RESTRICTED
(DPRR/10-11/29)
ENERGY BILL
Memorandum from DECC to the Delegated Powers and Regulatory
Reform Select Committee
A. INTRODUCTION
1. This Memorandum identifies the provisions in the Energy Bill which confer
power to make delegated legislation. It explains the purpose of the
delegated power proposed; why the matter is to be dealt with in delegated
legislation; and the nature and justification for any parliamentary
procedures which is proposed.
2. Most of the delegated powers are to be exercised by the Secretary of
State (or, in some cases, the Scottish Ministers) by statutory instrument.
However the Bill also confers powers on the Lord Chancellor. In addition,
clause 76 extends an existing power under the Continental Shelf Act 1964
to make Orders in Council.
3. The Bill contains 54 individual provisions for delegated legislation. Annex
A provides a reference for all delegated powers in the Bill.
4. The descriptions of the powers are arranged in the order that they appear
in the Bill. For completeness, the narrative presented in this memorandum
describes each part of the Bill. Where there are no legislative powers
conferred on the Secretary of State or others under a particular part of the
Bill that is noted in the text.
B. BACKGROUND
Policy context
5. The Coalition Programme,
published in May 2010, set out the
Government’s commitments on energy and climate change, with a focus
1
RESTRICTED
on supporting the transition to a secure, safe, low-carbon, affordable
energy system in the UK, and mobilising commitment to ambitious action
on climate change internationally. This was followed by the Government’s
first Annual Energy Statement on 27 July 2010 outlining the commitments
in more detail, and setting strategic energy policy to guide investment.
6. Both documents make it clear that the move to a secure, low-carbon
energy system in a cost-effective way is extremely challenging; with the
need for a clear, transparent, long-term policy framework fundamental to a
smooth transition and to take advantage of a huge economic opportunity.
DECC’s Business Plan focuses on the specific actions government is
taking to implement the necessary reforms and provides the policy
framework that will act as a catalyst for households, business and private
investors to invest to deliver a UK energy system fit for the 21st century.
7. The Energy Bill seeks to provide for some of the key elements of these
documents that Government has committed to and is ready to legislate on;
and will be a first step in the legislative programme to meet DECC’s goals.
Further legislation will be sought later in the Parliamentary session to
implement work on fulfilling DECC’s objectives as set out in DECC’s
Business Plan, published November 2010, and as a result of the recent
Spending Review.
C. OVERVIEW OF THE BILL
8. The Bill is in five parts:
 Part 1: Energy efficiency by tackling barriers to investment in energy
efficiency by launching the Green Deal and measures to maximise
uptake, introducing a new Energy Company Obligation from 2012 to
underpin the Green Deal, making energy performance data from
Energy Performance Certificates more widely available, extending
powers to direct the roll out of smart meters and requiring cheapest
tariff information on energy bills.
 Part 2: Security of energy supplies by enhancing energy security
through better monitoring of future electricity security; strengthening
2
RESTRICTED
market incentive mechanisms for ensuring sufficient gas is available
during a gas supply emergency; improving third party access to UK oil
and gas infrastructure; putting in place a special administration regime
for gas and electricity suppliers; and providing flexibility in managing
the UK continental shelf resource.
 Part 3: low carbon generation by enabling implementation of the
enduring offshore electricity transmission regime beyond 2010 and
giving investors in new nuclear increased certainty over their
obligations.
 Part 4: Coal Authority by extending the powers of the Coal Authority
to allow it to act (and charge for services) in relation to water pollution
not from coal mines and subsidence not caused by coal mining
activities.
 Part 5: Miscellaneous and General includes the repeal of the Home
Energy Conservation Act (HECA) 1995.
D. TERRITORIAL EXTENT AND APPLICATION
9. With regards to the territorial extent of the Bill:
 This Bill extends to England and Wales, Scotland and Northern Ireland,
as described below.
 All provisions in the Bill apply to Wales. All matters are reserved in
respect of Wales.
 Only the provisions related to the continental shelf and nuclear funded
decommissioning programmes extend to Northern Ireland. Both these
matters are reserved in respect of Northern Ireland.
 The Bill extends to Scotland, except where the Bill amends legislation
which does not itself extend to Scotland (see for example, clause 99
[j121] containing provisions on decommissioning nuclear sites).
 Parts 2 and 3 relate to reserved matters. In Part 1, aspects of the
Green Deal (Chapter 1), Private Rented Sector (Chapter 2) and Energy
3
RESTRICTED
Company Obligation (Chapter 4) may relate to devolved matters, as
may clause 71 [j020c] in Chapter 5 (access to register of energy
performance certificates: Scotland) and the provisions about the Coal
Authority’s functions in Part 4. The repeal of the Home Energy
Conservation Act (Part 5) is devolved to Scotland. A Legislative
Consent Motion will therefore be required for the devolved matters.
10. All three administrations have had an opportunity to provide input into the
clauses.
E. PROVISIONS FOR DELEGATED LEGISLATION
PART 1 - ENERGY EFFICIENCY
Chapter 1: Green Deal - Overview
This Bill will establish a Green Deal scheme to tackle the current lack of
investment in energy saving measures in homes and non-domestic
buildings that has resulted in many properties with poor energy efficiency
ratings.
The Green Deal will consist of a financial framework that will
enable energy saving measures to be paid for in instalments via energy
bills, avoiding the need for upfront capital outlay by owners or occupiers.
The key elements and principles of the Green Deal scheme are set out on
the face of the Bill. Further detailed work will be undertaken to give effect
to these provisions.
Therefore, the Department considers that it is
appropriate to address the detailed design of the scheme in secondary
legislation.
Clause 1: Green deal plans
Power conferred on:
Secretary of State
Power exercised by:
Order
Parliamentary procedure: Negative resolution
11. This clause sets out what constitutes an ‘energy plan’ and a ‘green deal
plan’.
It allows the Secretary of State to set out in an order: (i) the
4
RESTRICTED
descriptions of energy efficiency measures which can be installed under a
green deal plan (paragraph (b) of subsection (4)) and, (ii) any descriptions
of property which are ineligible for green deal plans (subsection (9).
12. The Secretary of State needs to be able to specify the kinds and
descriptions of measure which can be paid for by bill payments on energy
bills of a property to ensure that the Green Deal delivers in its aim to
reduce energy use from buildings through fixed assets that give energy
efficiency benefits to successive bill payers. This power will be used to
ensure that only suitable measures can be installed under a ‘green deal
plan’.
For example, the Secretary of State is unlikely to approve
measures that are likely to be removed if the property changes hands. The
ability to make regulations rather than specify the measures on the face of
the Bill is necessary to allow for amendments to cater for changes to the
types and criteria for the measures as the technologies and economics
evolve.
13. Similarly, there may be certain types of property for which ‘green deal
plans’ are not suitable; for example, properties subject to a compulsory
purchase order. The Secretary of State needs to be able to specify in an
order any types of property for which green deal finance is not available,
which may change over time.
14. The Department judges that the negative procedure is appropriate for
these matters, as it strikes the right balance between giving Parliament
opportunity for scrutiny, whilst recognising the provision is of an
administrative nature.
Clause 2: Green deal plans: supplementary
Power conferred on:
Secretary of State
Power exercised by:
Order and regulations
Parliamentary procedure: Negative
15. Subsections (4), (5) and (6) enable the Secretary of State to extend, by
order, the meaning of the term “energy efficiency improvements” beyond
5
RESTRICTED
the definition at subsection (4) of the clause. The power would enable the
Secretary of State, if he thought it appropriate, to include in the green deal
measures which:
(a) Improve efficiency in the use of sources of energy other than
electricity or gas;
(b) Generate electricity or gas by microgeneration or by other lowemissions sources or technologies;
(c) Reduce the consumption of electricity or gas;
(d) Enable the property to be supplied with electricity or gas from a
generating station which produces both electricity and heat or a
cooled gas or liquid.
16. These provisions are similar to powers contained in section 33BC Gas Act
1986 and section 41A Electricity Act 1989, which govern the measures
which can be included in an order establishing carbon emissions reduction
targets. They are included here so that the green deal can be extended at
a future date, if the Secretary of State considers it appropriate, to
measures other than those which improve efficiency in the use of
electricity or gas.
17. The Department considers that the negative procedure is appropriate for
this order, as it is technical in nature and narrow in scope. This is in
contrast to orders made under section 33BC Gas Act or section 41A
Electricity Act 1989, which make similar provision as part of an order
dealing with the wider exercise of establishing carbon emissions reduction
targets, and hence are subject to the affirmative procedure.
18. Subsection (10) allows the Secretary of State to define in regulations
certain terms used in this Chapter of the Bill.
The Secretary of State
needs the flexibility to be able to define certain terms in regulations to
allow for the inevitable evolution of the policy on the operation and
availability of ‘green deal plans’. The Secretary of State should be able to
define “energy”, “energy bill” and “relevant energy supplier”, so as to
6
RESTRICTED
specify whether payments under a ‘green deal plan’ are collected via
electricity bills, gas bills or both. The decision on this may change as: our
understanding of the how the Green Deal is functioning evolves following
its launch; in light of continuing analysis as to whether payments should be
collected via electricity or gas bills or both; and in response to future
developments in the energy industry (such as the introduction of smart
meters). In addition, the Secretary of State needs to be able to specify the
types of person who can enter into a green deal plan as “owner” or
“occupier” of a property.
19. The Department judges due to the technical nature of these issues, the
negative procedure is appropriate for these regulations, which will be
limited in scope.
Clause 3: Framework Regulations
Power conferred on:
Secretary of State
Power exercised by:
Regulations and Codes of Practice
Parliamentary procedure: Affirmative resolution for regulations, none for
Codes of Practice
20. The objective of these provisions is to create the framework to determine
what standards those operating under the Green Deal banner must
maintain, whether they be assessors, installers or providers.
21. This clause gives the Secretary of State power to establish, through
regulations referred to as the “framework regulations”, a scheme for
authorising persons to act as Green Deal assessors, installers or providers
(referred to collectively as “green deal participants”), and for regulating
their conduct. Subsection (3) lists examples of the matters that may be
dealt with in the scheme.
These include provision for payment of an
authorisation fee, the issuing of a code of practice, and establishing a
register of green deal participants and persons from whom authorisation
has been withdrawn. Authorised Green Deal participants may be required
7
RESTRICTED
to comply with Codes of Practice, and subsections (4) and (5) list
examples of the matters that may be dealt with in the Code of Practice.
22. Subsection (7) provides that the scheme or code of practice can also deal
with matters connected to energy plans which are not green deal plans.
This will enable customers to benefit from the assurance that the scheme
provides in cases where they wish to carry out energy efficiency
improvements but do not wish to pay for them under a green deal plan.
23. Subsection (8) gives examples of the kind of provision that may be made
in the scheme for securing compliance with the conditions of authorisation.
This can include cancellation or suspension of a bill payer’s liability to
make green deal payments, requiring a green deal participant to rectify
improvements installed or to pay compensation or a financial penalty.
24. It is vital to the success of the Green Deal that the scheme’s reputation is
protected and that customers are supported with robust systems of
assurance and redress. This will provide confidence to customers looking
to take out a Green Deal plan, protect future bill payers at a Green Deal
property and allow the Secretary of State to monitor progress of the Green
Deal.
25. The Department believes it to be appropriate to establish the scheme in
regulations as it will set out detailed requirements which will need to
change as Green Deal finance develops and matures.
26. The scheme and provisions governing sanctions will be detailed and
fundamental to ensure customers and successive bill payers are
adequately protected and that Green Deal participants operate to
appropriate standards.
Accordingly, we suggest that the framework
regulations should be subject to the affirmative procedure to provide
Parliament with the appropriate level of scrutiny.
27. On the other hand, the code of practice will deal with more practical issues
regarding green deal participants’ conduct in specified situations (e.g.
complaints handling, qualifications and marketing). As such we do not
8
RESTRICTED
consider that Parliamentary scrutiny should be necessary for the code of
practice.
Clause 4: Assessment of the property etc
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Affirmative
28. This clause provides (subsection (1)(b)) that the Secretary of State may
provide for conditions as to the assessment of the property in the
framework regulations, in addition to those specified in subsections (2) to
(9) of the clause.
29. The purpose of these conditions is to ensure bill payers and building
owners are protected against inappropriate Green Deal plans being set up.
30. Subsections (2) to (9) set out the conditions which have been identified.
However, the Secretary of State needs to be able to provide for further
conditions if it becomes clear that provision is needed, for example, as
Green Deal finance evolves. This power might be used, for example, to
make provision requiring improvers to provide proof of any necessary
consents to the proposed energy efficiency instalments (e.g. planning
permission, if required).
31. Subsections (4) to (7) enable the Secretary of State to make provision in
relation to specified matters, that is(i) the calculation of the estimated
savings on energy bills resulting from the improvements, (ii) the calculation
of the estimated period for which those improvements will result in savings
on energy bills (i.e. the estimated useful life of the improvements), (iii) the
relationship between the estimated amount of the instalments and the
estimated savings on energy bills, and (iv) the relationship between the
period over which instalments are to be paid and the estimated useful life
of the improvements. This will be used to make provision designed to
9
RESTRICTED
ensure that improvements “pay for themselves” by generating energy bill
savings which are similar to the amount of green deal payments. This
needs to be done in regulations as the provision will be detailed and
complex, and will change as the green deal develops and new types of
measure are included.
32. We propose this provision should be made as part of the framework
regulations provided for in clause 3(3). As the provision made here is
central to government ensuring that customers and bill payers are
protected,
the
Department
believes
the
affirmative
procedure
is
appropriate.
Clause 5: Terms of plan etc
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Affirmative resolution
33. This clause sets out the conditions as to the terms of a ‘green deal plan’.
Subsection (1)(b) provides that the Secretary of State may provide for
further conditions as to terms in the framework regulations.
34. As with clause 4, the purpose of this clause is principally to ensure that
customers and bill payers are adequately protected. Subsections (2) to
(4)to (4) set out specific conditions as to the terms of a Green Deal plan.
However, the Secretary of State needs to be able to provide for further
conditions if it becomes clear that they are required. It may, for example,
become apparent that we need to prescribe financial terms in order to
ensure access to the capital markets and low cost finance.
35. There are also some matters which it is intended should be provided for
but the detail of which needs to be set out in regulations, because it is
likely to change as the green deal develops.
These are listed in
subsection (5), and are (i) terms regarding voluntary early repayment, (ii)
10
RESTRICTED
any requirement for improvements to be guaranteed, and (iii) provision for
dealing with problems with measures or installation of measures.
Clause 6: Consents and redress etc
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Affirmative
36. Subsection (1) enables the framework regulations to make provision for
cases where (i) the improver and bill payer are different people (e.g. in a
rented property) and (ii) cases where the identity of the bill payer changes
during the course of the green deal plan. This power is required to ensure
that appropriate provision can be made to bind and benefit bill payers who
did not themselves instigate the green deal plan, but who are nevertheless
required to make green deal payments. Given that provision will address
the detailed terms of green deal plans, this needs to be done in regulations
rather than in the Bill, so that it can reflect provision made in the
framework regulations as to the terms of the plan (see clause 5).
37. Subsections (4) and (5) enable the Secretary of State to provide in the
framework regulations for redress in cases where it transpires that the
improver falsely or improperly confirmed that all necessary consents to the
improvements had been obtained (see subsection (2)(b) of clause 5). In
particular, the regulations can provide for suspension or cancellation of
liability to make green deal payments, or for the refund of payments
already made, and for compensation to be paid by the improver to the
green deal provider in respect of cancelled, suspended or refunded
payments. This provision is necessary to protect bill payers who might
otherwise be in a position where they were liable to pay for improvements
which had been required to be removed from the property (e.g. by a
planning authority, or an owner of the property) as a result of consent not
having been obtained.
11
RESTRICTED
38. It is appropriate to make the provision provided for in this clause in the
framework regulations, rather than the Bill, as the detailed arrangements
may be subject to change as the green deal develops.
As explained
above, we consider that the framework regulations should be subject to
the affirmative procedure.
Clause 7: Installation of improvements
Power conferred on:
Secretary of State
Power exercisable by:
Code of Practice and list
Parliamentary procedure:
None
39. Subsection (2) of this clause provides for the code of practice (issued
under the framework regulations – see clause 3) to specify standards for
any improvements installed, and that the Secretary of State can annex a
list of specified improvements to the code of practice. This mechanism
would be used to ensure that all improvements installed under the green
deal were adequate in quality.
40. The Department considers that Parliamentary procedure is not necessary
or desirable for these matters as they are technical in nature, and any list
is likely to be updated extremely frequently.
Clause 8: Confirmation of plan
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure:
Negative resolution
41. When a green deal plan is entered into, before green deal payments can
be collected from a bill payer via energy bills, the requirements of clause
1(5) must have been met. One of those requirements is that the plan has
been confirmed in accordance with clause 8.
Clause 8 sets out the
confirmation requirement. A green deal plan will only be confirmed if two
12
RESTRICTED
conditions are met. The first is that the energy supplier has notified the bill
payer that payments will be added to the bill payer’s energy bills. The
second condition is that the green deal provider has satisfied whichever of
the three requirements listed in subsection (4) is specified in the
framework regulations as being required in the circumstances. The three
requirements are that the green deal provider: produces a document
containing such information in connection with the green deal plan as is
specified in the regulations and in the form so specified; that the green
deal provider secures that a document of a description specified in the
regulations is produced; or that he secures that a document of such a
description is amended. This provision is required because information
about the green deal plan must be recorded on a document so that that
document can then be used for the purposes of disclosing information
about the plan to prospective buyers, tenants and licensees. (See clause
12 for further information on this requirement.)
42. The decision as to which requirement must be satisfied in a particular
situation will be determined by regulations.
The reason for using
regulations for this purpose is that further detailed work will need to be
carried out to establish what the most appropriate solution is in particular
circumstances. The Department may wish to use an existing document
(namely the Energy Performance Certificate) as the document for holding
information about the green deal plan. Alternatively, the Department may
wish to use a separate document. It is also possible that, as conveyancing
procedure develops around the green deal, a change of approach might
be required, for example, a change from using a bespoke document to
using another existing document that is already used in the conveyancing
process.
The use of regulations provides the Secretary of State with
flexibility to adopt a different approach in the event that it becomes
necessary in light of developing best practice and procedure.
43. In the event that the EPC is thought to be appropriate for this purpose,
some properties will already have an EPC in place, but others will not, so
we need to be able to provide for an existing EPC to be updated, rather
13
RESTRICTED
than require a new EPC to be produced in all circumstances. This will
minimise the risk of duplication.
44. In the event that a separate, new, document is required, the Secretary of
State will need to be able to specify in the framework regulations what
information about the plan must be included in the document. Further
detailed work is required in order to establish what information about the
plan prospective buyers, tenants and licensees need to be aware of to
enable them to make an informed decision about whether or not they wish
to proceed with the transaction. The Department considers that it would
be more appropriate to deal with this issue of administrative detail in
regulations rather than on the face of the Bill.
45. The key principles and framework regarding confirmation of the green deal
plan are set out in the Bill. The Department considers that the regulations
made under this provision will deal with matters of administrative detail
and should therefore be subject to the negative procedure.
Clause 9: Confirmation of plan: supplementary provision for England
and Wales
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Negative resolution
46. This clause makes further provision in circumstances where the Secretary
of State specifies, under clause [8], that the EPC is to be used as the
document for holding information about the green deal plan. The EPC
document is, under the Energy Performance of Buildings (Certificates and
Inspections) (England and Wales) Regulations 2007, required to be
produced when a property is sold or rented out. Subsection (2) enables
the Secretary of State to make provision in the framework regulations for
the 2007 Regulations to have effect in relation to the documents to be
14
RESTRICTED
produced or amended by virtue of clause [8] (4)(b) or (c), with the
modifications specified in the framework regulations.
47. This provision is required because, at present, the 2007 Regulations do
not, for example, enable an EPC document to contain information about a
green deal plan and do not enable an existing EPC document to be
updated once it has been produced. Subsection (3) provides examples of
the types of modification which are envisaged by regulations made under
subsection (2) to address this issue. Therefore, where there is a green
deal plan, we intend to modify the operation of the 2007 Regulations so
that they are able to facilitate the holding of information about green deal
plans.
48. The key principles and framework regarding confirmation of the green deal
plan are set out in the Bill, so the Department considers these regulations,
which will deal with matters of detail regarding how we ensure that
information about the green deal can be stored on an EPC document, and
should be subject to the negative procedure.
Clause 10: Confirmation of plan: supplementary provision for Scotland
Power conferred on:
Scottish Ministers
Power exercised by:
Regulations
Parliamentary procedure: Negative resolution
49. This clause makes provision equivalent to clause [9] in respect of Scotland
and therefore the comments made in respect of clause [9] above apply in
respect of this clause.
50. However, it should be noted that Scotland has its own set of regulations
governing the subject matter of the 2007 Regulations.
Therefore, this
clause refers to the Energy Performance of Buildings (Scotland)
Regulations 2008/the 2008 Regulations, rather than the 2007 Regulations.
Clause 11: Updating information produced under section 8
15
RESTRICTED
Power conferred on:
Secretary of State and (where identified) Scottish
Ministers
Power exercised by:
Regulations
Parliamentary procedure: Negative resolution
51. Once a green deal plan has been entered into, circumstances may arise
which mean that the information held in the document envisaged by clause
[8] is no longer accurate and needs to be updated. This clause enables
the Secretary of State to specify in regulations the circumstances in which
the document produced pursuant to clause [8] must be amended.
An
example of a situation in which the document holding information about
the green deal plan might need to be updated is where the liability to make
payments has been suspended and, therefore, the repayment period is
effectively extended. This information would need to be reflected in the
relevant document so that it was brought to the attention of prospective
buyers etc.
52. The Department believes that it is appropriate to provide for these matters
in regulations, rather than specifying the details on the face of the Bill.
This approach will allow for the inevitable evolution of the policy on these
matters. The most likely situations in which there will be a need to update
information about the green deal plan will be those envisaged by the
“special circumstances” provisions in clause [30] and the sanctions
provisions in clauses [14] and [6]. Therefore, the provisions envisaged by
this clause [11] will, at least in part, need to reflect the special
circumstances and sanctions provisions that will be made in regulations.
For this reason, the Department considers that it would be appropriate to
address the situations in which the document produced pursuant to clause
[8] should be updated at the same time as the provisions relating to
special circumstances and sanctions are considered.
This approach
would also enable the Secretary of State to cater for other circumstances
that arise as the green deal scheme evolves. The Department considers
that regulations made under this provision should be subject to the
negative procedure given their administrative nature.
16
RESTRICTED
53. Subsections (2) to (4) apply where the document specified in regulations
made pursuant to clause [8] is an EPC under the 2007 Regulations.
These subsections enable the Secretary of State to modify the 2007
Regulations in the context of the green deal so that, for example, the
information about the green deal plan can be amended and a fee can be
charged for doing so. At present, the 2007 Regulations do not allow for
this to happen.
54. Subsections (5) to (7) make provision equivalent to subsections (2) to (4)
in respect of Scotland.
As noted above, Scotland has its own set of
Regulations governing the subject matter of the 2007 Regulations.
Therefore, these provisions refer to the Energy Performance of Buildings
(Scotland) Regulations 2008/the 2008 Regulations, rather than the 2007
Regulations.
55. The provisions in subsections (2) to (7) deal with administrative matters
regarding how we ensure that information about the green deal that is
stored on a document is updated to reflect changing circumstances.
Therefore, the department considers that it would be more appropriate to
deal with these matters in regulations rather than on the face of the Bill
(which already contains the principle that the document should be
updated). In addition, given their administrative nature, the Department
considers that regulations made under these provisions should be subject
to the negative procedure.
Clause 12: Disclosure of the green deal plan etc in connection with sale
or letting out
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Negative resolution
56. This clause ensures relevant parties disclose the existence of a green deal
plan when selling a green deal property or granting a lease or licence of
such a property in circumstances where the prospective tenant or licensee
17
RESTRICTED
will be responsible for paying the energy bills. It is vital that consumers
and businesses are made aware of key information about the Green at a
property at an appropriate time and that they have a chance to consider
this information before choosing to buy or rent. This is necessary in order
to protect the consumer or business and to ensure that the Green Deal
can transfer automatically between bill payers, which is fundamental to the
successful operation of the scheme.
Therefore, sellers, landlords and
licensors are required by subsections (2)-(4) to disclose information about
the green deal plan to any prospective buyer, tenant or licensee.
Disclosure will be effected by providing a prospective buyer, tenant or
licensee, with the document required by clause [8], which will contain
information about the green deal. The document must be provided at a
time specified in regulations. This requirement can be met by an agent
acting on behalf of the seller, prospective landlord or prospective licensee..
57. Subsection (6) enables the Secretary of State to make regulations
specifying circumstances in which the disclosure obligation in subsection
(2) does not apply. The Department may, for example, want to specify
that the obligation to disclose does not apply where a prospective buyer is
clearly not intending to purchase the property.
58. The Department believes that these matters should be dealt with in
regulations, rather than in the Bill, because: the time at which disclosure is
to be effected may need to be changed, as the Green Deal scheme and
associated conveyancing practice develops; all of the circumstances in
which it is not appropriate for the disclosure obligation to apply to
sellers/landlords/licensors are not clear at this stage and are likely to
emerge as the scheme evolves.
59. The obligation to disclose is set out on the face of the Bill, so the
Department considers that regulations made under this clause, which will
deal with administrative matters, should be subject to the negative
procedure.
18
RESTRICTED
Clause 13: Acknowledgement of green deal plan on sale or letting out
Power conferred on:
Secretary of State and (where identified) the
Scottish Ministers
Power exercised by:
Regulations
Parliamentary procedure: Negative resolution
60. This clause stipulates that, when buying a green deal property, or entering
into a written lease or licence in respect of a such a property where the
tenant or licensee will be responsible for paying the energy bills, buyers,
tenants and licensees must acknowledge that the green deal plan
(including the obligation to make payments) is binding on the bill payer at
the property.
Therefore, sellers, prospective landlords and prospective
licensors must secure that contracts for the sale of green deal properties
and written lease and licence agreements relating to such properties
include an appropriate acknowledgement by the prospective buyer, tenant
or licensee.
61. Subsection (4) provides that the acknowledgement must be in the form
prescribed by the Secretary of State where the property is in England or
Wales.
Subsection (7) provides an equivalent power for the Scottish
Ministers in respect of properties in Scotland.
62. As with the disclosure obligation in clause [12], the requirement for this
acknowledgement from the buyer, tenant or licensee is required to ensure
that consumers and businesses are protected and to minimise the risk that
the green deal plan will not bind the new bill payer.
Therefore, this
obligation has been placed on the face of the Bill.
63. The Department needs to be able to ensure that the acknowledgement is
clear and appropriately worded. We need to give detailed consideration to
the form of wording to be used and whether different forms of wording will
be required in different circumstances. Therefore, we consider that this
issue is more appropriately addressed in regulations rather than on the
face of the Bill.
19
RESTRICTED
64. Subsection (5) gives the Secretary of State the power to specify in the
regulations, the circumstances in which this acknowledgement is not
required. Subsection (8) provides an equivalent power for the Scottish
Ministers in respect of properties in Scotland. This provision is included
because it is not yet clear whether the acknowledgement will be required
in all circumstances, in particular, in the context of business to business
commercial property transactions, where purchasers and tenants can
perhaps be expected to assume more responsibility for enquiring as to
whether there is a green deal plan attached to the property.
65. As the key principles and framework regarding the requirement to
acknowledge are set out on the face of the Bill, , the Department considers
these regulations, dealing with an issue of detail, should be subject to the
negative procedure.
Clause 14: Sanctions for non-compliance with section 12 or 13
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Affirmative resolution
66. This clause allows the Secretary of State to make regulations to ensure
that the disclosure and acknowledgement obligations are met when Green
Deal properties are sold or leased and where a licence is granted in
respect of such a property.
67. The regulations made under this clause enable the Secretary of State to
make provision for securing compliance with those obligations and they
may also specify consequences of non-compliance for those who are party
to a green deal plan.
The regulations may make provision for civil
penalties to be payable, for green deal providers to cancel or suspend a
bill payer’s liability to make payments under a green deal plan, requiring a
green deal provider to refund payments that have already been made
under a green deal plan and requiring someone who has not complied with
their obligations to pay compensation to a green deal provider in situations
20
RESTRICTED
where payments have been cancelled or suspended or where a green
deal provider has had to refund payments to a bill payer.
68. The use of regulations will allow for detailed work to be carried out so that
it can be established which sanctions/penalty should apply in particular
circumstances. In addition, where a civil penalty is contemplated, detailed
work will be required to establish the appropriate level of penalty in order
to minimise the risk of non-compliance and to provide a suitable
punishment where obligations have not been complied with.
The
Department will also need to give detailed consideration to what (if any)
compensation it would be appropriate for green deal providers to be
entitled to in cases where the disclosure/acknowledgement obligations
have been breached and the green deal provider has suffered loss. The
use of regulations will also enable the development of an approach to the
imposition of sanctions in this context which is consistent with the
development of the sanctions regime in other areas within the green deal
scheme.
69. Given that these powers envisage a green deal provider having to cancel
or suspend a bill payer’s liability to make payments, which could impact
upon a green deal provider’s business, and also the payment of
compensation and/or civil penalties, which could have a significant impact
on individual bill payers, the Department considers that the affirmative
resolution procedure would provide an appropriate level of scrutiny for
these regulations.
Clause 15: Power to modify energy licences to require collection of
green deal payments
Power conferred on:
Secretary of State
Power exercised by:
Licence modifications (not by Statutory Instrument)
Parliamentary procedure: None
21
RESTRICTED
70. This clause gives the Secretary of State the powers, for the purposes of
the collection of green deal payments, to modify transporter, shipper or
supply licences issued under the Gas Act 1986, or distribution or supply
licences issued under the Electricity Act 1989, including standard
conditions incorporated in those licences and documents or agreements
maintained under such licences. Subsection (2) limits this power to
provision to (i) prevent gas transporters or electricity distributors from
permanently disconnecting the supply of gas or electricity to a green deal
property, and (ii) require or enable licence holders to take specified action
in connection with green deal payments.
71. This power is necessary to require gas and electricity suppliers to collect
Green Deal payments from their Green Deal customers and can also be
used to allow them to receive an administration fee for providing this
service (subsection (3)(f)). This power also permits the Secretary of State
to make provision for circumstances in which the energy supplier is
required to make Green Deal payments to the Green Deal provider which
are due but the customer has not yet paid (subsection (3)(c)). The
modifications to the gas transporter, shipper and electricity distribution
licences are necessary to allow those companies to facilitate the collection
of green payments, for example through changes to the gas and electricity
meter registration databases that they maintain. These databases could
be used to record the existence of a green deal plan in respect of a
particular property, alerting suppliers to the fact that they need to collect
green deal payments on bills for that property.
72. Modifications to gas transporter and electricity distribution licences can
also be made to provide that a property may not be permanently
disconnected from the gas or electricity network until any green deal plan
for the property has been discharged.
73. Before making any such modifications the Secretary of State is required to
consult the holders of licences of the type being modified, Ofgem, and
such other persons the Secretary of State considers appropriate (clause
22
RESTRICTED
[19]). There is also a requirement to publish any such modifications as
soon as reasonably practicable after they are made (clause [20]).
74. The Department considers that Parliamentary scrutiny of licence
modifications made through these powers should not be required. This
approach has been followed in numerous powers taken in previous Acts of
Parliament to modify licence conditions. For example, the powers to make
licence modificationsin relation to (i) offshore transmission or distribution
(section 90 Energy Act 2004), (ii) establishing new electricity trading and
transmission arrangements (sections 133 and 134 of the Energy Act
2004), (iii) energy administration (section 168 Energy Act 2004), (iv)
access to transmission systems (sections 84 to 86 Energy Act 2008) and
(v) schemes for reducing fuel poverty (section 12 Energy Act 2010).
2010).
75. There have been some cases in the Energy Acts of 2008 and 2010 where
licence modifications have been subject to a level of Parliamentary
scrutiny which is equivalent to the negative procedure. This has been
included in cases where it has been considered that the modifications are
of particular public interest, and where a policy has been implemented
primarily through licence modifications. These have been modifications
relating to the introduction of (i) a feed-in tariff (sections 41-43 Energy Act
2008), (ii) smart meters (sections 88-90 Energy Act 2008), (iii) the
exploitation of electricity trading and transmission arrangements (section
18 Energy Act 2010) and (iv) the terms relating to the notification to
customers of unilateral changes to supply contracts (section 25 Energy Act
2010).
76. In this case, the principles of the green deal payment mechanism are set
out in legislation and subject to Parliamentary scrutiny, and the licence
modifications made through the power in this clause will simply implement
elements of that mechanism, will be technical in nature and primarily affect
licence holders (who will be consulted),consulted).
23
RESTRICTED
Clause 16: Power to modify energy supply licences to make provision as
to default in green deal payments
Power conferred on:
Secretary of State
Power exercised by:
Licence modifications (not by Statutory Instrument)
Parliamentary procedure: None
77. This clause gives the Secretary of State powers to amend gas and
electricity supply licences for the purpose of making provision for cases
where bill payers default on green deal payments Modifications can be
made to the conditions of a particular licence, the standard conditions
incorporated in those licences and documents or agreements maintained
under those licences. Subsection (2) limits this power to making provision
for: the steps that must be taken by a licence holder following a bill payer’s
failure to make green deal payments; the circumstances in which a licence
holder may disconnect the supply to a green deal property following such
a default; and enabling, in certain circumstances, for a licence holder to
use a security deposit paid by the bill payer to pay green deal payments to
the green deal provider.
78. This power is necessary to ensure that gas and electricity suppliers apply,
in relation to green deal payments, the procedures and sanctions which
currently apply when customers default on charges for electricity or gas
supplied. For example, licences currently make provision for suppliers to
arrange a payment plan for arrears, fit a prepayment meter and impose
restrictions on the circumstances in which suppliers can temporarily
disconnecting the supply of domestic customers.
79. Provision made in licences will supplement the provision made by clauses
[21] and [22], which make amendments to the Gas Act 1986 and Electricity
Act 1989 to provide that provisions regarding recovery of sums via
prepayment meters and the disconnection of supply apply in respect of
sums owed under a green deal plan, as well as to sums owed in respect of
gas or electricity supplied.
24
RESTRICTED
80. Before making any such modifications the Secretary of State is required to
consult the holders of licences of the type being modified, Ofgem and such
other persons as the Secretary of State considers appropriate (clause [19].
There is also a requirement to publish any such modifications as soon as
reasonably practicable after they are made (clause [20]).
81. Given that provision regarding disconnection and use of prepayment
meters is being made in the Bill, and that the licence modifications that
would be made through the power in this clause would simply supplement
this provision and ensure that default on green deal payments is treated in
a similar way to default on any other sums owing to suppliers, the
Department considers that Parliamentary scrutiny of licence modifications
made through these powers is not required.
As indicated above, in
relation to clause [15], this follows precedent set by previous legislation.
Clause 17: Power to modify energy supply licences to require provision
of information
Power conferred on:
Secretary of State
Power exercised by:
Licence modifications (not by Statutory Instrument)
Parliamentary procedure: None
82. This clause gives the Secretary of State the powers to modify supply
licences issued under the Gas Act 1986 or the Electricity Act 1989,
including standard conditions incorporated in those licences and
documents or agreements related to such licences, solely for the purpose
of requiring energy suppliers to provide Green Deal customers with
information.
83. This power is necessary to require gas and electricity suppliers to provide
specific information, for example an annual statement detailing the
payments that have been made under a ‘green deal plan’ and the number
of payments and amount remaining to be paid, to their Green Deal
customers.
25
RESTRICTED
84. Before making any such modifications the Secretary of State is required to
consult the holders of licences of the type being modified, Ofgem and such
other persons as the Secretary of State considers appropriate (clause
[19]). There is also a requirement to publish any such modifications as
soon as reasonably practicable after they are made (clause [20]).
85. Given that the
licence modifications that would be made through the
power in this clause are narrow in scope and would simply require
suppliers to provide customers with information, the Department considers
that Parliamentary scrutiny of licence modifications made through these
powers should not be required.
Clause 18: Power to modify energy supply licence conditions to make
provision as to consumer protection
Power conferred on:
Secretary of State
Power exercised by:
Licence modifications (not by Statutory Instrument)
Parliamentary procedure: None
86. This clause gives the Secretary of State the power to modify supply
licences issued under the Gas Act 1986 or the Electricity Act 1989,
including standard conditions incorporated in those licences and
documents or agreements related to such licences, solely for the purpose
of making consumer protection provision corresponding to that made by
the provision disapplied in clause [24] of the Bill.
87. Clause [24] provides that energy suppliers are not to be treated as
carrying on an ancillary credit business for the purpose of the Consumer
Credit Act by reason of their collection of green deal payments.
This
means that they will be exempt from the requirement to obtain a consumer
credit licence when carrying out the functions required by Chapter 1 of this
Bill. The reason for this is that Ofgem already regulates and licences
energy suppliers. However, in order to ensure that consumers remain
appropriately protected, the powers in this clause allow modifications to
energy supply licences that may be necessary in order to ensure
26
RESTRICTED
equivalent consumer protection to that afforded under normal credit
licensing arrangements.
88. Before making any such modifications the Secretary of State is required to
consult the holders of licences of the type being modified, Ofgem and such
other persons as the Secretary of State considers appropriate (clause 19).
There is also a requirement to publish any such modifications as soon as
reasonably practicable after they are made (clause 20).
89. Given that the principle that suppliers should be exempt from the
requirement to hold a consumer credit licence is dealt with in the Bill, and
that the licence modifications that would be made through the power in this
clause are narrow in scope and would simply make provision which is
equivalent to existing consumer credit legislation, we do not consider that
Parliamentary scrutiny should be required.
Clause 27: Power to amend Consumer Credit Act 1974
Power conferred on:
Secretary of State
Power exercised by:
Order
Parliamentary procedure: Affirmative
90. This clause allows the Secretary of State to set out in regulations
modifications to the Consumer Credit Act which may be required as a
consequence of the other powers taken in Chapter 1 of this Bill.
91. The Consumer Credit Act 1974 is a detailed and complex Act which aims
to protect consumers and small businesses who are entering into credit
arrangements. Green deal plans will involve the provision of credit and
may, depending on who is receiving the credit, fall within the scope of the
Act. The Bill contains a number of provisions which amend the Act in a
way which seeks to minimise duplication of regulation for green deal
providers and energy suppliers, whilst maintaining appropriate levels of
consumer protection, and seek to ensure that the Act does not conflict with
27
RESTRICTED
the green deal provisions in the Bill. See, for example, clauses [24], [25]
and [26].
92. Whilst the Department, working with the Department for Business,
Innovation and Skills, has identified the key provisions of the Act which
may result in a duplication of regulation and may be in conflict with the
green deal scheme, the novel nature of the scheme means that there may
be other provisions of the Act which, when applied in practice in the
context of the green deal, may give rise to difficulties. Therefore, we may,
need to make further amendments to the Act to address any such
unforeseen difficulties which arise as the scheme develops and becomes
operational.
93. The Department believes that the use of regulations is appropriate
because we are not yet in a position to know all of the potential effects that
the Act will have when applied in the context of the green deal.
94. Given that any changes made through these regulations would be
amendments to primary legislation relating to matters of consumer
protection, we consider the affirmative resolution procedure would provide
an appropriate level of scrutiny. The Bill also provides that the Secretary
of State will consult the Office of Fair Trading, which has responsibility for
enforcement of the Act, as well as any other person that the Secretary of
State considers appropriate, in respect of any amendments that are
proposed.
Clause 28: Delegation and conferring of functions
Power conferred on:
Secretary of State
Power exercised by:
Order
Parliamentary procedure: Negative resolution
95. This clause allows the Secretary of State to delegate certain functions to
public bodies, allowing organisations with the necessary capacity and skill
set to carry out functions on behalf of the Secretary of State.
The
functions that can be delegated include (i) functions provided for in the
28
RESTRICTED
scheme for authorising green deal participants (see clause [3]) – including
granting authorisation, and monitoring and securing compliance with the
scheme, (ii) functions in connection with the redress rpvodied for under
subsection (4) of clause [6], and (iii) enforcement of the obligations to
disclose the existence of a green deal plan (see clauses [12] to [14]). .
96. It has not yet been decided which public bodies should carry out the
functions specified in this clause. Decisions on this will depend to some
extent on DECC’s Institutional Delivery Review. Accordingly, we cannot
specify the name of the public body or bodies which will perform these
functions on the face of the Bill.
97. The Department proposes this order should be subject to the negative
procedure as it strikes the right balance between giving Parliament
opportunity for scrutiny, whilst recognising the provision is of limited scope
and of an administrative nature.
Clause 29: Duty to report
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Negative resolution
98. This power can be exercised where the Secretary of State has delegated
the function of authorising green deal participants (see subsection (1)(a) of
clause [3]) to a public body under clause [26]. It allows the Secretary of
State to make regulations requiring the body to whom functions have been
delegated to report to the Secretary of State. Regulations can specify the
matters to be reported on.
99. This power would enable the Secretary of State to obtain information to
evaluate the progress and impact of the Green Deal. For example, the
report is likely to be required to assess how the Green Deal is functioning;
29
RESTRICTED
and analyse the impact it is having on national energy use and carbon
emissions.
100.
This needs to be provided for in regulations, rather than in the Bill,
because the requirement to report will depend on the arrangements made
for delegation of functions under clause [28].
101.
Given the administrative nature of this clause and the fact that it is
limited in scope, we believe the negative resolution procedure to be an
appropriate level of scrutiny.
Clause 30: Power of Secretary of State to deal with special
circumstances
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Affirmative resolution
102.
This clause is intended to enable the Secretary of State to make
regulations providing for the treatment of a ‘green deal plan’ when special
circumstances arise, for example, if a property with a ‘green deal plan’
becomes vacant or is demolished.
103.
The clause allows the Secretary of State to set out in regulations
circumstances in which the obligation to make payments is cancelled or
suspended and to provide for the procedure to be followed when a
cancellation or suspension is to be granted. This power will enable the
Secretary of State to make provision for circumstances in which it may be
appropriate for Green Deal payments to be suspended, for example if a
property is unoccupied and the gas and electricity supply is temporarily
disconnected.
104.
In addition, the clause enables regulations to set out circumstances in
which the green deal provider can require early repayment of amounts
under a green deal plan. While the general rule will be that payments are
to be paid as they fall due from the bill payer at the property from time to
30
RESTRICTED
time, there may be circumstances in which the green deal plan needs to
be discharged and all outstanding sums paid off. This may be the case,
for example, if a property is to be demolished.
105.
The Department believes that it is appropriate and necessary to
provide for these matters in regulations, rather than specifying the details
on the face of the Bill, in order to allow for the inevitable evolution of the
policy on these matters. These regulations will specifically cater for
unusual and extreme events and some of these situations may only be
apparent following the launch of the Green Deal.
106.
We believe these regulations should be subject to the affirmative
resolution procedure, as they will affect the circumstances in which the bill
payer’s liability to make green deal payments can be altered.
Clause 31: Appeals
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Affirmative resolution
107.
This clause requires the Secretary of State to provide a right of appeal
in respect of sanctions imposed or action taken by the Secretary of State
(or a public body to which the Secretary of State has transferred functions
to) under clauses [3](3)(h) or (i) (securing compliance with the scheme,
code or agreement) [6](4) (consents and redress) or [14] (sanctions for
non compliance with clauses [12] and [13]. The right of appeal provided
for must be to a court or tribunal.
108.
Subsection (3) provides examples of the provisions, relating to the right
of appeal, that can be made in regulations. For example, the Secretary of
State may make provision in respect of the persons who may appeal and
the grounds on which they can appeal. Provision can also be made in
regulations regarding the procedure for making an appeal and the powers
of the court or tribunal to which an appeal is made.
31
RESTRICTED
109.
Subsection (5) enables the Secretary of State to revoke or amend
subordinate legislation for the purposes of or in connection with certain
provisions made in respect of the right of appeal envisaged by this clause.
This provision is required to enable existing legislation relating to, for
example, existing tribunal procedure to be amended, if necessary, for the
purposes of green deal related rights of appeal. The Department has not
yet decided which court or tribunal will hear appeals under these
provisions and, as a result, it is not in a position to know which pieces of
subordinate legislation will need to be amended and to what extent.
Therefore, the Department considers that it is appropriate for the Bill to
include this regulation making power to enable it to make any appropriate
amendments to ensure that the green deal appeals mechanism works in
practice.
110.
The Department considers that it would be appropriate for the detail
relating to who should be able to appeal and on what grounds, together
with issues surrounding the procedure to be followed and the jurisdiction
and powers of the court or tribunal used should be addressed in
secondary legislation. Further work will be required to establish which
court or tribunal (and, where appropriate, which part of the tribunal) should
hear appeals under these provisions. The Department will also need to
consider whether appeals in respect of different issues should be heard by
different courts and tribunals. The Department will be better placed to
address these issues as the detailed provisions of scheme evolve.
111.
Given the importance of this right of appeal and the need to ensure that
the appeal provisions receive adequate scrutiny, we consider that the
regulations made under this clause should be subject to the affirmative
procedure.
Chapter 2: Private Rented Sector: England and Wales - Overview
112.
The Bill creates powers to make regulations requiring private landlords
to make reasonable energy efficiency improvements to their domestic and
non-domestic properties. These powers would only be used if, following a
review, the Secretary of State finds regulation is necessary to improve the
32
RESTRICTED
energy efficiency performance of the sector and this regulation would not
have an adverse impact on the supply of private rented sector properties.
The earliest date these regulations could come into force is April 2015
providing the opportunity for landlords to make voluntary energy efficiency
improvements before any regulations potentially come into force.
Clause 37 Power to make domestic energy efficiency regulations:
England and Wales
Power conferred on: Secretary of State
Power exercised by: Regulations and order
Parliamentary procedure: Affirmative resolution (regulations) and negative
resolution (order)
113.
This clause allows the Secretary of State to make regulations only
after the publication of the review under clause 36 .
The review will
consider: the energy efficiency performance of private rented (PR)
properties compared to other sectors; the extent to which finance
packages are available to landlords for energy efficiency purposes; the
need for action; and the possible effects of any action.
114.
This clause allows the Secretary of State to make regulations requiring
local authorities to issue written notices to landlords of domestic private
rented properties which fall below a specified energy efficiency level.
Regulations can only be made if the Secretary of State considers, having
regard to the review, that the regulations will improve the energy efficiency
of the domestic private rented sector and will not have a negative impact
on the number of properties available to rent.
The written notice will
require the landlord to make relevant energy efficiency improvements.
This clause allows for regulations to specify exactly which descriptions of
domestic private rented properties will be captured by this requirement.
115.
In addition, this clause allows regulations to provide for the steps which
local authorities must take to identify domestic private rented properties in
respect of which a notice must be issued and circumstances where the
33
RESTRICTED
duty on local authorities to issue a notice is not applied (such as where
there is a lack of information available to the local authority).
116.
Given that the earliest date these regulations could come into force is
April 2015, the detailed mechanism for the imposition of these obligations
on landlords needs to be provided for in regulations to allow for a number
of factors to be taken into consideration, including: evolution of the policy
landscape; evolving data and information available to local authorities;
changes in the energy efficiency performance of the private rented sector;
and the outcome of the review.
117.
As this would be a new requirement on both local authorities and
landlords, we suggest these regulations should be affirmative.
118.
This clause also provides at subsection (7) that the Secretary of State
may by order amend the definition of “energy performance certificate”.
This will enable the Secretary of State to make provision in the event that
the current system of energy performance certificates (provided for in the
Energy Performance of Buildings (Certificates and Inspections) (England
and Wales) Regulations 2007) is superseded. We consider that this order
should be subject to the negative procedure, as it is very limited in scope.
Clause 38: Further provision about domestic energy efficiency
regulations: England and Wales
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative resolution
119.
This clause sets out further provision regarding the power to make
domestic energy efficiency regulations, including provisions as to
procedure, such as the issuing of and response to a notice requiring
landlords to make improvements.
It allows the energy efficiency
regulations to also include provisions to exempt certain properties and
34
RESTRICTED
specify the evidence needed to demonstrate various matters, including
whether a landlord has complied with a notice, or whether the property
falls within an exemption provided for in the regulations.
120.
As with clause [36] it is appropriate to set out these provisions in
regulations, rather than the Bill itself, as they will be detailed requirements
which will need to be finalised closer to the regulations coming into force
(the earliest date being April 2015) in light of evidence available at that
time.
121.
As indicated above, we consider that the domestic energy efficiency
regulations should be subject to the affirmative procedure.
Clause 39: Sanctions for the purposes of domestic energy efficiency
regulations: England and Wales [jPRS4]
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative resolution
122.
This clause gives the Secretary of State the power to make provision in
regulations to secure compliance with the requirements on landlords. This
includes sanctions for non-compliance and the provision of false
information. The sanction for these matters can constitute a civil penalty.
In addition, the regulations must also include provision for a right of appeal
to a court or tribunal (subsections (4) to (6)). Subsection (7) enables the
Secretary of State to amend subordinate legislation in connection with
provision made for appeals.
123.
Again, as the earliest date on which regulations can come into force is
April 2015, it is appropriate for these matters to be dealt with in
regulations, after the review.
124.
As indicated above, we suggest the affirmative procedure provides the
appropriate level of scrutiny.
35
RESTRICTED
Clause 40: Power to make tenants’ energy efficiency improvements
regulations: England and Wales
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative resolution
125.
This clause allows the Secretary of State to make regulations to secure
that a landlord of a specified description of domestic private rented
property does not unreasonably refuse a tenant’s request to make relevant
energy efficiency improvements. The power to make regulations can only
be exercised if, having regard to the report published in respect of the
review (see clause [36]), the Secretary of State considers that regulation
will
improve the energy efficiency performance of the sector without
having a negative impact on the number of properties available to rent.
126.
It is necessary that the Secretary of State has the power to make such
regulations, rather than including provisions within the Bill, as details on
how this mechanism will operate will be decided on in light of the review
provided for in clause [36]. The earliest date regulations may come into
force is 1 April 2015.
127.
As these regulations would place a new requirement on landlords and
give new rights to tenants, we suggest the affirmative procedure provides
the appropriate level of scrutiny.
Clause
41:
Further
provision
about
tenants’
energy
efficiency
improvements regulations: England and Wales
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative resolution
128.
This clause sets out further provision that can be made in tenants’
energy efficiency improvements regulations, and is similar to clause [38].
36
RESTRICTED
It includes the power to make provisions about the procedure for issuing a
request, and the landlord’s response. The regulations may also include
provisions to exempt certain properties and specify the evidence needed
to demonstrate requirements imposed by the regulations – for example
that an exemption applies.
129.
As with Clause 38, it is appropriate to deal with these matters in
regulations, rather than the Bill itself, as they will be detailed provisions
which will need to be finalised following the review and closer to the
regulations coming into force.
130.
As indicated above, we suggest that the tenants’ energy efficiency
improvements regulations should be subject to the affirmative procedure
as they would place new requirements on landlords.
Clause 42: Sanctions for the purposes of tenants’ energy efficiency
improvements regulations: England and Wales
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure: Affirmative resolution
131. This clause gives the Secretary of State the power to make provision in
regulations to secure that landlords comply with the requirements placed
on them. This includes provision for a tenant to apply to a court or tribunal
for a ruling that a landlord has unreasonably refused consent to relevant
energy efficiency requirements (subsections (2) and (3)).
In addition,
regulations must include provision for a right of appeal against any
decision made by a court or tribunal (subsections (4) and (5)). Subsection
(6) gives the Secretary of State power to amend subordinate legislation in
order to make provision for an appeal.
132. As with the previous clauses, it is appropriate to make this provision in
the regulations, as opposed to the Bill, given that decisions on exactly how
37
RESTRICTED
the mechanism should work will be made in light of the review, and that
the earliest date the regulations can come into force is 2015.
133. As indicated above, we suggest the affirmative procedure provides the
right level of scrutiny for these regulations.
Clause 43: Power to make non-domestic energy efficiency regulations:
England and Wales
Power conferred on:
Secretary of State
Power exercisable by:
Regulations and order
Parliamentary procedure:
Affirmative (regulations) and negative (order)
134. This clause gives the Secretary of State power to make non-domestic
energy efficiency regulations if, having regard to the review, he considers
that regulations will improve the energy efficiency of non-domestic private
rented properties, and will not have a negative effect on the supply of
properties for rent (subsection (1)).
135. Non-domestic energy efficiency regulations will require that landlords of
non-domestic private rented properties which fall below a specified level of
energy efficiency must not let those properties unless they have made all
the relevant energy efficiency improvements which the regulations state
must be made. Regulations can specify the descriptions of non-domestic
private rented property to which the regulations apply.
136. The matters provided for in this clause need to be dealt with in
regulations for the same reasons as those given in respect of the domestic
energy efficiency regulations and the tenants’ domestic energy efficiency
improvements regulations. The detail of the mechanism will be decided on
in light of the review provided for in clause [36]. As with the domestic
energy efficiency regulations and the tenants’ domestic energy efficiency
improvements regulations, we consider that the affirmative procedure is
appropriate, as these regulations will impose new requirements on
landlords.
38
RESTRICTED
137. Subsection (6) gives the Secretary of State power to amend the
definition of “energy performance certificate” for the purpose of the
regulations. This power is the same as that provided for in subsection (6)
of clause [37]. It is taken for the same reason – in case the current system
of energy performance certificates is superseded. We believe it should be
subject to the negative procedure because, like the equivalent provision in
clause [37], it is very narrow in scope.
Clause 44: Further provision about non-domestic energy efficiency
regulations: England and Wales
138. This clause sets out further provision that can be made in non-domestic
energy efficiency regulations, in a similar way to clauses [38] and [41]. In
particular, it provides that the regulations can specify the period within
which improvements must be made, can provide for exemptions from the
requirement to make relevant energy efficiency improvements (for
example for cases where a landlord is unable to obtain necessary
consents to the improvements being made), and make provision as to the
evidence required to demonstrate matters provided for in the regulations.
This might be used, for example, to specify the evidence required to show
that a landlord has not been able to obtain necessary consents to the
improvements and is therefore exempt.
139. This provision needs to be made in regulations, rather than in the Bill, for
the reasons set out in relation to clause [43]. As indicated above, we
suggest that these regulations should be subject to the affirmative
procedure.
Clause 45: Sanctions for the purposes of non-domestic energy
efficiency regulations: England and Wales
140. This clause enables the Secretary of State to make provision in the nondomestic energy efficiency regulations to secure that landlords comply
with their obligations under those regulations (subsection (1)).
141. Subsection (2) provides that this can include provision for enforcement
of those requirements by a local weights and measures authority, by
39
RESTRICTED
imposing sanctions for non-compliance or the provision of false
information. The sanction can include imposition of a civil penalty.
142. As with clause [39], this clause provides that if provision is made for the
imposition of a civil penalty, the regulations must also provide for an
appeal. Subsections (3) to (5) set out the provision to be made in respect
of appeals.
Subsection (6) enables the Secretary of State to amend
subordinate legislation in connection with provision made about appeals.
143. As indicated above, provision for sanctions and appeals needs to be
made in regulations, as the detailed mechanism will be finalised following
publication of the report under clause [36].
The non-domestic energy
efficiency regulations should be subject to the affirmative procedure.
Chapter 3: Private Rented Sector: Scotland
144. This Chapter gives Scottish Ministers powers to make regulations in
respect of the energy efficiency of the private rented sector in Scotland.
The powers are equivalent to those given to the Secretary of State in
respect of England and Wales in Chapter 2, and are exercisable in
equivalent circumstances.
145. We suggest that regulations made under this Chapter should be
approved by a resolution of the Scottish Parliament, providing a level of
scrutiny equivalent to regulations made under Chapter 2 for England and
Wales (which we have suggested should be subject to the affirmative
procedure).
146. We suggest that an order made under this Chapter should be subject to
annulment by the Scottish Parliament, providing a level of scrutiny
equivalent to any order made under Chapter 2 in respect of England and
Wales (which we have suggested should be subject to the negative
procedure).
Chapter 4:
Reducing Carbon Emissions and Home Heating Costs -
Overview
40
RESTRICTED
147.
This Part contains new and amended powers to create a future Energy
Company Obligation (ECO), which will take over when the existing energy
company obligations – the Carbon Emissions Reduction Target (CERT)
and the Community Energy Saving Programme (CESP) – end in 2012.
The new obligation will commence from late 2012, drawing on the
strengths of the existing energy company obligations but also reflecting a
number of expected new developments over the next couple of years,
including: the gradual withdrawal of the main current Government funded
support programme for delivering heating and insulation measures in the
homes of the vulnerable and lower income (Warm Front); introduction of
the Green Deal; and changes to the energy efficiency needs of the
housing stock.
148.
The Green Deal will represent a significant change to the policy
landscape and one of the key objectives of the ECO will be to underpin the
market-led Green Deal, helping to ensure that, as far as possible, all
households can access energy efficiency measures.
149.
In summary, the Secretary of State is proposing to amend the existing
enabling powers which underpin the CERT and CESP Orders, so as to
enable him to: target the new obligations at particular types of people living
in particular types of property or location (see Clauses [j021] and [j022]);
impose a ‘reductions in home heating costs’ target alongside an energy
saving / carbon target (see Clauses [j023] and [j024]);
describe the
measures which qualify towards meeting a home heating cost reduction
target (see Clause [j025]); stipulate the score which should be attributed
to any eligible measure;
require certain information from energy
companies for the purposes of assessing the effectiveness of a new
obligation towards meeting its policy objectives (see j026);
transfer
responsibility for administrating and enforcing the scheme to a new body
(see j027).
Rationale for delegated powers
150.
For each of the ECO powers discussed below, the Department
believes the flexibility to make secondary regulations, rather than specify
41
RESTRICTED
the detailed final provisions on the face of the Bill, is appropriate given the
frequently technical nature of the design elements in question, and the
changing nature of the energy policy landscape. This approach is in line
with that adopted in the parent legislation for the current CERT and CESP
schemes, where the equivalent level of detail is set out in secondary
legislation.
151.
For example, evidence from the evaluations of the existing CERT and
CESP schemes, to become available in the course of 2011, will also be an
important factor when considering the final detail of how the ECO should
operate; and many specific issues within the scheme’s design, such as
targeting, reporting, and the list of eligible measures, will be of great
interest and importance to a wide audience of industry and other
stakeholders, and it is appropriate that there should be a full public
consultation on detailed proposals before they are finalised.
Clause 61: Promotion of reductions in carbon emissions: gas
transporters and suppliers
Power conferred on:
Secretary of State
Power exercised by:
Statutory Instrument
Parliamentary procedure:
Affirmative
152.
This clause amends Section 33BC of the Gas Act 1986 (promotion of
reductions in carbon emissions: gas transporter and suppliers); the
existing enabling powers underpinning the CERT and CESP legislation.,
that give the Secretary of State powers to impose an obligation on energy
companies to achieve a carbon emissions reduction target.
153.
The existing powers in Section 33BC provide a broad framework for
determining the sorts of actions that count towards achievement of a
target; for example, in terms of geographical area and social groups. This
clause serves to clarify the existing powers and allow the Secretary of
State to apply additional criteria for the purposes of determining how a
target can be met.
42
RESTRICTED
154.
Examples of the sorts of issues that might be covered by the exercise
of these powers could include:

focusing the obligation (by the imposition of specific minimum or
maximum levels of activity, or though adjustments to the scoring
system which could have the effect of incentivising certain actions) on
particular types of measures – for example solid wall insulation, or
heating systems

focusing the obligation on particular types of target audience – for
example, vulnerable and lower income households entitled to certain
benefits, and living in properties with poor energy performance.

focusing the obligation on particular areas of Great Britain, or particular
types of area - for example, rural areas, or those with low average
income.
155.
There may be circumstances where the Secretary of State would want
to guarantee offers of assistance to specific individual households, for
example those identified as being particularly vulnerable, and where no
other sources of support are available. To this end, the new powers would
confer powers on the Secretary of State to establish a system of
“mandated referrals”, whereby details of such individuals would be
distributed to energy companies with a requirement to offer assistance.
156.
The Department has not yet taken firm decisions on how the powers
will be used, and the above examples are by way of illustration only. We
therefore believe that the flexibility of using regulations, rather than
specifying the details on the face of the Bill, is appropriate 9.
The
Department has not yet taken firm decisions on how the powers will be
used, and the above examples are by way of illustration only.
157.
Given the nature of the clause, we believe the affirmative resolution
procedure to be an appropriate level of scrutiny.
Subsection 6
Power conferred on:
Secretary of State
43
RESTRICTED
Power exercised by:
Order
Parliamentary procedure:
Negative
158.
In the majority of cases, the powers are exercisable though the
affirmative resolution procedure (as with CERT and CESP now). However,
there may be occasions where it would be appropriate to make small
changes to an existing order. The Department proposes that for changes
which touch on substantive and important matters such as the size of the
target, the nature of the companies who are obligated, the period of the
obligation and so on, even small amendments should continue to be
subject to affirmative procedures However, in a limited number of cases
the amendments may relate to less central, more technical matters, and in
these cases the Department believes the negative resolution procedure to
be an appropriate level of scrutiny, given the essentially administrative
nature of the matters in question.
Clause 62: Promotion of reductions in carbon emissions: electricity
generators, distributors and suppliers
Power conferred on:
Secretary of State
Power exercised by:
Statutory Instrument
Parliamentary procedure:
Affirmative resolution
159.
For the purposes relevant to this memorandum, this clause provides
exactly the same framework of powers in respect of electricity distributors
and suppliers as clause [j0021] does in respect of gas transporters and
suppliers, and the issues for consideration are identical.
160.
As for the J021, the Department has not yet taken firm decisions on
how the powers will be used. The Department believes that the flexibility of
using regulations, rather than specifying the details on the face of the Bill,
is appropriate given the frequently technical nature of the design elements
in question, and the changing nature of the energy policy landscape. This
approach is in line with that adopted in the parent legislation for the current
CERT and CESP schemes, where the equivalent level of detail is set out
44
RESTRICTED
in secondary legislation. The targeting of the scheme and the framework
for how companies can deliver their targets will also be of great interest
and importance to a wide audience of industry and other stakeholders, and
it is appropriate that there should be a full public consultation on detailed
proposals before they are finalised.
Power conferred on:
Secretary of State
Power exercised by:
Order
Parliamentary procedure: Negative
161.
In the majority of cases, the powers are exercisable though the
affirmative resolution procedure (as with CERT and CESP now). However,
there may be occasions where it would be appropriate to make small
changes to an existing order. The Department proposes that for changes
which touch on substantive and important matters such as the size of the
target, the nature of the companies who are obligated, the period of the
obligation and so on, even small amendments should continue to be
subject to affirmative procedures However, in a limited number of cases
the amendments may relate to less central, more technical matters, and in
these cases the Department believes the negative resolution procedure to
be an appropriate level of scrutiny, given the essentially administrative
nature of the matters in question.
Clause 63: Promotion of reductions in home-heating costs: gas
transporters and suppliers
Power conferred on:
Secretary of State
Power exercised by:
by Statutory Instrument
Parliamentary procedure: Affirmative resolution
162.
The Gas Act 1986 contains existing powers in Section 33BC for the
Secretary of State to establish an obligation on energy companies to
achieve a designated carbon emission reduction target. This clause inserts
a new Section 33BD, which confers similar additional powers on the
45
RESTRICTED
Secretary of State to set a “home-heating cost reduction target”, through a
framework that broadly mirrors that set out in Section 33BC (as amended
by [j021]). This would be likely to be a separate and distinct obligation from
a carbon target. The Secretary of State may use these powers to ensure
a future obligation can deliver measures that improve energy performance
in addition to measures that reduce carbon emissions. Some measures,
such as insulation, would meet both objectives, however, some other
highly beneficial actions, such as installing gas central heating where it
does not already exist, may not reduce emissions, but are a crucial step
towards improving thermal comfort and living standards.
163.
The Department believes it would not be appropriate to set out the
specifics of a home-heating cost reduction target on the face of the Bill.
The design of any such obligation will (as j023 (4) makes clear by
establishing essentially the same set of enabling powers) in many respects
mimic the carbon target obligation. As with that obligation, it is appropriate
that the detailed design of the obligation (for example, what measures
might be included, how they should be scored, particular target audiences
on whom the obligation should be targeted, and so on) should be set out in
secondary legislation as it involves technical issues and ones where full
public consultation on the detailed nature of such an obligation would also
be necessary.
164.
We consider affirmative resolution is appropriate given that this would
be a new obligation, and many issues within it, such as the nature of the
measures to be included, could have a material impact on companies’
obligations, which Parliament could be expected to want to consider
carefully at the relevant time.
Clause 64: Promotion of reductions in home-heating costs: electricity
distributors and suppliers
Power conferred on:
Secretary of State
Power exercised by:
by Statutory Instrument
Parliamentary procedure: Affirmative resolution
46
RESTRICTED
165.
For the purposes relevant to this memorandum, this clause provides
exactly the same framework of powers in respect of electricity distributors
and suppliers as clause [j0023] does in respect of gas transporters and
suppliers, and the issues for consideration are identical.
166.
As for [J0023], the Department believes it would not be appropriate to
set out the specifics of a home-heating cost reduction target on the face of
the Bill. The design of any such obligation will (as j024 (4) makes clear by
establishing essentially the same set of enabling powers) in many respects
mimic the carbon target obligation. As with that obligation, it is appropriate
that the detailed design of the obligation (for example, what measures
might be included, how they should be scored, particular target audiences
on whom the obligation should be targeted, and so on) should set out in
secondary legislation as it involves technical issues and ones where full
public consultation on the detail would be necessary.
167.
We consider affirmative rather than negative resolution is appropriate,
given that this would be a new obligation, and many issues within it, such
as the nature of the measures to be included, could have a material impact
on companies’ obligations, which Parliament could be expected to want to
consider carefully at the relevant time.
Clause 65: Overall home-heating cost reduction targets
Power conferred on:
Secretary of State
Power exercised by:
by Statutory Instrument
Parliamentary procedure: Affirmative resolution
168.
The existing Section 103 of the Utilities Act 2000 confers powers on the
Authority to apportion carbon emissions reduction target to individual
energy companies, with the level of individual targets subject to
consultation with the relevant organisations. This clause inserts a new
Clause UA103A, which serves to mirror the existing powers in UA103 for
the new home-heating cost reductions target.
47
RESTRICTED
169.
The criteria for apportioning targets will be set out in secondary
legislation because other aspects of the scheme’s design, such as the
types of company to receive obligations and the precise nature of the
targets, will need to be determined first.
170.
The Department considers the affirmative procedure to be appropriate
given that setting and apportioning the target will have a very material
impact on the obligations which companies face, which Parliament could
be expected to want to consider carefully at the relevant time.
Clause 66: Power of Secretary of State to require information: carbon
emissions reduction targets and home-heating cost reduction targets
Power conferred on:
Secretary of State
Power exercised by:
by Statutory Instrument
Parliamentary procedure: Affirmative resolution
171.
This clause inserts a new Section (103B) into the Utilities Act 2000,
which serves to extend the powers conferred to the Secretary of State to
set requirements for obligated companies to provide information about the
delivery of their schemes under the new obligation. This will help the
Secretary of State to obtain the information he needs to assess whether
the specific policy objectives of the obligation are being achieved.
172.
The existing Carbon Emissions Reductions Target order provides
some scope for the Secretary of State to assess how the obligation is
delivering against its objectives, and to adjust the targeting accordingly.
Suppliers are required to provide Ofgem (‘the Authority’) with information
about the measures they have installed and whether the households in
receipt are in the ‘priority group’. Specific measures can be incentivised
with uplifted carbon scores if the SoS wishes to see increased up-take.
However, it is not possible at present to mandate that companies provide
other forms of information, such as geographical data or cost details of
measures installed.
48
RESTRICTED
173.
Some provisions to this end exist. However, the existing provisions
compel companies only to provide such information as is necessary to
demonstrate that they have met their obligations. For the new Obligation,
the Secretary of State would like to ensure that a wider range of
information can be sought, if need be, about the measures being
promoted; the type of person they are promoted to; and other information
that may be relevant to the targeting of the scheme. Access to this data
will enable better monitoring of the scheme to ensure it is delivering
against the objectives as intended, and more sophisticated control over
targeting where needed.
174.
This is achieved through Subsections (1) to (6) of the new Section,
which confer powers on the Secretary of State to require the energy
companies and the Authority to provide him with data on the delivery of
their obligations. It specifies that this data would be used to assess the
overall performance of the policy and to build a central (aggregated)
database of measures installed, but does not specify here what types of
data would be collected.
175.
The Department believes that regulations, rather than specifying the
details on the face of the Bill, is appropriate given the frequently technical
nature of the design elements in question, and the changing nature of the
energy policy landscape. This approach is in line with that adopted in the
parent legislation for the current CERT and schemes, where the equivalent
level of detail is set out in secondary legislation. The reporting
requirements of the scheme will also be of great interest and importance to
a wide audience of industry and other stakeholders, and it is appropriate
that there should be a full public consultation on detailed proposals before
they are finalised.
176.
Given the administrative nature of the clause, we believe the negative
resolution procedure to be an appropriate level of scrutiny.
Clause 67: Power of Secretary of State to transfer functions of the Gas
and Electricity Markets Authority
49
RESTRICTED
Power conferred on:
Secretary of State
Power exercised by:
Statutory Instrument
Parliamentary procedure:
Affirmative Order
177.
This Clause inserts a new provision (103C) into the Utilities Act 2000 to
allow the Secretary of State to create a new Authority and to transfer onto
it the responsibilities for administrating the obligation. Subsections (4) and
(5) make provisions to ensure the existing Authority, the obligated
companies, Parliament and others are consulted before such an action is
taken.
178.
The Department believes that regulations, rather than specifying the
details on the face of the Bill, is appropriate as this provision is intended to
enable the Secretary of State to respond to changes that may arise in
future. Existing equivalent energy efficiency schemes (CERT and CESP)
are administered by Ofgem, and the Bill establishes them as the default
administrator of the new scheme. However, the Government is currently
reviewing the role of various non-Departmental delivery bodies, including
Ofgem, and changes in the nature of its role and functions cannot be ruled
out, depending on the outcome of the review (which is currently unknown).
The provisions in this clause give Government the flexibility to respond to
any such changes in a timely manner, without the need for fresh primary
legislation
179.
We believe affirmative rather than negative procedure is appropriate
given the strong public interest in ensuring robust administrative
arrangements for a scheme which is likely to be of considerable size
(potentially many £billions over its life).
Chapter 5: Information about energy consumption, efficiency and tariffs
Smart meters- Overview
180.
The Bill seeks to amend the smart meters provisions in the Energy Act
2008 so they expire in November 2018 rather than November 2013. The
extension of the existing powers will ensure that the Government has the
50
RESTRICTED
necessary powers for the duration of the roll out and to ensure the
projected economic and other benefits of the roll-out are achieved (as set
out in the Impact Assessment).
Clause 69: Smart Meters
Power conferred on:
Secretary of State
Power exercised by:
Licence modification (not by Statutory Instrument)
and Affirmative order.
Parliamentary procedure: Equivalent to Negative Resolution and Affirmative
Resolution
181.
This clause makes minor amendments to the Secretary of State’s
powers in section 88 of the Energy Act 2008, section 41HA-B Gas Act
1986 and section 56FA-B Electricity Act 1989 to roll out smart meters.
Section 88 of the Energy Act 2008 gives the Secretary of State power to
modify electricity and gas licences and codes to achieve the roll-out of
smart meters.
The powers in the Gas and Electricity Acts allow the
Secretary of State to create new licensable activities in relation to smart
metering.
182.
The clauses makes amendments to section 88 to:
 extend the licence and code modification powers to cover electricity
transmission licences, which may be necessary to
introduce new
central communications arrangements to support smart metering.
 make clear that modifications may include requiring licensees to
provide information to Ofgem or the Secretary of State, to assist the
Secretary of State in reviewing the efficiency and effectiveness of the
smart meter roll-out.
 make clear that modifications may include area-based requirements
where these are necessary to roll out smart meters.
183.
The clause also extends the period within which the powers under
section 88 of the Energy Act 2008, and section 41HA of the Gas Act 1986,
51
RESTRICTED
and section 56FA of the Electricity Act 1989 can be exercised until 1
November 2018, which may be necessary to address any unforeseen
issues which arise in the latter stages of roll out and to ensure the benefits
of the programme are achieved.
184.
Before exercising the powers under section 88 of the Energy Act 2008,
section 41HA of the Gas Act 1986 and section 56FA of the Electricity Act
1989, the Secretary of State must consult Ofgem and any other persons
considered appropriate, and affected licensees in the case of modifications
under section 88 of the Energy Act. Any use of these powers would be
accompanied by an Impact Assessment setting out the costs and benefits
of the proposed intervention.
185.
Any licence and code modifications made under Section 88, as
amended by this clause, will be subject to a level of Parliamentary scrutiny
equivalent to a negative resolution procedure, which will provide additional
scrutiny of the wide-ranging modifications that will be necessary to
introduce smart meters.
186.
Any orders made under section 41HA of the Gas Act 1986 and section
56FA of the Electricity Act, as amended by this clause, will be subject to
an affirmative resolution procedure which will provide comprehensive
scrutiny of any orders containing provisions to introduce new licensable
activities into the framework of the Gas and Electricity Acts.
Energy Performance Certificates Overview
187.
The Bill will amend the current restrictions on access to energy
performance data from Energy Performance Certificates (EPCs), Display
Energy Certificates (DECs) and Air Conditioning Reports (ACRs),
available for the purposes of promoting the improved energy performance
buildings and reducing building related carbon emissions, helping to tackle
climate change. These documents, and data derived from them, are kept
on a Register kept by the Secretary of State.
52
RESTRICTED
Clause 70: Access to register of energy performance certificates etc:
England and Wales
Power conferred on:
Secretary of State
Power exercised by:
Regulations
Parliamentary procedure:
Negative resolution
188.
This clause confers on the Secretary of State a power to make
amendments to the Energy Performance of Buildings Regulations
(Certificates and Inspections) (England and Wales) Regulations 2007 (the
2007 Regulations) so that documents and data that relate to Energy
Performance Certificates, Display Energy Certificates and Air-conditioning
Reports kept on the Register are made more publicly available than is
currently permitted. The vires for the 2007 Regulations is provided by
section 2(2) of the European Communities Act 1972 (the 1972). However,
the nature of the proposed changes, to provide for more public access to
the Register, fall outside the vires provided by the 1972 Act and therefore
primary legislation is required to provide the necessary powers. The
proposed regulations may, in particular, make provision for:
 excluding a document or data, or part of a document or data, from
disclosure relating to specified description of buildings;
 restricting the number of disclosures made to specified persons;
 attaching conditions to the disclosure of data; and
 sanctions in the event such conditions are not complied with
189.
The Department believes that the flexibility to make regulations in
relation to the disclosure of data rather than specify the detail on the face
of the Bill, is appropriate as: the type and extent of data that can be
disclosed; the conditions attached to making such disclosure; and the
sanctions for non-compliance with such conditions may all change over
time.
53
RESTRICTED
190.
Use of the negative resolution procedure for the proposed regulations
is consistent with the procedure for making amendments to the 2007
Regulations under the 1972 Act.
Clause 71: Access to register of energy performance certificates etc:
Scotland
Power conferred on:
Scottish Ministers
Power exercised by:
Regulations
Parliamentary procedure:
Negative resolution
Section 71 makes provision in respect of Scotland, in relation to the 2008
Regulations, which is equivalent to that made by section 70 in respect of
England and Wales. The same points that apply in respect of clause 70 apply
in the context of this clause 71.
Information about Tariffs Overview
191.
The Bill will require that energy bills inform customers of the cheapest
tariff available from their current supplier; making it easier for customers to
take control of their energy costs.
Clause 72: Power to modify supply licence conditions: information
about tariffs and Clause 73: Power to modify supply licence conditions:
procedure and supplemental
Power conferred on:
Secretary of State
Power exercised by:
Licence modification (not by Statutory Instrument)
Parliamentary procedure: None
192.
This clause provides that the Secretary of State may modify the
conditions of electricity and gas supply licences. The power may only be
exercised for the purposes of requiring suppliers to provide their domestic
customers with information about cheaper tariffs and allows the Secretary
of State to specify how the information should be provided, for example,
on all energy bills and statements.
54
RESTRICTED
193.
Before making any modifications the Secretary of State must consult
the licensees, Ofgem and any other appropriate persons. Licence
modifications made by the Secretary of State are not always subject to
Parliamentary scrutiny. They tend to be very technical in nature and are
drafted to fit within existing complex industry licences and arrangements.
For example, the licence modifications made by the Secretary of State to
establish new electricity trading and transmission arrangements pursuant
to sections 133 and 134 of the Energy Act 2004 were not subject to any
Parliamentary scrutiny.
There are, however, some exceptions to the
general approach: for example, sections 41-42 (feed-in tariffs) and 88-89
(smart meter roll-out) of the Energy Act 2008.
194.
The Department considers that Parliamentary scrutiny of licence
modifications made through these powers is not required, since the power
is clearly defined and limited in scope to providing information about
cheaper tariffs.
PART 2 – SECURITY OF ENERGY SUPPLIES
Chapter 1 – Electricity Supply- Overview
195.
The increase in low carbon generation will cause significant changes to
the way the electricity market operates, increasing the importance of
effective monitoring of whether the market is functioning so that sufficient
capacity is made available to meet customers demand.
196.
The measures in the Bill set out the two stage process in which this
benchmark will be established. Firstly, Ofgem will report to the Secretary
of State with a number of assessments of how much capacity GB will need
in future (N. Ireland is part of a different electricity market). Secondly, the
Secretary of State will publish his assessment. The process is structured
in this way because while Ofgem have the technical expertise to carry out
the assessments, there is an element of political judgement that is more
appropriate for the Secretary of State to make.
55
RESTRICTED
Clause 75: Annual report by Gas and Electricity Markets Authority on
security of electricity supply
Powers conferred on:
Secretary of State
Powers exercised by:
Order made by statutory instrument
Parliamentary procedure:
Negative resolution
197.
This clause establishes the requirement for Ofgem to report annually to
the Secretary of State with its assessment of how much capacity GB will
need in future. . It inserts a new section 47AZ into the Electricity Act 1989.
198.
The forecast period of four years for the purposes of the forecast and
assessment made by Ofgem is provided for in subsection (3)(a) of new
section 47AZ of the Electricity Act 1989. Subsection (3)(b) allows the
Secretary of State to specify a different forecasting period by order. The
most appropriate forecast period is a trade-off between forecast accuracy
that decreases with time and the need to forecast sufficiently in advance to
enable time for the market to respond. In future, for example because of
improved forecasting techniques or changes in the type of generation we
need, either or both of these factors may change. The Department
believes that the flexibility to change the forecast period is necessary in
order to respond to such changes.
199.
The Department proposes this order should be subject to the negative
procedure as it strikes the right balance between giving Parliament
opportunity for scrutiny, whilst recognising the provision is of an
administrative nature.
Powers conferred on:
Secretary of State
Powers exercised by:
Direction
Parliamentary procedure: None
200.
Subsection (4) of new section 47ZA of the Electricity Act 1989 requires
that Ofgem’s forecast of peak demand must be expressed as a single
figure in megawatts rounded to the nearest 100 megawatts. That
56
RESTRICTED
subsection also allows the Secretary of State to direct that it must be
expressed otherwise. For example the Secretary of State may direct in
future that the forecast is expressed to the nearest 10 megawatts or to the
nearest megawatt. This flexibility will enable the Secretary of State to seek
more precise information if it proves necessary in the future to enable
accurate monitoring of security of supply depending on the circumstances
at any given time.
Powers conferred on:
Secretary of State
Powers exercised by:
Direction
Parliamentary procedure: None
201.
Subsection (7) of new section 47ZA of the Electricity Act 1989 confers
on the Secretary of State a power to give directions regarding the report.
As Ofgem’s report will form the basis of the
Secretary of State’s
assessment of capacity need he may wish for the information to be
presented in a certain way, for example to give details of the protection
provided against specific types of shortfall, or to direct Ofgem as to the
methodology they would use. A power of direction in this area ensures that
the report can be presented and prepared in a way that the Secretary of
State will find most suitable in order to make his assessment of capacity
need. It is not appropriate to specify such matters on the face of the
primary legislation. This is because it may be that the report may be
sufficient without the need for directions to made, but if such directions
are made they are likely to contain highly technical detail, and the nature
of the directions will depend upon the circumstances relating to security of
electricity supply as they exist at the time.
Clause 76: Annual report by Secretary of State on security of energy
supplies
Powers conferred on:
Secretary of State
Powers exercised by:
Order made by statutory instrument
Parliamentary procedure: Negative Resolution
57
RESTRICTED
202.
This clause inserts a requirement for the Secretary of State to make
and publish an assessment of what electricity supply capacity is required
in Great Britain. This is effected by an amendment to section 172 of the
Energy Act 2004 which requires the Secretary of State to publish an
annual report on security of energy supplies. New subsection (2C) of
section 172 (inserted by clause j063) provides for the assessment periods
that the Secretary of State’s assessment should cover. Paragraph (a) sets
this at four years, as is the case with the forecast period set out in new
section 47ZA of the Electricity Act 1989 that relates to Ofgem’s
assessment and forecast. Subsection (2C)(b) allows the Secretary of State
to vary the period by order. This would allow the report to cover the same
period as the assessment made by Ofgem were that period to be
amended by order.
203.
Again, the flexibility to change the forecast period is necessary in order
to respond to changes such as improved forecasting techniques or
changes in the type of generation needed.
204.
The Department proposes this order should be subject to the negative
procedure as it strikes the right balance between giving Parliament
opportunity for scrutiny, whilst recognising the provision is of an
administrative nature .
Chapter 2 – Gas Supply - Overview
205.
The clause seeks to enhance gas security of supply by giving the Gas
and Electricity Markets Authority the power to make modifications to
industry codes, with a view to creating financial incentives for gas
transporters and shippers, which will decrease the likelihood, severity or
duration of a gas supply emergency.
Although the codes are not
legislative in nature and are formulated by industry, they create legal
obligations (and arise out of conditions on licences to transport gas
imposed by the Authority) hence touching on the clause in this memo.
Chapter 3 – Upstream Petroleum Infrastructure - Overview
58
RESTRICTED
206.
No delegated powers.
Chapter 4 – Special Administration Regime - Overview
207.
These clauses contribute to the Government’s security of supply
commitments by ensuring that in the event of a large supplier becoming
insolvent there are arrangements in place to ensure customers continue to
be supplied with gas and electricity as cost effectively as possible until the
company in difficulty is either rescued, sold or its customers transferred to
other suppliers.
The proposal is to take enabling powers in the Bill,
followed by secondary legislation to implement the rules of a special
administration regime
Clause 90: Application of certain provisions of the Energy Act 2004 in
relation to esc administration orders
Power conferred on:
Secretary of State
Power exercisable by:
Order made by statutory instrument
Parliamentary procedure: Negative resolution
208.
Paragraph 33 of Schedule 20 to the Energy Act 2004, as applied by
clause 38, grants the Secretary of State a power to make modifications to
the provisions of Schedule B1 to the Insolvency Act 1986 which are
specified in paragraph 2 of Schedule 20 of the Energy Act 2004 (as
applied by clause 38) and to paragraphs 35 to 40 of Schedule 20 of the
Energy Act 2004 (as applied by Clause 38) in respect of non-GB
companies (defined in clause 44(1) as a company incorporated outside
Great Britain).
209.
The new special administration regime has largely been formulated
with GB-registered companies in mind, since non-GB companies do not
play a role in the relevant activities at present. Although a number of
adaptations to the special administration regime to cater for non-GB
companies have been made by Part 3 of Schedule 20 of the Energy Act
2004, as applied by clause 38, we may find that as the energy market
continues to develop non-GB companies become active in energy supply
59
RESTRICTED
and that further modifications are needed to Schedule B1to the Insolvency
Act 1986 to account for this.
210.
Although this is a Henry VIII power (i.e. secondary legislation amending
primary), it is considered that the negative resolution procedure is
appropriate for providing for what would be detailed technical changes.
Clause 91: Conduct of administration, transfer schemes etc
Power conferred on:
Lord Chancellor
Power exercisable by:
Rules made by statutory instrument
Parliamentary procedure: Negative resolution
211.
Clause 39 extends the power to make company insolvency rules
conferred by section 411 of the Insolvency Act 1986, for the purposes of
giving effect to provisions in the Energy Act 2004 relating to energy supply
administration as applied by Chapter 1 of Part 2 of the Energy Bill. Such
rules would be likely to cover procedural issues such as the quorum
required for various meetings and the detail of what constitutes service of
documents. In accordance with section 411, rules will be made, in the
case of England and Wales, by the Lord Chancellor with the concurrence
of the Secretary of State, and in the case of Scotland by the Secretary of
State.
Regulations made by the Secretary of State under a power
conferred by such rules would be made by SI and need to be laid before
each House of Parliament after being made.
212.
As with a normal administration this power is necessary to provide the
detailed procedural requirements applicable to the administration regime
which is provided for in the primary legislation. Without it the provisions in
the Bill would need to be expanded to address the very detailed issues of
procedure applicable to the various aspects of an energy administration.
213.
The negative resolution procedure is appropriate for SIs providing for
these detailed procedural matters.
60
RESTRICTED
Clause 92 – Modifications of particular or standard conditions
Power conferred on:
Secretary of State
Power exercisable by:
Modification of licence conditions
Parliamentary procedure: None
214.
Clause 40 grants the Secretary of State the power to modify the
conditions of a gas or electricity licence held by a particular person, or the
standard conditions of a particular type of electricity or gas licence. The
Secretary of State has already determined standard licence conditions for
licences issued under the Gas Act 1986 and the Electricity Act 1989.
215.
The Secretary of State may only make such modifications as are
appropriate in connection with provisions in, or made by, this Chapter, and
only after consulting the affected licence holder(s) and such other persons
as he considers appropriate. Every modification made must be published.
This power will be exercisable only in the eighteen months after the
commencement of the section. It will be used to make modifications to the
gas or electricity licence of any person to create a mechanism for the
recovery of the costs of special administration, insofar as these cannot be
met through the proceeds of sale or restructuring.
216.
This power is needed in order to allow the costs of special
administration to be recouped via the licence mechanism from the industry
and ultimately from consumers. This is in line with the Government’s view
that it is right that the costs of special administration, which will ensure that
energy supplies continue at the lowest cost which it is reasonably
practicable to incur, should be borne by the consumers who are the
beneficiaries of that policy.
Clause 94: Modifications under the Enterprise Act 2002
Power conferred on:
Secretary of State
Power exercisable by:
Order made by statutory instrument
Parliamentary procedure: Negative resolution
61
RESTRICTED
217.
The Enterprise Act 2002 made a number of changes to insolvency law,
including in particular the regime for administration. The special
administration regime introduced by the Bill has been formulated against
this background.
218.
Clause 42 provides that the power of modification or application
conferred on the Secretary of State by sections 248, 277 and 254 of the
Enterprise Act 2002 (which provide for consequential amendments and for
application of insolvency law to foreign companies) includes the power to
make such consequential modifications to this Chapter, and Chapter 3 of
the Energy Act 2004 as applied by this Chapter, as the Secretary of State
thinks appropriate in connection with any other provision made under
those sections.
219.
This power enables the Secretary of State to make consequential
modifications where the need arises because of modifications or
applications of enactments by the Enterprise Act 2002 provisions cited.
This is necessary to ensure that the current provisions do not get out of
line where the Enterprise Act 2002 provisions are used to modify or apply
enactments.
220.
While this is a Henry VIII power, it is considered that the negative
resolution procedure, which reflects the procedure applicable to the
powers under sections 248, 254 and 277 themselves, is appropriate for
these technical and consequential amendments.
Clause 95: Power to make further modifications of insolvency legislation
Power conferred on:
Secretary of State
Power exercisable by:
Order made by statutory instrument
Parliamentary Procedure: Affirmative resolution
221.
Clause 43 grants the Secretary of State the power to make such
modifications as he considers appropriate in relation to energy supply
administration to: the Insolvency Act 1986; any other enactment made
before the passage of the Energy Bill which relates to or impacts on
62
RESTRICTED
insolvency; and Part 4 of Schedule 20 to the Energy Bill.
This power
applies to any provision made by or under this Chapter, including the
provisions of Chapter 3 of the Energy Act 2004 as applied by clause 38.
This power is needed to enable modifications to be made to the insolvency
regime, insofar as it impacts on energy supply administration. There is a
need to be able to amend the detail of the regime as experience of its
application highlights any difficulties or areas of concern.
This is
particularly so as the energy market continues to develop rapidly.
222.
This is a Henry VIII power and it is considered that the affirmative
resolution procedure is justified for a power to make amendments to the
Energy Bill and other primary legislation.
Chapter 5 – Continental Shelf - Overview
223.
Under current law, once an Order has designated an area as UK
continental shelf it cannot be revoked.
This amendment allows such
Orders to be revoked, providing flexibility in managing the UK continental
shelf resource.
224.
For example, there are two small areas which were previously
designated to Ireland as Irish continental shelf.
However, being more
than 200 nautical miles from Irish baselines, these cannot form part of an
Irish Exclusive Economic Zone. As part of a comprehensive agreement
with Ireland about maritime zones, we would like to transfer those two
areas back to the UK. The UK will then in return transfer two areas of the
same dimensions to Ireland.
However, that would require us to de-
designate those areas as UK continental shelf, which the current law does
not allow. The new provisions will allow us to de-designate the two areas.
Clause 97: Revocation etc of designations under Continental Shelf Act
1964
Power conferred on:
Her Majesty in Council
Power exercisable by:
Order in Council
63
RESTRICTED
Parliamentary Procedure: None in the 1964 Act and this clause simply
amends the power in that Act.
225.
This clause extends the existing power in section 1(7) of the
Continental Shelf Act 1964 (which allows Orders in Council to be made
designating the areas to be regarded as the UK continental shelf) to
enable Orders in Council to be revoked, amended and re-enacted.
226.
The Orders made under section 1(7) of the 1964 Act are very technical
- mainly consisting of schedules listing coordinates - and the subject
matter would not be appropriate for primary legislation. The purpose of this
amendment is to enable the power in section 1(7) to be used more flexibly.
PART 3 – LOW CARBON GENERATION
Offshore Electricity - Overview
227.
The Bill seeks to amend the provisions in the Energy Act 2004 and the
Electricity Act 1989 to enable effective implementation of the offshore
electricity regime; by extending the powers for the Secretary of State to
make modifications to codes, licences and agreements, and allowing the
extension of the property transfer scheme.
Clause 98:
Offshore transmission and distribution of electricity:
extension of time for licence modifications
and property scheme
applications.
228.
Clause 98 does not contain new delegated powers. However, the
clause does affect existing delegated powers.
Under paragraph 5 of
Schedule 2A to the Electricity Act 1989 the Secretary of State has the
power to make an order (a negative resolution instrument). That order
extends the period in which Ofgem may make property transfer schemes
in relation to the appointment of offshore transmission owners. Ofgem’s
power expires in 2013 unless extended by such order until 2016.
229.
A person granted an offshore transmission licence will need to be the
owner of, or have relevant rights in respect of, the assets required to
transmit electricity generated offshore to the national grid. The power
64
RESTRICTED
available to Ofgem enables them to arrange the requisite transfers to
avoid the stranding of assets and/or delay in the connection of offshore
generation to the grid.
230.
Under this clause, the period in which the order making power may be
exercised is extended from 2016 until 2025. This is required because the
next phase of construction of offshore generation is due to begin in 2011
and may take until 2025 to complete.
Decommissioning Nuclear Sites - Overview
231.
These clauses introduce new provisions which give operators of new
nuclear
more certainty over how the Secretary of State’s powers to
propose modifications to
an approved funded decommissioning
programme may be exercised in the future. They do this by enabling the
Secretary of State to enter into an agreement, when approving a funded
decommissioning programme, with a prospective nuclear operator over
how he will exercise his powers to propose modifications to an approved
funded decommissioning programme.
Clause 99: Agreement about modifying decommissioning programme
Power conferred on:
Secretary of State
Power exercised by:
Not Applicable
Parliamentary procedure: Not Applicable
232.
This clause enables the Secretary of State, when approving a funded
decommissioning programme, to enter into an agreement setting out the
manner in which he will, or will not, exercise his power to propose a
modification to an approved funded decommissioning programme under
Section 48 of the Energy Act 2008. This clause amends the powers of the
Secretary of State under section 46 of the Energy Act 2008 for approving a
funded decommissioning programme, by enabling the Secretary of State
to agree to use his power to propose modifications under section 48 of the
Energy Act 2008 in a particular manner or within a particular period. The
clause also states that the Secretary of State may enter into such an
65
RESTRICTED
agreement notwithstanding that any such agreement fetters the discretion
of the Secretary of State. The clause also allows any such agreement to
be subsequently amended by the Secretary of State and the other party to
the agreement.
233.
Although this provision does not confer power to make delegated
legislation on another person and therefore is not strictly a legislative
power conferred by the Bill, the Department felt that the Committee should
be aware of this provision.
234.
The Department believes that this provision is necessary to allow the
Secretary of State to enter in an agreement which provides greater clarity
to the person who submits a programme over how the Secretary of State’s
power to propose a modification to
an approved programme will be
exercised, while still securing that prudent provision is made for the
technical matters (including the financing of the designated technical
matters) under a funded decommissioning programme.
PART 4 – COAL AUTHORITY
No delegated powers.
PART 5 – MISCELLANEOUS AND GENERAL
There are no delegated powers in this Part other than those relating to the
issue of commencement.
66
RESTRICTED
Annex A: Delegated Powers in the Bill
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
PART 1 – ENERGY EFFICIENCY
Chapter 1 – Green Deal
1
Green Deal Plans
Secretary of State
Order
Negative resolution
2
Green Deal Plans
Secretary of State
Order and Regulations
Negative
3
Framework Regulations
Secretary of State
Regulations and Codes of
Practice
Affirmative
resolution for
regulations, none for
Codes of Practice
4
Preliminary Conditions
Secretary of State
Regulations
Affirmative
5
Terms of Plan etc
Secretary of State
Regulations
Affirmative
resolution
6
Consents and redress etc
Secretary of State
Regulations
Affirmative
7
Installation of improvements
Secretary of State
Code of Practice and list
None
8
Confirmation of plan
Secretary of State
Regulations
Negative resolution
9
Confirmation of plan: England
and Wales
Secretary of State
Regulations
Negative resolution
10
Confirmation of plan: Scotland
Scottish Ministers
Regulations
Negative resolution
11
Updating information produced
under section 8
Secretary of State
and (where
identified) Scottish
Ministers
Regulations
Negative resolution
67
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
12
Disclosure of Green Deal Plan
etc in connection with sale or
letting out
Secretary of State
Regulations
Negative resolution
13
Acknowledgement of Green
Deal Plan on sale or letting out
Secretary of State
Regulations
Negative resolution
14
Sanctions for non-compliance
with sections 12 or 13
Secretary of State
Regulations
Affirmative
resolution
15
Power to modify energy supply
licences to require collection of
green deal payments
Secretary of State
Licence modifications (not by
Statutory Instrument)
None
16
Power to modify energy supply
licenses to make provision as
to default in green deal
payments
Secretary of State
Licence modifications (not by
Statutory Instrument)
None
17
Power to modify energy supply
licenses to require provision of
information
Secretary of State
Licence modifications (not by
Statutory Instrument)
None
18
Power to modify supply licence
conditions to make provision
as to consumer protection
Secretary of State
Licence modifications (not by
Statutory Instrument)
None
27
Power to amend the
Consumer Credit Act 1974
Secretary of State
Order
Affirmative
28
Delegation and conferring of
Secretary of State
Order
Negative resolution
and (where
identified) the
Scottish Ministers
68
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
functions
29
Duty to report
Secretary of State
Regulations
Negative resolution
30
Power of Secretary of State to
deal with special
circumstances
Secretary of State
Regulations
Affirmative
resolution
31
Appeals
Secretary of State
Regulations
Affirmative
resolution
Chapter 2 – Private Rented Sector: England and Wales
37
Power to make domestic
energy efficiency regulations:
England and Wales
Secretary of State
Regulations and order
Affirmative
resolution
(regulations) and
negative resolution
(order)
38
Further provision about
domestic energy efficiency
regulations: England and
Wales
Secretary of State
Regulations
Affirmative
resolution
39
Sanctions for the purposes of
domestic energy efficiency
regulations: England and
Wales
Secretary of State
Regulations
Affirmative
resolution
40
Power to make tenants’ energy
efficiency improvements
regulations: England and
Wales
Secretary of State
Regulations
Affirmative
resolution
69
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
41
Further provision about
tenants’ energy efficiency
improvements regulations:
England and Wales
Secretary of State
Regulations
Affirmative
resolution
42
Sanctions for the purposes of
tenants’ energy efficiency
improvements regulations:
England and Wales
Secretary of State
Regulations
Affirmative
resolution
43
Power to make non-domestic
energy efficiency regulations;
England and Wales
Secretary of State
Regulations and order
Affirmative
(regulations) and
negative (order)
44
Further provision about nondomestic energy efficiency
regulations: England and
Wales
Secretary of State
Regulations
Affirmative
resolution
45
Sanctions for the purposes of
non-domestic energy efficiency
regulations: England and
Wales
Secretary of State
Regulations
Affirmative
resolution
Chapter 3 – Private Rented Sector: Scotland
50
Power to make domestic
energy efficiency regulations:
Scotland
Scottish Ministers
Regulations and order
Affirmative
resolution
(regulations) and
negative resolution
(order)
51
Further provision about
Scottish Ministers
Regulations
Affirmative
70
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
domestic energy efficiency
regulations: Scotland
PARLIAMENTARY
PROCEDURE
resolution
52
Sanctions for the purposes of
domestic energy efficiency
regulations: Scotland
Scottish Ministers
Regulations
Affirmative
resolution
53
Power to make tenants’ energy
efficiency improvements
regulations: Scotland
Scottish Ministers
Regulations
Affirmative
resolution
54
Further provision about
tenants’ energy efficiency
improvements regulations:
Scotland
Scottish Ministers
Regulations
Affirmative
resolution
55
Sanctions for the purposes of
tenants’ energy efficiency
improvements regulations:
Scotland
Scottish Ministers
Regulations
Affirmative
resolution
56
Power to make non-domestic
energy efficiency regulations;
Scotland
Scottish Ministers
Regulations and order
Affirmative
resolution
(regulations) and
negative resolution
(order)
57
Further provision about nondomestic energy efficiency
regulations: Scotland
Scottish Ministers
Regulations
Affirmative
resolution
58
Sanctions for the purposes of
non-domestic energy efficiency
Scottish Ministers
Regulations
Affirmative
resolution
71
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
regulations: Scotland
Chapter 4 – Reducing Carbon Emissions and Home Heating Costs
61
Promotion of reductions in
carbon emissions: gas
transporters and suppliers
Secretary of State
Statutory Instrument
Affirmative
61
subsection 6
Promotion of reductions in
carbon emissions: gas
transporters and suppliers;
subsection 6
Secretary of State
Order
Negative
62
Promotion of reductions in
carbon emissions: electricity
generators, distributors and
suppliers
Secretary of State
Statutory Instrument
Affirmative
resolution
63
Promotion of reductions in
home-heating costs: gas
transporters and suppliers
Secretary of State
Statutory Instrument
Affirmative
resolution
64
Promotion of reductions in
home-heating costs: electricity
distributors and suppliers
Secretary of State
Statutory Instrument
Affirmative
resolution
65
Overall home-heating cost
reduction targets
Secretary of State
Statutory Instrument
Affirmative
resolution
66
Power of Secretary of State to
require information: carbon
emissions reduction targets
and home-heating cost
Secretary of State
Statutory Instrument
Affirmative
resolution
72
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
Secretary of State
Statutory Instrument
Affirmative
resolution
reduction targets
67
Power of Secretary of State to
transfer functions of the Gas
and Electricity Markets
Authority
Chapter 4 – Information about energy consumption, efficiency and tariffs
69
Smart Meters
Secretary of State
Licence modification (not by
Statutory Instrument) and
affirmative order.
Equivalent to
Negative Resolution
and Affirmative
Resolution
70
Access to register of energy
performance certificates etc:
England and Wales
Secretary of State
Regulations
Negative Resolution
71
Access to the register of
energy performance
certificates etc: Scotland
Scottish Ministers
Regulations
Negative Resolution
Licence modification (not by
Statutory Instrument)
None
Licence modification (not by
Statutory Instrument)
None
Order made by Statutory
Negative resolution
72
Power to modify supply licence Secretary of State
conditions: information about
tariffs
73
Power to modify supply licence Secretary of State
conditions: procedure and
supplemental
PART 2 – SECURITY OF ENERGY SUPPLIES
Chapter 1 – Electricity Supply
75
Annual report by Gas and
Electricity Markets Authority on
Secretary of State
73
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
security of electricity supply
76
Annual report by Secretary of
State on security of energy
supplies
Chapter 2 – Gas Supply
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
Instrument
Secretary of State
No delegated powers
Chapter 3 - Upstream Petroleum Infrastructure
No delegated powers
Chapter 4 – Special Administration Regime
90
Application of certain
provisions of the Energy Act
2004 in relation to esc
administration orders
Secretary of State
Order made by statutory
instrument
Negative resolution
91
Conduct of administration,
transfer schemes etc
Lord Chancellor
Rules made by Statutory
Instrument
Negative resolution
92
Modifications of particular or
standard conditions
Secretary of State
Modification of licence conditions
None
94
Modifications under the
Enterprise Act 2002
Secretary of State
Order made by statutory
instrument
Negative resolution
95
Power to make further
modifications of insolvency
legislation
Secretary of State
Order made by statutory
instrument
Affirmative
resolution
Chapter 5 – Continental Shelf
74
RESTRICTED
CLAUSE
TITLE
POWER
CONFERRED ON
POWER EXERCISEABLE BY
PARLIAMENTARY
PROCEDURE
97
Revocation etc of designation
under the Continental Shelf
Act 1964
Her Majesty in
Council
Order in Council
None in the 1964
Act and this clause
simply amends the
power in that Act
N/A
N/A
PART 3 – LOW CARBON GENERATION
Offshore Electricity
No new delegated powers, but affects existing (see text).
Nuclear Decommissioning Programmes
99
Agreement about modifying
decommissioning programme
Secretary of State
PART 4 – COAL AUTHORITY
No new delegated powers
PART 5 – MISCELLANEOUS AND GENERAL
No delegated powers
75