Clause 50
Energy Bill
5:00 pm
Malcolm Wicks (Minister of State (Energy), Department for Business, Enterprise & Regulatory Reform; Croydon North, Labour)
Clause 50 confers on the Secretary of State a power to make regulations, under the negative procedure, about the preparation, content, implementation and modification of funded decommissioning programmes and for the charging of fees. The clause enables the Secretary of State to prescribe details about how operators will be expected to prepare and implement programmes and to ensure that they have the adequate protections in place. It is analogous with provisions in the Energy Act 2004, which sets out the regime for offshore renewables decommissioning.
The clause allows regulations that make provision for how radioactive and other hazardous waste will be managed during the operation of the power station and will then be disposed of; how the power station will be decommissioned and the site cleaned up; the estimation of the costs that might be incurred during decommissioning and waste management, such as how they should be developed and about the manner in which such estimates should be verified; the financing of such estimates, including the security arrangements required; how payments from funds to pay for decommissioning and waste management are to be made; how information prescribed or of a description prescribed by regulations is to be supplied to the Secretary of State; and how fees charged by the Secretary of State are to be calculated and when they are to be paid. Regulations can also create offences where specific provisions of the regulations are contravened. Penalties created by the regulations are subject to the same limits as the offences contained in the Bill, namely a fine not exceeding £5,000 in a magistrates court, or up to two years’ imprisonment or an unlimited fine in a Crown court.
The negative procedure is considered suitable for the making of regulations under this power as the content of the regulations will be largely technical. As I have already mentioned, the provision mirrors the approach set out in the Energy Act 2004 for the decommissioning of offshore renewable installations. For example, under that Act, the Secretary of State has the power to prescribe what security should be provided and to set sanctions.
As well as enabling regulations, the clause confers on the Secretary of State a power to publish guidance about the preparation, content, modification and implementation of funded decommissioning programmes. A copy of any guidance published must be laid before Parliament. Guidance enables a principles-based approach to be adopted rather than the more prescriptive approach that is typical of regulations. The guidance is expected to set out certain baselines or minima, which the operator would be expected to meet. However, the Secretary of State recognises that operators may be able to put forward more effective or efficient methods to decommission their stations and to clean up their sites, as well as to accumulate the moneys necessary to do so. Guidance, which is based on principles, enables operators to put forward such proposals, which may be approved, provided they meet the principles.
Prior to the publication of the guidance or the making of regulations, subsection (6) requires that the Secretary of State consult interested bodies. The Government do not consider it necessary to subject the largely technical guidance to a parliamentary procedure, but the guidance will be laid in the Library. It is not the intention for the guidance to prescribe how decommissioning programmes should be formulated and carried out, but rather to allow operators the freedom to develop their own programmes, within a framework. The guidance will guide operators in preparing programmes, which may be approvable by the Secretary of State.
The approach of the clause is analogous to the existing safety and environmental licensing regime for nuclear, whereby the Health and Safety Executive and the Environment Agency issue guidance concerning the exercise of their statutory powers. The HSE issues guidance on its functions under the Nuclear Installations Act 1965 and the Environment Agency on its functions under the Radioactive Substances Act 1993.