Office of Public Sector Information
PART IV continued
(1) Where no final or provisional order has been made in relation to a contravention or failure, the Authority may not impose a penalty in respect of the contravention or failure later than the end of the period of 12 months from the time of the contravention or failure, unless before the end of that period—
(a) the notice under section 27A(3) relating to the penalty is served on the licence holder under section 27A(7), or
(b) a notice relating to the contravention or failure is served on the licence holder under section 28(2).
(2) Where a final or provisional order has been made in relation to a contravention or failure, the Authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under section 27A(3) was served on the licence holder under section 27A(7)—
(a) within three months from the confirmation of the provisional order or the making of the final order, or
(b) where the provisional order is not confirmed, within six months from the making of the provisional order.
(1) If the whole or any part of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the [1838 c. 110.] Judgments Act 1838.
(2) If an application is made under subsection (6) of section 27A in relation to a penalty, the penalty is not required to be paid until the application has been determined.
(3) If the Authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the Authority under that subsection, the Authority may where it considers it appropriate require so much of the penalty as has not already been paid to be paid immediately.
(1) If the licence holder on whom a penalty is imposed is aggrieved by—
(a) the imposition of the penalty;
(b) the amount of the penalty; or
(c) the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid,
the licence holder may make an application to the court under this section.
(2) An application under subsection (1) must be made—
(a) within 42 days from the date of service on the licence holder of a notice under section 27A(5), or
(b) where the application relates to a decision of the Authority on an application by the licence holder under section 27A(6), within 42 days from the date the licence holder is notified of the decision.
(3) On any such application, where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within subsection (4), the court—
(a) may quash the penalty;
(b) may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; or
(c) in the case of an application under subsection (1)(c), may substitute for the date or dates imposed by the Authority an alternative date or dates.
(4) The grounds falling within this subsection are—
(a) that the imposition of the penalty was not within the power of the Authority under section 27A;
(b) that any of the requirements of subsections (3) to (5) or (7) of section 27A have not been complied with in relation to the imposition of the penalty and the interests of the licence holder have been substantially prejudiced by the non-compliance; or
(c) that it was unreasonable of the Authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid.
(5) If an application is made under this section in relation to a penalty, the penalty is not required to be paid until the application has been determined.
(6) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable.
(7) Where the court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable.
(8) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.
(9) In this section “the court” means—
(a) in relation to England and Wales, the High Court; and
(b) in relation to Scotland, the Court of Session.
Where a penalty imposed under section 27A(1), or any portion of it, has not been paid by the date on which it is required to be paid and—
(a) no application relating to the penalty has been made under section 27E during the period within which such an application can be made, or
(b) an application has been made under that section and determined,
the Authority may recover from the licence holder, as a civil debt due to it, any of the penalty and any interest which has not been paid.”
(2) In section 28(1) of the 1989 Act (power to require information, etc.), for the words from “the Director” in the first place they appear, to “42B below” there is substituted “the Authority that a licence holder—
(a) may be contravening, or may have contravened, any relevant condition or requirement; or
(b) may be failing, or may have failed, to achieve any standard of performance prescribed under section 39 or 39A,
the Authority may, for any purpose connected with such of its functions under section 25 or 27A to 27F”.
(3) In section 49 of the 1989 Act (keeping of a register), after subsection (2)(d) there is inserted “; and
(e) every penalty imposed under section 27A(1) and every notice under section 27A(5).”
(1) The 1989 Act is amended as follows.
(2) In subsection (1) of section 25 (orders for securing compliance with certain provisions), for “and (5)” there is substituted “, (5) and (5A)”.
(3) In subsections (2), (4) and (6) of that section, for “subsection (5)” there is substituted “subsections (5) and (5A)”.
(4) In subsection (5) of that section, paragraphs (b) and (c) shall cease to have effect.
(5) After subsection (5) of that section there is inserted—
“(5A) The Authority is not required to make a final order or make or confirm a provisional order if it is satisfied—
(a) that the licence holder has agreed to take and is taking all such steps as it appears to the Authority for the time being to be appropriate for the licence holder to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or
(b) that the contraventions were or the apprehended contraventions are of a trivial nature.”
(6) In section 26 (procedural requirements for making orders under section 25), in subsections (1)(c) and (4)(b), for “28” there is substituted “21”.
(7) Subsections (2) to (6) do not have effect in relation to—
(a) a provisional order which has been made before the commencement of the subsection making the amendment; or
(b) a final order in respect of which notice has been given under section 26(1) of the 1989 Act before the commencement of the subsection making the amendment.
After section 42B of the 1989 Act there is inserted—
(1) This section applies to any company which is authorised by a licence to carry on activities subject to price regulation.
(2) As soon as reasonably practicable after the end of each financial year of the company it must make a statement to the Authority—
(a) disclosing whether or not remuneration has been paid or become due during that financial year to the directors of the company as a result of arrangements falling within subsection (3); and
(b) where such remuneration has been paid or become due, describing the arrangements and the remuneration.
(3) Arrangements fall within this subsection if they are arrangements for linking the remuneration of the directors of the company to levels of performance as respects service standards in connection with activities subject to price regulation.
(4) A description under subsection (2)(b) must include in particular—
(a) a statement of when the arrangements were made;
(b) a description of the service standards in question;
(c) an explanation of the means by which the levels of performance as respects those service standards are assessed; and
(d) an explanation of how the remuneration was calculated.
(5) The statement required by subsection (2) must also state—
(a) whether or not there are in force in respect of the financial year during which the statement is made arrangements falling within subsection (3); or
(b) if not, whether the company intends that such arrangements will be in force at some time during that financial year,
and if there are, or it is intended that there will be, such arrangements in force the statement must describe those arrangements.
(6) A description under subsection (5) must—
(a) include in particular the matters listed in subsection (4)(a), (b) and (c); and
(b) where the arrangements described are different from any arrangements described under subsection (2)(b), state the likely effect of those differences on the remuneration of each director of the company.
(7) The statement required by subsection (2) must be made to the Authority in such manner as may be required by the Authority.
(8) The statement required by subsection (2)—
(a) must be published by the company making the statement in such manner as it reasonably considers will secure adequate publicity for it; and
(b) may be published by the Authority in such manner as it may consider appropriate.
(9) The duty of a company under this section applies in respect of any person who has at any time been a director of the company.
(10) In this section—
“activities subject to price regulation”, in relation to any company, are activities for which—
a maximum price which may be charged by the company, or a method for calculating such a maximum price; or
a maximum revenue which may be received by the company, or a method for calculating such a maximum revenue,
is determined by or under the licence granted under this Part;
“company” means a company within the meaning of the [1985 c. 6.] Companies Act 1985 which is limited by shares;
“remuneration” in relation to a director of a company—
means any form of payment, consideration or other benefit (including pension benefit), paid or due to or in respect of the director; and
includes remuneration in respect of any of his services while a director of the company;
“service standards” in relation to any company, means standards relating to the quality of service received by customers or potential customers of the company, including any such standards which are—
set by or under any conditions included in a licence granted under this Part;
prescribed by the Authority in regulations made under section 39 or 39A;
determined by the Authority under section 40 or 40A; or
set or agreed to by the company.”
For section 32 of the 1989 Act there is substituted—
(1) The Secretary of State may by order impose on each electricity supplier falling within a specified description (a “designated electricity supplier”) an obligation to do what is set out in subsection (3) (and that obligation is referred to in this section and sections 32A to 32C as the “renewables obligation”).
(2) The descriptions of electricity supplier upon which an order may impose the renewables obligation are those supplying electricity—
(a) in Great Britain;
(b) in England and Wales; or
(c) in Scotland,
excluding such categories of supplier (if any) as are specified.
(3) Subject to the provisions of this section and sections 32A and 32C, the renewables obligation is that the designated electricity supplier must, before a specified day (or before each of several specified days, or before a specified day in each year), produce to the Authority evidence of a specified kind showing—
(a) that it has supplied to customers in Great Britain during a specified period such amount of electricity generated by using renewable sources as is specified in relation to such a supplier; or
(b) that another electricity supplier has done so (or that two or more others have done so); or
(c) that, between them, they have done so.
(4) If the order applies only to electricity suppliers in part of Great Britain, it may specify that the only electricity supplied which counts towards discharging the renewables obligation is electricity supplied to customers in that part of Great Britain.
(5) Evidence of the supply of electricity may not be produced more than once in relation to the same electricity.
(6) In the case of electricity generated by a generating station fuelled or driven partly by renewable sources and partly by fossil fuel, only the proportion attributable to the renewable sources can count towards discharging the renewables obligation (but this is subject to section 32A(1)(g)).
(7) Before making an order, the Secretary of State must consult—
(a) the Authority;
(b) the Council;
(c) the electricity suppliers to whom the proposed order would apply;
(d) the generators of electricity from renewable sources; and
(e) such other persons, if any, as he considers appropriate.
(8) In this section—
“fossil fuel” means coal, substances produced directly or indirectly from coal, lignite, natural gas, crude liquid petroleum, or petroleum products (and “natural gas” and “petroleum products” have the same meanings as in the [1976 c. 76.] Energy Act 1976);
“renewable sources” means sources of energy other than fossil fuel or nuclear fuel, but includes waste of which not more than a specified proportion is waste which is, or is derived from, fossil fuel;
“specified” means specified in the order.
(9) An order under this section shall not be made unless a draft of the instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.”
After section 32 of the 1989 Act there is inserted—
(1) An order under section 32 may make provision generally in relation to the renewables obligation imposed by the order, and may in particular specify—
(a) different obligations for successive periods of time;
(b) that only electricity generated using specified descriptions of renewable source is to count towards discharging the obligation (or that such electricity is to count only up to a specified amount);
(c) that only electricity generated by specified descriptions of generating station is to count towards discharging the obligation (or that such electricity is to count only up to a specified amount);
(d) that a specified minimum amount of electricity generated as mentioned in paragraph (b) or (c) is to be counted towards the discharge of the renewables obligation;
(e) how the amount of electricity supplied by an electricity supplier (whether generally or to particular customers or descriptions of customer) is to be determined;
(f) how the proportion referred to in section 32(6) or in the definition of “renewable sources” in section 32(8) is to be determined;
(g) the consequences for the discharge of the renewables obligation if a generating station of the type mentioned in section 32(6) uses more than a specified proportion of fossil fuel during a specified period (which may include the consequence that none of the electricity generated by that generating station during that period is to count towards discharging the obligation);
(h) that specified information, or information of a specified nature, is to be given to the Authority (in addition to the evidence referred to in section 32(3)), and the form in which it is to be given.
(2) An order may, in relation to any specified period (“the current period”)—
(a) provide that evidence of electricity supplied in a later period may, when available, be counted towards discharging the renewables obligation for the current period;
(b) provide that evidence of electricity supplied in the current period may, in a later period, be counted towards discharging the renewables obligation for that period;
(c) specify how much later the later period referred to in paragraph (a) or (b) may be;
(d) specify a maximum proportion of the renewables obligation for any period which may be discharged as mentioned in paragraph (a) or (b);
(e) specify a maximum proportion of electricity supplied in any period evidence of which may be counted towards discharging the renewables obligation for a different period.
(3) An order may make—
(a) different provision for different cases or circumstances; and
(b) different provision in relation to different suppliers,
if the Secretary of State is of the opinion that the differences are such that no electricity supplier would be unduly disadvantaged in competing with other electricity suppliers.
(4) An order may provide for the Authority to require an electricity supplier to provide it with information, or with information of a particular kind, which is in its opinion relevant to the question whether the supplier is discharging, or has discharged, the renewables obligation.
(5) That information must be given to the Authority in whatever form it requires.
(6) No person shall be required by virtue of this section to provide any information which he could not be compelled to give in evidence in civil proceedings in the High Court or, in Scotland, the Court of Session.
(7) An order may make further provision as to the functions of the Authority in relation to the obligation imposed by the order.”
After section 32A of the 1989 Act there is inserted—
(1) An order under section 32 may provide for the Authority to issue from time to time, in accordance with such criteria (if any) as are specified in the order, a certificate to the operator of a generating station or to an electricity supplier.
(2) A certificate is to certify—
(a) that the generating station or, in the case of a certificate issued to an electricity supplier, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate; and
(b) that it has been supplied to customers in Great Britain (or the part of Great Britain stated in the certificate).
(3) If an electricity supplier produces a certificate to the Authority, it is to count for the purposes of section 32(3) as sufficient evidence of the facts certified.”
After section 32B of the 1989 Act there is inserted—
(1) An order under section 32 may provide that instead of producing evidence under section 32(3), an electricity supplier may discharge (in whole or in part) its renewables obligation (or its obligation in relation to a particular period) by making a payment to the Authority.
(2) The order may make provision—
(a) as to the sum which for the purposes of subsection (1) is to correspond to the supply of a given amount of electricity;
(b) for different such sums in relation to different periods;
(c) for different such sums in relation to electricity generated in different ways specified in the order (such as those referred to in section 32A(1)(b) and (c)); and
(d) for any such sum to be adjusted from time to time for inflation by a method specified in the order (which may refer to a specified scale or index or to other specified data of any description, including such a scale or index or such data in a form not current when the order was made, but in a subsequent form attributable to revision or any other cause and taking effect afterwards).
(3) The Authority must pay the amounts received to electricity suppliers in accordance with a system of allocation specified in the order.
(4) The system of allocation specified in the order may provide for payments to specified categories of electricity supplier only.”
Section 33 of the 1989 Act shall cease to have effect.
(1) The Secretary of State may by order made by statutory instrument make such provision as he considers necessary or expedient for the purpose of—
(a) providing for section 32 of the 1989 Act to have effect, before its substitution by section 62 of this Act, with modifications specified in the order (but if this power is exercised the modifications must include the omission of subsections (3) and (4) of section 32);
(b) saving orders under section 32 of the 1989 Act made before the coming into force of section 62;
(c) preserving, modifying, replacing or otherwise dealing with arrangements (as mentioned in that section) made pursuant to such an order, including making provision for substituting different parties to the arrangements or for replacement arrangements to be between parties different from those party to the replaced arrangements;
(d) requiring the continued payment of any fossil fuel levy payable by virtue of section 33 of the 1989 Act and providing for payments out of that levy despite the repeal of that section.
(2) The power in subsection (1)(c) may be exercised both before the coming into force of section 62 and afterwards.
(3) An order under this section may, in particular, provide for section 32 (apart from subsections (3) and (4)) or 33 of the 1989 Act (as they had effect immediately before the coming into force of section 62 or 66) to continue to have effect with modifications specified in the order.
(4) An order under this section may, in particular—
(a) provide for what is to happen in relation to the fossil fuel levy and payments out of it if in any month—
(i) the cost referred to in section 33(5)(b) of the 1989 Act is greater than the cost referred to in section 33(5)(a) of the 1989 Act, or
(ii) the same is true in relation to any other corresponding measures referred to in section 33 of the 1989 Act as modified under subsection (3);
(b) provide in such a case for payments of amounts determined in accordance with the order (but not exceeding the difference between the sums referred to in paragraph (a)) to be made by, instead of to, the person to whom payments out of the fossil fuel levy would otherwise have been made.
(5) An order under this section may provide—
(a) that any specified requirement contained in it is to be treated as a relevant requirement for the purposes of Part I of the 1989 Act; and
(b) for one of those requirements to be that a person referred to in paragraph (a) or (b) of subsection (6) is not to act or omit to act as set out there,
but while subsections (3) and (4) of section 32 of the 1989 Act remain in force an order may not provide for anything which would be an offence under section 32(3) to be treated as a relevant requirement.
(6) The persons, acts and omissions referred to in subsection (5)(b) are—
(a) an act or omission by a person subject to requirements contained in the order which prevents any arrangements made pursuant to the order from securing such results as are specified in the order; and
(b) an act or omission by a party to arrangements made pursuant to an order under section 32 of the 1989 Act made before the coming into force of section 62 of this Act (or such arrangements as modified or replaced by virtue of an order under this section) which prevents the arrangements from securing the result mentioned in subsection (2) of that section (or that subsection as modified by virtue of an order under this section), or such corresponding result as is specified in the order.
(7) An order under this section may make different provision for different areas.
(8) A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) After section 15 of the [1989 c. 29.] Electricity Act 1989 (modification of licences by order under other enactments) there is inserted—
(1) The Secretary of State may, in accordance with this section, modify—
(a) the conditions of a particular licence; or
(b) the standard conditions of licences of any type mentioned in section 6(1),
where he considers it necessary or expedient to do so for the purpose of implementing, or facilitating the operation of, new arrangements relating to the trading of electricity.
(2) The power to modify licence conditions under paragraph (a) or (b) of subsection (1) includes power—
(a) to make modifications relating to the operation of transmission systems and distribution systems; and
(b) to make incidental or consequential, or transitional, modifications.
(3) Before making modifications under this section the Secretary of State shall consult the holder of any licence being modified and such other persons as he considers appropriate.
(4) Any consultation undertaken by the Secretary of State before the commencement of this section shall be as effective, for the purposes of subsection (3), as if undertaken after that commencement.
(5) Any modification of part of a standard condition of a licence under subsection (1)(a) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(6) Where the standard conditions of licences of any type are modified under subsection (1)(b), the Secretary of State shall make (as nearly as may be) the same modifications of the standard conditions for the purposes of their incorporation in licences of that type granted after that time.
(7) The Secretary of State shall publish any modifications under this section in such manner as he considers appropriate.
(8) The power of the Secretary of State under this section may not be exercised after the end of the period of two years beginning with the passing of the Utilities Act 2000.”
(2) This section shall come into force on the passing of this Act.
After section 43 of the 1989 Act there is inserted—
(1) If the Secretary of State considers that members of any group (a “disadvantaged group”) of customers of authorised suppliers are treated less favourably than other customers of theirs as respects charges for electricity, he may make an order containing a scheme for the adjustment of charges for electricity with a view to eliminating or reducing the less favourable treatment.
(2) The scheme may include—
(a) provision for the adjustment of charges by authorised distributors or authorised transmitters (as well as by suppliers);
(b) in relation to charges payable to suppliers, provision for the adjustment of charges payable by customers who are not members of the disadvantaged group (as well as by persons who are).
Utilities Act 2000