Energy Bill: Consideration Stage

Executive Committee Business – in the Northern Ireland Assembly at 12:15 pm on 13 December 2010.

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Photo of John Dallat John Dallat Social Democratic and Labour Party 12:15, 13 December 2010

I call the Minister of Enterprise, Trade and Investment, Mrs Arlene Foster, to move the Consideration Stage of the Energy Bill.

Moved. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

Photo of John Dallat John Dallat Social Democratic and Labour Party

Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list. There are two groups of amendments, and we will debate the amendments in each group in turn. The first debate will be on amendment Nos 1, 2, 3, 4 and 5, which deal with the damage of gas equipment used for conveying, storing or supplying gas. The second debate will be on amendment Nos 6 and 7, which deal with minor changes to terms in the Bill. Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we shall proceed.

No amendments have been tabled to clauses 1 to 9. I propose, by leave of the Assembly, to group these clauses for the Question on stand part.

Clauses 1 to 9 ordered to stand part of the Bill.

Clause 10 (Damage to gas plant)

Photo of John Dallat John Dallat Social Democratic and Labour Party

We now come to the first group of amendments for debate, which deal with the damage of gas equipment used for conveying, storing or supplying gas. With amendment No 1, it will be convenient to debate amendment Nos 2, 3, 4 and 5. Amendment Nos 1 and 2 are mutually exclusive. Therefore, if amendment No 1 is agreed to, I will not call amendment No 2.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

I beg to move amendment No 1: In page 6, line 40, leave out “or by culpable negligence”.

The following amendments stood on the Marshalled List:

No 2: In page 6, line 40, leave out “by culpable negligence” and insert “recklessly”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

No 3: In page 6, line 41, after “conveyor” insert

“(b) alters the index to any meter used for measuring the quantity of gas conveyed or supplied by a gas conveyor or gas supplier; or

(c) prevents any such meter from duly registering the quantity of gas conveyed or supplied,”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

No 4: In page 7, line 3, leave out “subsection (1)” and insert “subsection (1)(a)”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

No 5: In page 7, line 14, leave out “or disposal” and insert “, disposal or repair”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]ITC Franklin Gothic Demi'; font-size:10.0pt; font-style:normal; ">

I welcome the Minister back and wish her well. It is good to see that she has recovered from her brief illness. In speaking on amendment No 1, I will also note the Committee’s scrutiny of amendment Nos 2 to 5 on the Marshalled List.

Amendment No 1 arose as a result of Committee members’ concerns that the definition of the term “culpable negligence” may be too broad to be included in the Bill. It was thought that the term might imply that a person could be found guilty of an offence if they did not take action to stop another person damaging their gas meter and would, therefore, be considered negligent as a result of another person’s action. I remind the House that clause 10 establishes a criminal offence in respect of persons who intentionally or negligently damage gas equipment. It is, therefore, of a serious nature.

On a number of occasions, both in writing and during oral evidence sessions, the Committee asked the Department to provide a clear definition of the term. However, neither the Department nor the Office of the Legislative Counsel was able to do so to the full satisfaction of the Committee. The Department informed the Committee that the Office of the Legislative Counsel had advised it that there is no precise legal definition and:

“‘culpable negligence’ denotes a high degree of negligence which merits criminal sanctions”.

Department officials were unable to provide the Committee with additional clarification of how the term would be applied in practice. In the absence of that clarity, members felt that it would be preferable to remove it from the Bill. A vote was taken on that, and I have to point out that the Committee’s decision was majority rather than unanimous.

On 9 December the Committee considered a letter from the Minister, dated 7 December, in which the Minister informed us that she could not accept the Committee’s amendment and outlined her reasons. The Minister also stated that she had accepted an alternative suggestion from the Attorney General to remove the term “or by culpable negligence” and replace it with the term “or recklessly”. Amendment No 2 on the Marshalled List gives effect to that suggestion of the Attorney General. Unfortunately, the Committee was informed of the amendment only last week, after the conclusion of Committee Stage. As the amendment was tabled only at last week’s meeting, the Committee did not have time to consider it fully and was able only to note the amendment.

Am I permitted to continue, Mr Deputy Speaker?

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

In response to a Committee suggestion that clause 14 refer explicitly to meter tampering, the Department re-examined clause 10 to ensure that the provision for damage to gas plant fully encompassed meter tampering. The Department concluded that it would be desirable to amend clause 10(1) to refer specifically to tampering with gas meters in order to avoid any doubt about whether tampering with a meter necessarily amounts to damaging it. Amendment Nos 3 and 4 give effect to that, and the Committee supports both.

Amendment No 5 also arises as a result of a suggestion that the Committee made to the Department. Having consulted the natural gas industry on the amendment, the Department informed the Committee that the industry would be content with the revised wording. It accepts that, in certain circumstances, it would be feasible for meters to be repaired rather than disposed of or destroyed. The Committee also supports amendment No 5.

In conclusion, I thank the Minister and her officials for their hard work and expertise during the Committee’s scrutiny of the Bill. I also thank the Minister for adopting most of the Committee’s recommendations, save for the one that I mentioned at the beginning of my address.

Photo of Paul Givan Paul Givan DUP

I also thank the Committee staff for assisting us in scrutinising the legislation and the departmental officials who frequently attended meetings to try to address some of the concerns that were raised.

I support the amendments in the name of our Minister. I want to speak specifically about the amendment tabled by the Chairperson of the Committee and Ms Jennifer McCann. The Chairperson said that the proposed amendment on culpable negligence, which was discussed at length, was subject to a split vote in Committee. There was a good discussion, and we got into the meaning of “culpable negligence”. I do not profess to be an expert on legal matters. The Chairperson tried to assist us in his other professional capacity to define the term. As a layperson, I was keen to know what exactly it means to be culpably negligent when it comes to tampering with gas meters.

The departmental officials were helpful in clarifying the term. It was made clear that the legislation applies to people who specifically and directly try to alter and potentially damage gas meters. The Minister came back with a revision from the Attorney General’s office to replace the term “by culpable negligence” with “recklessly”. That was to try to facilitate the members of the Committee who raised concerns about the term and to address the fears expressed by some members that innocent people could get caught out by the phrase “culpable negligence”.

Obviously, nobody wants to catch out people who are innocent or unaware of the consequences of their actions. However, the legislation is specifically aimed at individuals who go out of their way to tamper with gas meters. Such behaviour defrauds gas companies and, more seriously, puts at risk not only the safety of offenders but, as my colleague Leslie Cree pointed out in Committee, that of their entire street. Tampering with a gas meter could have collateral damage because it affects more than the individual responsible. Tampering with electricity units or water supplies, which are criminal acts, will harm the individual responsible. However, tampering with gas meters has the potential to harm many more than the individual who should not be engaging in that activity. The safety of others, not just the position of the perpetrator, must be at the fore of the argument. Obviously, meter tampering is a concern for the companies involved, and we do not want them to lose financially. However, the safety aspect causes me great concern.

When the Committee considered the phrase “culpable negligence”, we looked at comparable legislation for the water and electricity sectors. Interestingly, the measure in the water legislation is much weaker than our Minister’s proposal; it refers to mere negligent damage being a criminal act. Therefore, the term “culpable negligence” goes far beyond existing water legislation. The Electricity (Northern Ireland) Order 1992 refers to the same type of provision as is being put forward in this clause.

I find it interesting but confusing that some Committee members feel that it should not be a criminal act to interfere with gas installations but, when it comes to water or electricity, it is fine for people engaged in similar activities to be penalised.

We need to be careful with the amendment tabled by Ms McCann, because it sends out the poor and bad message to individuals that it is OK to interfere and tamper with gas installations and to put at risk not just yourself but other people. That is exactly the message that that amendment sends out, when we should be putting out the clear message that that is a criminal and dangerous act and, if you engage in such activity, you will be pursued by the full rigour of the law. The original “culpable negligence” wording in the legislation sufficed. Indeed, some may say that we should have used the language in the water legislation and said that it was merely negligible activity. However, the Minister did not do that and took on board comments that were put forward.

The Minister then sought to clarify the matter further for those who were concerned and proposed the amendment with the word “recklessly”. So, I will vote against amendment No 1, tabled by Ms McCann, and in favour of amendment No 2, which inserts “recklessly”. I appeal to other Members to reflect on the message that would go out if Ms McCann’s amendment were successful and to join us in supporting the Minister and putting through amendment No 2.

Photo of Jennifer McCann Jennifer McCann Sinn Féin

Go raibh maith agat, a LeasCheann Comhairle. First of all, I want to clarify the fact that amendment No 1 was made by the Committee.

The Committee debated this matter because clause 10 states:

“A person who intentionally … damages or allows to be damaged any gas plant provided by a gas conveyor shall be guilty of an offence and liable”.

Therefore, the clause is very clear: the person must intentionally do it. That is sufficient, without “culpable negligence” or “recklessly”. That is because no definition of “culpable negligence” was given and nor does “recklessly” provide a definition. “Intentionally” says clearly that a person is committing an offence when they do that.

No one wants to put anyone’s safety at risk. No one is condoning tampering with or damaging a gas meter. The issue is that someone could be innocently convicted of a criminal offence through no fault of their own. The difference between gas meters and, for instance, electricity meters, particularly in social housing, is that gas meters are outside the building. A person cannot be held responsible for knowing what is happening to their gas meter 24 hours a day if it is outside their home.

A person who intentionally tampers with or damages a meter is already covered by the legislation. To go beyond that and include “culpable negligence” or “recklessly” will put at risk people who are innocent, and we have to protect innocent people. Having “intentionally” in the legislation is sufficient, and that is why I argued that point in Committee.

Photo of Leslie Cree Leslie Cree UUP 12:45, 13 December 2010

I will vote against amendment No 1. As Members said, the Committee discussed this issue at some length. At its November meeting, which was a light meeting, the Committee made the decision to which we have already referred. I was not present at that meeting, and I certainly do not support that amendment.

As someone who has considerable experience in the gas industry, I know that we need such a clause. It represents a common-sense approach and would create a criminal offence, albeit that the person who is in the house need not be the person who intentionally or negligently damages the gas equipment. That aligns with a similar provision in the electricity legislation. To do less in the case of gas would be very foolish and short-sighted.

We need maximum protection for people who use gas, which is an excellent fuel. It is a super servant but a very bad master, and there can be catastrophic results if people are allowed to tamper with equipment, particularly high pressure distribution systems. I could write a book on the number of examples that I have seen over the years in different parts of the country and abroad where people have got up to mischief. Therefore, that needs to be included in the Bill. I support the Minister and will vote against amendment No 1.

Photo of Stephen Farry Stephen Farry Alliance

I am at a slight disadvantage because I am substituting at the last minute for Sean Neeson, who, regrettably, is unwell and unable to join us. Therefore, I am listening with great interest to the unfolding debate. On behalf of my party, I pay tribute to the Department and the Committee for progressing the Bill to this stage.

I am wary about the Assembly sending out a negative message of rowing back in respect of health and safety and people’s responsibilities. Regardless of what we do, some very regrettable incidents have occurred over the past year. That point is doubly valid. I am also conscious that I speak as a layperson in this matter and that the Chairperson of the Committee and the Minister are both legally trained and probably have a lot more knowledge in these matters. However, from my limited knowledge base, I am comfortable with the language as originally drafted in the legislation.

I appreciate that there has not been a proper definition of culpable negligence, but surely that is an issue for the courts to work out as case law evolves and is taken forward on the basis of the legislation. Sometimes, measures have to be drafted in a manner that simply allows a door to be opened to the issues. Obviously, we cannot legislate for every circumstance or define every circumstance where an issue of negligence may be relevant. Therefore, it is important that, under our legal systems in these islands, we allow the courts, through case law, to work out precisely what is meant and to adapt the law to fit whatever circumstances arise.

It is also important that we distinguish between sins of commission and sins of omission, if I can frame it in those terms. If we follow amendment No 1, we will simply be talking about the ability to act when there is an active sin of commission whereby someone actively does something. However, there are many other walks of life where we legislate against sins of omission, where someone, through their actions or, more relevantly, through their lack of action, contributes to the emergence of a serious situation. Again, we have to stress that that does not open the door to all comers. The bar for that type of action not just under this legislation but in other walks of life is extremely high. Essentially, it is a matter of what is a reasonable test in respect of the actions that someone should take, maybe taking on board Jennifer McCann’s point about how things work in social housing or apartments. I do not think that that would cross the definition of reasonableness in respect of what someone should or should not have done. However, there may well be other situations where someone has been reckless in the approach that has been taken, and, although they may not actively have done something, through inaction they may have contributed to a serious situation.

For that reason, my party and I are certainly happy to support amendment No 2. If it has the Attorney General’s backing, who are we to question his learned opinion on such matters? That probably provides sufficient cover for the Assembly’s purposes. I would have been happy to stick with the original language. I appreciate that matters are never defined absolutely in legislation, because one cannot legislate for every circumstance that arises. The principles and framework must be in place to deal with circumstances and to allow the courts to take action as and when cases actually come forward — if, indeed, they do. We hope that that will not be the case. My party is happy to back amendment No 2 and the rest of the amendments, but we oppose amendment No 1.

Photo of Paul Frew Paul Frew DUP

I, too, commend the Committee staff for their thorough work during the scrutiny of the Bill and the departmental officials who came to see us on quite a few occasions to discuss issues that we raised. I also thank the Minister for her input during Committee Stage.

It has been mentioned in the debate that the phrase “culpable negligence” is not clearly defined. The Department liaised with the Office of the Legislative Counsel on this, and it advised that culpable negligence denotes a high degree of negligence which merits criminal sanctions and is more commonly referred to as “gross negligence”. The phrase “culpable negligence” was drafted to reflect equivalent provisions in the Electricity (Northern Ireland) Order 1992. It also keeps the Bill consistent with similar legislation. It must be remembered that the gas and electricity sectors are similar. In fact, it could be argued that, in the wrong hands, gas can be much more dangerous. Indeed, if something were to go wrong, an entire street or building could be affected, with much more severe consequences in loss of life and damage to property.

Of course, “culpable negligence” denotes a high degree of negligence. It could be construed that the term “recklessly” in amendment No 2 could be used in that regard. That would be ample. I will support amendment No 2 and oppose amendment No 1. Indeed, that matter was raised in Committee. I certainly did not support the Committee’s taking up of that amendment. My colleague Paul Givan and I voted against that. The danger is that to leave those words out of such essential legislation will dilute the Bill. Let us be clear: amendment No 1 does not replace those words; it leaves them out. That sends out a dangerous signal. People might think that they can get off with something merely because they did not tamper with a meter or equipment themselves but, perhaps, paid or instructed someone to do the work for them in order to save money. We live in the real world, and there are people who are prepared to take on that work. That is why the Bill is essential in the first place. I stress that tampering with any gas equipment, particularly meters, is extremely dangerous. Amendment No 2 is satisfactory. It covers Committee members’ concerns in that regard.

We have to remember the water legislation, which, of course, penalises negligent damage to water fittings. In this context, water is not as dangerous as gas, nor does it pose the same risk to life, individuals, streets and communities when it is used wrongly or is in the wrong hands. We have to be very careful.

We also have to make sure that the onus is on the users, who can check their premises and equipment from time to time. It is important that the onus is on them to ensure that the equipment that is used on a day-to-day basis is fit for purpose. It is their lives that we are debating. It is also important that the message that comes from the House is that there is an onus on the user, there are penalties and users risk damaging not only their life and property but the life and property of those who live on their street or in their block.

Photo of William Irwin William Irwin DUP

I thank the Minister and the Committee staff for their hard work on the Bill. I welcome the Bill and, of course, the necessary provision contained therein to bring our legislation up to date with our neighbours in the rest of the United Kingdom. Provisions such as enhanced powers of access for gas companies are vital, given the nature of the fuel and, in particular, recent incidents involving gas-related appliances and supply networks. I also welcome the inclusion of increased safeguards for customers, such as providing evidence of authority and notice of the need to enter premises. Customers are entitled to such safeguards.

Amendment No 2 would replace “by culpable negligence” in clause 10(1) with “recklessly”. That is an important alteration, and it was the topic of much discussion by the Committee in recent times. Inserting the word “recklessly” leaves no doubt as to the seriousness of the offence of damage to gas equipment. To remove completely the “culpable negligence” description — gross negligence, as it has been described — without an adequate but simplified replacement would be straying too far from similar legislation, for instance, electricity supply legislation. That would present problems for other industries, such as water and electric, and that would be unhelpful.

In light of the obvious issues with gas equipment, there must be an onus on consumers to act quickly, because ignoring obvious damage could endanger people’s safety along a supply route or result in difficulties with the metering of supply. That is why the inclusion of the word “recklessly” is important. It must be included. Therefore, I support amendment No 2.

Photo of Gerry McHugh Gerry McHugh Independent

Go raibh maith agat, a LeasCheann Comhairle. I want to comment on the amendments. As others have done, I thank the Minister and the Committee staff for the work that they have done on the Bill, which is no simple matter. It is important to stress that we must not simply rubber-stamp everything that comes in here, including parity legislation from the British side or anywhere else, and merely float it on through as we have done with EU legislation in many instances. In many instances, we do not have a choice about EU legislation, but it does not always do justice to those at whom it is aimed or hit those whom it is intended to keep under some sort of check or control. In fact, it can often hit those who are least able to handle it.

If someone is allowed to enter a house at will, it will throw up the possibilities that we have seen before. The same people — those who are less able to pay — will be targeted by the legislation. Such legislation is not usually aimed at the well-off and those who are well able to pay. There is often a broad-brush method of challenging, attacking or aiming at those who have least ability to pay.

I often have difficulties with what is said in such legislation. If the Department wants to aim it at a specific point, it should be done. However, the term “culpable negligence” and the way in which it is set is quite broad; it could target anyone. Often, innocent people, even pensioners, will find themselves with a mark of criminality brought to bear on their person.

We have to look at the legislation in that light. I would not be happy to do that, and I support Jennifer McCann’s contention that it should be removed. I do not know what should be put in place of it. Including the word “recklessly” runs us into a different area entirely, but it is up to the Assembly what it wants to do in relation to that.

There is like-minded legislation in the other two energy areas. Perhaps gas is a bit different in that there is greater risk to many more people if something is tampered with, but how many instances of that have taken place? Is it that widespread that we have to include in legislation terms such as “culpable negligence” to be applied to pensioners or whoever might be caught tampering with those devices? I do not know, but maybe the Minister can throw some light on that. We do not want to support interference with any of that equipment, but neither do we want to send out a message that we are prepared to allow that interference to go on.

Photo of Paul Givan Paul Givan DUP 1:00, 13 December 2010

I appreciate the point that the Member is now trying to make about not giving out a message that you should interfere. Can he clarify his earlier comments if he is now saying that if a person cannot afford to pay for gas or any other utility, it would still be wrong to interfere? Earlier, he seemed to suggest that he felt it was almost justification, and if a person could not afford it, it was OK to interfere. Is he now saying that that is wrong?

Photo of Gerry McHugh Gerry McHugh Independent

I am not prepared to say that I was wrong in making a defence of those who are not able to pay. The fact is that there is a broad-brush attack on those in that category, because the well off will never have to face that situation. Quite a lot of them do not actually pay their bills, but it is more unlikely that it was aimed for that purpose. I have no difficulty in defending my position on that. We are not sending out a message that those who are not willing to pay should be allowed to get away with that. That is not the message that I am talking about. The message about tampering with equipment is much more severe and serious and we do not support that, but, at the same time, it is important for people in the Assembly and in Committees not just to rubber-stamp things. I think that the courts will deal with any of those instances as they come up, and they have until now. There has been no difficulty with that. I stand by the removal of “culpable negligence”.

Photo of Arlene Foster Arlene Foster DUP

I thank members of the Committee in particular for their helpful scrutiny of the Bill and other Assembly Members for their comments during the debate, particularly in relation to clause 10. Clause 10 will establish a criminal offence for people who intelligently — intentionally, not intelligently; no one would do it intelligently — or by culpable negligence damage, or allow to be damaged, gas equipment. The provisions are largely aimed at tackling that issue of meter tampering.

The last Member who spoke asked me whether I had any figures in relation to meter tampering. From 2006 to 2008, there were approximately 1,033 cases of suspected meter tampering, and in 2009 alone, there were 733. It is a huge issue, and we must send out a very strong message from the House today. It would be very regrettable if we did otherwise.

The Committee for Enterprise, Trade and Investment has expressed some reservations in relation to the use of the phrase “culpable negligence”. In amendment No 1, the Committee suggests that the term “or by culpable negligence” should be removed in its entirety from clause 10(1) and that the redrafted clause should just read:

“A person who intentionally damages or allows to be damaged any gas plant”.

I oppose that amendment on the following grounds. The clause was drafted to reflect equivalent provisions in paragraph 6(1) in schedule 6 to the Electricity (Northern Ireland) Order 1992. It is important that we have consistency on this. If someone tampers with electricity, he may well kill himself, but if someone tampers with gas, he could blow up a whole street. People need to reflect carefully on that. It is not OK for people to tamper with gas equipment because they cannot afford to pay. That is not the situation. I am Minister with responsibility for health and safety as well, and the health and safety aspect is key to this legislation. Members need to reflect on that.

The Committee’s suggested amendment would limit the criminal offence to intentional damage to gas equipment and would mean that gas legislation would be out of line with, and weaker than, electricity legislation, despite the risks to individuals and the wider community from tampering with gas plant. Interfering with gas plant carries more potential danger than interfering with the other utilities, electricity and water. The legislation on water has the highest penalties for tampering, though it is the least dangerous of all the utilities. There is a contradiction there.

I have at all times tried to work with the Committee and we have agreed all the other amendments. I take issue with Mr McHugh’s remark about rubber-stamping. That is not the job of the Assembly and we have never sought to do that. I am determined to have some consistency and to put the needs of the community first in relation to this matter. I sought advice from the Attorney General. He tabled an alternative amendment, which I put forward in my name. Amendment No 2 suggests replacing the term “by culpable negligence”. I want to put on the record that I am perfectly happy with that wording, and I agree with Mr Farry that it is right to maintain consistency with electricity legislation. However, in the spirit of trying to find a solution to this matter, we put forward the term “recklessly” as a substitution. That does not constitute —

Photo of Arlene Foster Arlene Foster DUP

I am about to explain what “recklessly” means, but I am happy to give way.

Photo of Jennifer McCann Jennifer McCann Sinn Féin

Does the Minister agree that most gas plant is situated outside people’s homes? It is not inside their homes, as most electricity meters are. Can she give a clear definition of “recklessly”? What if a householder leaves their back gate open, allowing someone to come in to damage the gas plant? No one here underestimates the safety aspect. The word “intentionally” covers it. There is no need to use the word “recklessly”. In the areas that I represent, gas meters are situated in back gardens.

Photo of Arlene Foster Arlene Foster DUP

Of course the word “recklessly” does not cover that sort of situation. Does the Member seriously expect that a judge sitting in court will accept that as a reckless act? Of course he would not. This does not constitute a policy change. Rather, it is a clarification of the terminology that helps to explain the level of misbehaviour required to merit criminal sanction. For example, it is unlikely that vandalism by a third party to a gas meter in a public area, such as a hall in a block of flats, will result in the unfair prosecution of the owner of the gas meter, unless he or she had committed a reckless act that was seen as contributing to that vandalism.

I want to explain what “recklessly” means. I ask the Assembly to agree that this is a more suitable way of addressing the very serious issue of damage to gas plant and meter tampering. I ask Members to support amendment No 2, my Department’s amendment, and to reject amendment No 1. We have already heard about the differences between water, electricity and gas. I listened carefully to what the Committee told me, which was that there is no legal definition of “by culpable negligence”, whereas the definition of recklessness, as the Chairperson will know from many legal cases and criminal and common law, is a term of art used in the law. Essentially, “recklessly” means intentionally or by being so careless that it is obvious to the objective bystander that those actions would lead to damage. Therefore, “recklessly” is a high degree of intent, or not caring, so that it is obvious to everyone else that damage will happen to the gas plant.

I submit that the Committee’s concern about having no definition of “culpable negligence” has been dealt with by my suggesting the insertion of the term “recklessness”. I am interested to hear what the Chairperson of the Committee has to say about that matter.

I will move on to amendment Nos 3 and 4. During the Committee’s scrutiny, it was noted that meter tampering is not specifically mentioned in clause 10, which deals with damage to gas plant in general. My Department was asked to consider whether meter tampering was sufficiently covered by the present wording, and, after receiving legal advice, I agreed that, for the purposes of clarity and to ensure that meter tampering is fully covered as intended, it was desirable to amend clause 10(1). I, therefore, propose to insert a specific reference to meter tampering in line with existing provisions on meter tampering under the Electricity (Northern Ireland) Order 1992, the Gas Act 1986 and the Electricity Act 1989 in GB.

I propose that clause 10(1) of the Bill be amended to read:

“10. — (1) A person who intentionally or recklessly damages or allows to be damaged any gas plant provided by a gas conveyor; alters the index to any meter used for measuring the quantity of gas conveyed or supplied by a gas conveyor or gas supplier; or prevents any such meter from duly registering the quantity of gas conveyed or supplied shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.”

The House may wish to note that level 3 on the standard scale translates to a fine of up to £1,000.

Finally, I turn to amendment No 5 to clause 10. The Committee for Enterprise, Trade and Investment suggested that subsection (4) of clause 10 should be amended to add “or repair” to the existing sentence, which describes how a gas company must handle a gas meter that has been removed as a result of tampering. The provision currently reads:

“(4) A meter removed under subsection (3) shall be kept safely by the gas conveyor until the Authority authorises its destruction or disposal.”

The clause was originally drafted to reflect equivalent provisions in paragraph 6(4) of schedule 6 to the Electricity (Northern Ireland) Order 1992. However, my Department consulted the natural gas industry on the suggested amendment. The industry advised that it would be content with the revised wording and accepted that, in certain circumstances, meters could be repaired instead of disposed of or destroyed. I understand that a gas company will ultimately base its decision on whether to repair or to destroy a gas meter on the cost of repair versus the cost of replacement. I, therefore, propose that clause 10(4) of the Bill be amended to read:

“(4) A meter removed under subsection (3) shall be kept safely by the gas conveyor until the Authority authorises its destruction, disposal or repair.”

That concludes what I have to say about the amendments.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

I am grateful to all colleagues who contributed to the debate. It has been an interesting discussion on the term “culpable negligence” in clause 10. Mr Givan mentioned that that was a split decision by the Committee. I accept that, and I averred to that in my opening remarks. He also emphasised that the Attorney General suggested the alternative term “reckless” or “recklessly”, and that he preferred that amendment to the deletion of “culpable negligence”, which is, effectively, the amendment that the Committee tabled. He emphasised, quite properly, the potential danger posed by any interference or tampering with gas equipment. Indeed, other colleagues emphasised that as well. In fairness to all members of the Committee, it was generally recognised that gas equipment posed a particular danger to individuals and the public at large. That is not lost on any Members involved in the debate, regardless of whether they are for or against the amendment to clause 10.

Ms Jennifer McCann spoke in favour of the amendment. In her opinion, culpable negligence was not properly and clearly legally defined. The thrust of her argument was that the clause, because it creates a criminal offence, required definition. She also emphasised that she did not want to put anybody’s safety at risk. However, she emphasised, importantly, that many gas meters are situated outside people’s homes. As a result of that, such meters are more vulnerable to interference by third parties. She was concerned that adopting the original clause or the alternative put forward by the Attorney General in advice to the Minister — now proposed by the Minister — could put innocent people at risk of a potential criminal prosecution. She was concerned that people, particularly those with meters outside their homes, should be protected.

In fairness, the Minister doubted that, in the circumstances of third party interference, a judge would find a person guilty of such an offence. She said that recklessness or culpable negligence required a high degree of negligence. I presume that it would probably not amount to recklessness or culpable negligence if someone’s gas equipment was tampered with by a third party without the knowledge of the occupant.

Dr Farry also indicated that his party supported the Minister’s position, and he emphasised the risks to the public. He adopted what one might term a theological bent by talking about sins of commission and of omission. He felt, I presume, that someone who omitted to do something could be found guilty of an offence in certain circum­stances. In any event, he felt that the Attorney General’s advice to the Minister and the Committee was preferable to the deletion of the original culpable negligence aspect of the clause.

Mr McHugh made the important point that the Assembly should not rubber-stamp everything that comes before it. Again, in fairness, the Minister accepted that. However, we should reflect on what Mr McHugh said: as an Assembly and as individual Committees, we have a duty to look carefully at all aspects of legislation, and we should try to remedy potential problems when we detect them. In this instance, the Committee has attempted to do that by tabling the amendment to delete “culpable negligence” from clause 10.

A number of Members made the point that there should be consistency across utilities, whether water, electricity or gas. It is important that there are consistent standards, and, therefore, this legislation should be consistent with that for the electricity industry, in particular, so that consistency is maintained across the utilities. That is something that bears consideration.

A further point made by other Members, including Mr Frew, Mr Givan, Mr Farry and the Minister, was that we should not send out a message that may encourage those who seek to benefit from interference with gas equipment. It is important that we consider that issue. However, the Minister made the point strongly that removing “culpable negligence” will weaken that part of the Bill, which would not be good. That view was supported by other Members. The Minister said that she has taken the Committee’s criticism on board. Her view is that the Attorney General’s advice about “or recklessly” should be preferred and that it meets the criticism levelled by the Committee. However, the Committee felt there was not a clear definition of “culpable negligence”. I prefer “recklessly” to “culpable negligence”, but, as Chairperson, I am bound by the decision of the Committee, and I represent its views as strongly as I can. I accept that it is difficult to define all those terms, including “culpable negligence” and “recklessly”. Nonetheless, it is important to take the Committee’s majority view of “culpable negligence” into consideration. I invite the Assembly to consider that seriously as its preferred position.

Question put, That amendment No 1 be made.

Photo of John Dallat John Dallat Social Democratic and Labour Party 1:15, 13 December 2010

Members will resume their seats, please. [Interruption.] Members will resume their seats. [Interruption.] Order, please.

Photo of John Dallat John Dallat Social Democratic and Labour Party

I wonder whether I should thank Mr Campbell for that little bit of help. Now that all Members have resumed their seats, I will put the Question again.

Question put, That amendment No 1 be made.

The Assembly divided: Ayes 39; Noes 49

AYES

Ms M Anderson, Mr Boylan, Mr D Bradley, Mrs M Bradley, Mr P J Bradley, Mr Brady, Mr Burns, Mr Callaghan, Mr W Clarke, Mr Doherty, Mr Gallagher, Mrs D Kelly, Mr G Kelly, Mr Leonard, Mr A Maginness, Mr A Maskey, Mr P Maskey, Mr F McCann, Ms J McCann, Mr McCartney, Mr McDevitt, Dr McDonnell, Mr McElduff, Mrs McGill, Mr McGlone, Mr McHugh, Mr McKay, Mr Molloy, Mr Murphy, Ms Ní Chuilín, Mr O’Dowd, Mr O’Loan, Mrs O’Neill, Ms Purvis, Mr P Ramsey, Ms S Ramsey, Ms Ritchie, Ms Ruane, Mr Sheehan.

Tellers for the Ayes: Mr Leonard and Mrs McGill.

NOES

Mr S Anderson, Mr Beggs, Mr Bell, Mr Bresland, Lord Browne, Mr Campbell, Mr T Clarke, Mr Cobain, Rev Dr Robert Coulter, Mr Craig, Mr Cree, Mr Easton, Mr Elliott, Sir Reg Empey, Dr Farry, Mrs Foster, Mr Frew, Mr Gardiner, Mr Gibson, Mr Girvan, Mr Givan, Mr Hamilton, Mr Hilditch, Mr Humphrey, Mr Irwin, Ms Lo, Mr Lunn, Mr Lyttle, Mr McCallister, Mr McCarthy, Mr McClarty, Mr B McCrea, Mr I McCrea, Mr McFarland, Mr McGimpsey, Miss McIlveen, Mr McNarry, Mr McQuillan, Lord Morrow, Mr Moutray, Mr G Robinson, Mr K Robinson, Mr Ross, Mr Savage, Mr Spratt, Mr Storey, Mr Weir, Mr Wells, Mr B Wilson.

Tellers for the Noes: Mr Frew and Mr Givan.

Question accordingly negatived.

Amendment No 2 made: In page 6, line 40, leave out “by culpable negligence” and insert “recklessly”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

Amendment No 3 made: In page 6, line 41, after “conveyor” insert

“(b) alters the index to any meter used for measuring the quantity of gas conveyed or supplied by a gas conveyor or gas supplier; or

(c) prevents any such meter from duly registering the quantity of gas conveyed or supplied,”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

Amendment No 4 made: In page 7, line 3, leave out “subsection (1)” and insert “subsection (1)(a)”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

Amendment No 5 made: In page 7, line 14, leave out “or disposal” and insert “, disposal or repair”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

Clause 10, as amended, ordered to stand part of the Bill.

Clauses 11 to 23 ordered to stand part of the Bill.

Photo of John Dallat John Dallat Social Democratic and Labour Party

We now come to the second group of amendments for debate, which deal with minor changes to the terms in the Bill. With amendment No 6, it will be convenient to debate amendment No 7.

Clause 24 (Restrictions on voluntary winding up)

Photo of Arlene Foster Arlene Foster DUP

I beg to move amendment No 6: In page 16, line 8, leave out “leave” and insert “permission”.

The following amendment stood on the Marshalled List:

No 7: In clause 35, page 23, line 40, leave out “Energy” and insert “Utility”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

Photo of Arlene Foster Arlene Foster DUP

During the Committee’s call for evidence, Northern Ireland Electricity suggested a minor amendment to clause 24(4), which covers restrictions on voluntary winding-up by a protected energy company as part of the provisions for a special administration regime. The suggested amendment involves changing the reference to “an application for leave” to “an application for permission”. The Department sought legal advice on that issue and has accepted that the amendment would improve the clarity of the clause. I therefore propose that clause 24(4) should be amended to read:

“(4) If an application for an energy administration order in relation to the company is made to the High Court in accordance with section 19(1) after an application for permission under this section has been made and before it is granted, the Court may exercise its powers under section 20 instead of granting permission.”

Turning to amendment No 7, during the Committee’s call for evidence, the Utility Regulator highlighted a minor error in clause 35(1), which refers to:

“the Northern Ireland Authority for Energy Regulation”.

That is the former name of the Utility Regulator, and I have agreed that, for the purposes of accuracy, that reference should be amended to:

“the Northern Ireland Authority for Utility Regulation”.

That concludes what I have to say about those two amendments.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

Amendment Nos 6 and 7 are, in essence, minor and technical. During the Energy Bill’s Committee Stage, Northern Ireland Electricity advised the Committee for Enterprise, Trade and Investment that the reference to “leave” in clause 24(4) with regard to a voluntary winding-up order should be changed to “permission”, to accord with the wording in the Energy Act 2004. The Committee advised the Department accordingly, and, following advice from the Office of the Legislative Counsel, the Department accepted the Committee’s advice.

During Committee Stage, the Department informed the Committee of a minor drafting amendment to clause 35 to accurately reflect the name of the Northern Ireland Authority for Utility Regulation. That name is contained in the amendment. The Committee supports amendment Nos 6 and 7. I thank the departmental officials and the Committee staff for all their work on this legislation.

Photo of Arlene Foster Arlene Foster DUP

I thank the Chairperson for his comments. The Bill is a good example of the way in which Committees can make legislation better. The amendments in the second group came about as a result of the Committee’s call for evidence. There is a lot of scepticism in the press and among the public about the usefulness of the Assembly and its Committees. This exercise has shown that they are useful when it comes to legislation. I know that we had a disagreement on one clause, but that is a very healthy sign that we are prepared to debate to make laws better.

I am grateful to Members who contributed to the debate on all the amendments. As I outlined, I have accepted that amendment No 6, which changes the phrase “application for leave” to “application for permission”, is appropriate and will not impact on the intended overall aim of the clause. I have also agreed that amendment No 7 will correct the minor inaccuracy in the wording of clause 35.

Question, That amendment No 6 be made, put and agreed to.

Clause 24, as amended, ordered to stand part of the Bill.

Clauses 25 to 34 ordered to stand part of the Bill.

Clause 35 (Interpretation)

Amendment No 7 made: In page 23, line 40, leave out “Energy” and insert “Utility”. — [The Minister of Enterprise, Trade and Investment (Mrs Foster).]

Clause 35, as amended, ordered to stand part of the Bill.

Clauses 36 and 37 ordered to stand part of the Bill.

Schedule agreed to.

Long title agreed to.

Photo of John Dallat John Dallat Social Democratic and Labour Party 1:45, 13 December 2010

That concludes the Consideration Stage of the Energy Bill. The Bill stands referred to the Speaker.