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Lord Kingsland: I thank the Minister for his responses. Our reason for tabling the twinned

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Amendments Nos. 180 and 186 was not that we thought that the Government were under an obligation under the convention to explain exactly how they have fulfilled the proportionality criteria.

Lord McIntosh of Haringey: I think that the noble Lord means for the authority to do so in relation to each decision. That would be the effect of the amendments.

Lord Kingsland: Or the Secretary of State. The intention is to avoid needless litigation by requiring the authority or the Secretary of State to provide sufficient information on the facts so that anybody who is concerned about a decision can be satisfied that the Government have arrived at it properly. In that respect, we are trying to be helpful to the Secretary of State and the authority. There can surely be no objection in principle to such a clause. If the Government are convinced that they have to comply with the principle of proportionality, I see no reason why they should not have to comply with the requirements of the principle in a particular set of circumstances.

Lord McIntosh of Haringey: That is what Clause 41 does. New Section 49A to the 1989 Act gives a full list of the key decisions of the authority or the Secretary of State for which reasons have to be given.

5.45 p.m.

Lord Kingsland: The giving of reasons and satisfying the principle of proportionality are two entirely different things. Someone can give reasons for a decision that is disproportionate.

Lord McIntosh of Haringey: The amendment would merely ask for a statement from the Secretary of State or the authority that the decisions are proportionate. Neither is likely to say, "These are my reasons. They are not proportionate".

Lord Kingsland: The amendment would require the Secretary of State or the authority to say in what way the decision was proportionate. They would have to set out the facts to demonstrate that the decision was not excessively penal. We may well return to that point on Report.

The Minister also talked about the range of decisions that the authority or the Secretary of State will have to make, the different circumstances in which each decision is made, and the inappropriateness of having a uniform appeals procedure for so many unpredictable events. If that is true for the appeals procedure that we propose, it must also be true for the procedure that the Government propose. With great respect to the Minister, I am not impressed by his argument. Perhaps he should have accepted that there should be a different appeals procedure to fit every decision procedure but that it should satisfy a minimum standard of review or appeal, which should reflect the fundamental principles in the European convention.

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As the noble Lord, Lord Borrie, said--this point was endorsed by the Minister--the grounds under new Section 27E(4)(a), in Clause 58, for challenging the authority's decision under the new procedures introduced by the Bill include the submission that the imposition of the penalty was not within the power of the authority under new Section 27A.

However, that does not empower the court to reopen the underlying facts of the case that gave rise to the authority's decision. Under Section 27A(1), the authority needs only to be satisfied that a contravention has occurred or is occurring. The Minister maintains that the court can look at the facts, because the authority has to impose a penalty that is reasonable in all the circumstances. In contrast, we say that that confuses two issues: the authority's power to impose a penalty and the amount of that penalty. The two alternative forms of appeal that we are putting forward would allow the court or the tribunal to review the underlying facts. In our submission, that option is not open in the procedure set out by the Government.

The Minister rightly recognised that the telecoms model, which the Opposition have tabled as one alternative, is telecom specific because the Government were obliged to introduce the procedure as a result of the European Community directive. But I should like to leave the Minister with this thought. Why is something that is considered appropriate to telecommunications as a public utility not appropriate to electricity and gas as public utilities? Is there something about the nature of decision-making in the telecoms industry which requires the rights of licensees in that industry to be so much greater than those for electricity and gas? I do not expect the Minister to respond to that now but he may wish to reflect on it.

Lord McIntosh of Haringey: I have responded to it already. I went into some detail as to what is the important issue in what is being proposed by the Opposition; namely, the extension of rights under appeal under the telecommunications appeal regulations to gas and electricity. As I said, there are different kinds of decision, different from those relating to telecommunications. The right of appeal which is provided in the Bill is appropriate to those three types of conditions. There is no less protection in the Bill than there is in the telecommunications appeal regulations. It is just that the protection is more appropriate to gas and electricity.

Lord Kingsland: I thank the noble Lord the Minister for generously providing me with that response. My thesis is that the Minister's last remark cannot be right on the face of the Bill. But we now have an extensive account of what has occurred in the debate on the amendments on the face of Hansard. In begging leave to withdraw my amendment, between now and Report stage I shall read that account and the Minister can be reasonably confident that we shall return to this matter at Report stage.

Amendment, by leave, withdrawn.

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Lord McIntosh of Haringey moved Amendment No. 182:


    Page 41, line 11, leave out from beginning to ("resulting") in line 18 and insert ("In preparing a notice under subsection (2) the Authority or the Secretary of State shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where it or he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.


(5) This section does not apply to a decision").

On Question, amendment agreed to.

[Amendments Nos. 183 and 184 not moved.]

Clause 41, as amended, agreed to.

Clause 86 [Reasons for decisions under the 1986 Act]:

Lord McIntosh of Haringey moved Amendment No. 185:


    Page 84, leave out line 23.

On Question, amendment agreed to.

[Amendment No. 186 not moved.]

Lord McIntosh of Haringey moved Amendment No. 187:


    Page 85, line 1, leave out from beginning to ("resulting") in line 8 and insert ("In preparing a notice under subsection (2) the Authority or the Secretary of State shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where it or he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.


(5) This section does not apply to a decision").

On Question, amendment agreed to.

[Amendments Nos. 188 and 189 not moved.]

Clause 86, as amended, agreed to.

Clause 42 agreed to.

Clause 87 agreed to.

Clauses 43 to 46 agreed to.

Clause 47 [Additional terms of connection]:

Baroness Buscombe moved Amendment No. 190:


    Page 50, line 11, after ("negligence") insert ("or breach of contract").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 191. These amendments concern the nature of the relationship between distributor and customer. Under the new arrangements for the supply of electricity, customers will have a direct contractual relationship with the supplier who sells them electricity but the customer's connection to the network will remain the responsibility of a distributor.

Clause 43, which amends Sections 16 and 17 of the Electricity Act 1989, places a statutory duty on distributors to make and maintain a connection to premises if required to do so by the customer or a supplier acting on the customer's behalf.

Clause 47, which amends Section 21 of the 1989 Act, permits distributors, as part of the arrangements for such a connection, to limit their liability to the customer for economic loss which arises from the distributor's negligence.

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There is one crucial issue which the DTI has, with respect, been unable to answer; namely, whether the distributor-customer relationship is entirely statutory or whether the initial statutory obligation then triggers a contractual relationship.

Amendment No. 190 asks whether the relationship between the customer and the distributor is contractual by extending the limitation of liability to loss arising from breach of contract by the distributor.

Clause 48, which substitutes a new section for Section 22 of the 1989 Act, permits customers to enter into a special agreement with a distributor under which the terms of the connection would be agreed between them outside of the statutory framework provided by Clause 43. However, unlike the present Section 22, no provision is made for the distributor to be able to compel a customer to do so.

While a distributor may agree to connect a customer only subject to certain safeguards--for example, providing security for costs--we believe that there will be some instances when the nature of the connection will impose additional burdens on the distributor, who should have the ability in such cases to require the customer to agree the terms of connection contract outside of the statutory framework. Amendment No. 191 would enable the distributor to do so where it was reasonable in all the circumstances. I beg to move.


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