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‘(1) Section 46 of the Energy Act 2008 (approval of a decommissioning programme) is amended as follows.
(2) After subsection (3) insert—
“(3A) When approving a programme the Secretary of State may agree to exercise, or not to exercise, the section 48 power—
(a) in a particular manner;
(b) within a particular period.
(3B) An agreement under subsection (3A) may subsequently be amended by the Secretary of State and the other party to the agreement.
(3C) The Secretary of State may not make such an agreement or amend such an agreement unless satisfied that the agreement (or the agreement as amended) includes adequate provision for the modification of the programme in the event that the provision made by it for the technical matters (including the financing of the designated technical matters) ceases to be prudent.
(3D) Provision in such an agreement (including the provision mentioned in subsection (3C)) may include provision—
(a) for a determination by a third party in relation to a relevant matter specified in the agreement, and
(b) for the Secretary of State to be bound by such a determination.
(3E) A “relevant matter” is a matter relating to the provision made by the programme for the technical matters.
(3F) Subsections (3A) to (3D) apply notwithstanding that the agreement or amendment fetters the Secretary of State’s discretion.
(3G) In subsection (3A) “section 48 power” means the power of the Secretary of State under section 48 to propose a modification of the programme or a modification of the conditions to which the approval of the programme is subject.”
(3) In subsection (4) for “(3)” substitute “(3B)”.’.—(Charles Hendry.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
Amendment (a) to new clause11, line 5 leave out ‘, or not to exercise,’.
Amendment (b) to new clause 11, line 9 leave out
‘and the other party to the agreement’.
Amendment (c) to new clause 11, line 15 leave out ‘prudent.’ and insert
‘adequate to protect the interests of the public and taxpayers.’.
Government new clause 12—Adjustment of electricity transmission charges. Government new clause 13— Consultation.
New clause 17—Proposal for modification of approved programme—
‘(1) Section 48 of the Energy Act 2008 (approval of decommissioning programme) is amended as follows.
(2) In paragraph (2)(c) leave out “(provided that the site operator consents to the proposed modification)”.
(3) In subsection (3) leave out “, in particular,” and insert “only”.
(4) In paragraph (3)(a) leave out second “, or” and insert “.”.
(5) Leave out paragraph (3)(b).’.
Government amendments 35, 37, 38 and 39.
Amendment 51, page 93, line 33, in clause 115, leave out paragraph (a).
Government amendments 40 to 44.
We now move on to a series of technical and miscellaneous new clauses and amendments, which cover nuclear decommissioning transmission charging, the process of consultation and the Home Energy Conservation Act 1995 and how it applies in Scotland.
I shall first address the issue of the nuclear decommissioning programmes. In Committee, hon. Members raised concerns about how any agreement that sets out the manner in which the Secretary of State will, or will not, exercise his power to propose a modification to an approved programme will deal with “unforeseen circumstances” in the future. I have listened very carefully to hon. Members’ concerns, we have had very useful meetings and I am very grateful for the constructive way in which they have engaged to ensure that we have a new clause that is acceptable to both sides.
I recognise that the funded decommissioning programme and any agreement entered into under the new clause are very long-term arrangements, and that the arrangements will need to take account of “unforeseen circumstances” that may arise in the future.
In the light of the Committee’s concerns, we wish with new clause 11 to amend the relevant measure in order to require that the Secretary of State enter into an agreement only when he is satisfied that it includes adequate provision for the modification of a programme if the programme no longer secures prudent provision for the liabilities.
Let us be clear: we would not impose an additional test to the existing requirement that the Secretary of State must be satisfied that the programme and the agreement as a whole secure prudent provision for the liabilities. The new clause would make it explicit that, as part of ensuring prudent provision, the Secretary of State needed to be satisfied with the arrangements for making modifications to the programme when he entered into the agreement.
We have chosen to use the word “prudent” not only because it is a concept that is established in law but because it was important to give the Secretary of State the ability to decide, in future, whether something has ceased to be prudent. We looked at some of the wording that had been discussed in Committee relating to unforeseen circumstances and moved away from that because we were concerned that the legal debate would then be about whether something was foreseen or unforeseen. If people could point to one speech by a Minister who had talked about such issues, then nobody could say that they were unforeseen because they had been discussed in this House. I will clarify that further in a few moments.
It is clear that over the years foreseen and, potentially, unforeseen events will occur that may require modification of the arrangements set out in the programme. The new clause is not limited to unforeseen circumstances, but when the Secretary of State enters the agreement he will need to be satisfied with the arrangements for modifying the programme when it is no longer prudent, be that in unforeseen circumstances or those which were foreseen. The new clause also allows the agreement to set out matters that may be determined by a third party, and for the Secretary of State, if he so agrees, to be bound by that determination. This provides reassurance to operators that there can be a mutually agreed and mutually binding process between the Secretary of State and the operator where disputes can be resolved in an impartial manner. Such a third party would need to be impartial and independent of the operator and the Secretary of State. In addition, both parties would need to be satisfied that the third party in question had the expertise to perform the role required of them. The exact terms of the agreement, including any process for third-party determination, and the method for appointing a third party will be decided on a case-by-case basis with the operator and after taking into account the programme submitted by that operator.
I turn now to amendments (a), (b) and (c) to new clause 11, which are in the name of Caroline Lucas. Under amendment (a), the Secretary of State would not be able to set out in the agreement when he would not use his section 48 power. This would leave him with broad scope to use his section 48 powers and so render the agreement ineffective from the perspective of providing investor confidence, which is the whole purpose. Amendment (b) would have the same effect. Amendment (c), which would omit the word “prudent” and insert
“adequate to protect the interests of the public and taxpayers”,
would not provide further protection for the taxpayer. Arguably, it would reduce protection by introducing a potentially looser term that could be subject to conflicting interpretations and be inconsistent with the rest of the Act, for which the test is prudence.
New clause 17 would amend subsection (2)(c) of section 48 of the Energy Act 2008. That would have the effect of allowing others with obligations under the programme to propose modifications to a site operator’s programme without first seeking their consent. It is clearly unreasonable, we believe, to expect an operator to agree to this. In any case, the Secretary of State would need to seek the views of the site operator and take those views on board before deciding whether to approve the modification.
There is also a legal issue involved in the new clause. The effect of modifying subsection (3) of section 48 in this way would probably be exactly the opposite of what the hon. Member for Brighton, Pavilion intends. Under the Act, if it were amended as proposed, the Secretary of State would be able to impose obligations only on an associate of the operator and not the operator itself. Modifying subsection (3)(a) and removing subsection (3)(b) altogether would mean that obligations placed on an associate of the operator could not be removed even if, for example, those obligations were no longer relevant because they had been fulfilled. This is clearly inappropriate and impracticable. On that basis, I hope that the hon. Lady feels sufficiently reassured to withdraw the amendments.
I will now speak to Government new clauses 12, 41 and 44, which relate to transmission of renewable electricity and the role that renewable generators in peripheral parts of Great Britain could play in meeting low carbon energy targets. Section 185 of the Energy Act 2004 allows the Secretary of State to introduce a scheme adjusting transmission charges in a particular area of the country to help to mitigate any material hindrance to renewables development caused by these charges. Section 185 was introduced to address concerns that a GB-wide charging regime for the electricity transmission network might hinder the development of renewable generation in a particular area of the United Kingdom—for example, in the north of Scotland and the Scottish islands. Under the regime, transmission charges are cost-reflective. In effect, the further electricity has to travel, the higher the transmission charges.
Any scheme introduced under section 185 can be applied for up to 10 years—an initial period of no more than five years with renewal for up to five further years. Currently, any scheme must terminate by October 2024. The new clauses merely extend that time limit until
Government amendments 43 and 51 relate to the Home Energy Conservation Act 1995. As hon. Members know, having listened to concerns raised during the passage of the Bill, the Government were convinced of the desirability of retaining HECA in England, and this was agreed in Committee on
Regarding amendment 51, I would like to reassure the hon. Members for Kilmarnock and Loudoun (Cathy Jamieson) and for Rutherglen and Hamilton West (Tom Greatrex) that we have consulted fully with colleagues in the Scottish Government during the development and passage of the Bill. The intention to repeal HECA in Scotland was at the request of Scottish Ministers, who have indicated that they believe that the Climate Change (Scotland) Act 2009, together with the local housing strategy guidance, will be sufficient to ensure appropriate promotion of energy efficiency and the opportunities that the green deal will bring to this. On that basis, I hope that the hon. Members can withdraw their amendment.
The hon. Gentleman is absolutely right. This is a devolved matter that we have discussed with the Scottish Government. We are implementing this measure as the easiest and quickest way of delivering on that.
Finally, I refer to a small set of Government amendments regarding consultation—Government new clause 13 and consequential Government amendments 35, 37, 38 and 39. The purpose of the new clause is to ensure that consultation with key stakeholders carried out before, as well as after, Royal Assent can contribute towards fulfilling the various statutory consultation duties that arise under, or by virtue of, the Bill. Consulting stakeholders is an important part of developing and implementing any policy. Throughout the Bill, there are several provisions that impose a statutory requirement to consult before exercising powers to make secondary legislation. These include, for example, consultation with devolved Administrations or energy companies. In many cases, the consultation requirement can be satisfied by a consultation that takes place before, as well as after, the passing of the Bill. The new clause seeks to ensure parity of approach throughout the Bill.
I hope that I have assured hon. Members that the Government have listened during the passage of the Bill, and I urge them to support our amendments. Similarly, I hope that I have reassured them sufficiently that they feel able to withdraw their amendments.
I am seeking to amend new clause 11, which was based on a clause that was withdrawn by the Government in Committee because of cross-party concerns. I have not been fully reassured by what the Minister has said about the new clause, which has not met all those concerns. My amendments therefore seek to ensure that the Secretary of State cannot decide not to exercise his powers to modify a nuclear decommissioning programme; that a nuclear decommissioning programme can be modified only by the Secretary of State on his own, not working with an operator; and that we clarify what is meant by the word “prudent”. The Minister has helpfully expanded on that term so I feel a little reassured, although I still think that it is a little open.
In new clause 17, I am seeking to amend section 48 of the Energy Act 2008 to ensure that a third party to a nuclear decommissioning programme can propose a modification of it without the consent of the site operator. I make it very clear that it is still the Secretary of State alone who can modify it. I am not suggesting that the associate to the operator can do so. I suggest that they should be able to propose a modification, but that it remains the responsibility of the Secretary of State to decide whether or not to go ahead with that. I am also clear that changes should not include a reduction of the requirements.
We are not debating the pros and cons of nuclear power per se. The Minister knows very well that I am not a great fan of nuclear power. The debate is about whether the Government should be subsidising, more or less with a blank cheque, a nuclear renaissance in the UK, either directly or indirectly. Ministers know very well that the UK faces a £4 billion black hole in unavoidable nuclear decommissioning and waste costs, which the Secretary of State revealed soon after coming to office last year. At that time, he said the crisis was such that
“my department is not so much the department of energy and climate change, as the department of nuclear legacy and bits of other things”.
It was well reported at the time that there would be additional costs from rising expenditure on nuclear decommissioning and falling income due to the closure of ageing power plants. The Secretary of State went on to insist:
“I do not think it is possible for anyone responsibly to stand aside and say we are not going to deal with it. We just have to, but what we are effectively paying for here is decades of cheap nuclear electricity for which we have suddenly got a massive postdated bill.”
I could not have put it better myself. What clearer evidence of the long-term subsidy of nuclear power could there be?
It is not clear to me how Government new clause 11 will seriously address this problem. By limiting the Secretary of State’s power to place greater responsibility on a nuclear operator to meet the costs of decommissioning its plants, the new clause could even make the situation worse. It is because of the unpredictable nature of nuclear clean-ups and decommissioning that the Secretary of State must retain the option of adding to the liabilities of companies such as EDF, which boldly lobbied Committee members in support of the original clause 102.
Of course, the cost of an accident could be even higher than the cost of planned decommissioning. The Financial Times reported in April that Toshiba and GE Hitachi have both submitted proposals to clean up and decommission the Fukushima site on the basis that the process is likely to the cost billions of dollars. The German Government’s estimate for a severe accident like the one at Fukushima is €1 trillion. These are unimaginable figures. As a result, there are serious ongoing discussions about the need to raise the EU and UK’s nuclear accident liabilities ceiling from €143 million to €1 billion. As one can see, that still falls well short of the total cost.
I believe that limiting the Government’s power to introduce greater demands on nuclear power companies to cover higher decommissioning requirements could place greater financial burdens on taxpayers and amount to a back-door subsidy for nuclear. The Minister may say that such agreements could still be added under new clause 11. Although that might be technically true, a nuclear operator agreeing to add to its own responsibility for contingency or cost would be a classic case of turkeys voting for Christmas—it would be very unlikely to happen.
I tabled my amendments because I want the Secretary of State to retain the power to modify a decommissioning agreement on his or her own, without requiring the agreement of a plant operator. I also want to ensure that a decommissioning agreement can be modified only to ensure that obligations are added, not removed.
I will make a few remarks about amendment 51.
This will perhaps be a rare moment of solidarity with Ministers, as I welcome the position that they have taken on the Home Energy Conservation Act 1995 as it applies to England. The Minister has moved on this issue since the publication of the Bill to retain the statutory provision requiring local authorities to report on their activity with regard to action on climate change in England. The Minister gave a strong statement on that. I will focus on the importance of the statutory provision.
The situation in Scotland will, of course, be somewhat different if HECA is repealed. I am well aware of the legislative consent motion that was passed in the Scottish Parliament in December 2010. I have no wish to suggest that the Scottish Parliament should not have responsibility for those matters, which are devolved.
“After we consulted the Scottish and Welsh Administrations, they asked that we continue with the repeal of HECA on their behalf, so it will not apply in Scotland and Wales. The devolved Administrations will, however, continue to work with their local authorities to progress the national energy saving initiatives that they already have in place.”––[Official Report, Energy Public Bill Committee,
I raise this issue today because some of the energy conservation agencies and environmental lobby groups in Scotland are concerned that what has been put in place in Scotland does not meet the test that statutory guidance would have brought, because the new approach uses voluntary arrangements. While I again put it on the record that the Minister chose to continue the respect agenda for the devolved Administrations, I have some concerns that the Scottish Government and the Scottish Parliament have not fully understood what they need to do to ensure that local authorities continue to act appropriately.
The supplementary guidance on addressing climate change through local housing strategies was last issued by the Scottish Government in March 2011. That guidance accepts that since 1995, the main legislative instrument for addressing energy efficiency has been HECA, which placed a duty on local authorities to set out and report on energy conservation measures in residential accommodation in their areas.
Under HECA, councils have taken a wide range of initiatives to improve the energy efficiency of housing stock in their areas. For example, Glasgow city council developed a comprehensive strategy that included funding programmes, technical assessment tools and staff training programmes. As a result, the council reported that over the 10-year period since HECA was introduced, it achieved reductions of 30.4% in the total energy consumption of housing in its area and a 32% reduction in CO2 emissions.
The guidance from the Scottish Government states:
“While the progress made by local authorities in reducing emissions under HECA is recognised, in line with a commitment to reduce local authority reporting requirements the Scottish Government and COSLA have agreed that councils should no longer be required to report under the Act, and that instead they will address energy efficiency planning/greenhouse gas emission reduction within their Local Housing Strategies, and where relevant, in Single Outcome Agreements.”
Essentially what has happened in Scotland is that there has been no statutory provision and that has been replaced by the use of single outcome agreements. For right hon. and hon. Members who are not aware, those are non-binding agreements that the Scottish Government sign up to with each of the 32 local authorities, if indeed one can sign up to a non-binding agreement. Instead of local authorities being required to report, there is now voluntary guidance and a take-it-or-leave-it approach. One can see why some agencies are concerned.
Some of the areas that the Scottish Government, with all due respect to them, thought would be included in the local authorities’ single outcome agreements, perhaps because there was passing mention of them, such as class sizes, teacher numbers and the sale of playing fields, have proved simply to have been warm words, rather than things that were achieved.
Recently, the Scottish Government raised the issue of the future of HECA in their consultation on the energy efficiency action plan. There were a fairly small number of responses—only 28 in total. The majority of those understood that it was time to change HECA and wanted to replace it with a duty on local authorities to report on energy efficiency.
That brings us to amendment 51, which would keep the statutory provision for which HECA provides. I listened carefully to what the Minister said and I am sure that other Members from Scottish constituencies will have their own views on this. Perhaps it is time to update or replace HECA, as some people argue. I do have concerns about what has happened in Scotland. However, I have no wish to divide the House on this matter as I do not think that that would be helpful at this time. None the less, it is important to put the matter on the record.
Ongoing monitoring of strategies that will improve energy efficiency, reduce emissions and increase resilience to the consequences of climate change in the housing sector should be a priority in Scotland. I therefore hope that my former colleagues in the Scottish Parliament, and indeed the Scottish Government, who I am sure will be avid watchers of this debate, recognise that although they have gone a considerable way in the Climate Change (Scotland) Act 2009 and the voluntary guidance, they should none the less consider the issue again. The Scottish Government should recognise that the UK Government have listened to their request to remove HECA, take their responsibilities seriously, and look at reintroducing statutory provision in Scotland.
I love it when we get to technical and miscellaneous amendments. They sound innocuous, but as the Minister knows, there is a great deal of meat within the details—it is the sort of stuff that we love to agonise over. As we heard from both Caroline Lucas and my hon. Friend Cathy Jamieson, there are substantive issues within these proposals.
I shall turn my attention purely to one proposal—we support the Government’s proposals—because I want to pay the Minister and his team some compliments. In respect of Government new clause 11, there was a great deal of debate in Committee on the necessary balance to be struck between certainty for the investor community, and—this is paramount—protection for the taxpayer against the foreseen and unforeseen costs of decommissioning. After a great deal of debate and encouragement from the Committee, the Minister, quite worthily, agreed to remove his measure from the Bill and went away to discuss the options that he could bring back to the House.
I thank the Minister for the way in which he has engaged with both Committee members and others, including my hon. Friend Dr Whitehead—I must single him out. Some of his ideas, including on third-party engagement, have contributed significantly to the ideas behind, if not the drafting of, new clause 11.
The new clause is not perfect, and it never will be, but it makes a very good fist of striking the right balance between looking after the needs of different stakeholders, and—I say this categorically—ensuring that we protect taxpayers. I look forward to the Minister’s response to the remarks of the hon. Member for Brighton, Pavilion, because she made some interesting points. I think the Minister has explained very well the use of the word “prudent”, but I am sure that he will address that and other issues that have been raised.
I thank the Minister, because this is how a Bill should evolve—through constructive engagement. Ministers should take measures away, think about them and listen to all the ideas on the table. He has come back with something that might not be perfect, but it is a massive improvement, on which he and his team are to be congratulated.
I agree with my hon. Friend Caroline Lucas on nuclear power, which probably does not come as a great surprise to the Minister. I have nothing to add to what she said, because she made her case very well indeed.
I am glad to be able to support Government new clause 12, on transmission charges. It is a very sensible change. I await with interest the outcome of Operation TransmiT. Will Ofgem finally see sense and deal with transmission charges? I am not overburdened with confidence that it will do so, but one lives in hope.
I want to address the points that Cathy Jamieson made about the Home Energy Conservation Act 1995. I received a briefing on that from Friends of the Earth, the World Wide Fund for Nature, and the Association for the Conservation of Energy. I would normally be favourable towards those organisations, but I was not impressed by their briefing, which does not give a reason, other than an emotional one, on why HECA should not be repealed.
Very fairly, the hon. Lady said only that some organisations were opposed to the repeal of HECA, because some are not. Energy Action Scotland, for example, is much less convinced of HECA’s worth. That is the crux of the matter. She and I probably want to get to the same place, and my argument should be seen not as a political one, but one about the methods of getting there.
As I understand it, the Scottish Government want the repeal of HECA simply because they feel that it did not deliver. HECA places a duty on local authorities to set targets, but nothing over and above that. Out of the 32 local authorities in Scotland, only nine have set targets in the 16 years that HECA has been in operation. Despite the fact that the briefing I received describes HECA as the “main driver” for local authority action on energy saving over the past 15 years, the fact that so few local authorities set targets suggests that it was not particularly effective.
One concern is that even if statutory provision did not act as a driver, a purely voluntary code of guidance would mean that local authorities would put energy saving even further down their list of priorities. Does the hon. Gentleman agree that it is important for the Scottish Government to consider how to ensure that targets are set and delivered upon?
I agree that it is important that targets are set and delivered upon, but I do not agree that energy saving would necessarily be a lower priority under the guidance system, and I shall explain something about that. As the hon. Lady will know, the Scottish Parliament has often taken a different road than the UK Parliament—the central heating scheme is a classic illustration of that. Both the previous Administration in Scotland and the current Scottish National party Administration have taken different routes than the UK Government to deal with those matters.
The Scottish Government have decided that they will focus their efforts on each local authority’s housing strategy. As the hon. Lady rightly says, guidance has been issued on that strategy. They are seeking to make it clear that that strategy and guidance are the driving force behind determining levels of investment in each local authority area—I believe that a significant piece of work was done in the highlands and islands on that basis.
The Scottish Government have also introduced Scottish housing quality standards, which every local authority and housing association must achieve by 2015, and for which an additional £1.5 billion will be spent over the next three years. In a recent case in my constituency, there was a difficulty with lack of insulation, and I took that up with the housing association. It is now very much aware of the need to react to the 2015 standard. I hope that that problem is resolved before the onset of winter, although time is running out.
The standard has already been achieved in 40% of housing in Scotland. There is still a long way to go, but that is a significant achievement. The standard assessment procedure rating achieved is 7%, so clearly, the standard is delivering what is necessary in those houses—it is much more effective than HECA in doing so.
In addition, the Scottish Parliament has passed the Climate Change (Scotland) Act 2009, which is acknowledged as world-leading legislation. The Act will drive much of what is done in Scotland. The £33 million energy assistance package has helped 150,000 people on low incomes to reduce their bills since 2009. One in six Scottish homes—a total of 145,000—have been visited for a home energy check, and there have been almost 18,000 installations. The EAP has been extended to help the most vulnerable. In addition to helping pensioners, the scheme has been extended to include disabled families with children under five, disabled children under 16, those with severe disabilities, and those who are terminally ill. The £50 warm homes fund will also be introduced to help.
In addition to the EAP, the Scottish Government are providing £12.5 million in 2011-12 to support local councils to deliver area-based insulation to save households money, reduce emissions and tackle fuel poverty. It is hoped that councils will target areas across the country that are most in need of free insulation and other energy efficiency measures. The Scottish Government are working with local authorities to help to target the areas that are most in need, which is very much welcomed by Energy Action Scotland.
I am pleased to hear that the hon. Member for Kilmarnock and Loudoun will not press new clause 17 to a Division, but I ask hon. Members to realise that Scotland is doing things differently. In many ways, HECA has been overtaken by events in Scotland, which is why the Scottish Government want it repealed. They want repeal not because of a desire to avoid the implications of HECA, but because they have moved in another direction. Interestingly, the Scottish Government and the Labour Government in Wales have taken a similar view. We might be going in different directions, but I hope that we are all going towards the same goal of making our homes warmer and eradicating fuel poverty among our populations.
I want to comment briefly on new clause 11 and, in doing so, echo the remarks of my hon. Friend Huw Irranca-Davies. With hindsight, it has been recognised that the clause concerned, which was originally pretty flawed, has been substantially strengthened and clarified as a result of its withdrawal, the discussions that followed and its emergence on Report as new clause 11. In Committee, widespread concern was expressed about that flawed clause on the grounds that it sought to replace an arrangement under the Energy Act 2008 that enabled the Secretary of State unilaterally to invoke sections 48 and 49 of the Act for the modification of a decommissioning programme regardless of any agreement made previously.
The original clause would have replaced that provision with an arrangement that appeared to enable the Secretary of State to waive the ability to make programme modifications, if circumstances changed, by making an agreement when the licensing agreement was first adopted binding him or herself in perpetuity regardless of the objective circumstances in place after the original agreement. That was clearly not satisfactory in respect of unforeseen circumstances. I accept that, for logical reasons, it is difficult to place the words “unforeseen circumstances” in legislation—clearly we do not know what those would be—but I think that the question of when a programme ceases to become prudent could be better addressed.
I would be grateful if the Minister clarified a couple of issues relating to the wording of the new clause that might be referred to should a modification action be undertaken by people seeking to understand what the clause really means. I appreciate that, as I have mentioned previously, the background to the new clause is similar to the Marx brothers’ form-guide sketch in “A Day at the Races” in which they have to refer to a large number of separate documents to understand where they were in the first place. Nevertheless, I would be grateful if he confirmed that the Secretary of State may act, by him or herself, to point out that a decommissioning programme subject to the new clause had ceased to be prudent and say, “It appears to me that this programme has become imprudent and therefore needs modification.”
What those modifications might consist of would be a matter for negotiation and discussion with the site licensee. If points in the modification programme could not be agreed upon, a third party could come in, under proposed new subsection (3D), to determine how those points might best be resolved. When the third party—as the Minister emphasised, it would be an independent party—has resolved those previously unresolved issues, the Secretary of State would, under the proposed new subsection, be
“bound by such a determination”.
It is clear, however, that under administrative law the Secretary of State would not be able to undertake an agreement unless he was satisfied that there was adequate provision for the modification of the programme, including the understanding that the site licensee would also be bound by what the third party had determined.
It would not be logical or reasonable for the Secretary of State to undertake a programme that would enable the licensee to escape being bound by the consequences of a determination of modification and therefore simply not undertake any action relating to those modifications, even after they had been agreed. That is my understanding of the new clause. I would be grateful if the Minister confirmed that and placed it on the record that the process would lead to an agreed modification programme that could be instituted by the Secretary of State, but mediated by a third party, after a programme had been judged to be no longer prudent on a different programme of decommissioning.
[Interruption.] I was not anticipating such a rapid end to that important contribution. I am grateful to hon. Members for participating in the debate. I was surprised by how many people paid tribute to the Government for listening so hard and making changes—I almost started to wonder whether we had done too much of it. Nevertheless, we remain firmly of the view that the Bill is better as a result of the changes made. I give particular credit to Dr Whitehead for his work with Huw Irranca-Davies, and I thank them both for their constructive engagement in getting us to where we are, which, as I said, is better than where we started. It is perhaps an early birthday present for the hon. Member for Southampton, Test—I believe that his birthday is tomorrow—and the House can celebrate by recognising his contribution.
I am grateful to Cathy Jamieson for her comments about the changes that we have made to HECA. Listening to the discussions on the Opposition Benches about how best to address these matters in Scotland, I felt like we were intruding on family grief. However, I have no intention of doing that because they are matters that will properly be resolved by the Scottish Government. Nevertheless, we have to accept that the legislative consent motion is essentially an on/off switch. One either has to have HECA or get rid of it; one cannot have a little bit of HECA or have a different element within it. My understanding from our discussions with the Scottish Government is that they want to address these issues differently and using different mechanisms. We absolutely respect their right to make those decisions, and the changes in the Bill will simply make that possible.
The bulk of this debate inevitably focused on the nuclear clauses. The hon. Members for Brighton, Pavilion (Caroline Lucas), for Angus (Mr Weir) and I will never agree on the principles of nuclear, but we all want to make sure that if nuclear power stations are built in the United Kingdom in the future, that should be genuinely without subsidy and we should have extremely strict controls on decommissioning, safety and a range of other issues.
There is also a fundamental disagreement between us. We recognise that if investors are to have confidence in the decommissioning programmes, they must feel certain that those programmes cannot be changed at will or on a whim by the Secretary of State at some subsequent date. That was the flaw in the earlier legislation, which we are trying to address. It gave a power at any time for the then Secretary of State to say, “We’re going to change these rules,” and there would have been no right for a company which thought it had a commitment and an agreed programme to resist that. What we sought to do, and what I hope we have achieved, is to agree the right balance between the powers of the Secretary of State and the guarantees and undertakings necessary for the companies involved.
If the liabilities are fixed so that uncertain messages are not being given to the investors, but the costs rise in an unforeseen manner, how is that not a subsidy if the person who is going to meet the difference between the liabilities and the real cost is not the taxpayer?
The hon. Lady raises an entirely separate issue. A funded decommissioning programme is constantly reviewed. If there is evidence that not enough money has been put aside for decommissioning issues, that money will require to be increased. The operators entirely accept that if the costs rise, they will have to contribute more towards the decommissioning pot. The new clause is about whether the Secretary of State should be able to say, “You know, I’ve decided that rather than you putting that money into a pot over 20 years, I’d like it in 12 months.” That would be a fundamental change which, under the existing legislation, the companies would not have been able to challenge. There will be no change in the measures ensuring that enough money is put into the decommissioning pot. If that goes up or down, the amount put in will have to reflect that. That is not touched in any way by the changes that we are making through the Bill.
On the hon. Lady’s new clause 17, at present anybody who wants to can suggest changes. They can write to me as a Minister and say, “We don’t think this is adequate,” and we will consider that. That, as she says, would not be a legal power, but an advisory power. It would still be for the Secretary of State to decide whether to take it forward. The Secretary of State has a number of choices. He can choose to modify, to modify in part or to take no action, so considerable power rests with him.
That comes to the heart of the questions that we were asked by the hon. Member for Southampton, Test. There is something vaguely Rumsfeldian about the concept of unforeseen. What are foreseen unforeseen circumstances and what are unforeseen unforeseen circumstances? I think we have been wise to move away from that. A prudence test is a better one, which both Government and industry are more comfortable with. The Secretary of State will have the power to make those decisions, but we will also make clear in those programmes the role of the third parties.
We have had a considerable amount of discussion with the hon. Gentleman about the nature of those third parties. It would clearly have to be somebody who was acceptable both to the Government and to the operators and who was not prejudiced towards one side or the other. That is a role that the Government are used to developing. The Secretary of State would have significant powers but there would also be a role for third parties. Critically, the Government and the operator would be bound by the decision of the third party. This gives the extra degree of certainty and comfort that the hon. Gentleman sought. I hope we have been able to reassure him.
We have had a useful exchange. I thank the official Opposition for the constructive way in which they have engaged with the issue, so that the nuclear aspects of the Bill are stronger and more effective than they were before.
Question put and agreed to.
New clause 11 accordingly read a Second time, and added to the Bill.