Energy Bill [HL]

Baroness Noakes Excerpts

Monday 17th January 2011 Grand Committee

[Lord Davies of Oldham]

I confess that this is not my first time speaking for the Opposition in Committee; I am not enjoying it and I do not expect to enjoy it. Being in opposition is nothing like being in government, as we all recognise. However, over a period of time, I spoke on Welsh matters and therefore have a considerable respect for the devolution settlement and the importance of considering how we appreciate Welsh interests in our legislation. That is why I am moving this amendment.

[Baroness Noakes]

My Lords, I thank the noble Lord for giving way. I am a little confused. Amendment 1B was grouped with the previous amendment moved by the noble Baroness. Are the opposition Benches not following the groupings that have been published for this afternoon? If so, could we have a sight of the groupings that they are working to?

[The Deputy Chairman of Committees]

Obviously noble Lords are able to speak to any amendment as it comes up on the Order Paper. I agree that Amendment 1B was not in the original grouping.

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[Lord O'Neill of Clackmannan]

I reiterate the point that was made by the noble Baroness just before she sat down. There are references to upcoming statutory instruments. They are mentioned in Clause 1 and two of them are of more than passing significance. It would be helpful if in this stand-part discussion the Minister could give us some indication of what is meant by an eligible property and some guidance relating to energy efficiency improvements. We are not asking him to give us chapter and verse but to give us a rough outline. These two things are obviously at the very heart of the Green Deal. It would be helpful if at this stage we could begin to get some kind of idea of what the Government have in mind in respect of upcoming statutory instruments.

We have had a passage of some three or four weeks. Admittedly there was the Christmas and new year break. Nevertheless, it is not beyond the wit and capability of the department and the officials. The Minister should have been asking for this to get some kind of rough outline of two of the central points of the Green Deal that appeared in Clause 1; that is to say the qualifying energy efficiency improvements and what is meant by eligible properties. If we could get some kind of clear indication on and definition of these points at this stage, it would assist us. It would perhaps diminish the need for us to continue to ask the Government for definitions and statutory instruments—albeit in a consultative form—at every stage and turn. We can make considerably more progress if we receive that than we are likely to make if we do not get it.

[Baroness Noakes]

My Lords, as the noble Baroness, Lady Smith, pointed out, I raised inter alia whether or not statutory instruments in draft would be available at Second Reading. Answer came there none from my Front Bench. In fact, my noble friend Lord Marland said—as if it was a badge of honour—that this is a framework Bill. The noble Baroness, Lady Smith, has translated that badge of honour into her Amendment 38 and, apparently, has also made it a good part of the Bill. I had not anticipated that we would be debating this point today. I have today tabled amendments—we will not see them on the list until tomorrow—that will tease out this point.

The Constitution Committee is clear that a framework Bill is on a par with a Henry VIII clause; that is to say, they are fundamentally unconstitutional. In particular—this is the point made by the noble Lord, Lord O’Neill—it sucks out the ability of this House, as a revising Chamber, to make any significant impact on the genuine content of what will be the result of the legislation. As a matter of principle—and the committee reiterated this as recently as the Public Bodies Bill—it does not believe that framework Bills are a good thing. I therefore oppose the amendment of the noble Baroness, Lady Smith, because putting “framework” in makes it sound as if it is okay. I believe that this House ought to hold out against excessive use of Henry VIII powers and the excessive use of framework legislation where there is no good reason for it and where the amount of information that will be made available to noble Lords during the passage of a Bill will not enable them to exercise their crucial function as a revising Chamber.

I will make these points again when I come to my amendments which are on the way to being tabled in respect of Chapter 4 of Part 1, which is the point that I specifically raised on Second Reading in regard to this very inchoate legislation. I had not intended to raise this point on the Green Deal, but I fully support what the noble Lord, Lord O’Neill, has said.

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[Lord O'Neill of Clackmannan]

I support the previous two contributions. We have seen a diminution in deaths due to smoke inhalation as a result of smoke detectors. Part of the reason for the decrease is that the fire services have been proactive and going round homes handing them out. Frankly, £15 to £30 is not a lot, but it is quite a lot for the kind of households that might have defective boilers and the like. I know from my own experience that when people from British Gas, which we use for boiler maintenance, come to our home they always ask about this. We can afford to pay the £15 to £30, but it still seems to be excessively priced.

If this legislation were to bring in a recognition of the importance of the issue then it would mean a massive increase in sales and therefore a reduction in price. We are told a lot about smart meters and about these gadgets which tell you how much you are spending when you use certain electrical appliances. People often use these not because they want to reduce their consumption but because they are interested in finding out how much they are spending. The electricity companies give them away for nothing. The gas companies should be a little more generous and more proactive. As I say, they are proactive when it comes to maintenance, but this usually involves condemning a boiler and saying that they would like to install another one. In the interim they will offer the person an alarm so that they do not poison themselves, or wrap the boiler in a yellow and black band and say that it should not be used. Invariably they do that on Christmas Eve when they know you are not going to be able to get another one until probably the summer.

This is an opportunity. It is not about the Green Deal as such but it is about energy safety and domestic safety and it could be that this is an opportunity that the Government would be well advised to look at.

In terms of people’s confessions about whether they have been in opposition when serving on Bill Committees, these amendments are an example of How to Oppose Bills in Committee 101: where you see a “may”, you make it into a “shall”. That is the first rule of opposing in any Committee. You go through the Bill and you strike them out. If it is “14 days”, you make it “28”, and if it is “28”, you make it “14”. A lot of people need to learn this. This mob here need to learn how to oppose legislation as much as anyone else does. They did not do much opposing when Labour was in power. They certainly did not do much of it in the past five years.

The Government spend nearly two pages on the framework, telling us that they are going to establish a scheme making provision for the Secretary of State to authorise all these good works. At the end of it they say that even if you do all that, you do not have to tell anybody, and you do not really have to do it—it is really just permissive. If this is worth doing, it is worth doing well. It is worth making it clear and explicit. It makes sure that Governments of all stripes at the appropriate time will have to measure their performance against their ambition. Until such time as we have a clearer definition of what the Government intend to do, when we get the vague and sometimes not too specific provisions in the framework regulations, we want to make sure that the Government are called to account and know that they must do this. Therefore it would be a sign of the Minister’s good intent if he were to accept this amendment or take it away and think about it.

This is fundamental to how you oppose legislation in Committee, but on the other hand it also makes a lot of sense to do this at this time because it would give a clear indication that they want it to be above board and intelligible to the parties that will be interested in those individuals. The great British public are not going to applaud you for doing this but I think that the people involved in this would take some comfort from the fact that the Government want to make their intentions clear and specific and that they are required to do so by the Bill.

[Baroness Noakes]

My Lords, the noble Lord, Lord O’Neill, prompts me to rise in respect of some of the amendments tabled in the names of his colleagues on the opposition Front Bench—namely the may/shall amendments. The noble Lord, Lord Davies, and I have done many may/shall amendments over the years together and I remember enjoying every single one of them.

The noble Lord, Lord O’Neill, says that the 101 rule of amendments is to table the may/shall amendments. The noble Lord, Lord Davies of Oldham, and I have done many may/shall amendments over the years together and I remember enjoying every single one of them. The noble Lord, Lord O’Neill, says that the 101 rule of amendments is to table a may/shall amendment. I am afraid the noble Lord, Lord O’Neill, and indeed the noble Lord, Lord Davies of Oldham, are going to have to go back to school and retake 101, because the modern formulation is “must”. Noble Lords will find that that is what parliamentary draftsmen now use, and it is used in this Bill. I am afraid that noble Lords opposite have been producing amendments from another era, and I think that they can try a little harder. However, I would like to raise a more substantive point, if I may come to the amendment tabled by the noble Baroness, Lady Finlay of Llandaff, which is clearly extremely well intentioned. I have a slight concern about requiring Green Deal installers to fit any particular kind of alarm. I have every sympathy with requiring them to make that available if the person entering the Green Deal wants it, and indeed possibly other things like smoke detector alarms to the extent that they are not already fitted in the property. However, I do have a concern about absolutely requiring the installation as part of a Green Deal package. I think that it would fit better if it was an optional extra, which gives an opportunity for that to be plugged.

[Lord Hunt of Chesterton]

Picking up on the point that the noble Baroness, Lady Finlay, made, she used the word “ventilation”. I keep looking through the Bill to see where the word “ventilation” is. I made this point on Second Reading. It is really important that when you are considering the energy of a house, you consider ventilation. You gain or lose a huge amount of heat in that way. Nobody could possibly have an energy system without that. Obviously, one aspect of ventilation is to do with energy; another aspect is to do with safety, comfort and so on. Some kinds of housing would require new ventilation, and that should be part of the cost. I also raised the point on Second Reading as to whether this could be included as part of the Green Deal funding. From a technical point of view, it seems that it would be very eccentric not to include that, so I hope that that is considered as part of the Bill. It may be that ventilation and safety should be considered in a more general clause.

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Moved by

[Baroness Noakes]

5ZA: Clause 3, page 4, line 26, after “scheme” insert “must be made by order and”

[Baroness Noakes]

My Lords, as has been pointed out, Amendment 5ZA is a manuscript amendment. First, I apologise to the Committee for not putting this down until this morning. This brings me to an issue that the noble Lord, Lord O’Neill, raised earlier, about the 101 of amendments. One of the 101s of amendments, after you have got past “may/shall” is to look at the report of the Delegated Powers and Regulatory Reform Committee or the Constitution Committee or some of our other excellent Select Committees to see which points are raised that need to be debated in Grand Committee. Over the weekend, when I was looking at the amendments that had been tabled, I realised that nobody had put down the amendment that flowed out of the eighth report of the Delegated Powers and Regulatory Reform Committee. However, the other amendment in this group is Amendment 8D in the name of my noble friend Lord Jenkin of Roding, who came to the same conclusion over the weekend because our amendments address substantially the same point.

I shall explain the point raised by the Delegated Powers Committee. It relates to the code of practice under Clause 3. The scheme established by the framework regulations, which is in subsection (3) includes, in paragraphs (h) and (i), that those regulations may provide for securing compliance with, inter alia, any conditions of the code and, in paragraph (i), the consequences of non-compliance.

We then come to the code requirements, which will be mandatory. Those are found in subsection (4) of Clause 3, and they cover a large number of things which have a financial bearing on those who are participating in the Green Deal. For example, they cover insurance, which has been covered by the amendments that noble Lords have just spoken to. They cover the payment of Green Deal assessors, circumstances in which assessors may charge customers, and quite a lot of things affecting the way the finances are going to work for those involved in the Green Deal. These are not insignificant issues that are going to be found in the code of practice. As the Delegated Powers Committee pointed out, this code is not of the “have regard to” variety, which a lot of statutory codes are; this code is of the “must comply with” variety. So these are very important.

Clause 3(8) shows the consequences of non-compliance with the code. They can include cancelling any liability, requiring Green Deal providers to suspend or cancel liability of a bill payer and requiring a Green Deal participant to pay compensation or a financial penalty. Nowhere in subsection (8) is there any restriction in monetary amounts or any other kind of amount.

As the Delegated Powers Committee pointed out, the code of practice which is going to cover all these very significant issues is subject to no parliamentary procedure at all. It is just something that will be decided by the Minister. The report recommends in paragraph (8):

“The use of a code for provision of this kind appears to us to be a form of sub-delegation of statutory prescription into an instrument that would currently attract no form of parliamentary scrutiny. In view of its mandatory nature, and the possible consequences of non-compliance, the Committee considers that the code under clause 3 should be subject to parliamentary control by way of a draft negative procedure, and we recommend accordingly”.

Over the weekend, I drafted the amendment to Clause 33 which would have put the draft negative procedure into the relevant clause of the Bill. However, for the purposes of today, I did not table that as a manuscript amendment because the substance to be discussed is whether there should be parliamentary procedure. In my amendment I have merely said that the code has to be made by order; that would then require some parliamentary procedure, but we would need to define that later.

I say to my noble friend Lord Jenkin of Roding that his Amendment 8D has not provided the draft negative procedure. It has provided an ordinary negative procedure. The Delegated Powers Committee intended to go a bit further and require a draft instrument to be laid for a certain number of days before the instrument could be made. That is probably a better procedure to be used in this case.

I hope that the Minister will see the force of the arguments made by the Delegated Powers and Regulatory Reform Committee and will agree to this or some similar amendment. I beg to move.

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[Lord Marland]

My Lords, it is marvellous to see such harmony in the room at the Government’s expense. Given the force of the arguments, particularly those from the Opposition Benches at which one quakes with fear—although one quakes with fear less at the arguments of noble Lords on our Benches, who are so erudite in these matters—we will obviously consider the amendment and reflect on the recommendations already made by the Delegated Powers and Regulatory Reform Committee on the code of practice.

[Baroness Noakes]

That was a slightly less fulsome reply than I had hoped for. I hoped my noble friend would agree readily that this was an appropriate amendment. However, we are where we are and if the Minister does not bring something back on Report, I will. I beg leave to withdraw the amendment.

Amendment 5ZA withdrawn.