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Lord Tombs: The amendments that deal with the provision of transitional relief have been largely discussed earlier. We know the dangers and the reasons involved. I trust that they will be dealt with in due course.
Amendment No. 118, which stands in my name and that of other noble Lords, would delete words from line 15 of page 207 because they seem to be covered by Clause 1. One should avoid repetition so far as possible. I support the amendments.
Lord Davies of Oldham: It is our misfortune to have such a complex group of amendments punctuated by a Division, creating problems in ensuring the continuity of our discussion. I will do my very best to respond to all the points made in this short debate. I am grateful to the noble Baroness for suggesting that she move the amendments in such a form as to remove the need for me to reshuffle my notes. I regret to say that she has not achieved that objective. I would be already in a state of confusion if I followed precisely the order that she suggests because, believe it or not, I took a simpler approach to this group of interesting and challenging amendments. I intend to deal with the easiest amendment first, on the grounds that that would establish my credentials with the Committee, and hope to survive on the more difficult ones as we progress.
I shall refer first to Amendment No. 117B. Sub-paragraph (8) has been included so that if a mistake is found when the text of the licence is published, it can subsequently be rectified and the situation clarified. The amendment would remove that ability. We have included the sub-paragraph to provide clarity and transparency. I hear what the noble Baroness says in support of her amendment. We merely seek to establish as clearly as possible that the text should be treated as authoritative unless, because an error has been identified, a change must be made which will be specific and clear. I do not think that we could have expressed the situation more clearly, against a
Lord Davies of Oldham: The sub-paragraph relates to the text at the point at which a licence is published. We are saying that that is the authoritative position. However, if it were necessary to rectify a licence, we would need to clarify the position. We merely state in the Bill that we are committed to being explicit in that regard. I hear what the noble Lord says; the concept of "authoritative" has considerable weight attached. The intention is that the position is authoritative, provided that a change is not necessary and a position made to the contrary. The purpose of the provision is to make the situation as open and transparent as possible.
Lord Tombs: I am still puzzled by the last few words of the provision. If it is to remain, the sub-paragraph needs modification. I do not know how one can show that something is not authoritative. One can show that it is incorrect or badly judged, for example, but not that it is not authoritative, if the statute says that it is.
Baroness Carnegy of Lour: I once witnessed a competition in which the prize was a cut-glass vase for the person who could best expound on the obvious. Sub-paragraph (8) says that anything will be treated as authoritative unless it is not. In explaining it, the Minister said something clearly; when he looks at Hansard, he might find a way to reword sub-paragraph (8). However, I do not think that the noble Lord should win the cut-glass vase; it would not be a very good advertisement for the Captain of the Yeoman of the Guard.
Lord Davies of Oldham: I have no intention of entering that competition. If I inadvertently blundered into it, and at present I am highly placed, I shall try to withdraw myself from the competition as rapidly as possible.
In explaining the position to the noble Lord, Lord Tombs, I was trying to identify that we seek to be clear and transparent, and that therefore the provision shall be authoritative. However, we are aware that on occasion change might be necessary. Making the statement in these terms guarantees that we must be clear, transparent, open and honest when such a change takes place, because we are committed in the
Baroness Miller of Hendon: I am terribly sorry to disturb the Minister again on this simple point; I am grateful to him for giving way. He may recall that a long time ago, before the Committee was suspended for a Division, I said that on the face of it, the statement is impossible. The more the poor noble Lord tries to tell us that it is possible, the more he convinces us all that it is not. It is merely necessary to change one word. One cannot possibly state that the text shall be,
If the contrary can be shown, then it is not authoritative, full stop. That is the normal interpretation of the word. There is no point in discussing the matter further, but I wanted to ease the Minister's way. Sub-paragraph (8) contains a statement of the impossible, and sometimes when one is faced with the impossible, one must accept that something must be done about it.
Lord Davies of Oldham: I hear what the noble Baroness and the other Members of the Committee have saidI thought that this was the easiest part of the debate. As I disappear beneath the waves, I wish to point out that this is a clear attempt on the part of the Government to be open and clear about the position: issues should be described in authoritative terms. However, we are aware that, having described them in those authoritative terms, that is the issue that will govern the procedure. Some change to a licence may be necessary. We are merely indicating that we will be open, clear, honest and precise when we need to effect that change. If noble Lords are saying, "Well, you do not sound very authoritative now", we will reflect on that. If there is one thing that Ministers crave, it is the semblance of authority. I express enormous gratitude to the Committee for having tested me on this amendment.
On Amendment No. 118, we understand the concern that the noble Baroness expressed about the extent of the power granted to the Secretary of State to alter agreements with users of the transmission system. We do not believe that the provision should cause any concern. Its use is limited to a narrow purpose; that is to say, when a change is needed to an agreement or codes as a consequence of changes to a transmission licence for the purposes of BETTA. If the provision were not present, that could damage the smooth implementation of BETTA. Without it, the only other way to modify agreements would be through the "power to modify licence conditions". Some participants are unlicensed, and the agreement of the unlicensed parties to the changes to the agreement would need to be provided.
In particular, this provision relates to the framework agreements for the Balancing and Settlement Code (BSC) and the Connection and Use of System Code (CUSC). Those code framework agreements refer to an authorised area of England and
Without the provision in Schedule 17 we cannot be confident that we would be able to achieve the amendments needed within the timetable, as it would require the agreement of all parties to the framework agreementincluding those who are unlicensedand that would need to be complete at the time that the licensing system was applied. That is currently scheduled for soon after Royal Assent, so it would be a risky proposition for the smooth implementation of BETTA.
In general, both the Secretary of State and Ofgem intend to use the power to modify licence conditions to achieve amendments to codes necessary for BETTA. However, we do not have all the detailed steps that will need to be completed to enable a smooth transition to BETTA at present. Those are being worked out as a matter of priority but, as such, it is conceivable that in some circumstances the power to modify licence conditions will not be the appropriate way to achieve a modification to a code where that needs to be complete by the time that the licensing system comes into effect; namely, the start of BETTA.
I recognise that the argument is complicated, but it meets what the noble Baroness indicated in moving the amendment were the difficulties surrounding the issue. It is because of those difficulties that I am obliged to present a complex argument in defence of the position.
Baroness Byford: I have been following the Minister's words fairly carefully. He said that steps were being worked out. Are things still not settled? Does that not add to the reason why my noble friend's amendment might be very applicable?
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