ELECTRICITY (MISCELLANEOUS PROVISIONS)
Memorandum by the Department of Trade
This memorandum is concerned with delegated powers
within the Electricity (Miscellaneous Provisions) Bill.
The principle aim of the Bill is to facilitate the
Government's response to the financial difficulties of the nuclear
generating company, British Energy (meaning the British energy
group of companies, including British Energy plc and its various
subsidiaries). It allows the Government to play its part in the
solvent restructuring plan put forward by the company, or to acquire
the nuclear business if the plan fails and the company goes into
Clause 2 contains the only delegated power in the
Bill. This is a power to repeal Part 2 of the Electricity Act
1989. This Part of the 1989 Act was concerned with the reorganisation
of the then publicly-owned electricity industry and its subsequent
sale to the private sector. As such it contains a large number
of provisions for transferring assets from the old bodies to the
new companies, provisions to abolish the old bodies, provisions
to finance the successor companies while they remained in the
public sector, and ultimately provisions to sell the shares in
those successor companies into the private sector. As such the
majority of those provisions are now considered redundant and
long since spent.
Two of those provisions in that Part - sections 72
and 74 - are still active and act as a block on the purchase of
shares in certain privatised electricity companies. Clause 2(1)
of the Bill directly repeals those two sections of the 1989 Act.
Clause 2(2) gives a delegated power for the Secretary
of State to repeal the rest of Part 2 of the 1989 Act. This is
in part to ensure that there are no unforeseen interactions between
the remainder of Part 2 and the repeal of sections 72 and 74.
A further motivation is the question of good legislative housekeeping
- removing provisions that are no longer are needed.
The reason for a distinction being drawn between
the treatment of sections 72 and 74 of the 1989 Act and the remainder
of Part 2 is a simple matter of timing. The Bill is being taken
forward quickly in response to the problems with British Energy.
On that timetable, the only clear need for rapid repeal is in
relation to sections 72 and 74 and this is dealt with in clause
2(1). The repeal of the rest of Part 2 can proceed on a slower
timetablewhich will enable a thorough check of each provision
in Part 2 ,in discussion with relevant stakeholders in the electricity
industry, to check whether any element of it is still "live"
in the sense that it continues by being in force to impact upon
any participant in the industry and, if so, whether it should
Clause 2(3) allows for consequential, transitional
or saving provisions. This might be used:
(iv) to delete cross references in both the Electricity
Act and other enactments to provisions that are being repealed;
(v) in the unlikely event that any provision
does still have a continuing effect, to provide for any necessary
period of transition to facilitate the smooth repeal of that provision
or to preserve the effects of a particular provision in certain
specific circumstances or instances.
Clause 2(4) specifies that the power to make an order
under clause 2(2) is exercisable by statutory instrument and subject
to annulment by a resolution of either House of Parliament. The
negative resolution procedure is considered appropriate in this
instance given the limited and specific use which it is envisaged
will be made of these powers, ie the repeal of spent provisions
and the removal of statutory cross-references to these.