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Baroness Miller of Hendon moved, as an amendment to Amendment No. 106EC, Amendment No. 106ECA:
- Line 22, leave out "in such manner as the Secretary of State considers appropriate" and insert—
The noble Baroness said: Before I move my amendment, perhaps I may say to the Minister that the way in which the amendments are numbered, with ZAAs and so forth, is a nightmare and makes it difficult for us to find our place. What makes it even more difficult is that on the groupings list the letter "g" has been included. However, that is not part of the amendment number, as the Minister will see from the Marshalled List. He referred to the amendments as including the letter "g", but that is not necessary. I say that only because it is confusing enough, and when we start looking for the letter "g", we do not find it. I might even suggest to those in the Whips' Office who prepared the Marshalled List that including the letter "g" is less than helpful.
In moving Amendment No. 106ECA, as an amendment to government Amendment No. 106EC, I shall speak also to my Amendment No. 106EDA, which is an amendment to government Amendment No. 106ED. Both of those amendments introduce a new clause to the Bill. With the leave of the Committee, I would also like to speak to Amendments Nos. 115, 117, 120, 124 and 130. They make exactly the same point that I am making in those two amendments. It will be easier for the Committee if I speak to them now, rather than come back and repeat myself later. If I may, I will also speak later to Amendment No. 106EF, which is an amendment to the government Amendment No. 106EE, which the Minister has also spoken to in this group. The further five amendments are to Clauses 106, 109, 118, 122 and 140. Those are the amendments that I just said that I would group with them, with the leave of the Committee. All have the same effect as the amendment to the two proposed new clauses.
Each of the clauses relates to the modification of energy trading and transmission licence conditions, or creating new standard transmission licence conditions,
There is no real, major objection—although there may be some around the edges—to what is a necessary administrative process, as the noble Lord outlined. However, the Government seem to have a penchant for trying to give Secretaries of State carte blanche to take major administrative steps in any way they choose by passing the normal democratic processes of publicity. That will not do. If there are things that we are generally going to accept, but we leave it to the Government, we cannot give them carte blanche to deal with them in any way they like.
I remind the Committee—with some pride, because I won—of a battle that I had with the Government over provisions in the Employment Act 2002, which enabled the Secretary of State to amend that Act, either by primary or secondary legislation, or otherwise. That is fine—primary or secondary legislation—but the word "otherwise" is extremely worrying. It took an attempted amendment at each stage, and finally the interventions of two noble and learned Law Lords, before the Minister at the end gave in and thought it was not correct. They are sort of at it again.
Noble Lords might remember that only yesterday when we were discussing Clause 75(7), we discussed first exploitation and then exploration. The rest of that sentence says:
As drafted, the clauses could mean that the Secretary of State could publicise the terms or variations of licences by a classified advertisement in the Beano, or putting it on a lamp-post in the Outer Hebrides. The Committee may think that that is extremely fanciful, but it might be interested to know of a recent case where the courts held that notice of a planning application for a radio mast was validly given, even though it was posted far too far from the road for it to be read by any passer-by. It was impossible for anyone to read it, but it was considered to be OK. I only wish that I could give the Committee the name of the case; I have searched but I have not yet found it. However, I hope that by the end of the passage of this Energy Bill, which seems to be going on forever, I will have found that name. I notice that the Minister raised his eyebrows; perhaps he does not feel quite so concerned about the matter as we do.
The absurdity is that, in the terms of the clauses as drafted, the Secretary of State need not even specifically or directly tell the licensee about the variation of the licence. Instead, he could leave it to him to find out for himself that the licence had been varied and the terms of the variation. The licences referred to in the clauses are not merely valuable commercial rights; they impose duties on the licensee and probably create rights for the consumers of gas and electricity. Details of those must be in the public domain and, one hopes, in the sight of vigilant members of both Houses of Parliament and the local and national media.
The terms of my amendments are identical. They remove from the Secretary of State the power to publish licence details merely in any way that he considers appropriate, including in any obscure or secretive way he thinks appropriate. Perhaps the Secretary of State is taking to heart the Latin root of the word "secretary"—secretarius, meaning "secret".
In place of the potential obscurity that the Secretary of State wants to impose on the licensing process, I propose two very simple changes. First, the Secretary of State must notify all licensees in writing of the terms of their licences and any changes in those terms. Secondly, he must publish details of the conditions,
The amendments would not in any way detract from the licensing powers of the Secretary of State; they do not impose in any way an administrative burden on the Secretary of State. There are several agencies which, for a modest fee and in response to a simple letter, would see to everything, if there is no in-house agency in the department—although I suspect that there probably is. The amendments would not add to the cost for the taxpayer, as the expense would be met by the licensee. The amendment would support what the party opposite claims as one of its objectives—which is why I think it will like the amendments. It supports open government, which is a very important thing.
Amendment No. 106EF would amend Amendment No. 106EE, to which the Minister spoke. As he explained, the Government propose to introduce a whole new clause providing for competitive tendering for what, we may assume, would be lucrative off-shore transmission licences. There is clearly no objection to an obviously necessary concept, although I have to ask why the Government have only just thought about that two months after the publication of the Bill and long after the Bill was first mooted. However, there is one area in which the tendering process is deficient: it does not stipulate the most important feature of the tendering process, namely its publication to prospective interested parties. Despite the details of the tendering procedure set out in subsection (2), that essential ingredient is omitted.
Over the past few years, the Chamber and Committees have rung with government pledges about openness and with the buzzword, "transparency". Let me say at once that I do not for one moment suggest that the authority now or in future would act in any way other than with the utmost integrity. I am also prepared to assume, as it is nearly always so, that it will act with utmost good faith. In fact, I would say that that was always so. However, circumstances could arise in which, for some reason of expediency or others, it could be necessary—because the authority did not have the necessary time or ability, or whatever—to grant a licence without the fullest implementation of normal commercial tendering procedure, which means advertising the offer to the widest possible audience. Furthermore, circumstances could arise in which, in what might be called an executive decision, the authority decided that the competitive process called for under subsection (1), and the procedure needed to be curtailed without, of course, breaching the procedure laid down in subsection (2).
I say at once, in anticipation of what I believe the Minister will say, that I acknowledge, as I have already done, that it is quite likely—even probable or, if the Minister insists, certain—that the tendering process will be carried out with absolute probity. I am also aware that the licences may be subject to rules laid down in Brussels. Nevertheless, there is a legal maxim that, if justice is to be done, it definitely—certainly—needs to be seen to be done. By analogy, if tendering is a form of open competition, it must be seen to be open. That means that it should be seen to be open not only by potential rival bidders and the financial and trade press but by that hypothetical man who is always riding up and down on the top of the Clapham omnibus. I beg to move.
"(a) in writing to all holders or applicants for licences who may be affected by such modifications, and
(b) in the case of the licences referred to in subsection (1)(b), by publishing the same in at least two national daily newspapers and any appropriate trade journal or journals"
"'exploration' includes the doing of anything (whether by way of investigations, trials or feasibility studies or otherwise)".
We all stopped reading at the word "anything". That little word "otherwise" crept in, and I did not notice it yesterday. That is exactly how it is here; the Government are at it again. They want to publicise matters that ought to be fully in the public domain in such a manner as the Secretary of State "considers appropriate"—not even, the Committee will note, in such a manner as should be "reasonable". The words used are "as the Secretary of State considers appropriate".
"in at least two national daily newspapers and any appropriate trade journal"—
or "journals", if there are more than one. There is a slight variation in the case of the amendment to Clause 106, which includes a reference to particular licences as distinct from general licences.
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