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Baroness Miller of Hendon moved Amendment No. 119D:

The noble Baroness said: In moving Amendment No. 119D, I shall speak also to Amendments Nos. 144A, 146A and 146B. In doing so, I should mention that I propose to table similar amendments to Clauses 24 and 72. Those provisions have already been dealt with by the Committee, so I shall introduce the amendments on Report.

The Bill contains at least 12 Henry VIII clauses. As the Committee will know, that alludes to the popular perception of that king as an executive autocrat. It means a provision that allows an Act of Parliament—not necessarily the one that grants the power—to be modified by statutory instrument. This is a power which, although not invented by the present Government, has been used by them with ever-increasing frequency since they have been in power.

A Henry VIII clause is normally, and quite rightly, made subject to the affirmative resolution procedure. However, there are some cases, in our view, where the affirmative resolution procedure itself needs to be strengthened by what I may call a "super affirmative procedure". The super affirmative procedure is set out in Amendment No. 146B, the last amendment in the group. Basically it requires more than the usual procedure employed for ordinary affirmative resolutions.

In those cases, the Secretary of State will have to do more than table the order. Before he does so, under proposed subsection (2) he will have to give Parliament a detailed explanation. There must then be a 60-day consultation period before the order is laid. That is covered by proposed subsections (3), (4) and (5). Under subsection (6), the Secretary of State, in formally laying the draft order before Parliament in

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the ordinary way, will also have to inform Members of both Houses what representations he has received and what amendments he has made as a consequence. Subsection (7) of the proposed new clause provides a definition of the word "enactment".

There is a precedent, set by the Government themselves, in the Regulatory Reform Act 2001, where Sections 4 and 5 make provision for prior consultation before a Henry VIII order is made.

Despite the fact that there are, as I have said, no fewer than 12 Henry VIII clauses, I have not applied a shotgun approach to them. I have selected only four for a special super affirmative procedure, modified from the more detailed one required by the Regulatory Reform Act.

I shall now deal with the four remaining amendments in the group in order. Amendment No. 119D affects paragraph 21 of Schedule 18. The schedule does not specify either the positive or negative method of ratifying the order. Presumably that was not an oversight but due to the fact that, as I assume, the Government rely on the general provisions of Clause 156.

However, we believe that this particular provision in the 18th schedule should in any case require the use of the positive resolution procedure. More than that, we believe that it needs the super affirmative procedure. The reason for this is because of the powers given to the Secretary of State to refer Ofgem's determinations to the Competition Commission. The occasions when this could arise are too serious to be allowed to slip through, probably unnoticed, under the negative procedure.

Amendment No. 131A relates to paragraph 14(2) of Schedule 22, which enables the Secretary of State by order to modify any of the time periods specified in the schedule. It therefore has the potential adversely to affect the exercise of persons' appeal rights. This is currently constrained only by the negative resolution procedure.

Amendment No. 144A relates to Clause 155, which enables the Petroleum Act 1998 to be modified by Order in Council to give effect to international agreements relating to the construction, operation, use, decommissioning or abandonment of a pipeline or offshore installation.

Amendment No. 146A is to Clause 156(3). The clause relates to powers exercisable by statutory instrument and the amendment is merely consequential to ensure that the exercise of that power is subject to new Section 156A.

If and when I am able to introduce the similar amendments to Clauses 24 and 72, I shall be drawing the Committee's attention to the effect of those two clauses. Respectively, Clause 24 allows the Secretary of State scope to increase the NDA's borrowing by increasing the limits. Clause 72 permits the Secretary of State to give effect to international agreements which Parliament may never have had the opportunity of discussing in the first place.

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The new Section 156A created by Amendment No. 146B lays down the super affirmative procedure that I believe is essential in the four special and particular cases that I have set out. I beg to move.

Lord Whitty: As regards the first amendment, I am in a slightly strange position. Having looked at the issue, I find that the paragraph of the schedule to which the amendment relates was drafted some time ago when this was a stand-alone Bill. It relates to a situation when the relevant clause of the Enterprise Act had not commenced.

Having considered the matter—partly as a result of having my attention drawn to it by the amendment—it is our view that we do not need to retain the power and that the best way of dealing with it is to delete the sentences completely. So we shall bring forward amendments to do just that and to remove the whole of paragraphs 21 and 22 of Schedule 18.

I cannot be so accommodating on the rest of the amendments.

Earl Attlee: Perhaps you should just sit down now.

Lord Whitty: The noble Baroness is suggesting that in those clauses which give a very specified power to the Secretary of State we should go for a special super affirmative resolution procedure. That is a concept which is alien to many Members of the Committee and I do not see the need for it. The name of Henry VIII has been much maligned in this context. He would have regarded the provisions as being preposterously restraining on him.

We have to look at the precedents for this. I have quite a long brief here, which I can read out, or I can write to the noble Baroness. There are situations where a special procedure has been operated, more or less in the terms suggested by the noble Baroness, but the provisions to allow that are open-ended provisions to modify legislation in an unspecified way for unspecified reasons. Some of them arose in the Local Government Act—certainly the noble Lord, Lord Dixon-Smith, will remember them—and others arose under Northern Ireland legislation, where powers are given to amend the primary legislation without specifying why. In all such cases, including the ones relating to the earlier clauses, there are specified reasons and means for modifying the clause, most of them relating to the implementation of international agreements.

I know that there is a running argument in parts of the House about whether Parliament should negotiate treaties. The practice is that we do not negotiate treaties but the effects of treaties come into legislation. This is one way of making sure that treaties come into legislative operation. It has been used before. It is a very specified and particular reason for what is being called a Henry VIII power. It is not a proper Henry VIII power in the sense that it has a wide range of unspecified actions that the Secretary of State is allowed to take.

Even the marginally more open-ended question of increasing the borrowing limit of the NDA is very specific. I do not therefore believe that in this context

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we require a special procedure. It is no different from many of the other contexts in which we use the affirmative procedure. It would be difficult to justify it in this context when a whole range of affirmative resolution procedures are at least of similar provenance and where no open-ended power is given to the Secretary of State. So in all of these instances I would resist the imposition of a special procedure on these clauses.

Baroness Miller of Hendon: It seems to be one to us and three to the Government. I believe that that is a fair summation of what the Minister said.

I thank the Minister for accepting the fact that the paragraphs in the schedule needed to be deleted. It looked as though we were setting a precedent with this group of amendments. It did not last very long, but it was better than nothing.

I shall read carefully what the Minister said. I have had problems with Henry VIII clauses—not only in this Bill but in many Bills—which are creeping more and more into legislation. One must make a stand at some stage and say, "We do not believe that it is right". The Minister referred to another Act which contained such a provision with regard to international agreements, and Clause 72 of this Bill refers to international agreements.

I shall read carefully what the noble Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 18 agreed to.

Clauses 114 and 115 agreed to.

Schedule 19 agreed to.

Clauses 116 and 117 agreed to.

Clause 118 [Standard conditions for electricity interconnectors]:

[Amendment No. 120 not moved.]

[Amendment No. 121 had been withdrawn from the Marshalled List.]

Clause 118 agreed to.

Clause 119 [Consequential amendments of the 1989 Act]:

[Amendment No. 122 not moved.]

Clause 119 agreed to.

[Amendment No. 123 not moved.]

Clauses 120 and 121 agreed to.

Clause 122 [Standard conditions for gas interconnectors]:

[Amendment No. 124 not moved.]

Clause 122 agreed to.

Clauses 123 to 126 agreed to.

Clause 127 [Objective of an energy administration]:

6.15 p.m.

Lord Brooke of Alverthorpe moved Amendment No. 125:

    Page 99, line 4, after "system" insert "in compliance with its licence conditions and general duties"

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The noble Lord said: The amendment—and the two that follow at Clauses 128 and 130—relates to the proposed special administration regime for energy licensees. The Department of Trade and Industry consulted on this matter last summer, but there are still some loose ends to tie up.

As we understand the position, there are some inconsistencies in administration arrangements across the different regulated utilities. For example, special administration may be enforced in the water industry for breaches of licence conditions or general duties, yet for the energy sector the assumption is that administration arrangements will apply only in cases of insolvency. Amendment No. 125 is therefore proposed in the interests of good practice and consistency across the board.

Amendment No. 126 relates to Clause 128 and seeks to ensure consultation at a timely and appropriate stage through the established industrial relations machinery. For any employee the experience of having his or her company placed into administration is, at the very least, extremely worrying. It is well known that the consequences, both in terms of future employment security and pension provision, can be dire. It is therefore only right and fair that there should be proper and meaningful consultation throughout any such process. The amendment does not seek to create any new structures, but simply to ensure that existing arrangements are honoured properly.

Amendment No. 127 relates to Clause 130 and seeks confirmation that the arrangements for a special administration regime do not, are not intended to, override the statutory duties on employers of protected persons under the Electricity Act 1989.

Clause 130 appears to lay a duty on the administrator to prioritise the interests of creditors and, subject to them, the interests of members of the company. A clear statement is needed that this statutory duty will not override duties arising under the 1989 Electricity Act.

That Act empowered the Secretary of State to make regulations that would protect employees then in the industry from detriment in respect of their pension provision. These were enacted as the Electricity (Protected Persons) (England and Wales) Pension Regulations 1990. Similar protection was provided for employees in Scotland under Schedule 15 to the Act and the Electricity (Protected Persons) (Scotland) Pension Regulations 1990.

The regulations impose a duty on the relevant employer to maintain or provide its protected employees and protected beneficiaries—together called "protected persons"—with pension rights on both an ongoing basis and in three particular circumstances. Those circumstances are as follows: first, in the event of the partial or total winding up of the scheme; secondly, arising from the restructuring or change of ownership of the participating employers; and, thirdly, where employees transfer from one employer to another within the electricity industry.

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The amendment would also support the objective of maintaining energy network services as this will clearly depend on achieving the fullest co-operation of staff. In such circumstances it will obviously be helpful if staff are not pre-occupied with concerns about their future employment. I beg to move.

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