Lord Jenkin of Roding
Main Page: Lord Jenkin of Roding (Conservative - Life peer)Energy Bill [HL]
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Baroness Maddock
My Lords, this is a new clause concerning proposed reductions in VAT rates and adds to the new clause I moved at the last sitting of this Committee. Members will be aware that most energy-saving materials enjoy the reduced VAT rate of 5 per cent; it makes no sense taxing energy saving more than energy use. There are some exceptions, however, and there are new technologies, as I mentioned last time.
I apologise for the wording in this amendment. As originally worded, subsection (1)(b) referred to “special glass” and not “energy efficient windows”, and when I changed the amendment I regret I did not change the explanatory paragraph below, which talks about the glass. I anticipate the amendment in this form is unlikely to be accepted by the Committee but if the Minister was minded I am sure he could change it.
It is important that we try to encourage people, as we are in this Bill, to spend their money on energy efficiency measures, but we have some that carry rather a high rate of VAT. The supply and installation of this equipment can be charged at a 5 per cent rate and I hope the Minister will look at this favourably. I suspect the Minister will say that this is something he must talk to the Treasury about, and I appreciate that point; but if we are serious about this we need to be consistent across the board on how we apply VAT to energy efficiency measures, products and installation. I beg to move.
Lord Jenkin of Roding
I was a member of the Treasury team when VAT was first introduced in 1972. It was one of the principles of the then Government that it should be as simple a tax as possible. There were of course some major exclusions from VAT, for instance all food and children’s clothes, but I well remember my noble friend Lord Higgins, who was dealing with the Finance Bill, saying that it was a simple uniform tax to be extended across the range of products and services, apart from those that were specifically excluded.
Since then Governments, no doubt of all persuasions, have found themselves led down a path of adding more complications to VAT. I have sympathy with what my noble friend has suggested, because these are clearly energy-saving and carbon-saving measures, which one would wish to encourage. However, to use VAT and the tax system to do that seems to me to go against the principle of keeping VAT as simple a tax as possible.
VAT is now substantially higher than it was when it was first introduced, for reasons that we can all understand, although that is not within the competence of the Committee. Wisely, my noble friend’s amendment places this firmly in the hands of the Chancellor of the Exchequer, although it could not be with anybody else, as my right honourable friend the Chancellor is the Minister in charge of the tax system. However, I sound a note of caution on beginning to extend lower rates of VAT to other services and products, notwithstanding that one might have some sympathy with what is being sought. Having said that, I should be interested to hear what the Minister has to say in reply.
Lord Davies of Oldham
My Lords, the noble Lord, Lord Jenkin, is right to remind us that exempting certain goods from the normal rate of VAT is a matter for the Treasury. We are all too well aware that the Treasury looks at these issues with a sharp eye and intensive scrutiny at any time, but in this age of austerity that position is likely to be intensified. As the noble Lord indicated, the noble Baroness, Lady Maddock, is seeking to build on the 5 per cent reduced rate of VAT that already applies to a number of installations that relate to energy conservation, both to encourage householders to install energy-saving facilities and as a clear earnest of the Government’s intent that these issues are significant enough for us to look at them in this regard, albeit not quite as we do food and children’s clothes, which attract no VAT. Nevertheless, the 5 per cent rate relates to a clear priority area; it is an exclusive area. In her amendment, the noble Baroness wants to extend that area.
I am not in the slightest doubt about the merits of doing that and I think that, in the framework of the Bill, we should indicate that we think that this will give substance to the Bill’s principles. However, like the noble Lord, Lord Jenkin, I acknowledge—no doubt the Minister will also indicate this to the Committee—that it is difficult to write Budgets in the framework of energy legislation when that is the preserve of the Chancellor of the Exchequer and the Treasury. I would not be at all surprised if we had a somewhat guarded response to the amendment. However, we already have provision of the reduced rate in this area and the amendment would not add a great deal, although the Treasury might argue that the cost would be significant. Nevertheless, the amendment fits in with the pattern of reduced rates of VAT in this area and I hope that the Minister will indicate that, at the very least, the Government have an open mind on the issue.
Lord Whitty
My Lords, we are now moving on to Chapter 5 of the Bill and the issue of smart meters. We have touched on it from time to time at earlier stages, and I have said that some of the issues that arise in relation to the Green Deal also arise in relation to smart meters. The Government will need to consider the implications of the two programmes. I should probably make it clear at the outset that I am in favour of a roll-out of smart meters, but there are a significant number of consumer issues which arise in relation to the installation of such meters which, if wrongly handled, will lead to some resistance and backlash against them.
Smart meter installation is different from the Green Deal because the Green Deal is ultimately a voluntary scheme that the householder or landlord can take on board, and then he can decide whether it had been a good deal for his premises. With smart meters, the obligation is on the supply companies to install them. They are already beginning that installation, and some of them, particularly British Gas, already have a substantial programme under way. However, we should look at the implication for consumers. As colleagues will know, one of the problems in the energy market has been the ease with which people can switch and the potential cost of switching in terms of both the supply company and the method of payment.
If we have a wholesale introduction of smart meters—which make it more difficult, more costly or more of a hassle for the consumer to be able to say, “I’m fed up with the way this company is dealing with me; I want to switch to the next company”, or “I’m fed up with paying by pre-payment meter; I want to go on to direct debit” or whatever the choice is—and if the meter itself, the system under which the meter operates or the terms on which it is supplied make that more difficult, then we have significant consumer detriment. We must remember that the energy market is not one that is characterised by deep trust of consumers in their suppliers. Nor is it the case that the regulator has substantial powers over the peripherals: it has substantial powers over the supplier, but there is no real protection in relation to energy products or services in the same way. Installation of smart meters could lock people in to their current system unless we provide that the meters are reasonably interchangeable, compatible and available in a way that allows people to switch both method of payment and supply.
We have to bear in mind that the introduction of smart meters is not so universally supported as it probably is in this Room. Research by Consumer Focus a couple of years ago, as well as evidence from Which?, showed fairly deep resistance to it, and some misunderstanding. So there is some mistrust at the consumer end, to put it at it mildest. We also know that in other countries where similar programmes have been adopted there has been some resistance—for example in some states of America and, on broader human rights grounds, in the Netherlands. So it is a delicate area. If we are to achieve introduction with minimum consumer resistance and minimum delay and challenge, we need to be able to reassure the householder that the meter that they are installing will not stop them switching should they wish to change tariff, company or the method by which they pay.
So, Amendment 32C deals with the degree of compatibility. This is not just an issue of standards, because we have been talking about standards for smart meters for at least 10 years before we have introduced a single one, and we are still at a position where we do not have a common standard. It would obviously help if at this point we already had a standard, but the issue here is compatibility, which need not necessarily mean a single standard or specification. It is important that we can reassure consumers that installing a meter will not inhibit their choice.
Amendment 32B deals with a slightly more ticklish issue. When the supply company or their agent is required to go into households and install a smart meter, how will it deal with trying at the same time to sell other products that are related to the smart meter, or that could be made to be related to it? Protecting consumers during the installation process is essential if we are not to meet with some resistance. On the one hand, there is the possibility of mis-selling in these circumstances; on the other, some devices are coming on to the market that would make it much easier for consumers, on the basis of the smart meter, to know what was causing their energy consumption to increase and how they could control it. The basic smart meter primarily gives the supply company that information, although it also tells the consumer at any given time what their level of consumption is and the cost of it.
The amendment would allow information to be given to householders about other products that could help them to make sense of and use smart meters, but in a way which does not amount to hassle or to a situation where their mandatory presence inside the consumer’s house can be misused to sell particular products. The amendment effectively requires the marketing material to be in a written form so as to protect the householder from being misled or mis-sold a related product.
I have no doubt that the Minister and his officials will have comments to make on the exact wording, as will the supply companies; but unless we recognise this as a potential problem, we could find ourselves in some difficulty. In one sense we are ahead of the game in that some installation programmes are going on and we know that there will be no standard design or specification before 2014 at the earliest. We could therefore already be locking people in. We need to ensure that, as the programme rolls out, we minimise the degree to which that can happen in future.
I hope the Government can at least take on board these concerns and look at the best way of dealing with them in terms of the legislation and reassuring householders that smart meters will not inhibit their choice or lead to their being ripped off in some other way when the installation takes place. I beg to move.
Lord Jenkin of Roding
My Lords, like the noble Lord, Lord Whitty, with many of whose remarks I entirely agree, I, too, have been trying to keep in touch with what has been going on—indeed, ever since I was offered the chance of installing a smart meter by one of my suppliers, only to be told that I could not possibly have it because it was in a porch and, therefore, accessible to anyone passing the house. It seems to me that these are the kind of things that must be dealt with.
I think that the noble Lord, Lord Whitty, has not fully taken account of the extent of the discussions, which have been going on now for some time, between the Government, the industry, Ofgem and consumer groups. These discussions have been extremely positive and seem to me to have been exactly the right way forward. We now have the Government’s prospectus—issued in July, I think—and a draft code put out by the Energy Retailers Association, which works with Energy UK, that sets out how a code might deal with precisely the points to which the noble Lord, Lord Whitty, drew our attention.
I am told that this has attracted comments from the consumer organisations, which are clearly interested in seeing how it will develop. In terms of securing a system that is both clear and at the same time offers flexibility—and flexibility is something that the industry has tried to build into the system; there must be some flexibility in how this will be done—a code which can be more easily amended in the light of experience may be better than trying to establish firm statutory rules, such as those in the amendments which the noble Lord has moved.
One of the points right at the heart of these discussions is that the right of changing your supplier has to be built into the system. I have had a letter from my noble friend’s department only this morning in response to a representation that I made to him a couple of weeks ago. It states:
“Common specifications will also be the means for achieving ‘inter-operability’, which means that suppliers can use smart meters installed by other suppliers, allowing easy switching.”
It seems to me that that is the kind of standard which the noble Lord, Lord Whitty, was looking for, and I think it is now firmly taken on board by both the industry and the department. Indeed, I have been told that the question of maintaining the right to switch suppliers has been regarded as a sine qua non. It has to happen with the installation of smart meters, and nothing in the system should prevent it, given that it is the way in which competition can be made to produce benefits for the consumer. A voluntary code that balances flexibility to provide the customer with information, while at the same time guaranteeing their rights, would be a very desirable way forward. I do not know what my noble friend will say but, against that background, the amendments might be regarded as being overprescriptive.
Lord Grantchester
My Lords, the Bill is concerned with energy efficiency and reduction of carbon emissions. In that regard, we found it curious that it made no mention of renewables and low-carbon generation. The Minister may say, “Well, please understand that all that is included by what we mean by the generation of electricity and the storage of electricity”. Nevertheless, we thought the omission most curious and that we should perhaps underline our encouragement and enthusiasm for low-carbon generation and renewable energy by including reference to them in the Bill.
In light of our debates at the start of the year on energy market reform and on the mix of energy sources that will be needed for the foreseeable future—including new nuclear—we thought it important to draw renewable and low-carbon generation into our debate today so that the Minister might underline those aspects of it that he sees as being important within the framework of the Bill. It is important to encourage the Government to deliver on their promises, most notably that they demonstrate how new nuclear will be up and running by 2017-18, despite the proposals for operators to take on much more of the cost and liability. We also think it important that the Government deliver on the further stages of CCS and provide clarity on the future of fossil fuels as part of the energy mix and their relationships with the Green Deal. The Government should also provide clarity on the future of ROCs and FITs—the feed-in tariffs for renewable energy. We think that it is important for the Minister to explain this, because it will be important for consumers, both businesses and households. The price element of this is the subject of the next amendment. I beg to move.
Lord Jenkin of Roding
My Lords, I would just like to ask the noble Lord why he thinks that these are not already included in the words “generation of electricity”. That is exactly what they do, so in what way are they not covered? I see his reasons for wanting to put them in explicitly, but it seems to me that that would not actually add anything.
Lord Grantchester
I thought that I had explained in my opening remarks that we could well understand that they could be thought to have been included in the Bill already. However, for the reasons that I outlined, we wished to make sure that the words “renewables and low-carbon generation” are included to underline their importance in the energy mix of the future.
Lord Jenkin of Roding
“36D Strengthening the Authority’s powers with regard to Public Service Obligations on suppliers
The Authority may modify the arrangements contained in Gas Licence Agreements to impose further obligations in the PSO requirements, as follows—
(a) the Authority may modify the gas storage Public Service Obligation for gas suppliers in the United Kingdom;(b) the Authority may set new industrial and commercial PSOs on suppliers requiring suppliers to meet the mandated levels of gas storage as set by the Authority;(c) the Authority shall publish gas storage targets annually and may monitor supply licence holders’ compliance with such obligations.”
Lord Jenkin of Roding
My Lords, noble Lords will remember that at Second Reading I raised the whole question of gas storage and its contribution to a greater certainty of supply in the event of something untoward happening. I have tabled this amendment to strengthen the incentive to invest in more gas storage. I took account of what my noble friend said in response to the amendment, but I have now made it my business to gain a better understanding of the considerable complexities of this sector of the energy market. How to ensure security of gas supply has become increasingly important, particularly in the light of the anticipated running down of the UK’s own indigenous supplies from offshore sources. It is for this reason, no doubt, that the industry, successive Governments and the regulator have all rightly been very concerned to make as sure as they can that gas consumers will be assured of a continuous supply.
Since Second Reading, Ofgem has published—on 11 January—a consultation paper headed Gas Security of Supply Significant Code Review. I will come back to that. However, several other important reports were published in earlier years. In May 2007 a long report was published by the consultant Oxera, headed An Assessment of the Potential Measures to Improve Gas Security of Supply. Three years later the previous Government commissioned a report, this time by the consultant Pöyry, headed GB Gas Security of Supply and Options for Improvement. In April the previous Government published a policy statement headed Gas Security of Supply. Last November there was a joint DECC and Ofgem report, Statutory Security of Supply Report. Noble Lords will be relieved to know that I do not intend to quote more than a tiny portion of those reports. It would have been quite an effort even to bring them to the Moses Room.
The reports, which I hope I am summarising accurately, come down to this: although the risk of what one might describe as a “black swan” event—one of low probability but high impact—hitting the supply of gas to the UK market is very low, it is acknowledged by all that it is not impossible. It could be a combination of adverse events, such as pipeline accidents, import interruption or the withholding of supplies by overseas suppliers. The previous Government’s provisional conclusion, therefore, was that some additional measures are needed to deal with that remote possibility.
The various reports examined and evaluated several options in great detail. The DECC policy statement of last April concentrated on five options. I will read the relevant two paragraphs from that April 2010 report to the Committee. On page 7, paragraph E.30 of the executive summary says, under the heading “Enhanced financial incentives to balance demand and supply”:
“The Government supports Ofgem’s work with industry to examine the case for greater use of market prices with enhanced incentives in the balancing regime”—
one needs to hang on to those words—
“in particular by … unfreezing cash-out prices in an emergency; and … further finessing the cash-out regime in market conditions (outside an emergency)”.
The next paragraph, under the heading “Supplier obligations”, says:
“The Government is considering the case for strengthening shipper/supplier obligations, such as through Public Service Obligations”,
or PSOs, as they are widely known in the business. Those are the two preferred options that have been considered.
Lord Marland
The noble Lord makes a point. Of course Ofgem will be brought up to speed with what we are doing. I do not think that its review will have drawn the conclusions that we want by the time we have finished the Bill. There is some presupposing that people are sitting in knowledge. I have heard many different suggestions in this Room already today about how much we have or do not have in storage, and about what we should or should not have. It is up to the Government to look carefully at the facts and accelerate procedures where we think that should be done, as we have already done by 25 per cent—and we have been in government for only nine months; maybe a bit longer now. We have a level of comfort that is correct—not just in our own judgment; a whole range of sources tell us that we have it correct. The previous Government felt that it was the correct figure. If the information that results from the review shows us that we need to enact, we will. Ofgem itself has existing powers to modify licences and introduce new licence requirements, and may well do it itself. Of course this is very much a subject for debate, evaluation and continuing process, and I hope that satisfies the noble Lord.
Lord Jenkin of Roding
My Lords, few movers of an amendment such as this could have had such powerful supporters as the noble Lords, Lord O’Neill, Lord Hannay and Lord Oxburgh. I feel greatly reinforced by the strength of the case which they have made. It would not be wholly unfair if I said that I was a little disappointed by the Minister’s reply.
The noble Lord, Lord Hannay, asked whether it would be open to Ofgem in its consultation to come forward with a proposal which said, “Yes, all right, we will strengthen the balancing mechanism but we also think that there is a case for increasing the amount of storage and that this will require some further measures”. That was a critical question, and I am not sure that I understood the answer.
We are talking about future demand and supply over a number of years. I have been provided with a chart, compiled by a consultant, which draws on all the various forecasts of demand for gas. If one looks ahead up to 2025, which is after all only 15 years ahead, one sees that the forecasts vary from a reduction in demand to three-quarters of the present level to an increase of a quarter. Those are huge variations, reflecting the uncertainty with which we are confronted when dealing with supply. We have tended to talk about supply, but the balancing mechanism is essentially a balance between supply and demand. If there is such a wide variation in the estimates made by experts—people who know what they are talking about—we should take that into consideration.
Yes, it is true that we have an indigenous supply, which is why our figure would, for the moment, be lower than that in our neighbouring countries—as I indicated in my opening speech. There may also be another Buzzard-type discovery in the North Sea. A recent discovery of gas quite close offshore certainly helped supply here. However, we must be cautious about what we say after the past two winters. Everybody has recognised that the electricity supply has been quite seriously affected by the recession and that the point at which we reach concern has therefore moved three or four years further forward. Why is that not the same for gas? We got through these last winters because there was a considerable measure of operating below capacity, which I hope will not continue. So here is another element of uncertainty.
We need to give more consideration to these matters. I shall certainly discuss what the Minister has said with those who have advised me. It may be that the noble Lord, Lord Hannay, is right and that we will get the Ofgem report before we reach the Report stage of this Bill—it looks a little less likely than it did before the weekend, but it is a possibility. We have another energy Bill coming up, which will affect among other things energy prices and the powers of Ofgem, so we may have another opportunity. I shall reflect; I hope that the Minister will do so, too. In the mean time, I beg leave to withdraw the amendment.
Lord Jenkin of Roding
“( ) In the application of section 157(2), insert “or” at the end of paragraph (a) and omit paragraph (b).”
Lord Jenkin of Roding
My Lords, I am conscious that we are nearing the usual time for the Committee to adjourn so I will try to be brief. I just make a point by way of introduction. Nobody reading this amendment could have a clue what it was about. The reason for that is that it is a striking example of the Bill adopting the process of legislation by reference to earlier Bills. I am sorry my noble friend Lord Marland is not here. I have raised this matter with the Law Commission because the gas and electricity Acts are now virtually indecipherable; it is impossible to find one’s way around them. It is high time that there was a consolidation. Having said that, I will move on.
The real problem that the amendment addresses is that one of the provisions of the Energy Act 2004 that is being applied to this Bill is Section 157. Section 157(2) established three grounds on which an energy supply company can be put into administration. One is that the company is unable to pay its debts. Another is that it would be just and equitable, under Section 124A of the Insolvency Act, to wind up the company in the public interest—for instance to stop fraud or criminal activity. The third ground—this is what the amendment is about—is that the court must be satisfied that the company is likely to be unable to pay its debts. The 2004 Act applied to network companies; this Bill would apply it to supply companies. My amendment would delete that third ground—of a company being likely to be unable to pay its debts—for administration as it would apply to supply companies.
To put it in layman’s terms, this means that the petitioner for a special administration order must be able to convince the court that, while the company in question is currently quite solvent, it is at risk of becoming insolvent, perhaps because the scale of liabilities that it faces looks excessive in relation to the foreseeable value of its assets. How far ahead? It is a very uncertain test. The reason for the third test was that it enabled a company’s directors, who after all should have the best view of the likely future circumstances, to apply for insolvency administration. That cannot possibly apply here because the only people who can apply for administration under this Bill are the Minister or Ofgem. The directors cannot do so.
There is another reason why the test should not apply here. Those who followed closely the tangled affairs of Railtrack in 2001 can recognise that it is open to political abuse. I do not propose to go into the long and tangled story, which was reported the other day in the Times, but it was the very looseness of test, which was in reality just a call by an accountant, that enabled the Government of the day to put Railtrack into special administration, even though the company was at the time solvent. It was only on the basis of cash flow projections over a lengthy future period that the Government could proceed.
A test that requires that kind of assessment to be made is quite different from the other two tests. It is inherently inappropriate, particularly here where we are dealing with energy supply companies which are operating in volatile, competitive markets. It is made doubly inappropriate by the fact that the tests can be abused for political purposes.
My amendment would simply remove that test altogether as it would apply to energy suppliers. My noble friend may have better ways of doing this, but I do not think that that test is appropriate in such a case as we have here, where only Ofgem or the Secretary of State—not the directors of a company—are able to use it and where it would be inherently very difficult to apply. I beg to move.
Lord Davies of Oldham
My Lords, like the noble Lord, Lord Jenkin, I served on the Committee that produced the 2004 Act. It went on at least twice as long as we are destined to do. The noble Lord indicated that he has found a slight impediment in that Act. All I can say is that I did not see it at the time and I do not understand it now, so good luck to the Minister.
Baroness Northover
My Lords, I must say that I am incredibly impressed at the thoroughness with which my noble friend Lord Jenkin has read this Bill and that I hope that he very much liked Clause 78, which indeed consolidated and hopefully improved existing provisions.
Lord Jenkin of Roding
I had intended to say just that, because I was checking the Bill and saw that, indeed, the earlier clauses had been repealed.
Baroness Northover
The clauses on special administration in the Bill largely follow the tests and procedures for ordinary administration laid down in the Insolvency Act 1986. If a party applies to the court for an ordinary administration order, the court may grant it if it is satisfied that a company is unable to pay its debts or is unlikely to be able to pay them. Administration under the Insolvency Act 1986 is a business rescue procedure with the survival of the company as its primary objective. If entry to administration were available only to a company that could not pay its debts at the date of commencement, the rescue of viable businesses might be jeopardised. For this reason, administration can be entered also when a company is likely to become unable to pay its debts. The provisions in the Bill apply these same principles to energy supply company administration. They follow the same tests for insolvency as the Insolvency Act. My noble friend’s amendment would require the court to apply a stricter test for insolvency when considering applications for energy supply company administration than it does for applications for ordinary administration.
I make it clear that the Secretary of State would apply for an energy supply company administration order only as a last resort and to prevent the risk of financial failure spreading to other companies. I hope that I have reassured my noble friend that we are seeking simply to keep the procedure in line with that which applies elsewhere for other companies. I hope that he will withdraw his amendment.
Lord Jenkin of Roding
My Lords, I am grateful for my noble friend’s explanation, but I have to say that I do not think that she has taken account of what I said. Under the Insolvency Act, which introduces this third test, the directors of a company can apply to put the company into administration. After all, they are the ones who are best able to decide whether the company is likely to be unable to pay its debts in the future. In this case, that does not apply. The directors are forbidden to do it; only the Secretary of State or Ofgem can make the call. I see that my noble friend has been given an explanation. It would nice if the Committee could hear it, too.
Baroness Northover
It is amazing what enlightenments can come when one listens to one’s noble friends. Funnily enough, I have come to this conclusion: the Secretary of State will no doubt wish to discuss any application for an energy supply company administration order with company directors in advance. Directors will be able to contest the application in court. However, enshrining a duty to consult directors in the legislation could lead to delay. The Secretary of State needs the flexibility to act quickly if the company’s position is posing a threat to the rest of the market. When we see what has happened recently in other areas, we realise why this is extremely important. I hope that that helps to elucidate why this is in this provision.
Lord Jenkin of Roding
My noble friend has made a persuasive case and I am grateful to her. This has caused anxiety, particularly in the light of the Railtrack case. However, having heard her, I beg leave to withdraw the amendment.