§ 6.57 p.m.
§ Lord Cochrane of CultsMy Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Cochrane of Cults.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE VISCOUNT OF OXFUIRD in the Chair.]
§ Clause 1 [Prohibition on unauthorised supply]:
§ Lord Cochrane of Cults moved Amendment No. 1:
§ Leave out Clause 1 and insert the following new clause:
§ Prohibition on unauthorised supply: exception and exemptions
§ For section 5 of the Gas Act 1986 there shall be substituted the following section—
§ "Prohibition on unauthorised supply.
- 5.— (1) Subject to subsections (2) and (3) and sections 6 and 6A below, a person who supplies gas through pipes to any premises shall be guilty of an offence unless he is authorised to do so under section 7 or 8 below.
- (2) Subsection (1) above is not contravened by a person supplying, for use in a building or part of a building in which he has an interest, gas supplied to the building by a person authorised to supply it by or under section 6, 6A, 7 or 8 below.
- (3) Subsection (1) above is not contravened by a person supplying to any premises gas which consists wholly or mainly of propane or butane if—
- (a) the contract for the supply contains provisions empowering a person authorised by the supplier to enter the premises where in his opinion it is necessary to do so for the purpose of averting danger to life or property; and
- (b) those provisions are in terms approved for the purposes of this subsection by the Secretary of State.
- (4) A person guilty of an offence under this section shall be liable—
- (a) on summary conviction to a fine not exceeding the statutory maximum;
- (b) on conviction on indictment, to a fine.
- (5) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or the Director."").
§ The noble Lord said: With permission I shall say a few words before I formally move the amendment. This Bill was read a second time on 8th July. The Committee stage was therefore caught by the unusually long and early Summer Recess.
§ First, I should declare an interest. I am chairman of a small private company which is authorised to supply gas under the terms of Section 8 of the Gas Act 1986. That supply of gas is, at under 2 per cent. of our turnover, incidental to our main business which is a caravan holiday park.
§ Former Clause 1 of the Bill has been divided and, with some changes which I shall explain shortly, has become new Sections 5 and 6A of the Gas Act. Those changes are before the Committee as Amendments Nos. 1 and 3, to which I shall return later. This amendment stands in my name and that of the noble Lord, Lord Ezra, who regrets that unfortunately he is unable to be present tonight. We are therefore deprived of his wise counsel.
§
I venture to remind Members of the Committee that my Bill as it stands replaces Section 5 of the Gas Act 1986 with a new clause. The amendment makes a further alteration at subsection 5(3) which provides that the supplier of propane and butane must have power to enter the premises supplied if:
in his opinion it is necessary to do so for the purpose of averting danger to life or property".
That power to enter will be drawn from a specified condition in the gas supply contract—that is, the contract between the supplier of the gas and the user of the gas.
§ This provision replaces condition 4(b) in the Ofgas authorisation granted to suppliers under Section 8. However, the wording is taken from the Gas Act at Section 18(c). That condition in turn is based on Section 4(c) and Schedule 5, paragraphs 13 and 14 to the same Act, read together.
§ This new power is required because the exemption of the supplies means that the power so derived needs replacing. These changes fill that need. Subsection 5(3) (b) of the amendment provides for the contract term by means of a clause or clauses approved by the Secretary of State for the purpose of the preceding subsection. That procedure is often referred to as using model clauses. I beg to move.
§ 7 p.m.
§ Lord Skelmersdale moved, as an amendment to Amendment No. 1, Amendment No. 2:
§
Line 12, at end insert:
("()) It shall be a condition precedent to the lawful exercise of an exemption granted under subsection (2) above that the exempted person shall provide the Health and Safety Executive not less than eight weeks' notice of any premises to be so supplied;").
§ The noble Lord said: It is a long time since the Second Reading of the Bill and a great deal of water has passed under the bridge. Not only has my noble friend been busy with—I am not quite sure what—perhaps his word processors but my noble friend the 679 Minister has consolidated her hold on the Department of Trade and Industry. I must now declare an interest as a consultant to British Gas.
§ Members of the Committee will be grateful to my noble friend for his brief summary of the activities which took place on the word processor to which I have referred. He has split his original Clause 1 into two new clauses, the second of which is the subject of Amendment No. 3. The way in which that has been done is eminently suitable.
§
However, we need to know a little about subsection (3) (b); namely, that the provisions in the model clauses are in terms approved for the purposes of this subsection by the Secretary of State. The Committee will recall that on Second Reading it was agreed by all speakers that safety should be the main issue as regards this part of the Bill. My noble friend Lady Denton said:
it is important to emphasise that, in deregulating this aspect, there will be no diminution in safety standards. Safety will remain of paramount importance".—[Official Report, 8/7/92; col. 1240.]
We were told that all would be well because the Health and Safety Executive would be in charge of that aspect. That is all well and good as far as it goes but I believe there is a problem. How, unless it is told, is the executive to know that a potential or existing supplier has supplied or intends to supply propane or butane gas? Presumably that will be one of the conditions referred to in my noble friend's provision in subsection (3) (b), to which I have referred. With the best will in the world, unless the executive is told it will not be able to investigate systems which clearly by definition they do not know about.
§ We know that the Bill cannot come into effect before the new health and safety regulations are in place. It would be useful if my noble friend could tell us the current state of play and confirm whether a draft has been circulated for comment. Indeed, will there be a second set of regulations on the subject of entry under the Health and Safety at Work Act?
§ It has been suggested to me that my amendment would be better placed at the end of line 23—that is, at the bottom of page 1 on the Marshalled List. That is quite likely the case. That said, however, I should be more that satisfied if the provisions to be approved by the Secretary of State under subsection (3) (b) included the concept embodied in my amendment. I beg to move.
§ Baroness Denton of WakefieldI assure my noble friend that we believe that the conditions for notification are perfectly adequate and do not need another layer of bureaucracy. Under Section 2 of the Pipe-lines Act 1962, caravan site owners wishing to construct a pipeline system to their properties must submit a notification to the DTI four weeks before construction is due to commence. That is then notified to the Health and Safety Executive to decide whether it can issue a safety notice.
The Health and Safety Executive plans to issue consultative documents in 1993, which I am delighted to say is not too far away. It hopes that during that year it will be able to bring the matter forward.
§ Lord SkelmersdaleI am grateful to my noble friend. It is a pity that during Second Reading that we were unable to appreciate that the Pipe-lines Act 1962 would govern the propane suppliers. We could have saved time tonight but that was not to be. I hope that my noble friend has no hard feelings about my moving the amendment which I now beg leave to withdraw.
§ Amendment to the amendment, by leave, withdrawn.
§ Amendment No. 1 agreed to.
§ Lord Cochrane of Cults moved Amendment No. 3:
§ After Clause 1, insert the following new clause:
§
Exemptions from prohibition on unauthorised supply
(" . After section 6 of the Gas Act 1986 there shall be inserted the following section—
"Exemptions from section 5.
6A.—
and an exemption granted to persons of a particular class shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of that class.
§ The noble Lord said: The amendment replaces Sections 5(4) and (5) of the Bill as it stood after Second Reading. It inserts a new section 6A into the Gas Act to allow the Secretary of State to grant further exemption (at his discretion) from Section 5 of the Gas Act. That reflects similar terms in the later Electricity Act 1989 and will avoid the need for certain gas suppliers, which in this context may well mean producers and manufacturers of gas, to be authorised under Section 8.
§ Typically, such exemptions could be sought for landfill gas, pithead gas from coal mines, by-product gas and even perhaps in the future that foundation of the gas industry, which I mentioned briefly on Second Reading, coal gas. It is now in eclipse but I am sure that it will shine again one day. Among the effects of Section 8 is the discovery that the Visiting Forces Act does not allow them to distribute gas and the US Air Force is now a registered gas supplier. If they distribute propane, they will be exempt under the earlier subsection with which we have dealt. If they distribute another gas, Section 6A could be applicable.
§ Clearly, Section 6A(2) (a) will be of great use where supply is by several persons in similar circumstances, whereas Section 6A(2) (b) will apply in unique or original circumstances. The rest of the section deals with publishing class exemptions suitably and with the duration, if required, of the exemptions. I beg to move.
§ Lord Skelmersdale moved, as an amendment to Amendment No. 3, Amendment No. 4:
§
At end insert:
681
("() Subsection (1) above shall not apply to natural gas got in pursuance of a licence under the Petroleum Production Act 1934 (including a licence under that Act as applied by section 1(3) of the Continental Shelf Act 1964;").
§ The noble Lord said: On Second Reading, and again today, my noble friend made it quite clear that there are to be three distinct sections of the Gas Act 1986: one dealing with propane and butane, which under this Bill are to be deregulated; one dealing with North Sea gas; and one, which is the subject of Amendment No. 3, dealing with any other sort of gas that one might possibly think of, not only coal gas but also methane from landfill sites and so on.
§ We all know that but anybody reading the amended Gas Act in the future will not know. I believe that it would be at the very least helpful to future readers if it could be made quite clear if the new clause after Clause 1 embodied in Amendment No. 3, were to state quite firmly that it did not apply to North Sea gas.
§ I have lifted that phrase from Section 29(11) of the 1972 Act, which I am sure is now out of date. Therefore, if my idea of clarity is to be adopted, I have no doubt that the words of the amendment are wrong. However, that does not detract from the force of my argument. I beg to move.
§ Lord Williams of ElvelWe are debating the amendment moved by the noble Lord, Lord Skelmersdale, to the amendment moved by the noble Lord, Lord Cochrane of Cults. I have great difficulty in understanding what Amendment No. 3 means. Subsection (3) states:
An exemption, unless previously revoked in accordance with any term contained in the exemption, shall continue in force for such a period as may be specified in or determined by or under the exemption".I do not understand the word "previously". I could understand that there may well be an exemption which is specified and there may be a violation of the terms of the exemption. However, that is not "previous". I do not understand the drafting and perhaps the noble Lord will help me on that.
§ Lord Cochrane of CultsI shall do my best to answer that question. The amendment certainly makes sense to me. It merely states that an exemption will continue in force for such a period as may be specified unless previously revoked.
§ Lord Williams of ElvelWhat is the use of word "previously"?
§ Lord Cochrane of CultsThis is not a field in which I have any expertise. It may assist the noble Lord if I suggest that we may be looking for the word "already".
§ Lord Williams of ElvelI suggest that the noble Lord might leave out the word "previously" from his amendment because that is causing the problem. It cannot be "previously" revoked. That is absurd.
§ Lord SkelmersdaleBefore we pursue this argument further, it may be helpful to the Committee if we hear from my noble friend on the Front Bench.
§ 7.15 p.m.
§ Baroness Denton of WakefieldPerhaps my noble friend will look at the point raised by the noble Lord, Lord Williams of Elvel, and consider the matter before Report stage.
The proposed new Section 6A of the Gas Act is designed to provide power for the Secretary of State to alleviate future problems akin to the problem here without the necessity of troubling Parliament with primary legislation as and when any new problems emerge at the margins of Section 8 of the Gas Act. The amendment attempts to improve and tidy matters so that it will not then be necessary to take up the time of Parliament.
On Second Reading I assured my noble friend Lord Skelmersdale that we had no plans to utilise such powers. Since Second Reading the chairman of British Gas has approached my right honourable friend the President of the Board of Trade for an assurance that the Government do not intend to use that power to grab wide-ranging exemptions which would frustrate the purpose of Section 8 of the Gas Act and undermine the position of British Gas which it enjoys by virtue of that section. My right honourable friend has assured the chairman that we do not intend to use that power in that way and I freely repeat that assurance today.
I join my noble friend Lord Cochrane in urging the Committee to resist Amendment No. 4. While the amendment may cover potential problems—for example, as regards landfill gas and coke oven gas—it does not recognise that energy is a changing field and that more technology will create more answers.
§ Lord SkelmersdaleI am grateful for that answer but I am not sure that I totally understand it. It is fair enough to say that my right honourable friend has written to the chairman of British Gas saying that there is no intention to invalidate Section 8 by the use of new Section 6A. I understand that point. However, my noble friend goes on to say that she does not know by what methods gas will be produced in the future; nor does anyone else. The object of my amendment is to ensure that Section 6A could not be used for what is loosely and colloquially described as North Sea gas. I do not believe my noble friend answered that point.
§ Lord Williams of ElvelI shall try to reinforce the argument of the noble Lord, Lord Skelmersdale. It is all very well for Ministers to give assurances from the Dispatch Box and to say that the Secretary of State has no intention of doing this or that. However, that carries absolutely no force in law. The noble Lord, Lord Skelmersdale, argues that, if that is the Government's position, why should it not be written on the face of the Bill?
§ Baroness Denton of WakefieldI remind the noble Lord and my noble friends that I am trying to be helpful. I am trying to be helpful on behalf of the Government. This Bill aims to tidy up the situation as regards the supply of gas to caravan sites and similar operations. It is not a Bill to change energy policy. It is simply that methods of supplying the sites have changed from bottles to pipeline and we should 683 recognise that and take away the bureaucracy of applying for a licence every single time. It is difficult to be absolutely certain that a mix of gas does not include some source or other. We believe that the flexibility here will be to the benefit of users on sites. That is what my noble friend Lord Cochrane is trying to achieve. That is the situation.
§ Lord Cochrane of CultsPerhaps I may explain further. My noble friend Lord Skelmersdale has suggested that a restriction should be placed upon the origin of gas coming into the country. However, he proposes to apply that restriction at the point of use of the gas; that is, as downstream gas. I made careful inquiries yesterday and was told that, for example, propane or butane originates from at least two distinct sources. It arrives in its natural state as associated gases with a flow of oil or gas from an oil field or gas field. It is also a by-product of oil from oil refineries or similar undertakings. The oil used could have come from anywhere. Therefore, downstream it is impossible to say whether it came from the northern, southern, eastern or western hemisphere. There can be no knowledge of where it came from. That causes considerable problems in dealing with it as my noble friend Lord Skelmersdale suggests. I have a measure of sympathy with his proposals but, for the reasons I have outlined, the method appears to be wholly impractical.
§ Lord SkelmersdaleThis is not the first time that I have been damned with faint praise in your Lordships' House, but that is certainly the case today. I am grateful to my noble friend Lord Cochrane for saying that he thinks that there may be a need to distinguish between the three future sections of the Gas Act 1986, but clearly we cannot go any further on this distinguishing feature tonight. Perhaps we had better leave it for another occasion. I therefore beg leave to withdraw my amendment.
§ Amendment to the amendment, by leave, withdrawn.
§ On Question, Amendment No. 3 agreed to.
§ Clause 1 agreed to.
§ Clause 2 [Keeping of register]:
§ Lord Cochrane of Cults moved Amendment No. 5:
§
Leave out Clause 2 and insert the following new clause:
Keeping of register
(". In section 36 of the Gas Act 1986 (keeping of register), for subsections (1) and (2) there shall be substituted the following subsections
§ The noble Lord said: This amendment stands in my name and that of the noble Lord, Lord Ezra. This clause replaces Clause 2 with a new clause which makes the necessary alterations to accommodate the new Section 6A, about which I spoke earlier. This is a consequential amendment caused by earlier changes. I beg to move.
§ Lord SkelmersdalePerhaps it would be appropriate for me to ask a simple question. My noble friend will move Amendment No. 8 to the Title of the Bill which is to:
Leave out('sections 5 and 36') and insert ('section 5')".However, the amendment which we are now discussing is an amendment to Section 36 of the Gas Act 1986. Why then in the Title does my noble friend need to leave out Section 36?
§ Lord Cochrane of CultsI understand the reason for it, because I asked the same question. The reason is that it does not replace the whole of Section 36 of the Gas Act; therefore reference to it is not required. I trust that that answer is satisfactory.
§ Lord SkelmersdaleI am sure that it is right and I am grateful to my noble friend.
§ On Question, amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Short title, commencement and extent]:
§ Lord Cochrane of Cults moved Amendment No. 6:
§ Page 3, line 3, after first ("may") insert ("by order made by statutory instrument").
§ The noble Lord said: This amendment provides for the Secretary of State to make commencement orders for different parts of the Act on different dates. It is a usual provision in legislation of this kind and is the same as in Section 68(5) of the Gas Act 1986. I beg to move.
§ Lord Williams of ElvelI do not wish to oppose the amendment, but has it gone through the Delegated Powers Scrutiny Committee of this House which has recently been set up?
§ Lord Cochrane of CultsI have not the slightest idea. It may be that I have a let-out on the basis that this Bill was commenced before the committee was established. However, it is a new idea to me and I fear I was not present in your Lordships' House on the day when this new idea saw the light; otherwise I should undoubtedly have made suitable inquiries. I regret that I am unable to assist the noble Lord.
§ Baroness Denton of WakefieldPerhaps I may be of assistance to the noble Lord. I understand that the committee does not yet have a membership, therefore it would have been impossible to put the amendment to it.
§ On Question, amendment agreed to.
§ Lord Skehnersdale moved Amendment No. 7:
685
§
Page 3, line 4, at end insert:
("() The first order made under section 6A of the Gas Act 1986 shall be made by statutory instrument and no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament; subsequent orders shall be made by statutory instrument subject to annulment.").
§ The noble Lord said: I must apologise for putting down a rather complicated amendment to the Bill. However, it gives me the opportunity of drawing to the Committee's attention a subject which I believe is long overdue. The problem is that during any Parliamentary Session, time has to be allocated for the debate of affirmative instruments in which no parliamentarian has any longer any interest whatever. For all I know, my noble friend may have experienced debating one of these with the noble Lord, Lord Williams, in recent months. The noble Lord, Lord Williams, has certainly spoken so briefly that he might not have spoken on various orders during the time that he has been the shadow spokesman in your Lordships' House for the Department of Trade and Industry, because I have watched him do it.
§ That said, the issue often in question was topical at the time when the parent Bill was being debated, but over time this topicality has waned. I used to think that it would be sensible to have a quinquennial Act downgrading affirmative instruments to negative ones, but it has been pointed out to me, quite rightly, that no one would agree on which orders should continue to be affirmative and which orders should not.
§ That means that Parliament should be able to decide, during debates on a particular Bill, whether it wants affirmative or negative instruments for all time or whether, after a decent interval, the instrument can be debated only if an individual parliamentarian so wishes.
§ In the case of this Bill, the issue of the first Secretary of State's exemption under the new Section 5(3) would, I believe, be of great interest in the consumer, the safety and the gas worlds and must be debated the first time round. Any orders made after that would, I believe, be of considerably less interest and would probably need to be debated only if there were significant changes in the conditions attached to the exemption. I am sure that if that were the case, even if parliamentarians were not self-motivated, there would be plenty of advisers to tip them off and to get a particular subject debated.
§ It is a little unfair to spring this amendment on my noble friend. Nonetheless, she is speaking for the Government and before I pursue it with the committee that the noble Lord, Lord Williams, has just spoken about, I should like to hear the Government's view on it as a concept. I beg to move.
§ Lord Williams of ElvelI am sorry that the noble Lord, Lord Skelmersdale, feels that I have not given proper attention to orders which are placed before your Lordships' House. I hope that I scrutinise them with my usual diligence and ask questions. I should like the noble Lord, Lord Skelmersdale, to listen to my argument before intervening. The problem is that it is difficult—and I use the word advisedly—to amend orders. We can have a debate; we can say what we feel about an order, but unless the Government—if it is a 686 government order—withdraws the order and decides to amend it on the basis of the argument, it is difficult to move amendments.
There is a self-denying ordinance on behalf of the Opposition and, I think, the other Opposition party, on voting against orders on affirmative procedure. Under those circumstances, I have always taken the view that when orders come to our House under the affirmative procedure they should be analysed and properly debated; nevertheless there is not much one can do about them when they happen. So we can do the same thing under a prayer for annulment against a negative instrument procedure. I do not think that the argument of the noble Lord, Lord Skelmersdale, is entirely justified.
§ 7.30 p.m.
§ Lord Cochrane of CultsWhile as a Back-Bencher I have a measure of sympathy with the suggestion of my noble friend Lord Skelmersdale, I do not think it is practical. It creates that dreadful thing called a precedent. The Committee will know that a Private Member's Bill is at the best of times a frail ship. It depends on a fair wind from the Government and not annoying this person or that who may know a great deal more about the matter than oneself. One then has to recruit enough of one's friends to make the subject look as though a great many people believe in it.
The affirmative resolution procedure is normally used where a charge or a cost is involved to those affected. In this case the words used have been cribbed from the Electricity Act 1989
§ Lord Williams of ElvelI am sorry to interrupt the noble Lord. Unless I heard him wrongly, he seemed to be saying that the affirmative procedure was used only when there was some kind of cost involved. That is not my experience. Can he justify what he has just said?
§ Lord Cochrane of CultsPerhaps I omitted the words "quite usually". I am sure that anybody with experience of Whitehall street fighting will realise that it would not require much thought among officials to devise a first statutory order of impenetrable boredom and minimal importance. One could easily be moved to be adopted for this Bill. Therefore, I feel that it would perhaps overload this frail ship. Accordingly I hope that my noble friend will see his way not to press the amendment.
§ Baroness Denton of WakefieldPerhaps I may express the Government's view on this matter. I assure the noble Lord, Lord Williams—although I doubt that he needs it—that in the very limited time in which I have been a DTI Minister I have never doubted that he scrutinises everything which we are about to discuss. His questions indicate that he does that more than well.
My noble friend Lord Skelmersdale and the noble Lord, Lord Williams, have much more experience in this Chamber than I have. My noble friend may well be right that there are occasions when debates on consumer matters and safety are important. As consumer affairs Minister I would always welcome debates on the issue. However, I believe that this Bill 687 is not the vehicle for it. As the noble Lord said, it is possible to pray against negative resolutions. As my noble friend Lord Cochrane said, it is unlikely that the first amendment will be a major matter and will just be a very straightforward regulation which would not be something on which to waste the time of the Committee. That would be our view.
§ Lord SkelmersdaleI never expected to get the noble Lord, Lord Williams of Elvel, smarting quite so loudly. I never accused him of not studying instruments which are to be debated in this Chamber before speaking. I suggested that, having so studied them, his speech could on occasions be only three lines long, or whatever.
§ Lord Williams of ElvelI do not believe in wasting your Lordships' time.
§ Lord SkelmersdaleI am surely relieved to hear it, as will be other members of the Committee around the Chamber this evening, and perhaps wider than that. Nonetheless, I fully accept that this Bill may be the wrong place in which to pursue my particular proposal. But over time this is an issue which is not going to go away and should be referred to your Lordships' new Scrutiny Committee. I have referred the matter to various Members of the Procedure Committee over the years in various ways, to which answer has there come none.
I believe that the work of Parliament is beginning to get very clogged up. Unless we spend longer hours at the work of Parliament, then some measure such as that which I have suggested in this amendment will have to come sooner or later. Having said that, I take to heart the words of my two noble friends that the matter is not appropriate for this Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ In the Title:
§ Lord Cochrane of Cults moved Amendment No. 8:
§ Leave out ("sections 5 and 36") and insert ("section 5").
§ The noble Lord said: This is the last amendment in tonight's proceedings. Before I finish, I would like to thank noble Lords for their support of this frail ship. I hope that the forces of inertia do not pull the bath plug out on it and that it then gurgles away down into a dusty box labelled "a good idea but …". I beg to move.
§ On Question, amendment agreed to.
§ Title, as amended, agreed to.
§ House resumed, Bill reported with amendments.