Eighth Report
Infrastructure Bill [HL]:
Government Amendments: Before clause 28
1. We reported on this Bill in our Second Report
of the present Session.[1]
The Government have now tabled amendments to insert six new clauses
into Part 4, before clause 28, to give persons the right to conduct
underground activities to exploit petroleum or deep geothermal
energy. Four of the new clauses confer delegated powers, explained
in a supplementary memorandum from the Government.[2]
Although the first two of the new clauses do not delegate legislative
powers, they are important for assessing the significance of the
clauses which do.
2. The amendments inserting the new clauses will
be taken in Grand Committee on Tuesday 14 October. In the absence
of a marshalled list of amendments, the new clauses (NC) are identified
in this report as follows:
NC1: Petroleum and geothermal energy: right
to use deep-level land
NC2: Further provision about the right of use
NC3: Payment scheme
NC4: Notice scheme
NC5: Payment and notice schemes: supplementary
provision
NC6: Interpretation
3. NC1 a right to use deep-level land - i.e.
land at least 300 metres below surface level - "in any way
for the purposes of exploiting petroleum or deep geothermal energy".
The new right would mean that such use would no longer require
the consent of the owner of the land vertically above the spot
where the underground activity is taking place. By virtue of
subsection (2) of NC6 "petroleum" has the same meaning
as in Part 1 of the Petroleum Act 1998, with the effect that something
done underground "for the purposes of exploiting petroleum"
would include something done for the purpose of extracting shale
gas.
4. NC2 sets out the kinds of things that may
be done in exercise of the right, and the particular purposes
for which they may be done. Notably, subsection (1)(a) allows
"fracturing or otherwise altering deep-level land",
so that the process of extracting shale gas by means of hydraulic
fracturing (also known as "fracking") is expressly contemplated
by the new clause.
5. NC3 enables the Secretary of State by regulations
to require energy undertakers to make payments to landowners and
others in respect of the exercise of the new right. NC4 enables
him to make regulations requiring undertakers to give notice to
such persons of the exercise, or proposed exercise, of the new
right. Because the Government would prefer undertakers to operate
voluntary schemes for payments and notification, both powers are
described as "reserve powers" in paragraphs 7 and 17
of the memorandum. Regulations under NC3 and NC4 would be affirmative.
6. Both of those powers are amplified in subsections
(1)-(4) of NC5. Subsections (5) and (6) of that clause go on
to require the Secretary of State to review the powers conferred
by each of NC3 and NC4 within five years of its commencement,
and to repeal the new clause by regulations if the power has not
been exercised within seven years of its commencement and if he
is satisfied that there is no convincing case for retaining the
power (see subsection (7)). Those repealing regulations would
attract the negative procedure. The final delegated power is
conferred by subsection (3) of NC6, which enables the definition
of "landward area" in subsection (2) to be amended by
negative regulations made under section 4 of the Petroleum Act
1998.
7. We do not regard the powers conferred by NC3
and NC4 as inappropriate, in view of the affirmative procedure
that is to apply; and, although the power in subsection (3) of
NC6 enables the amendment of a definition in the Bill itself,
we consider the negative procedure in this case to be acceptable
because the power is narrow, being exercisable only in consequence
of a change made in the regulations under section 4 of the 1998
Act. But we have concerns about the power in NC5(6) to repeal
NC3 and NC4 by regulations.
8. We note that, in the response published by
the Government on 25 September 2014 to representations made in
the consultation exercise they conducted over the summer, it was
said that "If the Secretary of State is not satisfied with
this scheme [i.e. a voluntary payments scheme] then he may introduce
regulations to set up a statutory payments mechanism."][3];
and there was no suggestion there that the power might be repealed.
However, even though the Secretary of State would clearly not
be in a position to introduce regulations in the way proposed
once NC3 was repealed, we do not regard the delegation in subsection
(6) of NC5 as necessarily inappropriate, in view of the requirement
in subsection (7)(b) for him first to be satisfied that there
is no convincing reason for retaining the power. But there remains
an issue about whether the negative procedure would afford an
adequate level of Parliamentary control over such a repeal.
9. In paragraph 21 of their supplementary memorandum,
the Government acknowledge that a power to repeal provision in
an Act would usually require the affirmative procedure, but they
go on to explain that the negative procedure is considered appropriate
in this case because the power is a "limited" one and
the conditions for exercising it are on the face of the Bill.
We consider that reasoning to be somewhat at variance with the
Government's approach to a not dissimilar power in clause 46 of
the Criminal Justice and Courts Bill, also currently before the
House, which introduces a new Part 2A into the Prosecution of
Offences Act 1985 to require the recovery of criminal courts'
costs from those convicted of offences. Clause 47 requires the
Lord Chancellor to review the operation of the new Part 2A after
three years, and if he considers it appropriate to do so he must
repeal the new Part by regulations. Those regulations will require
affirmative approval because (in the Government's own words in
their memorandum on that Bill) "… of the scope of the
power. It will be important to ensure that each House of Parliament
is able to consider whether it agrees with the conclusion that
the provisions should be repealed."[4]
10. NC3 and NC4 appear to us to afford the Secretary
of State powers to introduce statutory safeguards for protecting
the interests of landowners and others affected by the exercise
of the new right conferred by NC1, should voluntary schemes for
the time being operated by energy undertakers be found to be unsatisfactory
for the purpose. It is clear to us that the availability of statutory
safeguards was a matter of considerable concern to a large proportion
of respondents to the Government's consultation exercise, and
we have concluded that, if either of the powers is to be repealed,
the regulations proposed for the purpose should be approved by
Parliament in draft. That will enable the Government to explain
fully, and each House to test, the reasons why "the Secretary
of State is satisfied that there is no convincing case for retaining
the power" (as required by subsection (7)(b) of NC5). We
accordingly recommend that regulations to be made under NC5(6)
to repeal NC3 or NC4 should require the draft affirmative procedure.
Consumer Rights Bill:
Government Response
11. We considered this Bill in our 3rd Report
(HL Paper 23). The Government have now responded by way of a letter
from Jo Swinson MP, Parliamentary Under Secretary of State for
Employment Relations and Consumer Affairs, printed at Appendix
1.
Criminal Justice and Courts
Bill: Government Response
12. We considered this Bill in our 3rd Report
(HL Paper 23). The Government have now responded by way of a letter
from Lord Faulks, Minister of State for Justice, printed at Appendix
2.
Wales Bill: Government
response
13. We considered this Bill in our 6th Report
(HL Paper 36). The Government have now responded by way of a letter
from Rt Hon. Stephen Crabb MP, Secretary of State for Wales, printed
at Appendix 3.
Serious Crime Bill: Government
response Clauses
10(1) and 30(1)
14. We considered this Bill in our 2nd Report
(HL Paper 15). The Government responded to the Committee's recommendations
on Clause 67 by way of a letter from Lord Taylor of Holbeach CBE,
Parliamentary Under Secretary of State for Criminal Information,
printed in our 3rd Report (HL Paper 23). The Government have
now responded to the Committee's recommendations on Clauses 10(1)
and 30(1) by way of a letter from Lord Bates, Parliamentary Under
Secretary of State for Criminal information, printed at Appendix
4.
1 http://www.publications.parliament.uk/pa/ld201415/ldselect/lddelreg/15/1502.htm Back
2
http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/bills-considered/ Back
3
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/358521/
Government_Response_FINAL.pdf (see
paragraph 4.30) Back
4
http://www.parliament.uk/documents/DPRR/2014-15/Bills/Criminal-Courts-and-Justice-Bill/16-Criminal-Justice-and-Courts-Bill-Delegated-Powers-Memorandum.pdf
(see paragraph 86) Back
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