HL Deb 21 June 2000 vol 614 cc402-5

Application and purpose of Part I

1.—(1) This paragraph applies to any holder of an existing supply licence under section 6(1)(c) or (2) of the 1989 Act whose activities, immediately before the passing of this Act, include both—

  1. (a) the supply of electricity to premises; and
  2. (b) the distribution of electricity for the purpose of giving a supply to premises or enabling a supply to be so given.

(2) This Part of this Schedule has effect for the purpose of enabling the existing supply licence held by such a licence holder to have effect on and after the day on which section 6(2) of the 1989 Act (as substituted by section 29 above) comes into force as if it were a distribution licence under section 6(1)(c) and a supply licence under section 6(1)(d), each granted to different persons.

(3) Those persons must be—

  1. (a) the licence holder and one of his associates nominated for the purpose of holding whichever of the licences mentioned in sub-paragraph (2) is not to be retained by the licence holder; or
  2. (b) any two associates of the licence holder nominated by him for the purpose of holding those licences.

(4) If immediately before the passing of this Act a person to whom this paragraph applies holds two or more existing supply licences, sub-paragraph (2) applies in relation to such one or more of those licences as the licence holder may, with the approval of the Secretary of State, nominate.

(5) If immediately before the passing of this Act a person to whom this paragraph applies—

  1. (a) generates electricity in pursuance of an existing generation licence; and
  2. (b) transmits electricity in pursuance of an existing transmission licence,
the provisions of this Part of this Schedule also have effect, if that person makes either or both of the nominations mentioned in sub-paragraph (6), for either or both of the purposes mentioned in sub-paragraph (6)(a) and (6)(b).

(6) Those purposes are securing that on and after the day on which section 6(2) of the 1989 Act (as substituted by section 29 above) comes into force—

  1. (a) the licence holder's existing generation licence has effect as if it were a generation licence granted to an associate of his nominated by him for the purpose; and
  2. (b) the licence holder's existing transmission licence has effect as if it were a transmission licence granted to an associate of his nominated by him for the purpose.

(7) An associate nominated for the purposes of sub-paragraph (6)(a) may not be nominated for the purposes of sub-paragraph (3)(a), (3)(b) or (6)(b).

Nominations and transfer schemes

2.—(1) Before such date as the Secretary of State may direct, a person to whom paragraph 1 applies may (subject to paragraph 3)—

  1. (a) make a nomination for the purposes of paragraph (a) of paragraph 1(3) and make a scheme for the division of all his property, rights and liabilities between himself and the associate nominated under that paragraph; or
  2. (b) make two nominations for the purposes of paragraph (b) of paragraph 1(3) and make a scheme for the division of all his property, rights and liabilities between himself and the associates so nominated;
and in this Part of this Schedule the person who makes such a scheme is referred to as "the supplier".

(2) A scheme under sub-paragraph (1) (referred to in this Part of this Schedule as "a transfer scheme") may—

  1. (a) define the property, rights and liabilities to be allocated to a nominated associate—
    1. (i) by specifying or describing the property, rights and liabilities in question;
    2. (ii) by referring to all (or all but as much as may be excepted) of the property, rights and liabilities comprised in a specified part of the supplier's undertaking; or
    3. (iii) partly in the one way and partly in the other;
  2. (b) provide that any rights or liabilities specified or described in the scheme shall be enforceable either by or against any one or more of the persons between whom the supplier's property, rights and liabilities are being divided;
  3. (c) impose on any of those persons an obligation to enter into such written agreements with, or execute such other instruments in favour of the other such person or, where sub-paragraph (1)(b) applies, either or both of the other such persons as may be specified in the scheme; and
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  4. (d) make such supplemental, incidental and consequential provision as the supplier considers appropriate.

(3) Without prejudice to the generality of sub-paragraph (2)(d), a transfer scheme may, in relation to transfers or transactions effected in pursuance of the scheme, make provision, either generally or for specified purposes—

  1. (a) for the transfers or transactions to be regarded as taking place in a specified order; and
  2. (b) for the nominated associate or, where sub-paragraph (1)(b) applies, either or both of the nominated associates to be treated as the same person in law as the supplier.

(4) An obligation imposed by a provision included in a transfer scheme by virtue of sub-paragraph (2)(c) shall he enforceable by civil proceedings by the person or persons to whom it is owed for an injunction or for interdict or for any other appropriate relief or remedy.

(5) A transaction of any description which is effected in pursuance of a provision included in a transfer scheme by virtue of sub-paragraph (2)(c)—

  1. (a) shall have effect subject to any statutory requirements for transactions of that description to be registered in any statutory register; but
  2. (b) subject to that, shall be binding on all other persons, notwithstanding that it would, apart from this sub-paragraph, have required the consent or concurrence of any other person.

In this sub-paragraph "statutory requirements" means requirements imposed by or under any Act or any Act of the Scottish Parliament.

(6) Where a lease of any land is granted in pursuance of a provision included in a transfer scheme by virtue of sub-paragraph (2)(c), any right of pre-emption or other like right affecting that land—

  1. (a) shall not become exercisable by reason of the grant of the lease; but
  2. (b) shall have effect as if the lessee were the same person in law as the lessor.

3.—(1) If the supplier is a supplier to whom paragraph 1(5) applies, he may, before such date as the Secretary of State may direct—

  1. (a) make such nomination or nominations as he thinks fit for either or both of the purposes mentioned in paragraph 1(6); and
  2. (b) include the associate or associates so nominated among the persons between whom his property, rights and liabilities may be divided by the transfer scheme.

(2) Paragraph 2 applies to a transfer scheme dividing property, rights and liabilities between persons including persons nominated for the purposes of paragraph 1(6) with the substitution—

  1. (a) in sub-paragraph (2)(c) for the words from "the other such" to "both"; and
  2. (b) in sub-paragraph (3)(b) for the words from "the" (in the first place it appears) to "both",
of the words "any one or more".

4. The Secretary of State may, on the application of a person to whom this paragraph applies, direct that paragraphs I and 2 are to apply to his existing supply licence (or such of his existing supply licences as may be nominated under paragraph 1 (4)) as if—

  1. (a) in paragraph 1(2) for "a distribution licence" there were substituted "two distribution licences"
  2. (b) in paragraph 1(3) for "one" there were substituted "two" and for "two" there were substituted "three";
  3. (c) in paragraph 2(1)(a) for "a nomination" and "associate" there were substituted respectively "two nominations" and "associates"; and
  4. (d) in paragraph 2(1)(6) for "two" there were substituted "three".

Secretary of State's powers in relation to transfer schemes

4A.—(1) A transfer scheme shall not take effect unless it is approved by the Secretary of State.

(2) The Secretary of State may if he thinks fit, before approving a transfer scheme, make such modifications of the scheme as he considers appropriate for the purpose of securing that the scheme makes only such provision as he considers to be requisite or expedient for the purposes of this Part of this Schedule.

(3) The powers of the Secretary of State under this paragraph may in particular be exercised with a view to ensuring that a proposed transfer scheme does not operate against the public interest.

(4) It shall be the duty of the supplier to provide the Secretary of State with all such information and other assistance as he may require for the purposes of or in connection with the exercise of any function conferred on him by sub-paragraph (1) and (2).

Effect of transfer scheme

4B.—(1)Subject to the provisions of paragraph 4E, on the effective date for a transfer scheme, all property, rights and liabilities—

  1. (a) to which immediately before that day the supplier was entitled or subject; and
  2. (b) which are allocated to a nominated associate by the transfer scheme,
shall become by virtue of this paragraph property, rights and liabilities of that associate.

(2) For the purposes of this Part of this Schedule, the "effective date", in relation to a transfer scheme, is the day on which section 6(2) of the 1989 Act (as substituted by section 29 above) comes into force or such earlier day as the Secretary of State may direct for the purposes of the scheme.