As an organisation committed to improving housing resources for disabled people, we have supported the above Bill through its difficult, even torturous, path through the legislative process. When the Bill finally passed through the Commons in July, we thought we had cause for celebration. It seems we were mistaken.

This Bill is of crucial importance to older and disabled people and many others who experience the scourge of fuel poverty. Without the measures contained in the Bill, they will continue to suffer misery, and often illness, as they struggle to survive another winter in cold, damp homes without the means many of us have to keep ourselves warm and dry.

We understand that the Delegated Powers and Deregulation Committee of which you are a member is considering the Bill and is concerned about clauses 1(2) (a) and (b), in that they are too widely drafted and may be used too generously by the Government. While we understand the Committee's concern, we would urge you not to place down amendments to the Bill before it proceeds, but rather allow your concerns to be better tackled by seeking binding assurances from the Government. We believe that, by referring the Bill back to the Commons, it will fall due to lack of time in which to discuss it.

I feel sure you are aware of the tremendous support this Bill has secured: 392 MPs have signed up to the accompanying Early Day Motion. Countless individuals and organisations have shown their support. As a measure of this organisation's commitment to its success, can I point out that I have come into the office specially on a Saturday to write this letter to you?

So I urge you to use whatever influence you have to persuade the Committee to seek assurances rather than proceed with amendments. The safety, health and comfort of so many older, disabled and poorer people depend on it.

Many thanks in anticipation of your help and support.

J Virginia Shaw
7 October 2000

Letter and Memorandum from NEA

I understand that the Delegated Powers and Deregulation Committee has been considering the Warm Homes and Energy Conservation Bill and that reservations have been expressed about some elements of the Bill.

As a committed supporter of the aims and objectives of the Bill, NEA is concerned that this legislation with such potential to eradicate the najor social problem of fuel poverty should enter the statute books as early as possible.

I enclose a copy of a note from NEA that endeavours to answer the reservations of your committee. I hope you will be able to consider this representation and may feel able to assist the Bill in its passage through the House of Lords.

If you have an queries about the Bill or any other aspects of NEA's work, please contact me.

Ronald Campbell
October 2000

Memorandum by NEA


The Warm Homes and Energy Conservation Bill represents major progress in the attempt to eradicate fuel poverty in England and Wales. The Bill seeks to ensure that within a 15 year period and "as far as reasonably practicable, households in England or Wales do not live in fuel poverty". The Department of Trade and Industry estimates that numbers in fuel poverty total some 5.3 million households in England and 200,000 households in Wales.

Support for the Bill

The Warm Homes and Energy Conservation Bill completed its Commons stages on July 21 2000. Overwhelming all-party support for the Bill had already been signalled as 392 MPs signed an Early Day Motion endorsing the provision of the Bill.

Defining Fuel Poverty

The case for a rigid definition of fuel poverty was discussed at 3rd Reading stage. The Bill's sponsor, David Amess, conceded that terms such as "reasonable cost", "lower income", and even "warm" were somewhat subjective. The relative values of specificity versus flexibility were discussed and the decision taken that avoiding a rigid definition would allow future improvements to be made in measuring fuel poverty without the need to amend primary legislation if the "finer points" of definition were to be set by regulation.

Although the working definition of fuel poverty is generally accepted to be where there is a need to spend 10% or more of income on energy needs this is not an exact science. Future definitions may recognise that a lower figure such as 8% represents disproportionate expenditure on energy costs where average household spending is only 4% of income.

Further support for discretion in setting a definition is provided by the devolved nature of the major factor in fuel poverty - housing policy. Currently the DETR uses the 10% figure to define the fuel poor whilst the National Assembly for Wales, in the absence of formal acceptance of an expenditure figure, uses HEES eligibility as an indicator of fuel poverty.

Flexibility in the definition of fuel poverty will allow variety and autonomy in the approaches of both English and Welsh agencies to the issue of fuel poverty.

Delegated Legislation

NEA understands the general concerns of the Delegated Powers and Deregulation Committee to ensure that legislative powers should, as far as possible, avoid discretionary authority. However, NEA believes that the scrutiny afforded by negative procedure is sufficient protection against any abuse of the spirit of the primary legislation. NEA would like to propose that the Government is asked to provide reassurance during the 2nd Reading on 13 October that it will work within an agreed framework in drawing up regulations to define fuel poverty and that the committee does not therefore table any amendments which could jeopardise the progress of the Bill.

The future of the Warm Homes Bill

The Environmental Audit Select Committee report on Energy Efficiency in 1999 described fuel poverty as "a continuing national scandal". The Warm Homes Bill is a legislative framework that can make a significant contribution to the eradication of fuel poverty. The Bill is an early stage in the process, has overwhelming support for its principles and can begin to deliver real benefits to more than 5 million fuel-poor households. There are genuine concerns that if the Bill encounters opposition at any House of Lords stage it will fail to become law and the "continuing national scandal" will be perpetuated.

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