Malcolm Wicks (Minister of State (Energy), Department for Business, Enterprise & Regulatory Reform; Croydon North, Labour)

The clause sets the procedure for modifying an approved programme whether the modification is proposed by the Secretary of State or by other parties such as the operator. It sets out who should be informed of the proposed modifications, ensures that the Secretary of State is informed in writing of any proposed modification, if not made by him, and approves all modifications.

It is important to have the ability to modify a programme once it has been approved. The power will provide the necessary flexibility for approved programmes to take account of the kind of changes I mentioned in relation to clause 44. Requiring the Secretary of State’s approval to any modification will ensure appropriate oversight of operators’ programmes.

Regardless of who puts forward the proposal, the clause allows for any costs associated with the consideration of the proposed modification to be passed on to the operator. These costs might arise from seeking verification of the impact of the proposed modification on, for example, the cost of managing waste. We will set out in regulations how the charges will be calculated and when they will be payable.

There is a duty on the Secretary of State to give the operator, any other person with obligations under the programme and any person on whom the proposed modification will have an impact the opportunity to make written representations. That will mean that all those who have or will have obligations as a result of the modification will be given a chance to express their views on the impact the proposal might have on their activities. He will also need to take into account those representations, of course.

Anne Main (St Albans, Conservative)

Will the Minister clarify something? Will there be a right of appeal against decisions that were made despite representations?

Malcolm Wicks (Minister of State (Energy), Department for Business, Enterprise & Regulatory Reform; Croydon North, Labour)

I hope to cover that important question in due course.

When deciding whether a modification is to be made, this clause, like clause 41, requires that the Secretary of State must exercise his power only with the aim of securing that prudent provision is being made for the technical matters, the financing of the designated technical matters and the cost estimates of those matters.

If the Secretary of State proposes to make a modification, he will have to determine that the programme originally submitted no longer makes prudent provision for those matters. In determining that, the Secretary of State will make reference to the guidance in force. Additionally, the Secretary of State will take into consideration comments made by the interested parties.

On the appeals procedure, as is the case with all issues across Government where the Secretary of State has the power to make the final decision, disputes between the operator and the Secretary of State can be settled by recourse to administrative law procedures. Therefore, an appeals procedure is not necessary. I am advised that that is also consistent with analogous legislation such as the Nuclear Installations Act 1965 and also in terms of legislation for offshore renewables.