Draft Hydrogen Production Revenue Support (Directions, Eligibility and Counterparty) Regulations 2023

Jesse Norman Excerpts

Tuesday 12th December 2023 General Committees

[Dr Alan Whitehead (Southampton, Test) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Gray. You chaired a substantial part of the proceedings on the Energy Bill and you will therefore be well aware of the consequences of that labour of Hercules that we undertook between us to get the measure on the statute book. The statutory instrument is one of the first to follow from the 2023 Act.

As the Minister explained succinctly, the regulations cover the process whereby the hydrogen low-carbon business plan is implemented during the initial allocation period of contracts for hydrogen producers in order to achieve our target of 10 GW of hydrogen production. As the Minister also said, qualifying schemes have already been substantially identified through track-1, phase-2 of the cluster process. Schemes will be identified and quality-assured by the Minister, who will then direct the hydrogen counterparty, which is identical in structure to the low-carbon contracts company, to provide contracts for companies that have been deemed eligible. So far, so good. That is absolutely the right thing to do to develop the outline in the Act into some detailed legislation to make the whole thing work, particularly the initial allocation process.

The explanatory notes state that the initial allocation gives way to a competitive tender process later. The directions therefore concern the initial allocation process in the first instance, but they are all to be informed by the centrepiece of the SI—the low-carbon hydrogen standard, which is generally called “the standard” in the regulations. It refers to a detailed document, which sets out the greenhouse gas emissions and sustainability criteria that programmes that apply for an allocation contract should follow.

The document is entitled, “UK Low Carbon Hydrogen Standard” and was published in April. It is interesting to note that the standard rightly provides for stringent qualifying criteria for a project’s eligibility. For example, it requires a project not to exceed a certain level of carbon emissions, and to measure fugitive hydrogen for its duration, the process whereby hydrogen is produced, transport and other things. It is a system-wide standard for the low-carbon nature of the hydrogen.

For a project to get a direction from the Minister to be awarded a contract by the hydrogen counterparty, it must comply with the standard when it receives agreement to proceed. However, as hon. Members will have observed, that standard is evolving. Indeed, the standard to which the SI refers is version 2 of the “UK Low Carbon Hydrogen Standard”. That version has evolved from the initial standard, which was produced immediately after the Act was passed. Version 2 has emerged from consultation and correction of various elements of the initial standard that could have caused difficulties, and has tightened up several matters that were uncertain, difficult or in need of clarification.

The document and the explanatory notes say that it is intended that the standard will evolve. That means that the Department envisages that it will produce further iterations of the standard in future. The low-carbon hydrogen standard as it currently stands may therefore change. That is fair enough given that we want the standard to progress, but a question then arises. If a company or body wishes to get a low-carbon hydrogen contract, what are they signing up for when they apply? Clearly, the companies that sign up want to comply with version 2 of the standard, but they will not necessarily comply with versions 3 or 4. Those companies will presumably want some assurance that they will not be knocked out of their contracts if the standard evolves.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

I am grateful to the hon. Gentleman for his careful rehearsal of the background, but surely the regulations contemplate a series of private law contracts, the circumstances and detail of which will be whatever is agreed under the law. Why is he pressing the Minister on this matter now? Does he believe that the law is defective?

[Dr Whitehead]

No, I do not think that the law is defective, but, as I have tried to explain, it is evolving as the contracts are given out, possibly into a different form. That is an inevitable consequence of the 2023 Act being distilled into secondary legislation. As the process has gone on, the standard has evolved. My central question is whether the Minister is clear that companies that are compliant with the current standard can safely put in their bids for contracts under that standard, and will not be disadvantaged should it change in the future. I think the regulations contain provisions giving the Minister some discretion in that respect.

Conversely, if the terms are relaxed in a future iteration of the standard—I do not anticipate this happening—and compliance becomes less onerous with regard to carbon emissions, for example, might companies that are already contracted ask to sign up to the new less onerous version and continue their contract? This is evolving and it can go in two ways.

[Jesse Norman]

I am grateful for this clarification, although obviously the Minister will want to speak for herself and for the Government. It does not sound as though the hon. Gentleman opposes the regulations— he may wish to comment on that—but is he not flagging a difference between the evolution of the law, by further amendment in statutory instruments considered in Committee, and evolution of a contractual situation that operates within that process? If it is the latter, any Government can give an indemnity against future changes to the rules if they wish, but it is not unknown for people to sign a contract and then, further down the track, think, “If only I’d struck this contract earlier. I’d’ve got a better deal,” or vice versa. Is that not a matter of private law and negotiation between the parties, and why is it a matter for this Committee?

[Dr Whitehead]

It is a matter for this Committee inasmuch as the standard is the centrepiece of how the regulations will work, but that standard is itself evolving. Contracts are being given as this piece of law is evolving. Obviously, contract law applies to those contracts, which bind the company applying for the contract to a certain standard of operation, which may well put the company to quite a lot of expense and planning. It is a bit like a boxer going into training and having to reach the weight for the upcoming fight, and having reached it, then having to keep to that weight after the fight takes place, because that is the continuing standard for their operation.

What methods of verification, challenge and judgment will be used to determine whether companies are continuing to adhere to the standard, once the standard has been set in the contract? That is my final question for the Minister. Is she satisfied that that will work well? As the low-carbon standard evolves, it may well be a case that a company says, “Well, that’s my hard luck, because I signed up for something that was a bit more onerous than it is now, but I ought to stick to it anyway,” or is the Minister suggesting that companies could relax their adherence to the standard if the standard itself is relaxed? Indeed, the regulations suggest that the Minister can or may—the famous “may”—do that if she so desires.

If the right hon. Member for Hereford and South Herefordshire is in any doubt, I stress that we do not oppose the SI and we want it to succeed. There is a provision, which does not always apply in regulations, that the SI comes into force tomorrow. I am sure that we will all happily agree to that. As soon as we have agreed to the regulations, they will come into force so that the contracts can be pursued.

It is important that we are clear about how the standard works on an evolving basis, but I do not wish to impede the issuing of the contracts or the forward march of hydrogen production and use in future.