Electricity Act 1989

Part I U.K. ELECTRICITY SUPPLY

Modifications etc. (not altering text)

C1 Pt. I modified (5.10.2004) by Energy Act 2004 (c. 20), ss. 184(12), 185(13), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

C2 Pt. I modified (S.) (30.11.2005) by The Electricity from Non-Fossil Fuel Sources (Scotland) Saving Arrangements Order 2005 (S.S.I. 2005/549), arts. 1(1), 9

C3 Pt. 1 excluded (30.12.2015) by The Port Talbot Steelworks Generating Station Order 2015 (S.I. 2015/1984), arts. 1, 7(2) (with art. 26)

C4 Pt. I (ss. 1-64) applied (1.10.2001) by S.I. 2001/3264, regs. 4(2), 5(2)

C5 Pt. I (ss. 1-64) amended (E.W.) (27.10.2000) by S.I. 2000/2727, art. 10

Pt. I (ss. 1-64) amended (7.11.2000) by 2000 c. 27, s. 105(1)(a); S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

Pt. I (ss. 1-64) amended (E.W.) (1.10.2001) by S.I. 2000/2727, art. 10 (as substituted (1.10.2001) by S.I. 2001/3268, art. 2(13))

Introductory U.K.

Modifications etc. (not altering text)

C6 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 136(2), 156(2)

F1 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F1 S. 1 repealed (1.10.2001) by 2000 c. 27, s. 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F2 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F2 S. 2 repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

F3 3 General duties of Secretary of State and Director. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3 S. 3A substituted for s. 3 (20.12.2000) by 2000 c. 27, s. 13; S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

[F4 3A The principal objective and general duties of the Secretary of State and the Authority. E+W+S

(1) The principal objective of the Secretary of State and the Gas and Electricity Markets Authority (in this Act referred to as “the Authority”) in carrying out their respective functions under this Part is to protect the interests of [F5 existing and future] consumers in relation to electricity conveyed by distribution systems [F6 or transmission systems] F7 ....

[F8 (1A) Those interests of existing and future consumers are their interests taken as a whole, including—

(a) their interests in [F9 the Secretary of State’s compliance with the duties in sections 1 and 4(1)(b) of the Climate Change Act 2008 (net zero target for 2050 and five-year carbon budgets)]; F10 ...

(b) their interests in the security of the supply of electricity to them [F11 ; and

(c) their interests in the fulfilment by the Authority, when carrying out its [F12 designated regulatory functions], of the [F13 designated regulatory objectives].]

(1B) The Secretary of State and the Authority shall carry out their respective functions under this Part in the manner which the Secretary of State or the Authority (as the case may be) considers is best calculated to further the principal objective, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the generation, transmission, distribution or supply of electricity or the provision or use of electricity interconnectors.

(1C) Before deciding to carry out functions under this Part in a particular manner with a view to promoting competition as mentioned in subsection (1B), the Secretary of State or the Authority shall consider—

(a) to what extent the interests referred to in subsection (1) of consumers would be protected by that manner of carrying out those functions; and

(b) whether there is any other manner (whether or not it would promote competition as mentioned in subsection (1B)) in which the Secretary of State or the Authority (as the case may be) could carry out those functions which would better protect those interests.]

(2) [F14 In performing the duties under subsections (1B) and (1C), the Secretary of State or the Authority shall have regard to] —

(a) the need to secure that all reasonable demands for electricity are met; and

(b) the need to secure that licence holders are able to finance the activities which are the subject of obligations imposed by or under this Part [F15 , the Utilities Act 2000 [F16 , Part 2 or 3 of the Energy Act 2004 [F17 , Part 2 or 5 of the Energy Act 2008 or section 4, Part 2, [F18 , sections 26 to 29 of the Energy Act 2010 [F19 , Part 2 of the Energy Act 2013 [F20 , the Nuclear Energy (Financing) Act 2022 or sections 245 to 247 of the Energy Act 2023]]]]]] [F21 ; and

(c) the need to contribute to the achievement of sustainable development.]

(3) In performing [F22 the duties under subsections (1B), (1C) and (2)], the Secretary of State or the Authority shall have regard to the interests of—

(a) individuals who are disabled or chronically sick;

(b) individuals of pensionable age;

(c) individuals with low incomes; and

(d) individuals residing in rural areas;

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(4) The Secretary of State and the Authority may, in carrying out any function under this Part, have regard to—

(a) the interests of consumers in relation to gas conveyed through pipes (within the meaning of the M1 Gas Act 1986); and

(b) any interests of consumers in relation to—

[F23 (i) communications services and electronic communications apparatus, or]

(ii) water services or sewerage services (within the meaning of the M2 Water Industry Act 1991),

which are affected by the carrying out of that function.

(5) Subject to [F24 subsections (1B) and] (2), [F25 and to section 132(2) of the Energy Act 2013 (duty to carry out functions in manner best calculated to further delivery of policy outcomes)] the Secretary of State and the Authority shall carry out their respective functions under this Part in the manner which he or it considers is best calculated—

(a) to promote efficiency and economy on the part of persons authorised by licences or exemptions to [F26 distribute, supply or participate in the transmission of] electricity[F27 ,] [F28 to participate in the operation of electricity interconnectors] [F29 or to provide a smart meter communication service] and the efficient use of electricity conveyed by distribution systems [F30 or transmission systems];

(b) to protect the public from dangers arising from the generation, transmission, distribution or supply of electricity [F31 or the provision of a smart meter communication service];

F32 (ba) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) to secure a diverse and viable long-term energy supply,

[F33 and F34 ... shall], in carrying out those functions, have regard to the effect on the environment of activities connected with the generation, transmission, distribution or supply of electricity [F31 or the provision of a smart meter communication service].

[F35 (5A) In carrying out their respective functions under this Part in accordance with the preceding provisions of this section the Secretary of State and the Authority must each have regard to—

(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

(b) any other principles appearing to him or, as the case may be, it to represent the best regulatory practice.]

[F36 (5B) In subsection (1A)—

• [F37 “the designated regulatory objectives” means the objectives set out in Article 36(c) to (h) of the Electricity Directive but read with the following modifications—

  (a)

  in Article 36(c), for the words from “between” to the end substitute “ , including enabling the development of appropriate cross-border transmission capacities to meet demand; ”

  (b)

  in Article 36(d), omit “, in line with general energy policy objectives,

  (c)

  in Article 36(f), omit “and foster market integration”, and

  (d)

  in Article 36(g), for “their national market” substitute “ the energy market in Great Britain ”;]

• F38 ...

• F38 ...

• F38 ...]

(6) In [F39 subsections [F40 (1C),] (3) and (4) references to consumers include] both existing and future consumers.

(7) In this section and sections 3B and 3C, references to functions of the Secretary of State or the Authority under this Part include a reference to functions under the Utilities Act 2000 which relate to electricity conveyed by distribution systems [F41 or transmission systems].

(8) In this Part, unless the context otherwise requires—

• “exemption” means an exemption granted under section 5;

• “licence” means a licence under section 6 and “licence holder” shall be construed accordingly.]

Textual Amendments

F4 S. 3A substituted for s. 3 (20.12.2000) by 2000 c. 27, s. 13; S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F5 Words in s. 3A(1) inserted (26.1.2009) by Energy Act 2008 (c. 32), ss. 83(2)(a), 110(2); S.I. 2009/45, art. 2(d)(i)

F6 Words in s. 3A(1) inserted (1.4.2006 for specified purposes, 1.4.2010 in so far as not already in force) by Energy Act 2004 (c. 20), s. 179(2)(3)(a), 198(2); S.I. 2005/2965, art. 3

F7 Words in s. 3A(1) omitted (8.6.2010) by virtue of Energy Act 2010 (c. 27), ss. 17(2), 38(3)

F8 Ss. 3A(1A)-(1C) inserted (8.6.2010) by Energy Act 2010 (c. 27), ss. 17(3), 38(3)

F9 Words in s. 3A(1A)(a) substituted (26.12.2023) by Energy Act 2023 (c. 52), ss. 202(5), 334(3)(f)

F10 Word in s. 3A(1A)(a) omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 27(a)

F11 S. 3A(1A)(c) and preceding word inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 27(b)

F12 Words in s. 3A(1A)(c) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 39(2)(a); 2020 c. 1, Sch. 5 para. 1(1)

F13 Words in s. 3A(1A)(c) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 39(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

F14 Words in s. 3A(2) substituted (8.6.2010) by Energy Act 2010 (c. 27), ss. 17(4)(a), 38(3)

F15 Words in s. 3A(2)(b) substituted (24.8.2004 for specified purposes, 5.10.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 190(3), 198(2); S.I. 2004/2184, art. 2(1), Sch. 1; S.I. 2004/2575, art. 2(1), Sch. 1

F16 Words in s. 3A(2)(b) substituted (26.11.2008) by Energy Act 2008 (c. 32), ss. 102(6), 110(2)

F17 Words in s. 3A(2)(b) substituted (8.6.2010) by Energy Act 2010 (c. 27), ss. 17(4)(b), 38(3)

F18 Words in s. 3A(2)(b) substituted (18.12.2013) by Energy Act 2013 (c. 32), ss. 65(1), 156(3)

F19 Words in s. 3A(2)(b) substituted (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 44(2)(d), Sch. para. 1(2)

F20 Words in s. 3A(2)(b) substituted (11.1.2024) by Energy Act 2023 (c. 52), ss. 248(6), 334(1); S.I. 2024/32, reg. 2(b)(iii)

F21 S. 3A(2)(c) and preceding word inserted (26.1.2009) by Energy Act 2008 (c. 32), ss. 83(2)(b), 110(2); S.I. 2009/45, art. 2(d)(i)

F22 Words in s. 3A(3) substituted (8.6.2010) by Energy Act 2010 (c. 27), ss. 17(5), 38(3)

F23 S. 3A(4)(b)(i) substituted (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), s. 411(2), Sch. 17 para. 98 (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)); S.I. 2003/3142, art. 3(2) (with art. 11)

F24 Words in s. 3A(5) substituted (8.6.2010) by Energy Act 2010 (c. 27), ss. 17(6)(a), 38(3)

F25 Words in s. 3A(5) inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 138(3), 156(2)

F26 Words in s. 3A(5)(a) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 4; S.I. 2004/2184, art. 2(2), Sch. 2

F27 Word in S. 3A(5)(a) substituted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 3(a)(i)

F28 Words in s. 3A(5)(a) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 147(2)(b), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F29 Words in s. 3A(5)(a) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 3(a)(ii)

F30 Words in s. 3A(5)(a) inserted (1.4.2006 for specified purposes, 1.4.2010 in so far as not already in force) by Energy Act 2004 (c. 20), s. 179(2)(3)(a), 198(2); S.I. 2005/2965, art. 3

F31 Words in s. 3A(5) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 3(b)

F32 S. 3A(5)(ba) repealed (26.1.2009) by Energy Act 2008 (c. 32), ss. 83(2)(c), 110(2), Sch. 6; S.I. 2009/45, art. 2(d)(bb)(e)(vi)(i)

F33 Words in s. 3A(5) substituted (5.10.2004) by Energy Act 2004 (c. 20), ss. 83(b), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

F34 Words in s. 3A(5) omitted (8.6.2010) by virtue of Energy Act 2010 (c. 27), ss. 17(6)(b), 38(3)

F35 S. 3A(5A) inserted (5.10.2004) by Energy Act 2004 (c. 20), ss. 178, 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

F36 S. 3A(5B) inserted (8.6.2010) by Energy Act 2010 (c. 27), ss. 17(7), 38(3)

F37 Words in s. 3A(5B) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 39(3); 2020 c. 1, Sch. 5 para. 1(1)

F38 Words in s. 3A(5B) omitted (26.12.2023) by virtue of Energy Act 2023 (c. 52), ss. 202(6), 334(3)(f)

F39 Words in s. 3A(6) substituted (26.1.2009) by Energy Act 2008 (c. 32), ss. 83(2)(d), 110(2); S.I. 2009/45, art. 2(d)(i)

F40 Word in s. 3A(6) inserted (8.6.2010) by Energy Act 2010 (c. 27), ss. 17(8), 38(3)

F41 Words in s. 3A(7) inserted (1.4.2006 for specified purposes, 1.4.2010 in so far as not already in force) by Energy Act 2004 (c. 20), s. 179(2)(3)(a), 198(2); S.I. 2005/2965, art. 3

Modifications etc. (not altering text)

C7 Ss. 3A-3D applied (24.8.2004 for specified purposes, 5.10.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 190(2), 198(2); S.I. 2004/2184, art. 2(1), Sch. 1; S.I. 2004/2575, art. 2(1), Sch. 1

C8 S. 3A: transfer of functions (23.3.2005) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849), art. 1, Sch. (with art. 6)

C9 Ss. 3A-3D applied (21.8.2006) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 8(6), 28(1)

C10 Ss. 3A-3D applied (26.11.2008) by Energy Act 2008 (c. 32), ss. 102(4), 110(2)

C11 Ss. 3A-3D applied (8.4.2010) by Energy Act 2010 (c. 27), ss. 30(2), 38(1)

C12 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 78(2), 121(3)

C13 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 98(14), 121(3)

C14 Ss. 3A-3D applied (21.3.2012) by Energy Act 2011 (c. 16), ss. 22(10), 121(1); S.I. 2012/873, art. 2(a)(v)

C15 Ss. 3A-3D applied (18.12.2013) by Energy Act 2013 (c. 32), ss. 39, 156(3)

C16 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 141(2), 156(2)

C17 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 53, 156(2)

C18 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 136(2), 156(2)

C19 Ss. 3A-3D applied (23.7.2018) by Smart Meters Act 2018 (c. 14), ss. 6(13), 14(5)

C20 Ss. 3A-3D applied (26.10.2023 for specified purposes, 31.1.2024 in so far as not already in force) by Energy Act 2023 (c. 52), ss. 178(2), 334(1)(2)(h); S.I. 2024/32, reg. 3(a)(viii)

C21 Ss. 3A-3D applied (11.1.2024) by Energy Act 2023 (c. 52), ss. 248(4)(5), 334(1); S.I. 2024/32, reg. 2(b)(iii)

C22 Ss. 3A-3D applied (31.1.2024) by Energy Act 2023 (c. 52), ss. 178(1), 334(1); S.I. 2024/32, reg. 3(a)(viii)

Marginal Citations

M1 1986 c. 44.

M2 1991 c. 56.

[F42 3B Guidance on social and environmental matters. E+W+S

(1) The Secretary of State shall from time to time issue guidance about the making by the Authority of a contribution towards the attainment of any social or environmental policies set out or referred to in the guidance.

(2) The Authority shall, in carrying out its functions under this Part, have regard to any guidance issued under this section.

(3) Before issuing guidance under this section the Secretary of State shall consult—

(a) the Authority;

[F43 (b) Citizens Advice;

(ba) [F44 Consumer Scotland]];

(c) licence holders; and

(d) such other persons as the Secretary of State considers it appropriate to consult in relation to the guidance.

(4) A draft of any guidance proposed to be issued under this section shall be laid before each House of Parliament.

(5) Guidance shall not be issued under this section until after the period of forty days beginning with—

(a) the day on which the draft is laid before each House of Parliament; or

(b) if the draft is laid before the House of Lords on one day and the House of Commons on another, the later of those two days.

(6) If, before the end of that period, either House resolves that the guidance should not be issued, the Secretary of State must not issue it.

(7) In reckoning any period of forty days for the purposes of subsection (5) or (6), no account shall be taken of any time during which—

(a) Parliament is dissolved or prorogued; or

(b) both Houses are adjourned for more than four days.

(8) The Secretary of State shall arrange for any guidance issued under this section to be published in such manner as he considers appropriate.]

Textual Amendments

F42 S. 3B inserted (20.12.2000) by 2000 c. 27, s. 14; S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F43 S. 3B(3)(b)(ba) substituted for s. 3B(3)(b) (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(2) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F44 Words in s. 3B(3)(ba) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(2) (with art. 5)

Modifications etc. (not altering text)

C7 Ss. 3A-3D applied (24.8.2004 for specified purposes, 5.10.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 190(2), 198(2); S.I. 2004/2184, art. 2(1), Sch. 1; S.I. 2004/2575, art. 2(1), Sch. 1

C9 Ss. 3A-3D applied (21.8.2006) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 8(6), 28(1)

C10 Ss. 3A-3D applied (26.11.2008) by Energy Act 2008 (c. 32), ss. 102(4), 110(2)

C11 Ss. 3A-3D applied (8.4.2010) by Energy Act 2010 (c. 27), ss. 30(2), 38(1)

C12 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 78(2), 121(3)

C13 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 98(14), 121(3)

C14 Ss. 3A-3D applied (21.3.2012) by Energy Act 2011 (c. 16), ss. 22(10), 121(1); S.I. 2012/873, art. 2(a)(v)

C15 Ss. 3A-3D applied (18.12.2013) by Energy Act 2013 (c. 32), ss. 39, 156(3)

C16 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 141(2), 156(2)

C17 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 53, 156(2)

C18 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 136(2), 156(2)

C19 Ss. 3A-3D applied (23.7.2018) by Smart Meters Act 2018 (c. 14), ss. 6(13), 14(5)

C20 Ss. 3A-3D applied (26.10.2023 for specified purposes, 31.1.2024 in so far as not already in force) by Energy Act 2023 (c. 52), ss. 178(2), 334(1)(2)(h); S.I. 2024/32, reg. 3(a)(viii)

C21 Ss. 3A-3D applied (11.1.2024) by Energy Act 2023 (c. 52), ss. 248(4)(5), 334(1); S.I. 2024/32, reg. 2(b)(iii)

C22 Ss. 3A-3D applied (31.1.2024) by Energy Act 2023 (c. 52), ss. 178(1), 334(1); S.I. 2024/32, reg. 3(a)(viii)

[F45 3C Health and safety. E+W+S

(1) The Secretary of State and the Authority shall consult [F46 —

(a) the Health and Safety Executive about all electricity safety issues, and

(b) the Office for Nuclear Regulation about all electricity safety issues relating to nuclear sites (within the meaning of Part 3 of the Energy Act 2013),

which may be relevant to the carrying out of their respective functions under this Part.]

(2) The Secretary of State may require the Authority also to consult him about electricity safety issues of particular descriptions.

(3) The Secretary of State and the Authority shall, in carrying out their respective functions under this Part, take into account any advice given by [F47 the Health and Safety Executive ] [F48 or the Office for Nuclear Regulation] about any electricity safety issue (whether or not in response to consultation under subsection (1)).

(4) The Authority shall, in carrying out its functions under this Part, take into account any advice given by the Secretary of State about any electricity safety issue (whether or not in response to consultation under subsection (2)).

(5) For the purposes of this section an electricity safety issue is anything concerning the generation, transmission, distribution or supply of electricity which may affect the health and safety of—

(a) members of the public; or

(b) persons employed in connection with any of those activities.]

Textual Amendments

F45 S. 3C inserted (20.12.2000) by 2000 c. 27, s. 15; S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F46 Words in s. 3C(1) substituted (1.4.2014) by Energy Act 2013 (c. 32), s. 156(1), Sch. 12 para. 61(2); S.I. 2014/251, art. 4

F47 Words in s. 3C(1)(3) substituted (1.4.2008) by The Legislative Reform (Health and Safety Executive) Order 2008 (S.I. 2008/960), art. 1, Sch. 3 (with art. 21, Sch. 2)

F48 Words in s. 3C(3) inserted (1.4.2014) by Energy Act 2013 (c. 32), s. 156(1), Sch. 12 para. 61(3); S.I. 2014/251, art. 4

Modifications etc. (not altering text)

C7 Ss. 3A-3D applied (24.8.2004 for specified purposes, 5.10.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 190(2), 198(2); S.I. 2004/2184, art. 2(1), Sch. 1; S.I. 2004/2575, art. 2(1), Sch. 1

C9 Ss. 3A-3D applied (21.8.2006) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 8(6), 28(1)

C10 Ss. 3A-3D applied (26.11.2008) by Energy Act 2008 (c. 32), ss. 102(4), 110(2)

C11 Ss. 3A-3D applied (8.4.2010) by Energy Act 2010 (c. 27), ss. 30(2), 38(1)

C12 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 78(2), 121(3)

C13 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 98(14), 121(3)

C14 Ss. 3A-3D applied (21.3.2012) by Energy Act 2011 (c. 16), ss. 22(10), 121(1); S.I. 2012/873, art. 2(a)(v)

C15 Ss. 3A-3D applied (18.12.2013) by Energy Act 2013 (c. 32), ss. 39, 156(3)

C16 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 141(2), 156(2)

C17 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 53, 156(2)

C18 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 136(2), 156(2)

C19 Ss. 3A-3D applied (23.7.2018) by Smart Meters Act 2018 (c. 14), ss. 6(13), 14(5)

C20 Ss. 3A-3D applied (26.10.2023 for specified purposes, 31.1.2024 in so far as not already in force) by Energy Act 2023 (c. 52), ss. 178(2), 334(1)(2)(h); S.I. 2024/32, reg. 3(a)(viii)

C21 Ss. 3A-3D applied (11.1.2024) by Energy Act 2023 (c. 52), ss. 248(4)(5), 334(1); S.I. 2024/32, reg. 2(b)(iii)

C22 Ss. 3A-3D applied (31.1.2024) by Energy Act 2023 (c. 52), ss. 178(1), 334(1); S.I. 2024/32, reg. 3(a)(viii)

[F49 3D Exceptions from sections 3A to 3C. E+W+S

(1) Section 3A does not apply in relation to the issuing by the Secretary of State of guidance under section 3B.

(2) Sections 3A to 3C do not apply in relation to functions of the Secretary of State under [F50 sections 36 to 37].

(3) Sections 3A to 3C do not apply in relation to anything done by the Authority—

(a) in the exercise of functions relating to the determination of disputes;

(b) in the exercise of functions under section 43(3).

(4) The Authority may nevertheless, when exercising any function under section 43(3), have regard to any matter in respect of which a duty is imposed by sections 3A to 3C (“a general matter”), if it is a matter to which [F51 the CMA] could have regard when exercising that function (but that is not to be taken as implying that, in relation to functions mentioned in subsection (2), regard may not be had to any general matter).

(5) The duties imposed by sections 3A to 3C do not affect the obligation of the Authority or the Secretary of State to perform or comply with any other duty or requirement (whether arising under this Act or another enactment, by virtue of any [F52 assimilated] obligation or otherwise).]

Textual Amendments

F49 S. 3D inserted (20.12.2000) by 2000 c. 27, s. 16; S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F50 Words in s. 3D substituted (1.3.2005) by Energy Act 2004 (c. 20), ss. 99(3), 198(2); S.I. 2005/442, art. 2(1), Sch. 1

F51 Words in s. 3D(4) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 62 (with art. 3)

F52 Word in s. 3D(5) substituted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (S.I. 2023/1424), reg. 1(2), Sch. para. 26(2)(a)

Modifications etc. (not altering text)

C7 Ss. 3A-3D applied (24.8.2004 for specified purposes, 5.10.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 190(2), 198(2); S.I. 2004/2184, art. 2(1), Sch. 1; S.I. 2004/2575, art. 2(1), Sch. 1

C9 Ss. 3A-3D applied (21.8.2006) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 8(6), 28(1)

C10 Ss. 3A-3D applied (26.11.2008) by Energy Act 2008 (c. 32), ss. 102(4), 110(2)

C11 Ss. 3A-3D applied (8.4.2010) by Energy Act 2010 (c. 27), ss. 30(2), 38(1)

C12 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 78(2), 121(3)

C13 Ss. 3A-3D applied (18.12.2011) by Energy Act 2011 (c. 16), ss. 98(14), 121(3)

C14 Ss. 3A-3D applied (21.3.2012) by Energy Act 2011 (c. 16), ss. 22(10), 121(1); S.I. 2012/873, art. 2(a)(v)

C15 Ss. 3A-3D applied (18.12.2013) by Energy Act 2013 (c. 32), ss. 39, 156(3)

C16 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 141(2), 156(2)

C17 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 53, 156(2)

C18 Ss. 3A-3D applied (18.2.2014) by Energy Act 2013 (c. 32), ss. 136(2), 156(2)

C19 Ss. 3A-3D applied (23.7.2018) by Smart Meters Act 2018 (c. 14), ss. 6(13), 14(5)

C20 Ss. 3A-3D applied (26.10.2023 for specified purposes, 31.1.2024 in so far as not already in force) by Energy Act 2023 (c. 52), ss. 178(2), 334(1)(2)(h); S.I. 2024/32, reg. 3(a)(viii)

C21 Ss. 3A-3D applied (11.1.2024) by Energy Act 2023 (c. 52), ss. 248(4)(5), 334(1); S.I. 2024/32, reg. 2(b)(iii)

C22 Ss. 3A-3D applied (31.1.2024) by Energy Act 2023 (c. 52), ss. 178(1), 334(1); S.I. 2024/32, reg. 3(a)(viii)

C23 S. 3D(4) excluded (20.12.2000) by S.I. 2000/3343, art. 10(1)(b) (subject to transitional provisions in arts. 3-15)

[F53 3E Binding decisions of the Agency for the Cooperation of Energy Regulators and of the European Commission U.K.

[F54 (1)] The Authority must carry out its functions under this Part in the manner that it considers is best calculated to implement, or to ensure compliance with, any binding decision of the Agency or the European Commission made under the Electricity Directive, the Electricity Regulation or the Agency Regulation [F55 (or the predecessor of the Electricity Regulation or the Agency Regulation)] in relation to electricity.

[F56 (2) For the purposes of subsection (1), a binding decision does not include a decision that is not, or so much of a decision as is not, [F57 assimilated] law.]]

Textual Amendments

F53 S. 3E inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 33

F54 S. 3E renumbered as s. 3E(1) (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 41(2); 2020 c. 1, Sch. 5 para. 1(1)

F55 Words in s. 3E inserted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(2)

F56 S. 3E(2) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 41(3); 2020 c. 1, Sch. 5 para. 1(1)

F57 Word in s. 3E(2) substituted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (S.I. 2023/1424), reg. 1(2), Sch. para. 26(2)(b)

[F58 3F Authority to consult and cooperate with other authorities U.K.

(1) When carrying out its [F59 designated regulatory functions] the Authority must, wherever it thinks fit—

(a) consult and cooperate with the [F60 Northern Ireland Authority];

(b) provide the [F61 Northern Ireland Authority] with information [F62 it] may require in order to carry out [F63 its designated regulatory functions]; and

(c) consult relevant national authorities.

(2) In exercising functions in accordance with subsection (1) the Authority must, wherever it thinks fit, cooperate with the [F64 Northern Ireland Authority] with a view F65 ... to—

F66 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the promotion and facilitation of cooperation between transmission system operators;

(c) the optimal management of electricity networks;

(d) the promotion of jointly managed cross-border trade in electricity and the allocation of cross-border capacity;

(e) enabling an adequate level of interconnection capacity;

F67 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and

(g) the coordination of the regulation of electricity markets, including rules concerning the management of congestion of electricity networks.

(3) In this section—

• F68 ...

• F69 ...

• “relevant national authority” means any of the following—

  (a)

  F70 ...

  (b)

  the Office of Communications;

  (c)

  [F71 the CMA];

  (d)

  the Water Services Regulation Authority.]

Textual Amendments

F58 S. 3F inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 35

F59 Words in s. 3F(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(2)(a); 2020 c. 1, Sch. 5 para. 1(1)

F60 Words in s. 3F(1)(a) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

F61 Words in s. 3F(1)(b) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(2)(c)(i); 2020 c. 1, Sch. 5 para. 1(1)

F62 Word in s. 3F(1)(b) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(2)(c)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F63 Words in s. 3F(1)(b) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(2)(c)(iii); 2020 c. 1, Sch. 5 para. 1(1)

F64 Words in s. 3F(2) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(3)(a); 2020 c. 1, Sch. 5 para. 1(1)

F65 Words in s. 3F(2) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(3)(b); 2020 c. 1, Sch. 5 para. 1(1)

F66 S. 3F(2)(a) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(3)(c); 2020 c. 1, Sch. 5 para. 1(1)

F67 S. 3F(2)(f) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(3)(d); 2020 c. 1, Sch. 5 para. 1(1)

F68 Words in s. 3F(3) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(4)(a); 2020 c. 1, Sch. 5 para. 1(1)

F69 Words in s. 3F(3) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 42(4)(b); 2020 c. 1, Sch. 5 para. 1(1)

F70 Words in s. 3F(3) omitted (1.4.2014) by virtue of The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 63(a) (with art. 3)

F71 Words in s. 3F(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 63(b) (with art. 3)

Licensing of supply etc. E+W+S

4 Prohibition on unlicensed supply etc. E+W+S

(1) A person who—

(a) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

[F72 (b) participates in the transmission of electricity for that purpose;]

[F73 (bb) distributes electricity for that purpose;]

(c) supplies electricity to any premises, F74 ...

[F75 (d) participates in the operation of an electricity interconnector][F76 ; or

(e) provides a smart meter communication service,]

F77 shall be guilty of an offence unless he is authorised to do so by a licence ... .

(2) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(3) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or the Director.

[F78 (3ZA) In subsection (1)(a), the reference to a person who generates electricity includes a reference to a person who generates electricity from stored energy.

(3ZB) In subsection (3ZA), “stored energy” means energy that—

(a) was converted from electricity, and

(b) is stored for the purpose of its future reconversion into electricity.]

[F79 (3A) In subsection (1)(b) above, the reference to a person who participates in the transmission of electricity is to a person who—

(a) co-ordinates, and directs, the flow of electricity onto and over a transmission system by means of which the transmission of electricity takes place, or

(b) makes available for use for the purposes of such a transmission system anything which forms part of it.

[F80 (3AA) Subsection (3A) is subject to section 6F (offshore transmission during commissioning period).]

(3B) For the purposes of subsection (3A)(b), a person shall not be regarded as making something available just because he consents to its being made available by another.]

[F81 (3C) A reference in this Part to participating in the operation of an electricity interconnector is a reference to—

(a) co-ordinating and directing the flow of electricity into or through an electricity interconnector; or

(b) making such an interconnector available for use for the conveyance of electricity;

and a person is not to be regarded as participating in the transmission of electricity by reason only of activities constituting participation in the operation of an electricity interconnector.

(3D) For the purposes of subsection (3C)(b), a person shall not be regarded as making something available just because he consents to its being made available by another.

(3E) In this Part “electricity interconnector” means so much of an electric line or other electrical plant as—

(a) is situated at a place within the jurisdiction of Great Britain; and

(b) subsists wholly or primarily for the purposes of the conveyance of electricity (whether in both directions or in only one) between Great Britain and a place within the jurisdiction of another country or territory.

(3F) For the purposes of this section—

(a) a place is within the jurisdiction of Great Britain if it is in Great Britain, in the territorial sea adjacent to Great Britain or in an area designated under section 1(7) of the Continental Shelf Act 1964; and

(b) a place is within the jurisdiction of another country or territory if it is in that country or territory or in waters in relation to which authorities of that country or territory exercise jurisdiction.]

[F82 (3G) A reference in this Part to providing a smart meter communication service is a reference to making arrangements with each domestic supplier to provide a service, for such suppliers, of communicating relevant information to and from smart meters through which electricity is supplied to domestic premises.]

(4) In this Part, unless the context otherwise requires—

• [F83 “distribute”, in relation to electricity, means distribute by means of a distribution system, that is to say, a system which consists (wholly or mainly) of low voltage lines and electrical plant and is used for conveying electricity to any premises or to any other distribution system;]

• [F84 “generate”, in relation to electricity, means generate at a relevant place;]

• [F85 “supply”, in relation to electricity, means its supply to premises in cases where—

  (a)

  it is conveyed to the premises wholly or partly by means of a distribution system, or

  (b)

  (without being so conveyed) it is supplied to the premises from a substation to which it has been conveyed by means of a transmission system,

  but does not include its supply to premises occupied by a licence holder for the purpose of carrying on activities which he is authorised by his licence to carry on;]

• [F86 “transmission”, in relation to electricity, means transmission by means of a transmission system;

• “transmission system” means a system which—

  (a)

  consists (wholly or mainly) of high voltage lines and electrical plant, and

  (b)

  is used for conveying electricity from a generating station to a substation, from one generating station to another or from one substation to another.]

[F87 (5) In this section—

• “relevant place” means a place in Great Britain, in the territorial sea adjacent to Great Britain or in a Renewable Energy Zone; and

• “system” means a system the whole or a part of which is at a relevant place;

and references in this section to premises are references to premises situated at a relevant place, or at a place that is not in a Renewable Energy Zone but is in an area designated under section 1(7) of the Continental Shelf Act 1964.]

[F88 (6) In this section—

• “domestic supplier” means an electricity supplier—

  (a)

  who is authorised, in accordance with the conditions of a licence, to supply electricity to domestic premises; and

  (b)

  who supplies electricity to domestic premises in accordance with that licence;

• “external electronic communications network” means a network which—

  (a)

  is an electronic communications network, within the meaning of section 32 of the Communications Act 2003; and

  (b)

  does not form part of a smart meter;

• “relevant information” means information relating to the supply of electricity; and

• “smart meter” means—

  (a)

  an electricity meter which can send and receive information using an external electronic communications network; or

  (b)

  an electricity meter and a device which is associated with or ancillary to that meter and which enables information to be sent to and received by the meter using an external electronic communications network.]

Textual Amendments

F72 S. 4(1)(b) substituted (24.8.2004 for specified purposes, 1.9.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 135(2), 198(2); S.I. 2004/2184, art. 2(1)(2), Sch. 1, Sch. 2

F73 S. 4(1)(bb) inserted (1.10.2001) by 2000 c. 27, s. 28(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F74 Word in s. 4(1) omitted (19.9.2012) by virtue of The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 4(2)(a) (with art. 38(1)-(3))

F75 S. 4(1)(d) and preceding word inserted (14.8.2006) by Energy Act 2004 (c. 20), ss. 145(2), 198(2); S.I. 2006/1964, art. 2, Sch.

F76 S. 4(1)(e) and preceding word inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 4(2)(b) (with art. 38(1)-(3))

F77 Words in s. 4(1) repealed (1.10.2001) by 2000 c. 27, s. 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F78 S. 4(3ZA)(3ZB) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 213, 334(3)(g)

F79 S. 4(3A)(3B) inserted (24.8.2004 for specified purposes, 1.9.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 135(3), 198(2); S.I. 2004/2184, art. 2(1)(2), Sch. 1, Sch. 2

F80 S. 4(3AA) inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 147(2), 156(2)

F81 S. 4(3C)-(3F) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 145(3), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F82 S. 4(3G) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 4(3)

F83 S. 4(4): definition of “distribute” inserted (7.11.2000 for specified purposes, 20.12.2000 for further specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 28(3)(a); S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F84 Words in s. 4(4) inserted (1.3.2005 for specified purposes, 29.7.2010 for specified purposes, 10.6.2014 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 89(1), 198(2); S.I. 2005/442, art. 2(1), Sch. 1; S.I. 2010/1889, art. 2; S.I. 2014/1460, art. 2

F85 Words in s. 4(4) substituted (1.4.2006 for specified purposes, 1.4.2010 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 179(1), 198(2); S.I. 2005/2965, art. 3

F86 Words in s. 4(4) substituted (24.8.2004 for specified purposes, 1.9.2004 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 135(4), 198(2); S.I. 2004/2184, art. 2(1)(2), Sch. 1, Sch. 2

F87 S. 4(5) inserted (1.3.2005 for specified purposes, 29.7.2010 for specified purposes, 10.6.2014 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 89(2), 198(2); S.I. 2005/442, art. 2(1), Sch. 1; S.I. 2010/1889, art. 2; S.I. 2014/1460, art. 2

F88 S. 4(6) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 4(4)

Modifications etc. (not altering text)

C24 S. 4(1)(a)(c) excluded by S.I. 1990/193, art. 3(1)

C25 S. 4(1)(a) excluded (1.10.2001) by S.I. 2001/3270, art. 3(1)(a), Sch. 2 (with art. 4(1)(2))

C26 S. 4(1)(a) excluded (5.6.2020) by The Electricity (Individual Exemptions from the Requirement for a Generation Licence) (England) Order 2020 (S.I. 2020/509), arts. 1, 3 (with arts. 4, 5)

C27 S. 4(1)(b) excluded (24.10.2022) by The Electricity (Individual Exemption from the Requirement for a Transmission Licence) (Triton Knoll) (England) Order 2022 (S.I. 2022/976), arts. 1(1), 2

C28 S. 4(1)(bb) excluded (1.10.2001) by S.I. 2001/3270, art. 3(1)(b), Sch. 3 (with art. 4(3)(4)) (as amended (16.8.2024) by S.I. 2024/819, art. 1(1), Sch. para. 3)

C29 S. 4(1)(c) excluded (1.10.2001) by S.I. 2001/3270, art. 3(1)(c), Sch. 4 (with art. 4(5)(8))

[F89 5 Exemptions from prohibition. E+W+S

(1) The Secretary of State may by order grant exemption from paragraph (a), (b), (bb), [F90 (c), (d) or (e)] of section 4(1)—

(a) either to a person or to persons of a class;

(b) either generally or to such extent as may be specified in the order; and

(c) either unconditionally or subject to such conditions as may be so specified.

(2) Before making an order under subsection (1) the Secretary of State shall give notice—

(a) stating that he proposes to make such an order and setting out the terms of the proposed order;

(b) stating the reasons why he proposes to make the order in the terms proposed; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations with respect to the proposals may be made,

and shall consider any representations which are duly made in respect of the proposals and not withdrawn.

(3) The notice required by subsection (2) shall be given—

(a) by serving a copy of it on the Authority [F91 , Citizens Advice and [F92 Consumer Scotland]]; and

(b) by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of those likely to be affected by the proposed order.

(4) Notice of an exemption granted to a person shall be given—

(a) by serving a copy of the exemption on him; and

(b) by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of other persons who may be affected by it.

(5) Notice of an exemption granted to persons of a class shall be given by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of—

(a) persons of that class; and

(b) other persons who may be affected by it.

(6) An exemption may be granted—

(a) indefinitely; or

(b) for a period specified in, or determined by or under, the exemption.

(7) Conditions subject to which an exemption is granted may (in particular) require any person carrying on any activity in pursuance of the exemption—

(a) to comply with any direction given by the Secretary of State or the Authority as to such matters as are specified in the exemption or are of a description so specified;

(b) except in so far as the Secretary of State or the Authority consents to his doing or not doing them, not to do or to do such things as are specified in the exemption or are of a description so specified; and

(c) to refer for determination by the Secretary of State or the Authority such questions arising under the exemption as are specified in the exemption or are of a description so specified.

(8) The Secretary of State may by order revoke an order by which an exemption was granted to a person or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—

(a) at the person’s request;

(b) in accordance with any provision of the order by which the exemption was granted; or

(c) if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.

(9) The Secretary of State may by order revoke an order by which an exemption was granted to persons of a class or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—

(a) in accordance with any provision of the order by which the exemption was granted; or

(b) if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.

(10) The Secretary of State may by direction withdraw an exemption granted to persons of a class from any person of that class—

(a) at the person’s request;

(b) in accordance with any provision of the order by which the exemption was granted; or

(c) if it appears to the Secretary of State inappropriate that the exemption should continue to have effect in the case of the person.

(11) Before—

(a) making an order under subsection (8)(b) or (c) or (9); or

(b) giving a direction under subsection (10)(b) or (c),

the Secretary of State shall consult the Authority and give notice of his proposal to do so (with reasons) and of a period within which representations may be made to him.

(12) The notice under subsection (11) shall be given—

(a) where the Secretary of State is proposing to make an order under subsection (8)(b) or (c), by serving a copy of it on the person to whom the exemption was granted;

(b) where he is proposing to make an order under subsection (9), by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of the class of persons to whom the exemption was granted; and

(c) where he is proposing to give a direction under subsection (10)(b) or (c), by serving a copy of it on the person from whom he proposes to withdraw the exemption.]

Textual Amendments

F89 S. 5 substituted (1.10.2001) by 2000 c. 27, s. 29; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F90 Words in s. 5(1) substituted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 5

F91 Words in s. 5(3)(a) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(3) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F92 Words in s. 5(3)(a) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(3) (with art. 5)

Modifications etc. (not altering text)

C30 S. 5: functions transferred to Scottish Ministers (S.) (14.12.2000) by virtue of S.I. 2000/3253, arts. 1(1), 2, Sch. (with art. 6)

[F93 5A Duties of distribution exemption holders E+W+S

Schedule 2ZA (which relates to the duties of distribution exemption holders) has effect.

Textual Amendments

F93 Ss. 5A, 5B inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 21(2)

5B Duties of supply exemption holders E+W+S

Schedule 2ZB (which relates to the duties of supply exemption holders) has effect.]

Textual Amendments

F93 Ss. 5A, 5B inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 21(2)

[F94 6 Licences authorising supply, etc. E+W+S

(1) The Authority may grant any of the following licences—

(a) a licence authorising a person to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given (“a generation licence”);

[F95 (b) a licence authorising a person to participate in the transmission of electricity for that purpose (“a transmission licence”);]

(c) a licence authorising a person to distribute electricity for that purpose (“a distribution licence”); F96 ...

(d) a licence authorising a person to supply electricity to premises (“a supply licence”) F97 ...

[F98 (da) subject to subsections (1ZB) and (2ZA), a licence authorising a person to co-ordinate and direct the flow of electricity onto and over transmission systems by means of which the transmission of electricity takes place (“an electricity system operator licence”);]

[F99 (e) a licence authorising a person to participate in the operation of an electricity interconnector (“an interconnector licence”)][F100 ; or

(f) subject to subsection (1C), a licence authorising a person to provide a smart meter communication service (“a smart meter communication licence”).]

[F101 (1ZA) Subject to subsection (2ZA), the Secretary of State may grant an electricity system operator licence.

(1ZB) The first electricity system operator licence may only be granted by the Secretary of State.

(1ZC) For the purposes of this section, references to the grant of an electricity system operator licence include the giving of a direction under section 167 of the Energy Act 2023 in respect of a transmission licence.]

[F102 (1A) Subject to subsection (1B), the Secretary of State may grant a smart meter communication licence.

(1B) The Secretary of State may not grant a smart meter communication licence after 1 November 2018.

(1C) The first smart meter communication licence may only be granted by the Secretary of State.]

(2) The same person may not be the holder of both a distribution licence and [F103 —

(a) a generation licence; or

(b) a supply licence.]

[F104 (2ZA) A person may not be granted an electricity system operator licence unless the same person—

(a) already holds a licence granted under section 7AA of the Gas Act 1986, or

(b) is granted such a licence at the same time as the person is granted an electricity system operator licence.]

[F105 (2A) The same person may not be the holder of an interconnector licence and the holder of a licence falling within any of paragraphs (a) to [F106 (da)] of subsection (1).]

[F107 (2B) A person may not be granted a smart meter communication licence unless the same person is at the same time granted a licence under section 7AB of the Gas Act 1986.]

(3) A supply licence may authorise the holder to supply electricity—

(a) to any premises;

(b) only to premises specified in the licence, or to premises of a description so specified; or

(c) only to any premises situated in a specified area, or to premises of a specified description which are so situated.

(4) The Authority may, with the consent of the holder of a supply licence, modify terms included in the licence in pursuance of subsection (3) so as to extend or restrict the premises to which the licence holder may give a supply of electricity.

(5) A distribution licence may authorise the holder to distribute electricity in any area, or only in an area specified in the licence.

(6) The Authority may, with the consent of the holder of a distribution licence, modify terms included in the licence in pursuance of subsection (5) so as to extend or restrict the area within which the licence holder may distribute electricity.

[F108 (6A) A transmission licence may authorise the holder to participate in the transmission of electricity in any area, or only in an area specified in the licence.

(6B) The Authority may, with the consent of the holder of a transmission licence, modify terms included in the licence in pursuance of subsection (6A) above.]

[F109 (6C) An interconnector licence authorising participation in the operation of an electricity interconnector—

(a) must specify the interconnector or interconnectors in relation to which participation is authorised; and

(b) may limit the forms of participation in the operation of an interconnector which are authorised by the licence.]

[F110 (6D) The Authority may, with the consent of a relevant licensee nuclear company (within the meaning of Part 1 of the Nuclear Energy (Financing) Act 2022 (nuclear energy generation projects: regulated asset base model)), modify terms included in the company’s generation licence.]

[F111 (7) A licence, and any modification of a licence under subsection (4), (6) [F112 , (6B) or (6D)], shall be in writing.]

(8) A licence shall, unless previously revoked in accordance with any term of the licence [F113 and subject to], continue in force for such period as may be specified in or determined by or under the licence.

[F114 (8A) If a person who holds an electricity system operator licence ceases at any time to hold a licence under section 7AA of the Gas Act 1986, the person is to be treated as ceasing to hold the electricity system operator licence at the same time.]

(9) In this Part—

• F115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “electricity distributor” means any person who is authorised by a distribution licence to distribute electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;

• F116 ...

• “electricity supplier” means any person who is authorised by a supply licence to supply electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence.

[F117 (10) In this section “premises” has the same meaning as in section 4.]]

Textual Amendments

F94 Ss. 6, 6A, 6B substituted for s. 6 (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 30; S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F95 S. 6(1)(b) substituted (1.9.2004) by Energy Act 2004 (c. 20), ss. 136(1), 198(2); S.I. 2004/2184, art. 2(2), Sch. 2

F96 Word in s. 6(1)(c) repealed (1.12.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 23 Pt. 1; S.I. 2004/2575, art. 2(2), Sch. 2

F97 Word in s. 6(1) omitted (19.9.2012) by virtue of The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 6(2)(a)

F98 S. 6(1)(da) inserted (31.1.2024) by Energy Act 2023 (c. 52), ss. 166(4), 334(1); S.I. 2024/32, reg. 3(a)(iii)

F99 S. 6(1)(e) and preceding word inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 145(5), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F100 S. 6(1)(f) and preceding word inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 6(2)(b)

F101 S. 6(1ZA)-(1ZC) inserted (31.1.2024) by Energy Act 2023 (c. 52), ss. 166(5), 334(1); S.I. 2024/32, reg. 3(a)(iii)

F102 S. 6(1A)-(1C) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 6(3)

F103 Words in s. 6(2) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 19

F104 S. 6(2ZA) inserted (31.1.2024) by Energy Act 2023 (c. 52), ss. 166(6), 334(1); S.I. 2024/32, reg. 3(a)(iii)

F105 S. 6(2A) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 145(6), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F106 Word in s. 6(2A) substituted (31.1.2024) by Energy Act 2023 (c. 52), ss. 166(7), 334(1); S.I. 2024/32, reg. 3(a)(iii)

F107 S. 6(2B) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 6(4)

F108 S. 6(6A)(6B) inserted (1.9.2004) by Energy Act 2004 (c. 20), ss. 136(2), 198(2); S.I. 2004/2184, art. 2(2), Sch. 2

F109 S. 6(6C) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 145(7), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F110 S. 6(6D) inserted (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 44(2)(d), Sch. para. 1(3)(a)

F111 S. 6(7) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 5; S.I. 2004/2184, art. 2(2), Sch. 2

F112 Words in s. 6(7) substituted (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 44(2)(d), Sch. para. 1(3)(b)

F113 Words in s. 6(8) inserted (31.1.2024) by Energy Act 2023 (c. 52), ss. 166(8), 334(1); S.I. 2024/32, reg. 3(a)(iii)

F114 S. 6(8A) inserted (31.1.2024) by Energy Act 2023 (c. 52), ss. 166(9), 334(1); S.I. 2024/32, reg. 3(a)(iii)

F115 Words in s. 6(9) repealed (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 23 Pt. 1; S.I. 2004/2184, art. 2(2), Sch. 2

F116 Words in s. 6(9) omitted (6.4.2014) by virtue of Energy Act 2011 (c. 16), s. 121(5)(c), Sch. 1 para. 3

F117 S. 6(10) inserted (1.3.2005 for specified purposes, 29.7.2010 for specified purposes, 10.6.2014 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 89(3), 198(2); S.I. 2005/442, art. 2(1), Sch. 1; S.I. 2010/1889, art. 2; S.I. 2014/1460, art. 2

Modifications etc. (not altering text)

C31 S. 6 applied (1.10.2001) by S.I. 2001/3266, art. 3(3)

C32 S. 6 modified (1.12.2004) by Energy Act 2004 (c. 20), ss. 148(2), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

C33 S. 6 applied (2.10.2014) by The Clocaenog Forest Wind Farm Order 2014 (S.I. 2014/2441), arts. 1, 4(2) (with art. 33)

C34 S. 6(1) modified (16.5.2001) by 2000 c. 27, s. 33(1); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10)

C35 S. 6(1)(f) applied (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 38(2)

[F118 6A Procedure for licence applications. E+W+S

(1) This section applies to any application—

(a) for a licence [F119 (but this is subject to subsection (1A))]; or

[F120 (b) for the modification of a licence under section 6(4), (6) or (6B).]

[F121 (1A) At any time when regulations made under section 56FC are in force, this section does not apply to an application for a smart meter communication licence.]

(2) The application shall be made in such form and manner, and shall contain, or be accompanied by, such information and documents and such fee (if any), as may be prescribed.

(3) Within the prescribed period after the making of the application the applicant shall publish a notice of the application in the prescribed manner.

(4) Where the Authority proposes to refuse the application, it shall give to the applicant a notice—

(a) stating that it proposes to refuse the application;

(b) stating the reasons why it proposes to refuse the application; and

(c) specifying the time within which representations with respect to the proposed refusal may be made,

and shall consider any representations which are duly made and not withdrawn.

(5) Where the Authority grants the licence, extension or restriction applied for, it shall as soon as practicable thereafter send a notice of the grant to any person who holds a licence and whose interests may, in the opinion of the Authority, be affected by the grant.

(6) In this section “prescribed” means prescribed in regulations made by the Authority.

(7) Any sums received by the Authority under this section shall be paid into the Consolidated Fund.]

Textual Amendments

F118 Ss. 6, 6A, 6B substituted for s. 6 (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 30; S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F119 Words in s. 6A(1)(a) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 7(2)

F120 S. 6A(1)(b) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 6; S.I. 2004/2184, art. 2(2), Sch. 2

F121 S. 6A(1A) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 7(3)

Modifications etc. (not altering text)

C36 S. 6A excluded (2.6.2009) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2009 (S.I. 2009/1340), regs. 1, 28(2)

C37 S. 6A disapplied (29.7.2010) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2010 (S.I. 2010/1903), regs. 1, 30(2) (with reg. 31)

C38 Ss. 6A, 6B excluded (22.2.2013) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2013 (S.I. 2013/175), regs. 1(1), 34(2)

C39 Ss. 6A, 6B restricted (3.8.2015) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2015 (S.I. 2015/1555), regs. 1(1), 35(2) (with reg. 2)

C40 S. 6A(5) applied (with modifications) (1.12.2004) by Energy Act 2004 (c. 20), ss. 148(3), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

[F122 6B Applications for transmission licences. E+W+S

(1) This section applies to applications for a transmission licence (in addition to the requirements of section 6A).

[F123 (2) The applicant shall give notice of the application to any person who holds a transmission licence and whose interests may be affected if the licence applied for is granted.]

(3) Before granting the transmission licence applied for, the Authority shall give notice—

(a) stating that it proposes to grant the licence;

(b) stating the reasons why it proposes to grant the licence; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A notice under subsection (3) shall be given by publication in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(5) The Authority shall send a copy of a notice under subsection (3) to—

(a) the applicant;

(b) the Secretary of State; and

(c) any person who holds a transmission licence and whose [F124 interests may be affected by the grant of the licence] to which the application relates.]

Textual Amendments

F122 Ss. 6, 6A, 6B substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) for s. 6 by 2000 c. 27, s. 30; S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F123 S. 6B(2) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 7(2); S.I. 2004/2184, art. 2(2), Sch. 2

F124 Words in s. 6B(5)(c) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 7(3); S.I. 2004/2184, art. 2(2), Sch. 2

Modifications etc. (not altering text)

C38 Ss. 6A, 6B excluded (22.2.2013) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2013 (S.I. 2013/175), regs. 1(1), 34(2)

C39 Ss. 6A, 6B restricted (3.8.2015) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2015 (S.I. 2015/1555), regs. 1(1), 35(2) (with reg. 2)

C41 S. 6B excluded (2.6.2009) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2009 (S.I. 2009/1340), regs. 1, 28(2)

C42 S. 6B disapplied (29.7.2010) by The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2010 (S.I. 2010/1903), regs. 1, 30(2) (with reg. 31)

[F125 6BA Meaning of “relevant electricity project”, “relevant licence” and “relevant contract” E+W+S

(1) In this Part, “relevant electricity project” means a project—

(a) that relates to the total system, an electricity interconnector or a multi-purpose interconnector, and

(b) in relation to which criteria specified in regulations made by the Secretary of State are satisfied.

(2) In subsection (1)(a), “the total system” means all transmission systems and distribution systems in Great Britain and offshore waters.

(3) In this Part, “relevant licence” means—

(a) a transmission licence that does not authorise the licence holder to co-ordinate and direct the flow of electricity as described in section 4(3A)(a);

(b) a generation licence, a distribution licence, an interconnector licence or an MPI licence.

(4) In this Part, “relevant contract” means a contract, entered into by a person with the holder of a transmission licence, a system operator electricity licence or a distribution licence (referred to in this Part as a “contract counterparty”), for the carrying out of a relevant electricity project.

(5) Regulations under this section may make different provision for different purposes.

(6) Before making regulations under this section, the Secretary of State must consult—

(a) the Authority,

(b) such holders of relevant licences as the Secretary of State considers appropriate, and

(c) such other persons as the Secretary of State considers appropriate.

Textual Amendments

F125 Ss. 6BA, 6BB inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 2

6BB Designation of a delivery body E+W+S

(1) The Secretary of State may by regulations designate a person for the purposes of this section; and a person so designated is referred to in this Part as a “delivery body”.

(2) The designation of a person for the purposes of this section has effect subject to any conditions imposed by the Secretary of State in the regulations designating the person.

(3) More than one person may be designated for the purposes of this section at the same time.

(4) Regulations under this section may designate different persons for different purposes.

(5) The Secretary of State may by regulations revoke a person’s designation if the person ceases to meet any condition subject to which the designation has effect.

(6) The Secretary of State may make indemnity payments to a delivery body (subject to subsection (9)).

(7) An indemnity payment is a payment in respect of costs or expenses incurred by a delivery body in connection with judicial review proceedings in relation to anything done, or omitted to be done, in the exercise (or purported exercise) of functions conferred on the body by regulations under section 6C.

(8) An indemnity payment may be made subject to such conditions as may be determined by the Secretary of State.

(9) Subsection (6) does not authorise the making of a payment to the Authority (where it is designated under subsection (1)).]

Textual Amendments

F125 Ss. 6BA, 6BB inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 2

[F126 6C Competitive tenders E+W+S

(1) The Authority may by regulations (“tender regulations”) make such provision as appears to it to be appropriate for facilitating the making by a delivery body of—

(a) a decision whether to hold a tender exercise in relation to a relevant electricity project;

(b) in prescribed circumstances, a determination on a competitive basis of any of the matters listed in subsection (2).

(2) Those matters are—

(a) the person by whom a relevant electricity project is to be carried out;

(b) the person to whom a relevant licence is to be granted (whether for the purposes of a relevant electricity project or otherwise);

(c) the person to whom a relevant contract is to be awarded.

(3) The provision mentioned in subsection (1) includes—

(a) provision for the Authority to determine, in prescribed cases, whether a tender exercise should be held, or continued, in relation to a relevant electricity project;

(b) provision for the publication, in prescribed cases, of a proposal for a relevant licence to be granted or for a relevant contract to be awarded;

(c) provision for the inclusion in such a proposal of an invitation to apply for such a licence or to bid for such a contract;

(d) provision restricting applications and bids and imposing requirements as to the period within which they must be made;

(e) provision for regulating the manner in which applications and bids are considered and determined.

(4) The provision mentioned in subsection (1) also includes—

(a) provision conferring functions on a delivery body;

(b) provision authorising the Authority to conduct a review of the exercise by a delivery body of functions conferred on it by the regulations;

(c) provision authorising the Authority to appoint another person to conduct such a review on the Authority’s behalf.

(5) The provision that may be made by virtue of subsection (4)(a) includes provision requiring a delivery body, in prescribed circumstances, to provide information about prescribed matters to the Authority.

(6) Tender regulations—

(a) may make provision by reference to a determination by the Authority or by a delivery body, or to the opinion of the Authority or of a delivery body, as to any matter;

(b) may dispense with or supplement provision made in relation to applications for relevant licences by or under section 6A or 6B.

(7) The approval of the Secretary of State is required for the making of tender regulations.

(8) The making of a determination by virtue of subsection (2)(b) or (c) that a person is to be granted a relevant licence or awarded a relevant contract does not of itself require—

(a) the Authority to exercise its power to grant a relevant licence to the person, or

(b) a contract counterparty to award a relevant contract to the person,

(as the case may be).

Textual Amendments

F126 Ss. 6C-6CD substituted for ss. 6C, 6D (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 3

6CA Power to require information E+W+S

(1) Tender regulations may include provision authorising a person to whom subsection (2) applies (“P”), by notice given to another person (an “information notice”), to require the other person to provide relevant information to P.

(2) This subsection applies to—

(a) the Authority;

(b) a delivery body;

(c) a contract counterparty.

(3) “Relevant information” means information that P reasonably requires for the purposes of or in connection with the exercise of P’s functions.

(4) References in this section to the Authority include a person appointed by the Authority by virtue of section 6C(4)(c), where the information sought relates to a function conferred by virtue of section 6C(4)(b) (review of activities of delivery body).

(5) Provision made by virtue of subsection (1) must require an information notice—

(a) to specify or describe the information sought, and

(b) to specify the time by which the information must be provided.

(6) Provision made by virtue of subsection (1) may include provision—

(a) for an information notice and information obtained in pursuance of it to be shared with the Authority, where the notice is given by a person other than the Authority;

(b) for the classification and protection of confidential or sensitive information;

(c) for the enforcement by the Authority of a requirement to provide information in pursuance of an information notice;

(d) for the amount of any financial penalty imposed on a person by virtue of paragraph (c) to be determined by the Authority in accordance with tender regulations.

(7) Where by virtue of subsection (6)(c) tender regulations provide for the imposition of a financial penalty, they must also include provision for a right of appeal against the imposition of the penalty.

Textual Amendments

F126 Ss. 6C-6CD substituted for ss. 6C, 6D (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 3

6CB Recovery of tender costs E+W+S

(1) Tender regulations may include provision requiring—

(a) the payment to the Authority or a delivery body, in prescribed circumstances, of amounts in respect of—

(i) tender costs of the Authority, or of the delivery body, in relation to a tender exercise;

(ii) such amounts in respect of the Authority’s tender costs as the Authority considers appropriate, where those costs are not attributable to a particular tender exercise;

(iii) such amounts in respect of the delivery body’s tender costs as the Authority considers appropriate, where those costs are not attributable to a particular tender exercise.

(b) the provision to the Authority or to a delivery body, in prescribed circumstances, of a deposit of a prescribed amount in respect of a liability which a person has, or may in future have, by virtue of paragraph (a) in relation to a relevant licence or relevant contract;

(c) the provision to the Authority or to a delivery body, in prescribed circumstances, of security in a form approved by it in respect of such a liability.

(2) The provision that may be made by virtue of subsection (1)(a) includes provision requiring the payment of cost assessment costs incurred by—

(a) the Authority, or

(b) the delivery body,

after the Authority or delivery body (as the case may be) has taken the steps required by virtue of subsections (7) to (9) in relation to the tender exercise.

(3) The regulations may require the payments to be made, or the deposit or security to be provided, by one or more of the following—

(a) any person who has made a connection request for the purposes of which the tender exercise has been, is being, or is to be, held;

(b) any person who made a connection request for the purposes of which any previous tender exercise relating to the same transmission system, or a transmission system consisting of some or all of the same lines or plant or connecting any of the same generating stations or substations, was held;

(c) any person who made a connection request for the purposes of which any previous tender exercise relating to the same distribution system, or a distribution system consisting of some or all of the same lines or plant or connecting any of same premises or other distribution systems, was held;

(d) any person who operates a generating station which is connected to the transmission or distribution system to which the tender exercise relates;

(e) any person who submits an application for the relevant licence or bids for the award of a relevant contract to which the tender exercise relates;

(f) any person who is the holder of a transmission licence, a distribution licence, an interconnector licence or an MPI licence.

(4) The regulations may make provision about how—

(a) payments are to be made, and

(b) deposits or other forms of security are to be provided,

including provision for them to be made or provided by a person approved by the Authority or by a delivery body.

(5) The regulations may include provision about—

(a) the times at which payments are to be made, or deposits or other forms of security are to be provided, under the regulations;

(b) the circumstances in which a payment made in accordance with regulations made by virtue of subsection (1)(a) is to be repaid (wholly or in part);

(c) the circumstances in which such a repayment is to include an amount representing interest accrued on the whole or part of the payment;

(d) the circumstances in which a deposit (including any interest accrued on it) or other security provided in accordance with the regulations is to be released or forfeited (wholly or in part);

(e) the effect on a person’s participation in the tender exercise of a failure to comply with a requirement imposed by virtue of this section, and the circumstances in which the tender exercise is to stop as a result of such a failure.

(6) The regulations may include provision for—

(a) the review by the Authority, or by a person appointed by the Authority, of any tender costs determined by a delivery body;

(b) the amendment by a delivery body of its tender costs following such a review.

(7) The regulations must ensure that, as soon as reasonably practicable after a tender exercise or series of tender exercises is finished—

(a) where the Authority is the delivery body, steps are taken by the Authority, in accordance with the regulations, to ensure that the aggregate of the amounts in subsection (9) does not exceed the Authority’s tender costs in respect of the exercise or series of exercises;

(b) in any other case, steps are taken by the delivery body, in accordance with the regulations, to ensure that the aggregate of the amounts in subsection (9) does not exceed the aggregate of—

(i) the Authority’s tender costs, and

(ii) the delivery body’s tender costs,

in respect of the exercise or series of exercises.

(8) The regulations must also ensure that, in a case within subsection (7)(b), the aggregate of the amounts within subsection (9) so far as relating to any particular tender exercise does not include any amount that falls within paragraph (a) of the definition of tender costs in section 6CD(4) in relation to a different tender exercise.

(9) The amounts are—

(a) any fees under section 6A(2) in respect of applications for relevant licences,

(b) any payments made or deposits provided in accordance with regulations made by virtue of subsection (1)(a) or (b) and not repaid, and

(c) the value of any security provided in accordance with regulations made by virtue of subsection (1)(c) and forfeited in accordance with regulations made by virtue of subsection (5)(d),

so far as relating to the tender exercise or series of tender exercises in question.

Textual Amendments

F126 Ss. 6C-6CD substituted for ss. 6C, 6D (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 3

6CC Competitive tenders: supplementary E+W+S

(1) For the purposes of section 6CB(3), a person makes a connection request when the person makes an application to—

(a) the holder of a co-ordination licence (in accordance with any provision made by the licence) for an offer of connection to and use of a transmission system, or

(b) an electricity distributor (whether in accordance with any provision made by the distributor’s licence or otherwise) for an offer of connection to and use of the distributor’s distribution system.

(2) A person (“P”) is to be treated for those purposes as having made a connection request if—

(a) P would have made the connection request, but for the fact that another person had already made an application within subsection (1)(a) or (b), and

(b) the benefit of that application, or any agreement resulting from it, is vested in P.

(3) Where tender regulations—

(a) restrict the making of applications for relevant licences or bids for relevant contracts in relation to a relevant electricity project, or

(b) operate so as to prevent an application or bid from being considered or further considered, if the applicant does not meet one or more prescribed requirements,

the regulations may make provision enabling a person to apply to a relevant body for a decision as to the effect of any such restriction or requirement if the person were to make such an application or bid.

(4) Regulations made by virtue of subsection (3) may enable a relevant body to charge a person who makes such an application or bid a prescribed fee for any decision given in response to it.

(5) Where the successful bidder, in relation to a tender exercise, already holds a relevant licence (“the existing licence”)—

(a) the Authority may make such modifications of the existing licence as are necessary for the purpose of giving effect to the determination resulting from the tender exercise, and

(b) references in this Part to the grant of a relevant licence are to be read accordingly.

(6) Before making any modifications under subsection (5)(a), the Authority must give notice—

(a) stating that it proposes to make the modifications and setting out their effect, and

(b) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and must consider any representations or objections that are duly made and not withdrawn.

(7) Any sums received by the Authority under tender regulations are to be paid into the Consolidated Fund.

(8) In section 6CB and this section—

• “co-ordination licence” means a transmission licence which authorises a person to co-ordinate and direct the flow of electricity onto and over a transmission system—

  (a)

  by means of which the transmission of electricity takes place, and

  (b)

  the whole or a part of which is at a relevant place (within the meaning of section 4(5));

• “functions” includes powers and duties;

• “relevant body” means the Authority, a delivery body or a contract counterparty.

Textual Amendments

F126 Ss. 6C-6CD substituted for ss. 6C, 6D (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 3

6CD Sections 6C to 6CC: further definitions E+W+S

(1) This section defines expressions that are used in sections 6C to 6CC (as well as in this section).

(2) “Prescribed” means prescribed in or determined under tender regulations.

(3) “Tender exercise” means the steps taken in accordance with tender regulations with a view to determining one or more of the following—

(a) the person by whom a relevant electricity project is to be carried out;

(b) the person to whom a relevant licence is to be granted;

(c) the person to whom a relevant contract is to be awarded.

(4) “Tender costs” means—

(a) costs (including any cost assessment costs) incurred or likely to be incurred by the Authority for the purposes of a particular tender exercise or prospective tender exercise;

(b) costs (including any cost assessment costs) incurred or likely to be incurred by a delivery body for the purposes of a particular tender exercise or prospective tender exercise;

(c) such proportion as the Authority considers appropriate of the costs that—

(i) have been, or are likely to be, incurred by the Authority or by a delivery body under regulations under section 6C, and

(ii) are not directly attributable to a particular tender exercise.

(5) “Cost assessment costs”, in relation to a tender exercise, means costs incurred or likely to be incurred by the Authority or by a delivery body in connection with any assessment of—

(a) costs that have been or are to be incurred in connection with any property, rights or liabilities necessary or expedient for the performance by a person of functions under a relevant licence granted or a relevant contract awarded to the person as a result of the tender exercise;

(b) costs incurred in connection with any property, rights or liabilities that would have been necessary or expedient for the performance of functions under a relevant licence or a relevant contract if such a licence or contract had been granted or awarded to a person as a result of the tender exercise.

(6) “Successful bidder”, in relation to a tender exercise, is the person in respect of whom (as a result of the exercise) any of the following applies—

(a) a delivery body determines that a relevant electricity project is to be carried out by the person;

(b) a relevant licence has been or is to be granted to the person;

(c) a relevant contract has been or is to be awarded to the person.

(7) Section 6C(8) applies for the purposes of subsections (3)(b) and (c) and (6)(b) and (c) as it applies for the purposes of section 6C(2)(b) and (c).]

Textual Amendments

F126 Ss. 6C-6CD substituted for ss. 6C, 6D (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 3

F126 6D Section 6C: supplemental provision E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F126 Ss. 6C-6CD substituted for ss. 6C, 6D (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 3

6E Property schemes in respect of [F127 relevant licences and contracts] E+W+S

Schedule 2A (which provides for property schemes in connection with grants of [F128 relevant licences and awards of relevant contracts]) shall have effect.

Textual Amendments

F127 Words in s. 6E heading substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 4(b)

F128 Words in s. 6E substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 4(a)

[F130 6F F129 ... Transmission during commissioning period E+W+S

(1) For the purposes of this Part a person is not to be regarded as participating in the transmission of electricity if the following four conditions are met.

(2) The first condition is that the transmission takes place over [F131 a] transmission system (“the system”) or anything forming part of it.

(3) The second condition is that the transmission takes place during a commissioning period (see section 6G).

(4) [F132 In relation to an offshore transmission system,] the third condition is that—

(a) a request has been made to the Authority in accordance with [F133 offshore transmission tender regulations] for a tender exercise to be held for the granting of an offshore transmission licence in respect of the system,

(b) the Authority has determined in accordance with those regulations that the request relates to a qualifying project, and

(c) the system, or anything forming part of it, has not been transferred as a result of the exercise to the successful bidder.

[F134 (4A) In relation to a transmission system other than an offshore transmission system, the third condition is that—

(a) either—

(i) a tender exercise for the granting of a relevant licence in respect of the system has been or is being held, or

(ii) a delivery body has determined to hold a tender exercise for the granting of a relevant licence in respect of the system, and

(b) the system, or anything forming part of it, has not been transferred to the successful bidder.]

(5) The fourth condition is that—

(a) the person who is the developer in relation to the tender exercise is also the operator of a relevant generating station, and

(b) the construction or installation of the system is being or has been carried out by or on behalf of, or by or on behalf of a combination of, any of the following—

(i) the person mentioned in paragraph (a);

(ii) a body corporate associated with that person at any time during the period of construction or installation;

(iii) a previous developer;

(iv) a body corporate associated with a previous developer at any time during the period of construction or installation.

(6) For the purposes of subsection (1), it does not matter whether or not the person mentioned in that subsection is the developer in relation to the tender exercise.

(7) For the purposes of subsection (5)(b)(iii) and (iv), a person is a “previous developer” in relation to the system if—

(a) the person does not fall within subsection (5)(a), but

(b) at any time during the period of construction or installation, the person was the developer in relation to the tender exercise.

(8) In this section—

• “associated”, in relation to a body corporate, is to be construed in accordance with paragraph 37 of Schedule 2A;

• “developer”, in relation to a tender exercise, means any person within [F135 section 6CB(3)(a) or (b) (person who makes the connection request, including any person who is to be so treated by virtue of section 6CC(2)];

• [F136 “offshore transmission” means the transmission within an area of offshore waters of electricity generated by a generating station in such an area;

• “offshore transmission licence” means a transmission licence authorising anything that forms part of a transmission system to be used for purposes connected with offshore transmission;

• “offshore transmission tender regulations” means tender regulations that provide for the determination on a competitive basis of the person to whom an offshore transmission licence is to be granted;]

• “offshore transmission system” means a transmission system used for purposes connected with offshore transmission;

• “operator”, in relation to a generating station, means the person who is authorised to generate electricity from that station—

  (a)

  by a generation licence granted under section 6(1)(a), or

  (b)

  in accordance with an exemption granted under section 5(1);

• “qualifying project” is to be construed in accordance with the tender regulations;

• [F137 “tender exercise” has the meaning given by section 6CD(3);]

• “relevant generating station”, in relation to [F138 a] transmission system, means a generating station that generates electricity transmitted over the system;

• [F139 “tender regulations” has the meaning given by section 6C(1).]

Textual Amendments

F129 Word in s. 6F heading omitted (26.10.2023) by virtue of Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(6)

F130 Ss. 6F-6H inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), ss. 147(3), 156(2)

F131 Word in s. 6F(2) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(2)

F132 Words in s. 6F(4) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(3)(a)

F133 Words in s. 6F(4)(a) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(3)(b)

F134 S. 6F(4A) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(4)

F135 Words in s. 6F(8) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(5)(a)

F136 Words in s. 6F(8) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(5)(b)

F137 Words in s. 6F(8) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(5)(c)

F138 Word in s. 6F(8) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(5)(d)

F139 Words in s. 6F(8) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 5(5)(e)

6G Section 6F: meaning of “commissioning period” E+W+S

(1) For the purposes of section 6F(3), transmission over [F140 a] transmission system (or anything forming part of it) takes place during a “commissioning period” if it takes place at any time—

(a) before a completion notice is given in respect of the system, or

(b) during the period of 18 months beginning with the day on which such a notice is given.

(2) A “completion notice”, in relation to a transmission system, is a notice which—

(a) is given to the Authority by the relevant co-ordination licence holder in accordance with the co-ordination licence, and

(b) states that it would be possible to carry on an activity to which section 4(1)(b) applies by making available for use that system.

F141 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F141 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F141 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F142 (6) In this section—

• “co-ordination licence” means a transmission licence which authorises a person to co-ordinate and direct the flow of electricity onto and over a transmission system by means of which the transmission of electricity takes place and the whole or part of which is at a place in Great Britain, in the territorial sea adjacent to Great Britain or in a Renewable Energy Zone;

• “relevant co-ordination licence holder” means the holder of a co-ordination licence to whom a person has applied (in accordance with any provision made by that licence) for an offer of connection to and use of a transmission system for the purposes of which the tender exercise is held.]

Textual Amendments

F130 Ss. 6F-6H inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), ss. 147(3), 156(2)

F140 Word in s. 6G(1) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 6(2)

F141 S. 6G(3)-(5) omitted (26.10.2023) by virtue of Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 6(3)

F142 S. 6G(6) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 6(4)

6H Sections [F143 6C,] 6F and 6G: modification of codes or agreements E+W+S

(1) The Authority may—

(a) modify a code maintained in accordance with the conditions of [F144 a relevant licence];

(b) modify an agreement that gives effect to a code so maintained.

[F145 (2) The Authority may make a modification under subsection (1) only if it considers it necessary or desirable for the purpose of—

(a) implementing, or facilitating the implementation of, a determination made in accordance with regulations under section 6C, or

(b) implementing or facilitating the operation of section 6F or 6G.]

(3) The power to make modifications under subsection (1) includes a power to make incidental, supplemental, consequential or transitional modifications.

[F146 (4) Before making a modification under subsection (1) the Authority must—

(a) consult such persons as the Authority considers appropriate, and

(b) publish a notice—

(i) stating that it proposes to make the modification and its reasons for proposing to make it,

(ii) setting out the proposed modification and its effect, and

(iii) specifying the time within which representations may be made (which must not be less than the period of 28 days beginning with the day on which the notice is published).]

(5) Subsection (4) may be satisfied by consultation before, as well as consultation after, the passing of [F147 the Energy Act 2023].

(6) As soon as reasonably practicable after making a modification under subsection (1), the Authority must publish a notice stating its reasons for making it.

(7) A notice under subsection [F148 (4) or] (6) is to be published in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by it.

F149 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F130 Ss. 6F-6H inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), ss. 147(3), 156(2)

F143 Word in s. 6H heading inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 7(8)

F144 Words in s. 6H(1) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 7(2)

F145 S. 6H(2) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 7(3)

F146 S. 6H(4) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 7(4)

F147 Words in s. 6H(5) substituted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 7(5)

F148 Words in s. 6H(7) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 7(6)

F149 S. 6H(8) omitted (26.10.2023) by virtue of Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 7(7)

7 Conditions of licences: general. E+W+S

(1) A licence may include—

(a) such conditions (whether or not relating to the activities authorised by the licence) as appear to the [F150 grantor] to be requisite or expedient having regard to the duties imposed by [F151 section 3 above]; and

(b) conditions requiring the rendering to the [F152 Authority] of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.

(2) Without prejudice to the generality of paragraph (a) of subsection (1) above, conditions included in [F153 a transmission licence or distribution licence] by virtue of that paragraph—

(a) may require the licence holder to enter into agreements with other persons for the use of any electric lines and electrical plant of his (wherever situated and whether or not used for the purpose of carrying on the activities authorised by the licence) for such purposes as may be specified in the conditions; and

(b) may include provision for determining the terms on which such agreements are to be entered into.

[F154 (2A) Without prejudice to the generality of paragraph (a) of subsection (1), conditions included in a transmission licence by virtue of that paragraph may—

(a) require the licence holder not to carry on an activity which he would otherwise be authorised by the licence to carry on, or

(b) restrict where he may carry on an activity which he is authorised by the licence to carry on.]

(3) [F155 Without prejudice to the generality of paragraph (a) of subsection (1), conditions included in a licence by virtue of that paragraph] may require the licence holder—

(a) to comply with any direction given by the [F156 Authority or Secretary of State] as to such matters as are specified in the licence or are of a description so specified;

(b) except in so far as the [F156 Authority or Secretary of State] consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;

(c) to refer for determination by the [F156 Authority or Secretary of State] such questions arising under the licence[F157 , or under any document referred to in the licence,] as are specified in the licence or are of a description so specified; and

(d) to refer for approval by the [F156 Authority or Secretary of State] such things falling to be done under the licence, and such contracts or agreements made before the grant of the licence, as are specified in the licence or are of a description so specified.

[F158 (3A) Conditions included in a transmission licence [F159 , a distribution licence or an electricity system operator licence] by virtue of subsection (1)(a) may require the holder, in such circumstances as are specified in the licence—

(a) so to increase [F160 the charges payable to the holder in connection with the transmission or distribution of electricity, or in connection with the exercise of any other functions under or by virtue of the licence,] as to raise such amounts as may be determined by or under the conditions; and

(b) to pay the amounts so raised to such [F161 holders of licences under section 6 or under Part 1 of the Gas Act 1986] as may be so determined.]

[F162 (3B) Without prejudice to the generality of paragraph (a) of subsection (1), conditions which are described in subsection (3C) may be included in a smart meter communication licence by virtue of that paragraph, in respect of circumstances where a person holds such a licence (the “licence holder”), and another person has applied or is considering whether to apply for a smart meter communication licence (“the applicant”).

(3C) The conditions in this subsection are conditions which require the licence holder to comply with a direction given by the Secretary of State or the Authority requiring the licence holder to provide to the applicant—

(a) information in relation to the activities authorised by the licence; or

(b) such other assistance as may be reasonably required by the applicant, including access to any facilities or equipment being used in connection with the activities authorised by the licence, in order that the applicant can—

(i) determine whether to apply for a licence; or

(ii) take part in a competition for a licence.

(3D) Subject to subsection (3F) and without prejudice to the generality of paragraph (a) of subsection (1), conditions which are described in subsection (3E) may be included in a smart meter communication licence by virtue of that paragraph, in respect of circumstances where such a licence held by a person (the “first licensee”) will cease to have effect, and another such licence is to be granted or has been granted to a different person (the “second licensee”).

(3E) The conditions in this subsection are conditions which require compliance with a direction given by the Secretary of State or the Authority requiring—

(a) the transfer of property, rights or liabilities from the first licensee to the second licensee;

(b) the creation of rights in relation to property, rights or liabilities in favour of the second licensee;

(c) the creation of other rights and liabilities as between the first and second licensee;

(d) the first or second licensee to enter into a written agreement with each other, or the first licensee to execute an instrument of another kind in favour of the second licensee;

(e) the first or second licensee to pay compensation to the other, or to any third party who is affected by any of the matters referred to in paragraphs (a) to (d).

(3F)  Conditions included in a licence by virtue of subsection (3D) must provide that the licensee does not have a duty to comply with a direction of the kind referred to in subsection (3E) unless, in relation to that direction, the following conditions have been satisfied prior to it being given—

(a) the Secretary of State or the Authority (as appropriate) has given written notice to the first licensee, the second licensee and any other person who would potentially be affected by the direction, including a copy of the proposed direction and inviting them to submit written representations, giving a minimum period of 21 days in which those representations can be made; and

(b) after the end of the period set out in the notice under paragraph (a), the Secretary of State or the Authority (as appropriate) has considered those representations and determined that—

(i) it is appropriate in all the circumstances that the proposed direction is given; and

(ii) the arrangements of a type referred to in paragraphs (a) to (d) of subsection (3E) in the direction are necessary or expedient for the operational purposes of the second licensee, or are agreed by the first licensee and the second licensee to be necessary or expedient for those purposes.

(3G) For the purposes of subsection (3F), the operational purposes of the second licensee are the purposes of performing any functions which the second licensee has, or will have—

(a) under or by virtue of the smart meter communication licence which has been, or is to be, granted; or

(b) under or by virtue of any enactment, in the second licensee’s capacity as holder of that licence.]

(4) Conditions included in a licence by virtue of subsection (1)(a) above may—

(a) instead of specifying or describing any contracts or agreements to which they apply, refer to contracts or agreements designated (whether before or after the imposition of the conditions) by the Secretary of State or the Director; and

(b) instead of containing any provisions which fall to be made, refer to provisions set out in documents so designated and direct that those provisions shall have such effect as may be specified in the conditions.

[F163 (5) Conditions included in a licence may contain provision for the conditions—

(a) to have effect or cease to have effect at such times and in such circumstances as may be determined by or under the conditions; or

(b) to be modified in such manner as may be specified in the conditions at such times and in such circumstances as may be so determined.]

(6) Any provision included by virtue of subsection (5) above in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.

[F164 (6A) Conditions included in a licence may provide for references in the conditions to any document to operate as references to that document as revised or re-issued from time to time.]

(7) Any sums received by the [F165 Authority] in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.

Textual Amendments

F150 Word in s. 7(1)(a) substituted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 8(2)

F151 Words in s. 7(1)(a) substituted (20.12.2000) by 2000 c. 27, s. 32(2); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F152 Words in s. 7(1) substituted (20.12.2000) by 2000 c. 27, s. 32(2); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F153 Words in s. 7(2) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(3); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F154 S. 7(2A) inserted (1.9.2004) by Energy Act 2004 (c. 20), ss. 136(3), 198(2); S.I. 2004/2184, art. 2(2), Sch. 2

F155 Words in s. 7(3) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(4)(a); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F156 Words in s. 7(3) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(4)(b); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F157 Words in s. 7(3)(c) inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(4)(c); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F158 S. 7(3A) inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(5); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F159 Words in s. 7(3A) substituted (31.1.2024) by Energy Act 2023 (c. 52), ss. 177(1)(a), 334(1); S.I. 2024/32, reg. 3(a)(vii)

F160 Words in s. 7(3A)(a) substituted (31.1.2024) by Energy Act 2023 (c. 52), ss. 177(1)(b), 334(1); S.I. 2024/32, reg. 3(a)(vii)

F161 Words in s. 7(3A)(b) substituted (31.1.2024) by Energy Act 2023 (c. 52), ss. 177(1)(c), 334(1); S.I. 2024/32, reg. 3(a)(vii)

F162 S. 7(3B)-(3G) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 8(3)

F163 S. 7(5) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(6); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F164 S. 7(6A) inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(7); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F165 Words in s. 7(7) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 32(8); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C43 S. 7 applied (1.10.2001) by S.I. 2001/3266, art. 3(3)

C44 S. 7 applied (with modifications) (1.12.2004) by Energy Act 2004 (c. 20), ss. 148(3), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

[F166 7A Transfer of licences. E+W+S

(1) A licence—

(a) is capable of being transferred by the licence holder, with the consent of the Authority, in accordance with this section but subject to any term as to transfer contained in the licence;

(b) may include conditions which must be complied with before the licence can be transferred.

(2) A transfer may relate to the whole or any part of the licence.

(3) The reference in subsection (2) to part of a licence is a reference to a part of the activities authorised by the licence (whether described by reference to activities being carried on by the licence holder or to activities which he is authorised by the licence to carry on).

(4) Such consent may be given subject to compliance with such modification or other conditions as the Authority considers appropriate.

(5) In the case of a partial transfer, conditions imposed under subsection (4) may make as respects so much of the licence as is proposed to be retained by the transferor provision different from that made as respects so much of the licence as is proposed to be transferred.

(6) In deciding whether to give its consent to a proposed transfer, the Authority shall apply the same criteria as it would apply if the Authority were deciding whether—

(a) in the case of a general transfer, to grant a corresponding licence to the transferee; or

(b) in the case of a partial transfer—

(i) to grant to the transferee a licence corresponding to so much of the licence as is proposed to be transferred; and

(ii) to grant to the transferor a licence corresponding to so much of the licence as is proposed to be retained.

(7) The Authority shall give the Secretary of State not less than 28 days’ notice of any proposal to impose a modification condition.

(8) If, before the expiry of the time specified in a notice under subsection (7), the Secretary of State directs the Authority not to impose the condition, the Authority shall comply with the direction.

(9) Before giving consent to the transfer of a licence, the Authority shall give notice—

(a) stating that it proposes to grant consent to the transfer;

(b) stating the reasons why it proposes to give consent; and

(c) specifying the time from the date of publication of the notice (not being less than two months) within which representations or objections with respect to the transfer may be made,

and shall consider any representations or objections that are duly made and not withdrawn.

(10) A notice under subsection (9) shall be given by publishing the notice in such manner as the Authority considers appropriate for bringing it to the attention of persons likely to be affected by the transfer.

[F167 (10A) Subject to subsection (10C), the Authority shall, following consideration of any representations or objections under subsection (9), give the Secretary of State not less than 28 days’ notice of any proposal to give consent to the transfer of the whole or any part of a smart meter communication licence.

(10B) If, before the expiry of the time specified in a notice under subsection (10A), the Secretary of State directs the Authority not to give consent, the Authority shall comply with that direction.

(10C) Where the Secretary of State does not give a direction under subsection (10B), the Authority may give consent to the transfer of the licence after—

(a) the expiry of the time specified in the notice under subsection (10A); or

(b) if earlier than the time in paragraph (a), the time at which the Secretary of State informs the Authority that no direction will be given under subsection (10B) in relation to the notice.

(10D) Subsections (10A) to (10C) do not apply after [F168 1 November 2028].]

(11) A purported transfer of a licence shall be void—

(a) if the licence is not capable of transfer or the Authority has not given its consent;

(b) if the purported transfer is in breach of a condition of the licence; or

(c) if there has, before the purported transfer, been a contravention of a condition subject to compliance with which the Authority’s consent is given.

[F169 (11ZA) An electricity system operator licence may not be transferred to a person unless a licence granted under section 7AA of the Gas Act 1986 is also transferred to the same person at the same time.]

[F170 (11A) A smart meter communication licence may not be transferred to a person unless a licence granted under section 7AB of the Gas Act 1986 is also transferred to the same person at the same time.]

(12) In this section—

• “transfer” includes any form of transfer or assignment or, in Scotland, assignation;

• “modification condition” means a condition requiring or otherwise providing for the making of modifications to the conditions of a licence.]

Textual Amendments

F166 S. 7A inserted (1.10.2001) by 2000 c. 27, s. 41; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F167 Ss. 7A(10A)-(10D) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 9(2)

F168 Words in s. 7A(10D) substituted (26.10.2023) by Energy Act 2023 (c. 52), ss. 215(3)(a), 334(2)(k)

F169 S. 7A(11ZA) inserted (31.1.2024) by Energy Act 2023 (c. 52), ss. 166(10), 334(1); S.I. 2024/32, reg. 3(a)(iii)

F170 S. 7A(11A) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 9(3)

[F171 7B Uniform prices etc. in certain areas of Scotland. E+W+S

(1) The Secretary of State may, by an order made under this section, require the holder of—

(a) a transmission licence; or

(b) a distribution licence,

to apply in respect of the use of the transmission or, as the case may be, distribution system, or any part of the system, in a specified area charges which do not distinguish (whether directly or indirectly) between users in different parts of the area.

(2) The Secretary of State may, by such an order, require the holder of a supply licence—

(a) to charge prices; or

(b) to offer conditions of contract,

in respect of a comparable supply of electricity in a specified area which do not distinguish (whether directly or indirectly) between consumers in different parts of the area.

(3) The Secretary of State shall not specify in such an order any particular or maximum charge or price or any particular condition of contract.

(4) Such an order may make different provision for different cases or descriptions of case.

(5) For the purposes of this section—

(a) a specified area is an area of Scotland specified in such an order; and

(b) supplies of electricity are comparable if they are—

(i) at the same or similar voltages; and

(ii) are in accordance with the same or similar demand characteristics.]

Textual Amendments

F171 S. 7B inserted (1.10.2001) by 2000 c. 27, s. 72; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

8 Conditions for funding certain companies engaged in nuclear generation in Scotland. E+W+S

(1) Without prejudice to section 7(1)(a) above, it may be a condition of a licence granted to a company (“the licence holder”) that it shall from time to time provide any company to which subsection (2) below applies, comes to apply or has at any time applied with such funds as may be determined by or under the condition in respect of such of that company’s liabilities as may be so determined.

(2) This subsection applies to any company engaging in the operation of a nuclear generating station in Scotland while—

(a) deemed for the purposes of the M3 Companies Act 1985 to be a subsidiary of the licence holder; or

(b) a related company of the licence holder (as defined in paragraph 92 of Schedule 4 to that Act).

(3) Subsection (3) of section 7 above applies in respect of a condition included in a licence by virtue of this section as it applies in respect of a condition so included by virtue of subsection (1)(a) of that section.

Marginal Citations

M3 1985 c. 6.

[F172 8A Standard conditions of licences. E+W+S

(1) Subject to subsection (2), each condition which by virtue of section 33(1) of the Utilities Act 2000 is a standard condition for the purposes of any of the types of licence mentioned in [F173 section 6(1)(a), (c) or (d) (that is to say, generation licences, distribution licences or supply licences)] shall be incorporated by reference in each licence of that type granted after the commencement of this section.

[F174 (1A) Subject to subsection (2), each condition which by virtue of section 137(3) of the Energy Act 2004 is a standard condition for the purposes of transmission licences shall be incorporated by reference in each transmission licence granted on or after the day on which section 137(6) of that Act comes into force.]

[F175 (1B) Subject to subsection (2), each condition which by virtue of section 146 of the Energy Act 2004 is a standard condition for the purposes of interconnector licences shall be incorporated, by reference, in each interconnector licence granted on or after the commencement of subsection (6) of that section.]

(2) Subject to the following provisions of this section, the Authority may, in granting a licence of any type, modify any of the standard conditions for licences of that type in its application to the licence to such extent as it considers requisite to meet the circumstances of the particular case.

(3) Before making any modifications under subsection (2), the Authority shall give notice—

(a) stating that it proposes to make the modifications and setting out their effect;

(b) stating the reasons why it proposes to make the modifications; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A notice under subsection (3) shall be given—

(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b) by sending a copy of the notice to the Secretary of State [F176 , Citizens Advice and [F177 Consumer Scotland]].

(5) If, within the time specified in the notice under subsection (3), the Secretary of State directs the Authority not to make any modification, the Authority shall comply with the direction.

(6) The Authority shall not under subsection (2) make any modifications of a condition of a licence of any type unless it is of the opinion that the modifications are such that—

(a) the licence holder would not be unduly disadvantaged in competing with other holders of licences of that type; and

(b) no other holder of a licence of the same type would be unduly disadvantaged in competing with other holders of such licences (including the holder of the licence being modified).

(7) The modification under subsection (2) of part of a condition of a licence shall not prevent any other part of the condition which is not so modified being regarded as a standard condition for the purposes of this Part.

(8) In this section “modify” includes fail to incorporate and “modification” shall be construed accordingly.]

Textual Amendments

F172 S. 8A inserted (1.10.2001) by 2000 c. 27, s. 33(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F173 Words in s. 8A(1) substituted (1.9.2004) by Energy Act 2004 (c. 20), ss. 137(5), 198(2); S.I. 2004/2184, art. 2(2), Sch. 2

F174 S. 8A(1A) inserted (1.9.2004) by Energy Act 2004 (c. 20), ss. 137(6), 198(2); S.I. 2004/2184, art. 2(2), Sch. 2

F175 S. 8A(1B) inserted (1.4.2005) by Energy Act 2004 (c. 20), ss. 146(6), 198(2); S.I. 2005/877, art. 2(1), Sch. 1

F176 Words in s. 8A(4)(b) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(4) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F177 Words in s. 8A(4)(b) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(4) (with art. 5)

Modifications etc. (not altering text)

C45 S. 8A applied (with modifications) (1.12.2004) by Energy Act 2004 (c. 20), ss. 148(3), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

9 General duties of licence holders. E+W+S

[F178 (1) It shall be the duty of an electricity distributor—

(a) to develop and maintain an efficient, co-ordinated and economical system of electricity distribution;

(b) to facilitate competition in the supply and generation of electricity.]

(2) It shall be the duty of the holder of a licence authorising him to [F179 participate in the transmission of] electricity—

(a) to develop and maintain an efficient, co-ordinated and economical system of electricity transmission; and

(b) F180 ..., to facilitate competition in the supply and generation of electricity.

[F181 (2A) Subsection (2)(a) shall not have effect to require the holder of a transmission licence which is subject to a condition of the kind mentioned in section 7(2A)(a) to carry on an activity which he would be authorised by the licence to carry on apart from the condition.]

[F182 (2B) The conditions of a licence held by a person to which a duty imposed by subsection (1) or (2) applies may include a condition requiring the person, in performing the duty, to have regard to the interests of existing and future consumers in relation to gas conveyed through pipes (within the meaning of the Gas Act 1986).]

F183 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F183 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F178 S. 9(1) substituted (1.10.2001) by 2000 c. 27, s. 50; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F179 Words in s. 9(2) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 8(2); S.I. 2004/2184, art. 2(2), Sch. 2

F180 Words in s. 9(2)(b) repealed (1.10.2001) by 2000 c. 27, s. 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F181 S. 9(2A) inserted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 8(3); S.I. 2004/2184, art. 2(2), Sch. 2

F182 S. 9(2B) inserted (31.1.2024) by Energy Act 2023 (c. 52), ss. 177(2), 334(1); S.I. 2024/32, reg. 3(a)(vii)

F183 S. 9(3)(4) repealed (1.10.2001) by 2000 c. 27, ss. 71, 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C46 S. 9(1)(b): functions transferred to Scottish Ministers (S.) (14.12.2000) by virtue of S.I. 2000/3253, arts. 1(1), 2, Sch. (with art. 6)

10 Powers etc. of licence holders. E+W+S

(1) Subject to subsection (2) below, Schedule 3 to this Act (which provides for the compulsory acquisition of land) and Schedule 4 to this Act (which confers other powers and makes other provision) shall have effect—

(a) in relation to F184 ... [F185 the holder of a transmission licence] [F186 or of an electricity system operator licence]; and

(b) to the extent that his licence so provides, in relation to [F187 an electricity distributor or] any other licence holder;

and references in those Schedules to a licence holder shall be construed accordingly.

(2) Where any provision of either of the Schedules mentioned in subsection (1) above is applied to a licence holder by his licence, it shall have effect subject to such restrictions, exceptions and conditions as may be included in the licence for the purpose of qualifying that provision as so applied or any power or right conferred by or under it.

(3) [F188 A generation licence] may provide that Schedule 4 to this Act shall have effect in relation to the licence holder as if—

(a) any reference to any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on included a reference to any purpose connected with the supply to any premises of heat produced in association with electricity and steam produced from and air and water heated by such heat; and

(b) any reference to electric lines or electrical plant included a reference to pipes and associated works used or intended to be used for conveying heat so produced, and steam produced from and air and water heated by such heat;

and in this subsection “associated works”, in relation to pipes, means any of the following connected with the pipes, namely, any valve, filter, stopcock, pump, meter, inspection chamber and manhole and such other works as may be prescribed.

[F189 (3A) Subsection (3) applies in relation to any purpose connected with the supply to any premises of any gas or liquid subjected to a cooling effect produced in association with electricity as it applies to a purpose mentioned in that subsection.]

[F190 (4) A transmission licence may provide that, where the licence is modified under section 6(6B)F191 ... or 11A above so as to reduce in any respect the area in which the licence holder may carry on activities, Schedule 4 to this Act shall have effect in relation to him as if any reference to the activities which he is authorised by his licence to carry on included a reference to the activities which he was previously so authorised to carry on.]

(5) The provisions of Schedule 5 to this Act (which provide for the acquisition of water rights for hydro-electric stations in Scotland) shall have effect.

Textual Amendments

F184 Words in s. 10(1)(a) repealed (1.10.2001) by 2000 c. 27, s. 53(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F185 Words in s. 10(1)(a) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 9(2); S.I. 2004/2184, art. 2(2), Sch. 2

F186 Words in s. 10(1)(a) inserted (31.1.2024) by Energy Act 2023 (c. 52), s. 334(1), Sch. 11 para. 6; S.I. 2024/32, reg. 3(a)(ix)

F187 Words in s. 10(1)(b) inserted (1.10.2001) by 2000 c. 27, s. 53(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F188 Words in s. 10(3) substituted (1.10.2001) by 2000 c. 27, s. 53(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F189 S. 10(3A) inserted (1.10.2001) by 2000 c. 27, s. 53(4); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F190 S. 10(4) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 9(3); S.I. 2004/2184, art. 2(2), Sch. 2

F191 Word in s. 10(4) omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 45(1)

Modifications etc. (not altering text)

C47 S. 10(1)(a)(2): functions transferred to Scottish Ministers (S.) (14.12.2000) by virtue of S.I. 2000/3253, arts. 1(1), 2, Sch. (with art. 6)

[F192 Electricity transmission and the operation of electricity interconnectors: independence U.K.

Textual Amendments

F192 Ss. 10A-10O and cross-heading inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 5

10A Electricity transmission and the operation of electricity interconnectors: requirement for certain participants to be certified as independent U.K.

(1) A person who, for any period on or after the relevant date, holds a transmission licence and participates in the transmission of electricity for the purpose mentioned in subsection (2) must ensure that the person is certified by the Authority under section 10D throughout that period.

(2) That purpose is the purpose of—

(a) giving a supply to any premises; or

(b) enabling a supply to be so given.

(3) A person who, for any period on or after the relevant date, holds an interconnector licence and participates in the operation of an electricity interconnector must ensure that the person is certified by the Authority under section 10D throughout that period.

(4) In subsections (1) and (3) the “relevant date” in respect of a person is 3 March 2012 or any later date before 4 March 2013 which the Authority specifies under subsection (5) or (6) in respect of the person.

(5) The Authority may specify a later date in respect of a person if—

(a) the person has asked the Authority to specify a later date;

(b) the person is not, and is not part of, a vertically integrated undertaking; and

(c) no senior officer of the person is also a senior officer of a relevant producer or supplier.

(6) The Authority may also specify a later date in respect of a person if the Authority thinks that, for reasons beyond its and the person’s control, the Authority will not reasonably be able to make a final decision before 3 March 2012 as to whether to certify the person.

(7) In subsection (5)(b) “vertically integrated undertaking” has the meaning given by Article 2(21) of the Electricity Directive.

10B Application for certification U.K.

(1) Any person may apply for certification.

(2) An application for certification—

(a) must be made in writing to the Authority; and

(b) must be made in such form and contain such information as the Authority may specify.

(3) If the application is made F193 ... and the applicant is a person from a [F194 country outside the United Kingdom] or a person controlled by a person from a [F194 country outside the United Kingdom], the Authority must, as soon as is reasonably practicable after receiving the application—

(a) notify the Secretary of State F195 ... that an application has been made by such a person; and

(b) enclose with the notification F196 ... any information which, at the time of the notification, the Authority has in its possession and thinks is relevant to the question of whether the security of electricity supplies in the United Kingdom F197 ... would be put at risk by the certification of the applicant.

(4) The Authority may ask an applicant for certification for any further information the Authority thinks is relevant to the application, and the applicant must supply that information if—

(a) it is in the applicant’s possession; or

(b) it is information which the applicant could reasonably be expected to obtain.

(5) The Authority may ask a relevant producer or supplier for any information the Authority thinks is relevant to an application for certification, and the relevant producer or supplier must supply that information if—

(a) it is in the relevant producer or supplier’s possession; or

(b) it is information which the relevant producer or supplier could reasonably be expected to obtain.

(6) A person required to supply information under subsection (4) or (5) must do so by any deadline specified by the Authority.

Textual Amendments

F193 Words in s. 10B(3) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 43(a) (with reg. 45); 2020 c. 1, Sch. 5 para. 1(1)

F194 Words in s. 10B(3) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 43(b) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

F195 Words in s. 10B(3)(a) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 43(c) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

F196 Words in s. 10B(3)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 43(d)(i) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

F197 Words in s. 10B(3)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 43(d)(ii) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

10C Report where applicant connected with a country outside the [F198 United Kingdom] U.K.

(1) This section applies if the Secretary of State is notified by the Authority under section 10B(3) that an application has been made by a person from a [F199 country outside the United Kingdom] or a person controlled by a person from a [F199 country outside the United Kingdom].

(2) The Secretary of State must prepare a report on whether the security of electricity supplies in the United Kingdom F200 ... would be put at risk by the certification of the applicant.

(3) The Secretary of State must prepare the report and send it to the Authority within the 6 weeks beginning with the day on which the notification is received.

(4) If, before the Secretary of State sends the report to the Authority, the Authority receives information under section 10B(4) or (5) and thinks that the information is relevant to the preparation of the report, the Authority must supply that information to the Secretary of State as soon as is reasonably practicable.

(5) In preparing the report, the Secretary of State must take into account—

(a) any relevant international law; and

(b) any relevant agreement between the government of the United Kingdom and the government of the F201 ... country in question.

Textual Amendments

F198 Words in s. 10C heading substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 44(2) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

F199 Words in s. 10C(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 44(3) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

F200 Words in s. 10C(2) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 44(4) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

F201 Word in s. 10C(5)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 44(5) (with reg. 45) (as amended by S.I. 2020/1016, regs. 1(2), 3(16)); 2020 c. 1, Sch. 5 para. 1(1)

10D Certification U.K.

(1) Where the Authority receives an application for certification, it must make a F202 ... decision by the relevant deadline as to whether [F203 to] certify the applicant.

(2) The relevant deadline is the end of the 4 months beginning with the day on which the Authority receives the application; but this is subject to any extension under subsection (3).

(3) If, before the deadline mentioned in subsection (2) (or before that deadline as previously extended under this subsection), the Authority asks the applicant or a relevant producer or supplier for information under section 10B(4) or (5), the relevant deadline is the end of the 4 months beginning with the day on which the last of that information is received.

(4) As soon as is reasonably practicable after making the F204 ... decision the Authority must notify the decision and the reasons for it to—

(a) the applicant; [F205 and]

(b) the Secretary of State; F206 ...

F206 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F207 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F207 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F207 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F207 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F208 (9) The Authority must publish its decision to certify or to refuse to certify the applicant, together with the reasons for it, in such manner as it considers appropriate.]

Textual Amendments

F202 Word in s. 10D(1) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 46(2)(a) (with reg. 46(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(17)); 2020 c. 1, Sch. 5 para. 1(1)

F203 Word in s. 10D(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 46(2)(b) (with reg. 46(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(17)); 2020 c. 1, Sch. 5 para. 1(1)

F204 Word in s. 10D(4) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 46(3)(a) (with reg. 46(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(17)); 2020 c. 1, Sch. 5 para. 1(1)

F205 Word in s. 10D(4)(a) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 46(3)(b) (with reg. 46(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(17)); 2020 c. 1, Sch. 5 para. 1(1)

F206 S. 10D(4)(c) and word omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 46(3)(c) (with reg. 46(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(17)); 2020 c. 1, Sch. 5 para. 1(1)

F207 S. 10D(5)-(8) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 46(4) (with reg. 46(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(17)); 2020 c. 1, Sch. 5 para. 1(1)

F208 S. 10D(9) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 46(5) (with reg. 46(6)(7)); 2020 c. 1, Sch. 5 para. 1(1)

10E Grounds for certification U.K.

(1) This section applies to—

(a) a F209 ... decision under section 10D as to whether [F210 to certify an applicant];

F211 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Authority may only F212 ... decide to certify the applicant, if one of the following five grounds (“the certification grounds”) applies.

(3) The first certification ground is that the applicant meets the ownership unbundling requirement in section 10F.

(4) The second certification ground is that the applicant has asked the Authority to exempt it from the ownership unbundling requirement on the grounds in paragraph (9) of Article 9 of the Electricity Directive (alternative arrangements for independence), and the Authority thinks the requirements of that paragraph are met.

(5) The third certification ground is that—

(a) the applicant has asked the Authority to exempt it from the ownership unbundling requirement on the grounds in paragraphs (1) and (2) of Article 13 of the Electricity Directive (independent system operator);

(b) the applicant has nominated an independent system operator for designation in accordance with those paragraphs; and

(c) the Authority—

(i) thinks that the requirements of those paragraphs are met, and

(ii) is minded to designate the nominated independent system operator.

(6) The fourth certification ground is that—

(a) the applicant holds a licence under section 6(1)(e); and

(b) in accordance with the conditions of that licence, the applicant has been granted an exemption under [F213 Article 63] of the Electricity Regulation (new interconnectors) and remains entitled to the benefit of it.

[F214 (6A) In subsection (6)(b), the reference to an exemption granted under Article 63 of the Electricity Regulation is to be treated as including an exemption granted under Article 17 of the predecessor of that Regulation.]

(7) The fifth certification ground is that—

(a) the applicant holds a licence under section 6(1)(e); and

(b) in accordance with the conditions of that licence, the applicant has been granted an exemption under Article 7 of Regulation (EC) No. 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity (new interconnectors) and remains entitled to the benefit of it.

(8) But, regardless of whether a certification ground applies, the Authority—

F215 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) F216 ... must not decide to certify the applicant, if a report prepared by the Secretary of State under section 10C states that the certification of the applicant would put at risk the security of electricity supplies in the United Kingdom F217 ...;

F218 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F219 (9) For the purposes of subsection (4), Article 9(9) of the Electricity Directive is to be treated as if the comparison with the provisions of Chapter 5 of the Electricity Directive were a comparison with the provisions of Chapter 5 as they applied in relation to a member State immediately before IP completion day.

(10) For the purposes of subsection (5), the references to Article 13(1) and (2) of the Electricity Directive are to be treated as references to those provisions with the following modifications—

(a) Article 13(1) is to be read as if “Such designation shall be subject to approval by the Commission” were omitted;

(b) Article 13(2)(b) is to be read as if the reference to Article 12 of the Electricity Directive were a reference to Article 12 with the omission of point (h);

(c) Article 13(2)(e) is to be read as if—

(i) for “Regulation (EC) No 714/2009” there were substituted “ the Electricity Regulation ”, and

(ii) the words from “including” to the end were omitted.]

Textual Amendments

F209 Word in s. 10E(1)(a) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(2)(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

F210 Words in s. 10E(1)(a) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(2)(a)(ii) (as amended by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(18)(a)); 2020 c. 1, Sch. 5 para. 1(1)

F211 S. 10E(1)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(2)(b); 2020 c. 1, Sch. 5 para. 1(1)

F212 Words in s. 10E(2) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(3); 2020 c. 1, Sch. 5 para. 1(1)

F213 Words in s. 10E(6)(b) substituted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(5)(b)

F214 S. 10E(6A) inserted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(5)(c)

F215 S. 10E(8)(a) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(4)(a); 2020 c. 1, Sch. 5 para. 1(1)

F216 Words in s. 10E(8)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(4)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)

F217 Words in s. 10E(8)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(4)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F218 S. 10E(8)(c) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(4)(c); 2020 c. 1, Sch. 5 para. 1(1)

F219 S. 10E(9)(10) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 47(5) (as amended by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(18)(b)); 2020 c. 1, Sch. 5 para. 1(1)

10F The ownership unbundling requirement U.K.

(1) In section 10E(3) the ownership unbundling requirement is met by an applicant for certification if [F220 in relation to each of the five tests below—

(a) the Authority thinks that it is passed, or

(b) it is treated as passed by virtue of subsection (7), (9) or (9A).]

(2) The first test is that the applicant—

(a) does not control a relevant producer or supplier;

(b) does not have a majority shareholding in a relevant producer or supplier; and

(c) will not, on or after the relevant date, exercise shareholder rights in relation to a relevant producer or supplier.

(3) For the purposes of subsection (2)(c), the Authority is entitled to think that the applicant will not exercise shareholder rights if the applicant has given an undertaking not to exercise those shareholder rights.

(4) The second test is that, where the applicant is a company, partnership or other business, none of its senior officers has been, or may be, appointed by a person who—

(a) controls an electricity undertaking which is a relevant producer or supplier; or

(b) has a majority shareholding in an electricity undertaking which is a relevant producer or supplier.

(5) The third test is that, where the applicant is a company, partnership or other business, none of its senior officers is also a senior officer of an electricity undertaking which is a relevant producer or supplier.

(6) The fourth test is that the applicant is not controlled by a person who controls a relevant producer or supplier.

(7) But even where the fourth test is not passed, the Authority may treat it as passed if—

(a) the control over the applicant was gained through the exercise of a right conferred as a condition of the provision of either financial support or a guarantee (or both), in relation to the applicant’s business; or

(b) the control over the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.

(8) The fifth test is that the applicant is not controlled by a person who has a majority shareholding in a relevant producer or supplier.

(9) But even where the fifth test is not passed, the Authority may treat it as passed if—

(a) the control over the applicant was gained through the exercise of a right conferred as a condition of the provision of either financial support or a guarantee (or both), in relation to the applicant’s business; or

(b) the majority shareholding in the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.

[F221 (9A) Except where subsection (9B) applies, the Authority may treat one or more of the five tests in this section as passed if—

(a) the test or tests are not passed in relation to a relevant producer or supplier,

(b) the applicant has demonstrated to the Authority’s satisfaction that the applicant does not have a relationship with the relevant producer or supplier which might lead the applicant to discriminate in favour of the relevant producer or supplier, and

(c) the Authority thinks it appropriate to treat the test or tests as passed.

(9B) This subsection applies where the applicant, or a person who controls or has a majority shareholding in the applicant, controls or has a majority shareholding in a person (“A”) who operates a generating station and—

(a) A is a relevant producer or supplier; and

(b) the generating station is directly physically connected to anything that forms part of the applicant’s transmission system or electricity interconnector.]

(10) In subsection (2)(c) “relevant date” means the relevant date for the purposes of section 10A(1) or (3).

Textual Amendments

F220 Words in s. 10F(1) substituted (15.1.2015) by The Electricity and Gas (Ownership Unbundling) Regulations 2014 (S.I. 2014/3333), regs. 1(1), 3(2) (with reg. 4)

F221 S. 10F(9A)(9B) inserted (15.1.2015) by The Electricity and Gas (Ownership Unbundling) Regulations 2014 (S.I. 2014/3333), regs. 1(1), 3(3) (with reg. 4)

10G The ownership unbundling requirement: supplementary U.K.

(1) Subsections (2) and (3) apply where—

(a) by virtue of subsection (7) or (9) of section 10F, the Authority treats the fourth or fifth test under section 10F as passed in relation to a person; and

(b) the person is certified in reliance on that treatment.

(2) The Authority must by notice to the certified person specify a period of time at the end of which the Authority will cease to treat that test as passed by virtue of that subsection.

(3) The Authority may by notice to the certified person extend that period if the Authority thinks it necessary or expedient to do so.

(4) In deciding whether to treat a test as passed by virtue of section 10F(7) or (9), and in determining any period or extension under subsection (2) or (3), the Authority—

(a) must take into account—

(i) the period of time for which the test is likely to continue not to be passed, and

(ii) whether the relationship (direct or indirect) between the applicant and the relevant producer or supplier has led or might lead the applicant to discriminate in favour of the relevant producer or supplier; and

(b) may, in particular, take into account any information or undertaking given to the Authority by the applicant, the relevant producer or supplier or the person who controls the applicant and controls or has a majority shareholding in the relevant producer or supplier.

(5) The information and undertakings that may be taken into account under subsection (4)(b) include information and undertakings regarding any measures that have been or will be put in place to ensure the effective separation of the business of the applicant and the business of the relevant producer or supplier.

10H Designation for the purposes of [F222 the Electricity Regulation] U.K.

(1) This section applies in relation to any period for which a person—

(a) holds a transmission licence or an interconnector licence; and

(b) is certified.

(2) If the person is certified on the first, second, fourth or fifth certification ground in section 10E, the person is designated as an electricity transmission system operator for the purposes of [F223 the Electricity Regulation].

(3) If the person is certified on the third certification ground in section 10E, the independent system operator nominated in the application for certification is designated as an electricity transmission system operator for the purposes of [F224 the Electricity Regulation].

(4) As soon as is reasonably practicable after a person is designated by virtue of this section, the Authority must notify the designation to—

(a) the person designated; [F225 and]

(b) the Secretary of State; F226 ...

F226 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F222 Words in s. 10H heading substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 48(2) (with reg. 48(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(19)); 2020 c. 1, Sch. 5 para. 1(1)

F223 Words in s. 10H(2) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 48(3) (with reg. 48(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(19)); 2020 c. 1, Sch. 5 para. 1(1)

F224 Words in s. 10H(3) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 48(4) (with reg. 48(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(19)); 2020 c. 1, Sch. 5 para. 1(1)

F225 Word in s. 10H(4) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 48(5)(a) (with reg. 48(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(19)); 2020 c. 1, Sch. 5 para. 1(1)

F226 S. 10H(4)(c) and word omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 48(5)(b) (with reg. 48(6)(7)) (as amended by S.I. 2020/1016, regs. 1(2), 3(19)); 2020 c. 1, Sch. 5 para. 1(1)

10I Monitoring and review of certification U.K.

(1) The Authority must monitor, in respect of each certified person, whether the basis on which the Authority decided to certify the person, including the certification ground on which the person was certified, (the “certification basis”) continues to apply.

(2) If, F227 ... as result of information it has received or obtained, the Authority thinks that a person from a [F228 country outside the United Kingdom] has taken or may take control of a certified person, the Authority must, as soon as is reasonably practicable—

(a) notify the information to the Secretary of State F229 ...; and

(b) enclose with the notification to the Secretary of State any further information which, at the time of the notification, the Authority has in its possession and thinks is relevant to the question of whether the security of electricity supplies in the United Kingdom F230 ... would be put at risk by the continued certification of the person.

F231 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F232 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The Authority may F233 ... review whether the certification basis in respect of a certified person continues to apply if—

(a) the certified person notifies it of any event or circumstance which may affect that basis; or

(b) the Authority thinks that the basis may no longer apply.

(6) A review under subsection (5) is to be carried out within the 4 months beginning with—

(a) if paragraph (a) of subsection (5) applies, the day on which the Authority receives the notification under that paragraph;

(b) otherwise, the first day on which the Authority thinks that the certification basis may no longer apply.

(7) Subsection (8) applies where—

(a) by virtue of section 10F(7) or (9), the Authority has treated the fourth or fifth test under section 10F as passed in relation to a person;

(b) the person is certified in reliance on that treatment; and

(c) the period specified under section 10G as the period at the end of which that treatment will cease comes to an end.

(8) Where this subsection applies, the Authority must review whether that test is now passed.

(9) A review under subsection (8) is to be carried out within the 4 months beginning with the end of the period mentioned in subsection (7)(c).

[F234 (10) If, before any of the deadlines mentioned in subsection F235 ..., (6) or (9) (or before such deadline as previously extended under this subsection), the Authority asks the certified person or a relevant producer or supplier for information under section 10J(2) or (3), the relevant deadline is the end of the 4 months beginning with the day on which the last of that information is received.]

Textual Amendments

F227 Words in s. 10I(2) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(2)(a) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F228 Words in s. 10I(2) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(2)(b) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F229 Words in s. 10I(2)(a) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(2)(c) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F230 Words in s. 10I(2)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(2)(d) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F231 S. 10I(3) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(3) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F232 S. 10I(4) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(3) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F233 Word in s. 10I(5) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(4) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F234 S. 10I(10) inserted (15.1.2015) by The Electricity and Gas (Ownership Unbundling) Regulations 2014 (S.I. 2014/3333), regs. 1(1), 3(4) (with reg. 4)

F235 Word in s. 10I(10) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 49(5) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

10J Review of certification: requirement to provide information etc U.K.

(1) As soon as is reasonably practicable after beginning a review under section 10I, the Authority must notify the certified person that the review is being carried out and of the reasons for it.

(2) The Authority may ask that person for any information the Authority thinks is relevant to the review, and the person must supply the information if—

(a) it is in the person’s possession; or

(b) it is information which the person could reasonably be expected to obtain.

(3) The Authority may ask a relevant producer or supplier for any information the Authority thinks is relevant to a review under section 10I, and the relevant producer or supplier must supply that information if—

(a) it is in the relevant producer or supplier’s possession; or

(b) it is information which the relevant producer or supplier could reasonably be expected to obtain.

(4) A person required to supply information under subsection (2) or (3) must do so by any deadline specified by the Authority.

10K Report as to any connection of certified person with a country outside the [F236 United Kingdom] U.K.

(1) This section applies if the Authority notifies information to the Secretary of State under section 10I(2) in respect of a certified person.

(2) The Secretary of State must prepare a report on whether the security of electricity supplies in the United Kingdom F237 ... would be put at risk by the continued certification of the person.

(3) The Secretary of State must prepare the report and send it to the Authority within the 6 weeks beginning with the day on which the notification is received.

(4) If, before the Secretary of State sends the report to the Authority, the Authority receives information under section 10J(2) or (3) and thinks that the information is relevant to the preparation of the report, the Authority must supply that information to the Secretary of State as soon as is reasonably practicable.

(5) In preparing the report, the Secretary of State must take into account—

(a) any relevant international law; and

(b) any relevant agreement between the government of the United Kingdom and the government of the F238 ... country in question.

Textual Amendments

F236 Words in s. 10K heading substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 50(2) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F237 Words in s. 10K(2) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 50(3) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

F238 Word in s. 10K(5)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 50(4) (with reg. 51) (as amended by S.I. 2020/1016, regs. 1(2), 3(20)); 2020 c. 1, Sch. 5 para. 1(1)

10L Continuation or withdrawal of certification U.K.

(1) Where the Authority reviews under section [F239 10I(5)] whether the certification basis in respect of a certified person continues to apply, it may, within the 4 months mentioned in section [F240 10I(6)] [F241 or where relevant the 4 months mentioned in section 10I(10)], either—

(a) make a F242 ... decision [F243 to continue the certification] on the certification ground mentioned in section 10I(1); or

(b) make a F244 ... decision [F245 to withdraw the certification].

(2) If the Authority does not make a decision under subsection (1) within those 4 months, it is to be taken as having made a F246 ... decision at the end of the 4 months [F247 to continue the certification] on the certification ground mentioned in section 10I(1).

(3) Where the Authority reviews under section 10I(8) whether the fourth or fifth test under section 10F is now passed, it may, within the 4 months mentioned in section 10I(9) [F248 or where relevant the 4 months mentioned in section 10I(10)], either—

(a) make a F249 ... decision [F250 to continue the certification] on the basis that the test is now passed; or

(b) make a F251 ... decision [F252 to withdraw the certification].

(4) If the Authority does not make a decision under subsection (3) within those 4 months, it is to be taken as having made a F253 ... decision at the end of the 4 months [F254 to continue the certification] on the basis that the test is now passed.

(5) As soon as is reasonably practicable after a F255 ... decision is made (or taken to be made) under this section, the Authority must—

(a) notify the decision to the certified person and the Secretary of State; F256 ...

F256 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F257 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F257 (6A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F257 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F257 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F257 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F258 (9A) The Authority must publish its decision to continue a certification, or to withdraw a certification, together with the reasons for it, in such manner as it considers appropriate.]

(10) Section [F259 10E(8)(b)] applies in relation to a decision mentioned in this section as it applies in relation to a decision mentioned in section 10E(1), but as if—

(a) the references in section [F260 10E(8)(b)] to the certification of the applicant were references to the continued certification of the person certified; and

(b) the reference in section 10E(8)(b) to a report prepared under section 10C were a reference to a report prepared under section 10K.

Textual Amendments

F239 Word in s. 10L(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(2)(a) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F240 Word in s. 10L(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(2)(b) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F241 Words in s. 10L(1) inserted (15.1.2015) by The Electricity and Gas (Ownership Unbundling) Regulations 2014 (S.I. 2014/3333), regs. 1(1), 3(5) (with reg. 4)

F242 Word in s. 10L(1)(a) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(2)(c)(i) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F243 Words in s. 10L(1)(a) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(2)(c)(ii) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F244 Word in s. 10L(1)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(2)(d)(i) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F245 Words in s. 10L(1)(b) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(2)(d)(ii) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F246 Word in s. 10L(2) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(3)(a) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F247 Words in s. 10L(2) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(3)(b) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F248 Words in s. 10L(3) inserted (15.1.2015) by The Electricity and Gas (Ownership Unbundling) Regulations 2014 (S.I. 2014/3333), regs. 1(1), 3(6) (with reg. 4)

F249 Word in s. 10L(3)(a) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(4)(a)(i) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F250 Words in s. 10L(3)(a) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(4)(a)(ii) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F251 Word in s. 10L(3)(b) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(4)(b)(i) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F252 Words in s. 10L(3)(b) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(4)(b)(ii) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F253 Word in s. 10L(4) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(5)(a) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F254 Words in s. 10L(4) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(5)(b) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F255 Word in s. 10L(5) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(6)(a) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F256 S. 10L(5)(b) and word omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(6)(b) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F257 S. 10L(6)-(9) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(7) (with reg. 52(10)(11)); 2020 c. 1, Sch. 5 para. 1(1)

F258 S. 10L(9A) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(8) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F259 Word in s. 10L(10) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(9)(a) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

F260 Word in s. 10L(10)(a) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 52(9)(b) (with reg. 52(10)(11)) (as amended by S.I. 2020/1016, regs. 1(2), 3(21)); 2020 c. 1, Sch. 5 para. 1(1)

10M Prohibition on the exercise of certain shareholder rights and rights of appointment U.K.

(1) A person must not exercise a shareholder right or a right of appointment if—

(a) the right falls within subsection (2), (3), (4) or (5);

(b) the relevant date in respect of the certified person mentioned in that subsection has been reached;

(c) the exercise of the right would or might lead the certified person to discriminate in favour of the relevant producer or supplier mentioned in that subsection; and

(d) the relevant producer or supplier is a person to whom subsection (6) applies.

(2) A right falls within this subsection if—

(a) it is a shareholder right;

(b) it is held by a person who controls a person certified on the certification ground in section 10E(3); and

(c) it is exercisable in relation to a relevant producer or supplier.

(3) A right falls within this subsection if—

(a) it is a shareholder right;

(b) it is exercisable in relation to a person certified on the certification ground in section 10E(3); and

(c) it is held by a person who controls a relevant producer or supplier.

(4) A right falls within this subsection if—

(a) it is a shareholder right;

(b) the person who holds it appointed a senior officer of a person certified on the certification ground in section 10E(3);

(c) the person appointed continues to hold that office; and

(d) the right is exercisable in relation to an electricity undertaking which is a relevant producer or supplier.

(5) A right falls within this subsection if—

(a) it is a right to appoint a senior officer of a person certified on the certification ground in section 10E(3); and

(b) the person who holds it has, within the immediately preceding period of 3 years, exercised a shareholder right in relation to an electricity undertaking which is a relevant producer or supplier.

(6) This subsection applies to a person if, in order to carry out of some or all of the activity by virtue of which the person is a relevant producer or supplier, the person—

(a) requires a licence under section 6 of this Act, section 7A of the Gas Act 1986 (licensing of gas suppliers and gas shippers) or section 3 of the Petroleum Act 1998 (licences to search and bore for and get petroleum); or

(b) would require such a licence if carrying out the activity in Great Britain.

(7) In this section—

(a) “exercise” means exercise directly or indirectly, and “exercisable” is to be interpreted accordingly; and

(b) “relevant date” means the relevant date for the purposes of section 10A(1) or (3).

10N Validity of acts infringing section 10M U.K.

(1) The following are voidable on an application to the court—

(a) the exercise of a shareholder right in breach of section 10M;

(b) the appointment of a senior officer in breach of that section.

(2) Any person may make an application under subsection (1).

(3) Such an application may not be made after the end of the 5 years beginning with the day on which the shareholder right was exercised or the appointment made.

(4) If, by virtue of this section, the court declares the exercise of a shareholder right or an appointment to be void, it may make an order as to the consequences of its declaration.

(5) 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.

10O Interpretation U.K.

(1) In sections 10A to 10N and this section—

• “control”, in relation to one person having control over another, has the meaning given by Article 2(34) of the Electricity Directive (but in determining whether one person (“person A”) has control over another (“person B”) no account is to be taken of any unexercised contractual or other right which would, if exercised, give person A control over person B and which was conferred as a condition of the provision of either financial support or a guarantee (or both), by person A in relation to the business of person B); and references to one person controlling another are to be interpreted accordingly;

• “certified” means [F261 certified by] the Authority under section 10D; and “certify” and “certification” are to be interpreted accordingly;

• “certification grounds” has the meaning given by section 10E(2);

• “majority shareholding” means a simple majority of shares;

• “person from a [F262 country outside the United Kingdom]” means a person the Authority thinks is from a [F262 country outside the United Kingdom];

• “shareholder right” means a right, conferred by the holding of a share in a company’s share capital—

  (a)

  to vote at general meetings of the company; or

  (b)

  to appoint or remove a member of the company’s board of directors;

• F263 ...

(2) In this Part “electricity undertaking” means a person who—

(a) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

(b) supplies electricity to any premises; or

(c) otherwise generates or sells electricity.

(3) In this Part “relevant producer or supplier”, in relation to an applicant for certification or a certified person, means a person who falls within each of subsections (4) and (5).

(4) A person falls within this section if the person—

(a) is an electricity undertaking;

(b) gets natural gas from its natural condition in strata otherwise than as an unintended consequence of the storage of gas, and requires a licence under section 3 of the Petroleum Act 1998 (licences to search and bore for and get petroleum) to do so or would require such a licence if getting the gas in Great Britain;

(c) produces any other gas, including in particular biomethane, which is suitable for conveyance through pipes to premises in accordance with a licence under section 7 of the Gas Act 1986;

(d) supplies to any premises gas which has been conveyed to those premises through pipes;

(e) arranges with a gas transporter for gas to be introduced into, conveyed by means of or taken out of a pipe-line system operated by that transporter; or

(f) otherwise sells gas,

and terms used in paragraphs (b) to (f) of this subsection have the same meanings in those paragraphs as in Part 1 of the Gas Act 1986.

[F264 (5) A person falls within this subsection if—

(a) the person requires a licence under section 7A of the Gas Act 1986 (licensing of gas suppliers and gas shippers) or section 6 of this Act to carry out the activity by virtue of which the person falls within subsection (4);

(b) where the person does not carry out the activity in Great Britain, the person would, in the Authority’s opinion, require such a licence if carrying out the activity in Great Britain; or

(c) the person has a relationship with the applicant or certified person which the Authority thinks might lead the applicant or certified person to discriminate in favour of the person.]]

Textual Amendments

F261 Words in s. 10O(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 53(a); 2020 c. 1, Sch. 5 para. 1(1)

F262 Words in s. 10O(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 53(b); 2020 c. 1, Sch. 5 para. 1(1)

F263 Words in s. 10O(1) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 53(c); 2020 c. 1, Sch. 5 para. 1(1)

F264 S. 10O(5) substituted (24.4.2017) by The Electricity and Gas (Internal Markets) Regulations 2017 (S.I. 2017/493), regs. 1(1), 3 (with reg. 7(2))

Modification of licences E+W+S

F265 11 Modification by agreement. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F265 S. 11 omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(2) (with reg. 44)

[F266 [F267 11A Modification of conditions of licences E+W+S

(1) The Authority may make modifications of—

(a) the conditions of a particular licence;

(b) the standard conditions of licences of any type mentioned in section 6(1).

(2) Before making any modifications under this section, the Authority must give notice—

(a) stating that it proposes to make modifications;

(b) setting out the proposed modifications and their effect;

(c) stating the reasons why it proposes to make the modifications; and

(d) specifying the time within which representations with respect to the proposed modifications may be made.

(3) The time specified by virtue of subsection (2)(d) may not be less than 28 days from the date of the publication of the notice.

(4) A notice under subsection (2) must be given—

(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications, and

(b) by sending a copy of the notice to—

(i) each relevant licence holder,

(ii) the Secretary of State, F268 ...

(iii) [F269 Citizens Advice, and

(iv) [F270 Consumer Scotland].]

(4A) The Authority must consider any representations which are duly made.]

(5) If, within the time specified [F271 by virtue of subsection (2)(d)], the Secretary of State directs the Authority not to make any modification, the Authority shall comply with the direction.

[F272 (6) Subsections (7) to (9) apply where, having complied with subsections (2) to (4A), the Authority decides to proceed with the making of modifications of the conditions of any licence under this section.

(7) The Authority must—

(a) publish the decision and the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications,

(b) state the effect of the modifications,

(c) state how it has taken account of any representations duly made, and

(d) state the reason for any differences between the modifications and those set out in the notice by virtue of subsection (2)(b).

(8) Each modification has effect from the date specified by the Authority in relation to that modification (subject to the giving of a direction under paragraph 2 of Schedule 5A).

(9) The date specified by virtue of subsection (8) may not be less than 56 days from the publication of the decision to proceed with the making of modifications under this section.

[F273 (9A) This section does not apply to the modification of a licence in exercise of the power under section 6CC(5)(a) (modification of licence to give effect to determination on a tender exercise).]

(10) In this section “relevant licence holder”—

(a) in relation to the modification of standard conditions of licences of any type, means the holder of a licence of that type—

(i) which is to be modified by the inclusion of any new standard condition, or

(ii) which includes any standard conditions to which the modifications relate which are in effect at the time specified by virtue of subsection (2)(d); or

(b) in relation to the modification of a condition of a particular licence (other than a standard condition), means the holder of that particular licence.]]

Textual Amendments

F266 S. 11A inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 35; S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F267 S. 11A(1)-(4A) and heading substituted for s. 11A(1)-(4) and heading (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(4) (with reg. 44)

F268 Word in s. 11A(4)(b)(ii) omitted (1.4.2014) by virtue of The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(5)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F269 S. 11A(4)(b)(iii)(iv) substituted for s. 11A(4)(b)(iii) (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(5)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F270 Words in s. 11A(4)(b)(iv) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(5) (with art. 5)

F271 Words in s. 11A(5) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(5) (with reg. 44)

F272 S. 11A(6)-(10) substituted for s. 11A(6)-(11) (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(6) (with reg. 44)

F273 S. 11A(9A) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 8

[F274 11B Modification of conditions under section 11A: supplementary E+W+S

(1) Subsections (2) and (3) apply where at any time the Authority modifies the conditions of licences of any type under section 11A.

(2) If the conditions modified are standard conditions, the Authority must—

(a) also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time, and

(b) publish the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications.

(3) The Authority may make such incidental or consequential modifications of any conditions of licences of any type as it considers necessary or expedient.

(4) The modification of part of a standard condition of a particular licence under section 11A does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.

(5) The modification of a condition of a licence under this section has effect subject to the giving of a direction under paragraph 2 of Schedule 5A in relation to the decision to which the modification relates.]

Textual Amendments

F274 S. 11B inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(7) (with reg. 44)

[F275 Appeal from decisions of the Authority U.K.

Textual Amendments

F275 Ss. 11C-11H and cross-heading inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(8) (with reg. 44)

11C Appeal to the [F276 CMA] U.K.

(1) An appeal lies to the [F277 CMA] against a decision by the Authority to proceed with the modification of a condition of a licence under section 11A.

(2) An appeal may be brought under this section only by—

(a) a relevant licence holder (within the meaning of section 11A);

(b) any other person who holds a licence of any type under section 6(1) whose interests are materially affected by the decision;

(c) a qualifying body or association in the capacity of representing a person falling within paragraph (a) or (b);

(d) [F278 Citizens Advice or [F279 Consumer Scotland] or those bodies acting jointly] in the capacity of representing consumers whose interests are materially affected by the decision.

(3) The permission of the [F280 CMA] is required for the bringing of an appeal under this section.

(4) The [F280 CMA] may refuse permission to bring an appeal only on one of the following grounds—

(a) in relation to an appeal brought by a person falling within subsection (2)(b), that the interests of the person are not materially affected by the decision;

(b) in relation to an appeal brought by a qualifying body or association, that the interests of the person represented are not materially affected by the decision;

(c) in relation to an appeal brought by [F281 Citizens Advice or [F282 Consumer Scotland] or those bodies acting jointly], that the interests of the consumers represented are not materially affected by the decision;

(d) in relation to any appeal—

(i) that the appeal is brought for reasons that are trivial or vexatious;

(ii) that the appeal has no reasonable prospect of success.

(5) References in this section to a qualifying body or association are to a body or association whose functions are or include representing persons in respect of interests of theirs which are materially affected by the decision in question.

Textual Amendments

F276 Word in s. 11C heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 31(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F277 Word in s. 11C(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 31(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F278 Words in s. 11C(2)(d) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(6)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F279 Words in s. 11C(2)(d) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(6)(a) (with art. 5)

F280 Word in s. 11C(3)(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 31(3); S.I. 2014/416, art. 2(1)(d) (with Sch.); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F281 Words in s. 11C(4)(c) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(6)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F282 Words in s. 11C(4)(c) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(6)(b) (with art. 5)

Modifications etc. (not altering text)

C48 Ss. 11C-11H applied (with modifications) (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 10(2)-(4), 44(2)

11D Procedure on appeal to [F283 CMA] U.K.

F284 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) F285 ... Schedule 5A to this Act has effect.

[F286 (2A) Except where specified otherwise in Schedule 5A, the functions of the CMA with respect to an appeal under section 11C are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

Textual Amendments

F283 Word in s. 11D heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 32(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F284 S. 11D(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 32(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F285 Word in s. 11D(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 32(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F286 S. 11D(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 32(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C48 Ss. 11C-11H applied (with modifications) (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 10(2)-(4), 44(2)

11E Determination by [F287 CMA] of appeal U.K.

(1) This section applies to every appeal brought under section 11C.

(2) In determining an appeal the [F288 CMA] must have regard, to the same extent as is required of the Authority, to the matters to which the Authority must have regard—

(a) in the carrying out of its principal objective under section 3A;

(b) in the performance of its duties under that section; and

(c) in the performance of its duties under sections 3B and 3C.

(3) In determining the appeal the [F288 CMA] —

(a) may have regard to any matter to which the Authority was not able to have regard in relation to the decision which is the subject of the appeal; but

(b) must not, in the exercise of that power, have regard to any matter to which the Authority would not have been entitled to have regard in reaching its decision had it had the opportunity of doing so.

(4) The [F288 CMA] may allow the appeal only to the extent that it is satisfied that the decision appealed against was wrong on one or more of the following grounds—

(a) that the Authority failed properly to have regard to any matter mentioned in subsection (2);

(b) that the Authority failed to give the appropriate weight to any matter mentioned in subsection (2);

(c) that the decision was based, wholly or partly, on an error of fact;

(d) that the modifications fail to achieve, in whole or in part, the effect stated by the Authority by virtue of section 11A(7)(b);

(e) that the decision was wrong in law.

(5) To the extent that the [F288 CMA] does not allow the appeal, it must confirm the decision appealed against.

Textual Amendments

F287 Word in s. 11E heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 33(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F288 Word in s. 11E(2)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 33(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C48 Ss. 11C-11H applied (with modifications) (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 10(2)-(4), 44(2)

11F [F289 CMA's] powers on allowing appeal U.K.

(1) This section applies where the [F290 CMA] allows an appeal to any extent.

(2) If the appeal is in relation to a price control decision, the [F291 CMA] must do one or more of the following—

(a) quash the decision (to the extent that the appeal is allowed);

(b) remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the [F291 CMA] ;

(c) substitute the [F292 CMA's] decision for that of the Authority (to the extent that the appeal is allowed) and give any directions to the Authority or any other party to the appeal.

(3) If the appeal is in relation to any other decision, the [F293 CMA] must do one or both of the following—

(a) quash the decision (to the extent that the appeal is allowed);

(b) remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the [F293 CMA] .

(4) A direction under subsection (2) or (3) must not require a person to do anything that the person would not have power to do (apart from the direction).

(5) A person to whom a direction is given under that subsection must comply with it.

(6) A direction given under that subsection to a person other than the Authority is enforceable as if it were an order of the High Court or (in Scotland) an order of the Court of Session.

(7) For the purposes of this section a decision is a price control decision, in relation to the modification of a condition of a licence, if the purpose of the condition is, in the [F294 CMA's] opinion, to limit or control the charges on, or the revenue of, the holder of the licence.

(8) In determining for the purposes of subsection (7) what the purpose of a condition is the condition may be assessed on its own or in combination with any other conditions of the licence.

(9) In this section and sections 11G and 11H any reference to a party to an appeal is to be read in accordance with Schedule 5A.

Textual Amendments

F289 Word in s. 11F heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 34(6); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F290 Word in s. 11F(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 34(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F291 Word in s. 11F(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 34(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F292 Word in s. 11F(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 34(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F293 Word in s. 11F(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 34(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F294 Word in s. 11F(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 34(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C48 Ss. 11C-11H applied (with modifications) (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 10(2)-(4), 44(2)

11G Time limits for [F295 CMA] to determine an appeal U.K.

(1) The [F296 CMA] must—

(a) determine an appeal against a price control decision within the period of 6 months beginning with the permission date;

(b) determine an appeal against any other decision within the period of 4 months beginning with the permission date.

(2) Subsection (1)(a) or (b) does not apply if subsection (3) applies.

(3) This subsection applies where—

(a) the [F297 CMA] has received representations on the timing of the determination from a party to the appeal; and

(b) it is satisfied that there are special reasons why the determination cannot be made within the period specified in subsection (1)(a) or (b).

(4) Where subsection (3) applies, the [F297 CMA] must—

(a) determine an appeal against a price control decision within the period specified by it, not being longer than the period of 7 months beginning with the permission date;

(b) determine an appeal against any other decision within the period specified by it, not being longer than the period of 5 months beginning with the permission date.

(5) Where subsection (3) applies, the [F297 CMA] must also—

(a) inform the parties to the appeal of the time limit for determining the appeal, and

(b) publish that time limit in such manner as it considers appropriate for the purpose of bringing it to the attention of any other persons likely to be affected by the determination.

(6) In this section “price control decision” is to be read in accordance with section 11F.

(7) References in this section to the permission date are to the date on which the [F298 CMA] gave permission to bring the appeal in accordance with section 11C(3).

Textual Amendments

F295 Word in s. 11G heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 35(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F296 Word in s. 11G(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 35(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F297 Word in ss. 11G(3)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 35(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F298 Word in s. 11G(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 35(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C48 Ss. 11C-11H applied (with modifications) (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 10(2)-(4), 44(2)

11H Determination of appeal by [F299 CMA] : supplementary U.K.

(1) A determination by the [F300 CMA] on an appeal—

(a) must be contained in an order made by the [F300 CMA] ;

(b) must set out the reasons for the determination;

(c) takes effect at the time specified in the order or determined in accordance with provision made in the order;

(d) must be notified by the [F300 CMA] to the parties to the appeal;

(e) must be published by the [F300 CMA] —

(i) as soon as reasonably practicable after the determination is made;

(ii) in such manner as the [F300 CMA] considers appropriate for the purpose of bringing the determination to the attention of any person likely to be affected by it (other than a party to the appeal).

(2) The [F301 CMA] may exclude from publication under subsection (1)(e) any information which it is satisfied is—

(a) commercial information, the disclosure of which would, or might in [F302 CMA's] opinion, significantly harm the legitimate business interests of an undertaking to which it relates; or

(b) information relating to the private affairs of an individual, the disclosure of which would, or might in the [F302 CMA's] opinion, significantly harm the individual’s interests.

(3) The Authority must take such steps as it considers requisite for it to comply with an order of the [F303 CMA] made by virtue of subsection (1)(a).

(4) The steps must be taken—

(a) if a time is specified in (or is to be determined in accordance with) the order, within that time;

(b) in any other case, within a reasonable time.

(5) Subsections (2) to (4) of section 11B apply where a condition of a licence is modified in accordance with section 11F as they apply where a condition of a licence is modified under section 11A.]

Textual Amendments

F299 Word in s. 11H heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 36(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F300 Word in s. 11H(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 36(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F301 Word in s. 11H(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 36(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F302 Word in s. 11H(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 36(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F303 Word in s. 11H(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 36(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C48 Ss. 11C-11H applied (with modifications) (1.6.2022) by Nuclear Energy (Financing) Act 2022 (c. 15), s. 10(2)-(4), 44(2)

F304 12 Modification references to Monopolies Commission. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F304 Ss. 12-14A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(10) (with reg. 44)

F304 12A References under section 12: time limits U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F304 Ss. 12-14A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(10) (with reg. 44)

F304 12B References under section 12: powers of investigation U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F304 Ss. 12-14A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(10) (with reg. 44)

F304 13 Reports on modification references. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F304 Ss. 12-14A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(10) (with reg. 44)

F304 14 Modification following report. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F304 Ss. 12-14A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(10) (with reg. 44)

F304 14A Competition Commission’s power to veto modifications following report. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F304 Ss. 12-14A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 43(10) (with reg. 44)

15 Modification by order under other enactments. E+W+S

[F305 (1) Where the [F306 CMA] or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a particular licence, or the standard conditions of licences of any type mentioned in section 6(1), to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.]

[F305 (2) In subsection (1) above “relevant order” means—

(a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

(i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or

(ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or

(b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market [F307 or markets] in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission, distribution or supply of electricity.]

[F308 (2A) The modification under subsection (1) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.

[F309 (2B) Where the relevant authority modifies under subsection (1) the standard conditions of licences of any type, the relevant authority—

(a) shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and

(b) may, after consultation with the Authority, make such incidental or consequential modifications as the relevant authority considers necessary or expedient of any conditions of any licence of that type granted before that time.]

(2C) Where at any time the [F310 relevant authority] modifies standard conditions under subsection (2B)(a) for the purposes of their incorporation in licences granted after that time, [F311 the relevant authority] shall publish those modifications in such manner as [F311 the relevant authority] considers appropriate.]

[F312 (3) Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.]

Textual Amendments

F305 S. 15(1)(2) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 5(2); S.I. 2003/1397, art. 2(1), Sch.

F306 Word in s. 15(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 37; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F307 Words in s. 15(2)(b) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 64 (with art. 3)

F308 S. 15(2A)-(2C) inserted (1.10.2001) by 2000 c. 27, s. 40(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F309 S. 15(2B) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 5(3); S.I. 2003/1397, art. 2(1), Sch.

F310 Words in s. 15(2C) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 5(4)(a); S.I. 2003/1397, art. 2(1), Sch.

F311 Words in s. 15(2C) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 5(4)(b); S.I. 2003/1397, art. 2(1), Sch.

F312 S. 15(3) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 5(5); S.I. 2003/1397, art. 2(1), Sch.

Modifications etc. (not altering text)

C49 S. 15(1): functions transferred to Scottish Ministers (S.) (14.12.2000) by virtue of S.I. 2000/3253, arts. 1(1), 2, Sch. (with art. 6)

[F313 15A Licence modifications relating to new electricity trading arrangements. U.K.

(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.]

Textual Amendments

F313 S. 15A inserted (28.7.2000) by 2000 c. 27, s. 68(1)(2)

[F314 Duties of electricity distributors] E+W+S

Textual Amendments

F314 Ss. 16, 16A, 17 and cross-heading substituted for ss. 16, 17 (1.10.2001) by 2000 c. 27, s. 44; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F315 [16 Duty to connect on request. E+W+S

(1) An electricity distributor is under a duty—

(a) to make a connection between a distribution system of his and any premises, when required to do so by—

(i) the owner or occupier of the premises; or

(ii) an authorised supplier acting with the consent of the owner or occupier of the premises,

for the purpose of enabling electricity to be conveyed to or from the premises;

(b) to make a connection between a distribution system of his and any distribution system of another authorised distributor, when required to do so by that authorised distributor for the purpose of enabling electricity to be conveyed to or from that other system.

(2) Any duty under subsection (1) includes a duty to provide such electric lines or electrical plant as may be necessary to enable the connection to be used for the purpose for which it is required.

(3) The duties under this section shall be performed subject to such terms as may be agreed under section 16A for so long as the connection is required.

(4) In this section and sections 16A to 23 [F316 and Schedule 5B]—

(a) any reference to making a connection includes a reference to maintaining the connection (and continuing to provide the necessary electric lines or electrical plant);

(b) any reference to requiring a connection includes a reference to requiring the connection to be maintained (and the continued provision of the necessary electric lines and electrical plant); and

(c) any reference to the provision of any electric line or electrical plant is a reference to the provision of such a line or an item of electrical plant either by the installation of a new one or by the modification of an existing one.

(5) The duties under this section are subject to the following provisions of this Part and any regulations made under those provisions.]

Textual Amendments

F315 Ss. 16, 16A, 17 and cross-heading substituted for ss. 16, 17 (1.10.2001) by 2000 c. 27, s. 44; S.I. 2001/3266, art. 2, Sch.(subject to transitional provisions in art. 3-20)

F316 Words in s. 16(4) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(4), 57(7)(c); S.I. 2017/108, reg. 2

Modifications etc. (not altering text)

C50 S. 16 applied (1.10.2001) by S.I. 2001/3264, reg. 4(2)

[F317 16A Procedure for requiring a connection. E+W+S

(1) Where a person requires a connection to be made by an electricity distributor in pursuance of section 16(1), he shall give the distributor a notice requiring him to offer terms for making the connection.

(2) That notice must specify—

(a) the premises or distribution system to which a connection to the distributor’s system is required;

(b) the date on or by which the connection is to be made; and

(c) the maximum power at which electricity may be required to be conveyed through the connection.

(3) The person requiring a connection shall also give the distributor such other information in relation to the required connection as the distributor may reasonably request.

(4) A request under subsection (3) shall be made as soon as practicable after the notice under subsection (1) is given (if not made before that time).

[F318 (4A) The Secretary of State may, after consulting the Authority, make provision by regulations for the purpose of entitling an electricity distributor to require a person requiring a connection in pursuance of section 16(1) to pay connection offer expenses to such extent as is reasonable in all the circumstances.

(4B) In this section “connection offer expenses” means expenses which—

(a) are of a kind specified by the regulations, and

(b) have been reasonably incurred by the electricity distributor.

(4C) Regulations under subsection (4A) may specify—

(a) circumstances in which an electricity distributor may not require the payment of connection offer expenses by virtue of the regulations;

(b) the manner in which expenses reasonably incurred by an electricity distributor are to be calculated for the purposes of subsection (4B)(b).]

(5) As soon as practicable after receiving the notice under subsection (1)[F319 , any information requested under subsection (3) and any amount payable by virtue of subsection (4A) to the distributor by the person requiring the connection, the distributor shall give to that person] a notice—

(a) stating the extent (if any) to which his proposals are acceptable to the distributor and specifying any counter proposals made by him;

(b) specifying any payment which that person will be required to make under section 19(1) F320 ... [F321 or regulations under Schedule 5B];

(c) specifying any security which that person will be required to give under section 20; and

(d) stating any other terms which that person will be required to accept under section 21.

(6) A notice under subsection (5) shall also contain a statement of the effect of section 23.]

Textual Amendments

F317 Ss. 16, 16A, 17 and cross-heading substituted for ss. 16, 17 (1.10.2001) by 2000 c. 27, s. 44; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F318 Ss. 16A(4A)-(4C) inserted (26.1.2009) by Energy Act 2008 (c. 32), ss. 98(2), 110(2); S.I. 2009/45, art. 2(d)(v)

F319 Words in s. 16A(5) substituted (26.1.2009) by Energy Act 2008 (c. 32), ss. 98(3), 110(2); S.I. 2009/45, art. 2(d)(v)

F320 Words in s. 16A(5)(b) omitted (6.4.2017) by virtue of Infrastructure Act 2015 (c. 7), ss. 52(5)(a), 57(7)(c); S.I. 2017/108, reg. 2 (with reg. 3)

F321 Words in s. 16A(5)(b) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(5)(b), 57(7)(c); S.I. 2017/108, reg. 2

[F322 17 Exceptions from duty to connect. E+W+S

(1) Nothing in section 16(1) requires an electricity distributor to make a connection if and to the extent that—

(a) he is prevented from doing so by circumstances not within his control;

(b) circumstances exist by reason of which his doing so would or might involve his being in breach of regulations under section 29, and he has taken all such steps as it was reasonable to take both to prevent the circumstances from occurring and to prevent them from having that effect; or

(c) it is not reasonable in all the circumstances for him to be required to do so.

(2) Without prejudice to the generality of subsection (1) an electricity distributor is not required to make a connection if—

(a) making the connection involves the distributor doing something which, without the consent of another person, would require the exercise of a power conferred by any provision of Schedule 3 or 4;

(b) the distributor’s licence does not provide for that provision to have effect in relation to him; and

(c) any necessary consent has not, at the time the request is made, been given.

(3) Subsection (1)(c) does not permit an electricity distributor to disconnect any premises or distribution system to which a connection is being maintained by him unless the distributor gives—

(a) where the connection is to premises, to the occupier or to the owner if the premises are not occupied;

(b) where the connection is to another distribution system, to the person who is authorised by a licence or exemption to run that system,

not less than seven working days’ notice of his intention to disconnect the premises or distribution system.]

Textual Amendments

F322 Ss. 16, 16A, 17 and cross-heading substituted for ss. 16, 17 (1.10.2001) by 2000 c. 27, s. 44; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F323 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F323 S. 18 repealed (1.10.2001) by 2000 c. 27, ss. 45, 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

19 Power to recover expenditure. E+W+S

(1) Where any electric line or electrical plant is provided by [F324 an electricity distributor] in pursuance of section 16(1) above, the [F324 distributor] may require any expenses reasonably incurred in providing it to be defrayed by the person requiring the [F324 connection] to such extent as is reasonable in all the circumstances.

F325 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F325 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F326 (3A) Schedule 5B (reimbursement of persons who have met expenses) has effect.]

(4) Any reference in this section [F327 and Schedule 5B] to any expenses reasonably incurred in providing an electric line or electrical plant includes a reference to the capitalised value of any expenses likely to be so incurred in [F328 continuing to provide it]

Textual Amendments

F324 Words in s. 19(1) substituted (1.10.2001) by 2000 c. 27, s. 46(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F325 S. 19(2)(3) omitted (6.4.2017) by virtue of Infrastructure Act 2015 (c. 7), ss. 52(2)(a), 57(7)(c); S.I. 2017/108, reg. 2 (with reg. 3)

F326 S. 19(3A) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(2)(b), 57(7)(c); S.I. 2017/108, reg. 2

F327 Words in s. 19(4) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(2)(c), 57(7)(c); S.I. 2017/108, reg. 2

F328 Words in s. 19(4) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 46(5); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

20 Power to require security. E+W+S

[F329 (1) Subject to the following provisions of this section, an electricity distributor may require any person who requires a connection in pursuance of section 16(1) to give him reasonable security for the payment to him under section 19 in respect of the provision of any electric line or electrical plant.

(1A) If a person fails to give any security required under subsection (1), or the security given has become invalid or insufficient, and he fails to provide alternative or additional security, the electricity distributor may if he thinks fit—

(a) if the connection has not been made, refuse to provide the line or plant for so long as the failure continues; or

(b) if the connection is being maintained, disconnect the premises or distribution system in question.]

F330 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where any money is deposited with [F331 an electricity distributor] by way of security in pursuance of this section, the [F331 distributor] shall pay interest, at such rate as may from time to time be fixed by the [F331 distributor] with the approval of the Director, on every sum of 50p so deposited for every three months during which it remains in the hands of the [F331 distributor].

F330 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F329 S. 20(1)(1A) substituted for s. 20(1) (1.10.2001) by 2000 c. 27, s. 47(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F330 S. 20(2)(4) repealed (1.10.2001) by 2000 c. 27, ss. 47(4), 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F331 Words in s. 20(3) substituted (1.10.2001) by 2000 c. 27, s. 47(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

[F332 21 Additional terms of connection. E+W+S

An electricity distributor may require any person who requires a connection in pursuance of section 16(1) above to accept in respect of the making of the connection—

(a) any restrictions which must be imposed for the purpose of enabling the distributor to comply with regulations under section 29;

(b) any terms which it is reasonable in all the circumstances for that person to be required to accept; and

(c) without prejudice to the generality of paragraph (b), any terms restricting any liability of the distributor for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept.]

Textual Amendments

F332 S. 21 substituted (1.10.2001) by 2000 c. 27, s. 48; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F333 [22 Special agreements with respect to connection. E+W+S

(1) Notwithstanding anything in sections 16 to 21, a person who requires a connection in pursuance of section 16(1) may enter into an agreement with the electricity distributor (referred to in this Part as a “special connection agreement”) for the making of the connection on such terms as may be agreed by the parties.

(2) So long as a special connection agreement is effective, the rights and liabilities of the parties shall be those arising under the agreement and not those provided for by sections 16 to 21.

(3) Nothing in subsection (2) prevents the giving of a notice under section 16A(1) requiring a connection to be made as from the time when a special connection agreement ceases to be effective.]

Textual Amendments

F333 S. 22 substituted (1.10.2001) by 2000 c. 27, s. 49; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C51 S. 22 applied (1.10.2001) by S.I. 2001/3264, reg. 5(2)

23 Determination of disputes. E+W+S

[F334 (1) This section applies (in addition to any disputes to which it applies by virtue of any other provision of this Act) to any dispute arising under sections 16 to 21 between an electricity distributor and a person requiring a connection.

[F335 (1ZA) This section also applies to any dispute arising under regulations under Schedule 5B between—

(a) an electricity distributor, and

(b) a person in respect of whom the electricity distributor exercises the reimbursement powers conferred by the regulations.]

(1A) A dispute to which this section applies—

(a) may be referred to the [F336 Authority—

(i) by either party, or

(ii) with the consent of either party, by [F337 Citizens Advice, Citizens Advice Scotland or Consumer Scotland or those bodies or any two of them acting jointly];] and

(b) on such a reference, shall be determined by order made either by the Authority or, if the Authority thinks fit, by an arbitrator (or in Scotland an arbiter) appointed by the Authority.

(1B) The practice and procedure to be followed in connection with any such determination shall be such as the Authority may consider appropriate. .

(1C) No dispute arising under sections 16 to 21 which relates to the making of a connection between any premises and a distribution system may be referred to the Authority after the end of the period of 12 months beginning with the time when the connection is made..

[F338 (1D) No dispute arising under regulations under Schedule 5B may be referred to the Authority after the end of the period of 12 months beginning with the time when the second connection (within the meaning of Schedule 5B) is made.]

(2) Where a dispute arising under sections 16 to 21 between an electricity distributor and a person requiring a connection falls to be determined under this section, the Authority may give directions as to the circumstances in which, and the terms on which, the distributor is to make or (as the case may be) to maintain a connection pending the determination of the dispute.]

[F339 (2A) Where a dispute arising under regulations under Schedule 5B falls to be determined under this section, the Authority may give directions as to the circumstances in which, and the terms on which, an electricity distributor is to make or (as the case may be) to maintain the second connection (within the meaning of Schedule 5B) pending the determination of the dispute.]

(3) Where any dispute arising under section 20(1) above falls to be determined under this section, the Director may give directions as to the security (if any) to be given pending the determination of the dispute.

(4) Directions under subsection (2)[F340 , (2A)] or (3) above may apply either in cases of particular descriptions or in particular cases.

[F341 (4A) A person making an order under this section shall include in the order his reasons for reaching his decision with respect to the dispute.]

(5) An order under this section—

(a) may include such incidental, supplemental and consequential provision (including provision requiring either party to pay a sum in respect of the costs or expenses incurred by the person making the order) as that person considers appropriate; and

(b) shall be final and—

(i) in England and Wales, shall be enforceable, in so far as it includes such provision as to costs or expenses, as if it were a judgment of the county court;

(ii) in Scotland, shall be enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.

(6) In including in an order under this section any such provision as to costs or expenses as is mentioned in subsection (5) above, the person making the order shall have regard to the conduct and means of the parties and any other relevant circumstances.

[F342 (7) Section 16(4)(a) does not apply to the references in this section to making a connection.]

Textual Amendments

F334 S. 23(1)(1A)-(1C)(2) substituted for s. 23(1)(2) (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 26(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F335 S. 23(1ZA) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(6)(a), 57(7)(c); S.I. 2017/108, reg. 2

F336 Words in s. 23(1A)(a) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(7) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F337 Words in s. 23(1A)(a)(ii) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(7) (with art. 5)

F338 S. 23(1D) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(6)(b), 57(7)(c); S.I. 2017/108, reg. 2

F339 S. 23(2A) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(6)(c), 57(7)(c); S.I. 2017/108, reg. 2

F340 Word in s. 23(4) inserted (6.4.2017) by Infrastructure Act 2015 (c. 7), ss. 52(6)(d), 57(7)(c); S.I. 2017/108, reg. 2

F341 S. 23(4A) inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 26(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F342 S. 23(7) inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 26(4); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C52 S. 23 applied (with modifications) (1.10.2001) by S.I. 2001/3266, arts. 1(2), 6(3)

C53 S. 23 applied (1.10.2001) by S.I. 2001/3266, arts. 1(2), 11(3)

24 The public electricity supply code. E+W+S

The provisions of Schedule 6 to this Act (which relate to the [F343 distribution and supply of electricity]) shall have effect.

Textual Amendments

F343 Words in s. 24 substituted (1.10.2001) by 2000 c. 27, s. 51(1); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

[F344 Enforcement of obligations of regulated persons] E+W+S

Textual Amendments

F344 S. 25 cross-heading substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(2)

25 Orders for securing compliance. E+W+S

(1) Subject to subsections (2)[F345 , [F346 (4A) to] (5A)] and section 26 below, where [F347 the Authority] is satisfied that a [F348 regulated person] is contravening, or is likely to contravene, any relevant condition or requirement, [F349 it] shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

(2) Subject to [F350 subsections [F346 (4A) to] (5A)] below, where it appears to [F347 the Authority]—

(a) that a [F348 regulated person] is contravening, or is likely to contravene, any relevant condition or requirement; and

(b) that it is requisite that a provisional order be made,

[F349 it] shall (instead of taking steps towards the making of a final order) by a provisional order make such provision as appears to him requisite for the purpose of securing compliance with that condition or requirement.

(3) In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional order be made, [F347 the Authority] shall have regard, in particular—

(a) to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of the relevant condition or requirement, is likely to be done, or omitted to be done, before a final order may be made; and

(b) to the fact that the effect of the provisions of this section and section 27 below is to exclude the availability of any remedy (apart from under those provisions or for negligence) in respect of any contravention of a relevant condition or requirement.

(4) Subject to [F350 subsections [F351 (4A) to] (5A)] and section 26 below, [F347 the Authority] shall confirm a provisional order, with or without modifications, if—

(a) [F349 it] is satisfied that the [F348 regulated person] to whom the order relates is contravening, or is likely to contravene, any relevant condition or requirement; and

(b) the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.

[F352 (4A) Before making a final order or making or confirming a provisional order, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998.

(4B) The Authority shall not make a final order or make or confirm a provisional order if it considers that it would be more appropriate to proceed under the Competition Act 1998.]

(5) [F347 the Authority] shall not make a final order or make or confirm a provisional order in relation to a [F348 regulated person] if [F349 it] is satisfied—

(a) that the duties imposed on him by section [F353 3A to 3C] preclude the making or, as the case may be, the confirmation of the order;

F354 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F354 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F355 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F356 (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 [F348 regulated person] 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 [F348 regulated person] 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) Where [F347 the Authority] [F357 decides that it would be more appropriate to proceed under the Competition Act 1998 or ] is satisfied as mentioned in [F350 subsections (5) [F358 or] (5A)] above, [F349 it] shall—

(a) serve notice that [F349 it] [F359 has so decided or] is so satisfied on the [F348 regulated person]; and

(b) publish the notice in such manner as [F349 it] considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(7) A final or provisional order—

(a) shall require the [F348 regulated person] to whom it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;

(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and

(c) may be revoked at any time by [F347 the Authority].

(8) In this Part—

• “final order” means an order under this section other than a provisional order;

• “provisional order” means an order under this section which, if not previously confirmed in accordance with subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order;

• [F360 “regulated person” means a person who is one or more of the following—

  (a)

  a licence holder;

  (b)

  a distribution exemption holder;

  (c)

  a supply exemption holder;

  (d)

  an electricity undertaking which is a relevant producer or supplier;]

  (e)

  F361 ...

• “relevant condition”, in relation to a [F348 regulated person], means any condition of [F362 any licence held by that person];

• “relevant requirement”, in relation to a [F348 regulated person],

• (a)

  [F363 means any duty or other requirement imposed on [F364 that person under a provision specified in Schedule 6A as a relevant provision in respect of that person]] F365 ...

  (b)

  F365 ...

[F366 (9) In paragraph (a) of the definition of “relevant requirement” in subsection (8), the reference to a provision specified in Schedule 6A is to be treated as including a provision of the predecessor of the Electricity Regulation that was specified in that Schedule immediately before the coming into force of the Electricity and Gas (Internal Markets) Regulations 2020.]

Textual Amendments

F345 Words in s. 25(1) substituted (1.10.2001) by 2000 c. 27, s. 60(2)(7); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F346 Words in s. 25(1)(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 5(2); S.I. 2014/416, art. 2(1)(e) (with Sch.)

F347 Words substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F348 Words in s. 25 substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(a)

F349 Word substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F350 Words in s. 25(2)(4)(6) substituted (1.10.2001) by 2000 c. 27, s. 60(3)(7); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F351 Words in s. 25(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 5(2); S.I. 2014/416, art. 2(1)(e) (with Sch.)

F352 S. 25(4A)(4B) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 5(3); S.I. 2014/416, art. 2(1)(e) (with Sch.)

F353 Words in s. 25(5)(a) substituted (20.12.2000) by 2000 c. 27, ss. 108, 110(2), Sch. 6 Pt. II para. 27; S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F354 S. 25(5)(b)(c) repealed (1.10.2001) by 2000 c. 27, ss. 60(4)(7), 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F355 S. 25(5)(d) and word omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 5(4); S.I. 2014/416, art. 2(1)(e) (with Sch.)

F356 S. 25(5A) inserted (1.10.2001) by 2000 c. 27, s. 60(5)(7); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F357 Words in s. 25(6) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 5(5)(a); S.I. 2014/416, art. 2(1)(e) (with Sch.)

F358 Word in s. 25(6) substituted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 7 para. 9; S.I. 2008/2550, art. 2, Sch.

F359 Words in s. 25(6)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 5(5)(b); S.I. 2014/416, art. 2(1)(e) (with Sch.)

F360 Words in s. 25(8) inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(4)(a)

F361 Words in s. 25(8) omitted (31.12.2020) by virtue of S.I. 2019/530, reg. 54(a) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(22))

F362 Words in s. 25(8) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(4)(b)

F363 Words in s. 25(8) substituted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(7)(a)(i)

F364 Words in s. 25(8) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(4)(c)

F365 Words in s. 25(8) omitted (31.12.2020) by virtue of S.I. 2019/530, reg. 54(b) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(22))

F366 S. 25(9) inserted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(7)(b)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C57 S. 25: power to amend conferred (18.12.2013) by Energy Act 2013 (c. 32), ss. 38(c), 156(3)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

26 Procedural requirements. E+W+S

(1) Before he makes a final order or confirms a provisional order, the Director shall give notice—

(a) stating that he proposes to make or confirm the order and setting out its effect;

(b) setting out—

(i) the relevant condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed;

(ii) the acts or omissions which, in his opinion, constitute or would constitute contraventions of that condition or requirement; and

(iii) the other facts which, in his opinion, justify the making or confirmation of the order; and

(c) specifying the period (not being less than [F367 21] days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) A notice under subsection (1) above shall be given—

(a) by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b) by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the [F368 regulated person] to whom the order relates.

(3) The Director shall not make a final order with modifications, or confirm a provisional order with modifications, except—

(a) with the consent to the modifications of the [F368 regulated person] to whom the order relates; or

(b) after complying with the requirements of subsection (4) below.

(4) The requirements mentioned in subsection (3) above are that the Director shall—

(a) serve on the [F368 regulated person] to whom the order relates such notice as appears to him requisite of his proposal to make or confirm the order with modifications;

(b) in that notice specify the period (not being less than [F367 21] days from the date of the service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(c) consider any representations or objections which are duly made and not withdrawn.

(5) As soon as practicable after making a final order or making or confirming a provisional order, the Director shall—

(a) serve a copy of the order on the [F368 regulated person] to whom the order relates; and

(b) publish the order in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(6) Before revoking a final order or a provisional order which has been confirmed, the Director shall give notice—

(a) stating that he proposes to revoke the order and setting out its effect; and

(b) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7) If, after giving a notice under subsection (6) above, the Director decides not to revoke the order to which the notice relates, he shall give notice of his decision.

(8) A notice under subsection (6) or (7) above shall be given—

(a) by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b) by serving a copy of the notice on the [F368 regulated person] to whom the order relates.

Textual Amendments

F367 Words in s. 26(1)(c)(4)(b) substituted (1.10.2001) by 2000 c. 27, s. 60(6)(7); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F368 Words in s. 26 substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(b)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27 Validity and effect of orders. E+W+S

(1) If the [F369 regulated person] to whom a final or provisional order relates is aggrieved by the order and desires to question its validity on the ground—

(a) that its making or confirmation was not within the powers of section 25 above; or

(b) that any of the requirements of section 26 above have not been complied with in relation to it,

he may, within 42 days from the date of service on him of a copy of the order, make an application to the court under this section.

(2) On any such application the court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the [F369 regulated person] have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.

(3) Except as provided by this section, the validity of a final or provisional order shall not be questioned by any legal proceedings whatever.

(4) The obligation to comply with a final or provisional order shall be a duty owed to any person who may be affected by a contravention of the order.

(5) Where a duty is owed by virtue of subsection (4) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.

(6) In any proceedings brought against a [F369 regulated person] in pursuance of subsection (5) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the order.

(7) Without prejudice to any right which any person may have by virtue of subsection (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of a final or provisional order, compliance with any such order shall be enforceable by civil proceedings by the Director for an injunction or for interdict or for any other appropriate relief.

(8) In this section and section 28 below “the court” means the High Court in relation to England and Wales and the Court of Session in relation to Scotland.

[F370 (9) Subsections (1) to (3) do not apply in the case of a final or provisional order that relates to a relevant condition imposed by the exercise of the power in section 18(1) of the Energy Act 2010 (prevention of exploitation of electricity trading and transmission arrangements).

(10) For provision about appeals relating to such orders, see section 20 of the Energy Act 2010.]

Textual Amendments

F369 Words in s. 27 substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(c)

F370 S. 27(9)(10) inserted (16.7.2012) by Energy Act 2010 (c. 27), s. 38(2)(b), Sch. para. 7; S.I. 2012/1841, art. 2(b)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

[F371 27A Penalties. E+W+S

(1) Where the Authority is satisfied that a [F372 regulated person]—

(a) has contravened or is contravening any relevant condition or requirement; or

(b) has failed or is failing to achieve any standard of performance prescribed under section 39 or 39A,

the Authority may, subject to section 27C, impose on the [F372 regulated person] a penalty of such amount as is reasonable in all the circumstances of the case.

[F373 (2) Before imposing a penalty on a regulated person under subsection (1), the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998.

(2A) The Authority shall not impose a penalty on a regulated person under subsection (1) if it considers that it would be more appropriate to proceed under the Competition Act 1998.]

(3) Before imposing a penalty on a [F372 regulated person] under subsection (1) the Authority shall give notice—

(a) stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;

(b) setting out the relevant condition or requirement or the standard of performance in question;

(c) specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of a penalty and the amount of the penalty proposed; and

(d) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) Before varying any proposal stated in a notice under subsection (3)(a) the Authority shall give notice—

(a) setting out the proposed variation and the reasons for it; and

(b) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) As soon as practicable after imposing a penalty, the Authority shall give notice—

(a) stating that it has imposed a penalty on the [F372 regulated person] and its amount;

(b) setting out the relevant condition or requirement or the standard of performance in question;

(c) specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of the penalty and its amount; and

(d) specifying a date, no earlier than the end of the period of 42 days from the date of service of the notice on the [F372 regulated person], by which the penalty is required to be paid.

(6) The [F372 regulated person] may, within 21 days of the date of service on him of a notice under subsection (5), make an application to the Authority for it to specify different dates by which different portions of the penalty are to be paid.

(7) Any notice required to be given under this section shall be given—

(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;

(b) by serving a copy of the notice on the [F372 regulated person]; F374 ...

[F375 (c) by serving a copy of the notice on Citizens Advice; and

(d) by serving a copy of the notice on [F376 Consumer Scotland].]

[F377 (8A) This section is subject to section 27O (maximum amount of penalty or compensation that may be imposed).]

(10) Any sums received by the Authority by way of penalty under this section shall be paid into the Consolidated Fund.

(11) The power of the Authority under subsection (1) is not exercisable in respect of any contravention or failure before the commencement of section 59 of the Utilities Act 2000.]

Textual Amendments

F371 Ss. 27A-27F inserted (20.12.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 59(1); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F372 Words in s. 27A substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(d)

F373 S. 27A(2)(2A) substituted for s. 27A(2) (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 6; S.I. 2014/416, art. 2(1)(e) (with Sch.)

F374 Word in s. 27A(7)(b) omitted (1.4.2014) by virtue of The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(8)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F375 S. 27A(7)(c)(d) substituted for s. 27A(7)(c) (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(8)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F376 Words in s. 27A(7)(d) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(8) (with art. 5)

F377 S. 27A(8A) substituted for s. 27A(8)(9) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(3) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

C59 S. 27A(10) applied (16.7.2012) by Energy Act 2010 (c. 27), ss. 21(7)(b), 38(2)(a); S.I. 2012/1841, art. 2(a)

[F378 27B Statement of policy with respect to penalties. E+W+S

(1) The Authority shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.

(2) In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention or failure the Authority shall have regard to its statement of policy most recently published at the time when the contravention or failure occurred.

(3) The Authority may revise its statement of policy and where it does so shall publish the revised statement.

(4) Publication under this section shall be in such manner as the Authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.

(5) The Authority shall undertake such consultation as it considers appropriate when preparing or revising its statement of policy.]

Textual Amendments

F378 Ss. 27A-27F inserted (20.12.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 59(1); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

[F379 27C Time limits on the imposition of financial penalties. E+W+S

(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 [F380 five years] 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 [F381 regulated person] under section 27A(7), or

(b) a notice relating to the contravention or failure is served on the [F381 regulated person] 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 [F381 regulated person] 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.]

Textual Amendments

F379 Ss. 27A-27F inserted (20.12.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 59(1); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F380 Words in s. 27C(1) substituted (8.6.2010) by Energy Act 2010 (c. 27), ss. 24(2), 38(3) (with s. 24(3))

F381 Words in s. 27C substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(e)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

[F382 27D Interest and payment of instalments. E+W+S

(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 M4 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.]

Textual Amendments

F382 Ss. 27A-27F inserted (20.12.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 59(1); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

Marginal Citations

M4 1838 c. 110.

[F384 27E Appeals [F383 against penalties]. E+W+S

(1) If the [F385 regulated person] 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 [F385 regulated person] 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 [F385 regulated person] of a notice under section 27A(5), or

(b) where the application relates to a decision of the Authority on an application by the [F385 regulated person] under section 27A(6), within 42 days from the date the [F385 regulated person] 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 [F385 regulated person] 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.

[F386 (10) This section does not apply in the case of a penalty that relates to a relevant condition imposed by the exercise of the power in section 18(1) of the Energy Act 2010 (prevention of exploitation of electricity trading and transmission arrangements).

(11) For provision about appeals relating to such penalties, see section 21 of the Energy Act 2010.]]

Textual Amendments

F383 Words in s. 27E heading inserted (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(4)

F384 Ss. 27A-27F inserted (20.12.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 59(1); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F385 Words in s. 27E substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(f)

F386 S. 27E(10)(11) inserted (16.7.2012) by Energy Act 2010 (c. 27), s. 38(2)(b), Sch. para. 8; S.I. 2012/1841, art. 2(b)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

[F387 27F Recovery of penalties. E+W+S

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 [F388 regulated person], as a civil debt due to it, any of the penalty and any interest which has not been paid.]

Textual Amendments

F387 Ss. 27A-27F inserted (20.12.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 59(1); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F388 Words in s. 27F substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(g)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

[F389 27G Consumer redress orders E+W+S

(1) This section applies where the Authority is satisfied that—

(a) a regulated person has contravened, or is contravening, any relevant condition or requirement, and

(b) as a result of the contravention, one or more consumers have suffered loss or damage or been caused inconvenience.

(2) The Authority may make an order (a “consumer redress order”) requiring the regulated person to do such things as appear to the Authority necessary for the purposes of—

(a) remedying the consequences of the contravention, or

(b) preventing a contravention of the same or a similar kind from being repeated.

(3) A consumer redress order must specify the following—

(a) the regulated person to whom the order applies;

(b) the contravention in respect of which the order is made;

(c) the affected consumers, or a description of such consumers;

(d) the requirements imposed by the order;

(e) the date by which the regulated person must comply with such requirements.

(4) As soon as practicable after making a consumer redress order, the Authority must—

(a) serve a copy of the order on the regulated person to whom the order applies, and

(b) either—

(i) serve a copy of the order on each affected consumer, or

(ii) publish the order in such manner as the Authority considers appropriate for the purpose of bringing it to the attention of affected consumers.

(5) The date specified in a consumer redress order under subsection (3)(e) may not be earlier than the end of the period of 7 days from the date of the service of a copy of the order on the regulated person.

(6) Different dates may be specified under subsection (3)(e) in relation to different requirements imposed by the order.

(7) This section is subject to sections 27H to 27O.

(8) In this section and in sections 27H to 27O—

• “affected consumers”, in relation to a consumer redress order (or proposed order), are those consumers that the Authority is satisfied have suffered loss or damage, or been caused inconvenience, as a result of the contravention in respect of which the order is (or would be) made;

• “consumers” means consumers in relation to electricity conveyed by distribution systems or transmission systems;

• “consumer redress order” means an order under subsection (2).

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27H Remedial action under a consumer redress order E+W+S

(1) The things mentioned in section 27G(2) that a regulated person may be required to do under a consumer redress order (“the required remedial action”) include, in particular—

(a) paying an amount to each affected consumer by way of compensation for the loss or damage suffered, or for the inconvenience caused, as a result of the contravention;

(b) preparing and distributing a written statement setting out the contravention and its consequences;

(c) terminating or varying any contracts entered into between the regulated person and affected consumers.

(2) Where the required remedial action includes the payment of compensation, the order must specify—

(a) the amount of compensation to be paid, and

(b) the affected consumers, or a description of such consumers, to whom it is to be paid.

(3) Where the required remedial action includes the preparation and distribution of a statement, the order may specify the information to be contained in the statement and the form and manner in which it is to be distributed.

(4) The manner so specified may in particular include—

(a) sending a copy of the statement to each affected consumer;

(b) publishing the statement in such manner as the Authority considers appropriate for the purpose of bringing the statement to the attention of those consumers.

(5) Where the required remedial action includes the termination or variation of a contract with an affected consumer—

(a) the order may specify the terms on which the contract is to be terminated or the way in which it is to be varied,

(b) the requirement has effect only if, and to the extent that, the affected consumer consents to the termination of the contract on those terms or to its variation in that way, and

(c) the order may specify the steps to be taken by the regulated person for the purpose of enabling the affected consumer to give such consent.

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27I Other procedural requirements in relation to consumer redress orders E+W+S

(1) Before making a consumer redress order the Authority must give notice stating that it proposes to make the order.

(2) A notice under subsection (1) must specify—

(a) the regulated person to whom the order will apply,

(b) the contravention in respect of which the order is to be made,

(c) the affected consumers, or a description of such consumers,

(d) the requirements to be imposed by the order and the period within which such requirements are to be complied with, and

(e) the time (not being less than 21 days from the relevant date) by which representations or objections with respect to the proposed order may be made,

and the Authority must consider any representations or objections which are duly made and not withdrawn.

(3) Before varying any proposal stated in a notice under subsection (1) the Authority must give notice specifying—

(a) the proposed variation and the reasons for it, and

(b) the time (not being less than 21 days from the relevant date) by which representations or objections with respect to the proposed variation may be made,

and the Authority must consider any representations or objections which are duly made and not withdrawn.

(4) Before revoking a consumer redress order the Authority must give notice—

(a) stating that it proposes to revoke the order and the reasons for doing so, and

(b) specifying the time (not being less than 21 days from the relevant date) within which representations or objections to the proposed revocation may be made,

and the Authority must consider any representations or objections which are duly made and not withdrawn.

(5) A notice required to be given under this section is to be given—

(a) by serving a copy of the notice on the regulated person, and

(b) either—

(i) by serving a copy of the notice on each affected consumer, or

(ii) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of affected consumers.

(6) The “relevant date”, in relation to a notice under this section, is—

(a) in a case where the notice is published in accordance with subsection (5)(b)(ii), the date on which it is published;

(b) in any other case, the latest date on which a copy of the notice is served in accordance with subsection (5)(a) and (b)(i).

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27J Statement of policy with respect to consumer redress orders E+W+S

(1) The Authority must prepare and publish a statement of policy with respect to—

(a) the making of consumer redress orders, and

(b) the determination of the requirements to be imposed by such orders (including, in particular, the considerations the Authority will have regard to in determining such requirements).

(2) The Authority must have regard to its current statement of policy—

(a) in deciding whether to make a consumer redress order in respect of a contravention, and

(b) in determining the requirements to be imposed by any such order.

(3) The Authority may revise its statement of policy and, where it does so, must publish the revised statement.

(4) Publication under this section is to be in such manner as the Authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.

(5) The Authority must consult such persons as it considers appropriate when preparing or revising its statement of policy.

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27K Time limits for making consumer redress orders E+W+S

(1) Where no final or provisional order has been made in relation to a contravention, the Authority may not give a consumer redress order in respect of the contravention later than the end of the period of 5 years from the time of the contravention.

(2) Subsection (1) does not apply if before the end of that period—

(a) the notice under section 27I(1) relating to the order is served on the regulated person, or

(b) a notice relating to the contravention is served on the regulated person under section 28(2).

(3) Where a final or provisional order has been made in relation to a contravention, the Authority may give a consumer redress order in respect of the contravention only if the notice relating to the consumer redress order under section 27I(1) is served on the regulated person—

(a) within 3 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 6 months from the making of the provisional order.

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27L Enforcement of consumer redress orders E+W+S

(1) Compliance with a consumer redress order is enforceable by civil proceedings by the Authority—

(a) for an injunction or interdict,

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or

(c) for any other appropriate remedy or relief.

(2) Proceedings under subsection (1) are to be brought—

(a) in England and Wales, in the High Court, or

(b) in Scotland, in the Court of Session.

(3) The obligation of a regulated person to comply with a consumer redress order is a duty owed to any person who may be affected by a contravention of the order.

(4) Without limiting the Authority's right to bring civil proceedings under subsection (1), a duty owed to any person (“P”) by virtue of subsection (3) may be enforced by civil proceedings by P for any appropriate remedy or relief.

(5) For the purposes of subsection (4), the duty owed to P may in particular be enforced by P as if it were contained in a contract between P and the regulated person who owes the duty.

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27M Appeals against consumer redress orders E+W+S

(1) A regulated person in respect of whom a consumer redress order is made may make an application to the court under this section if the person is aggrieved by—

(a) the making of the order, or

(b) any requirement imposed by the order.

(2) An application under subsection (1) must be made within 42 days from the date of service on the regulated person of a copy of the order under section 27G(4)(a).

(3) On an application under subsection (1) the court may—

(a) quash the order or any provision of the order, or

(b) vary any such provision in such manner as the court considers appropriate.

(4) The court may exercise the powers under subsection (3) only if it considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the following grounds—

(a) that the making of the order was not within the power of the Authority under section 27G;

(b) that any of the requirements under sections 27G(4) and 27I have not been complied with in relation to the making of the order and the interests of the regulated person have been substantially prejudiced by the non-compliance;

(c) that it was unreasonable of the Authority to require something to be done under the order (whether at all or in accordance with the provisions of the order).

(5) If an application is made under this section in relation to a consumer redress order, a requirement imposed by the order does not need to be carried out in accordance with the order until the application has been determined.

(6) Where the court substitutes a lesser amount of compensation for an amount required by the Authority in a consumer redress order, it may require the payment of interest on the substituted amount at such rate, and from such date, as it considers just and equitable.

(7) Where the court specifies as a date by which any compensation under a consumer redress order is to be paid a date before the determination of the application under this section, it may require the payment of interest on the amount from that date at such rate as it considers just and equitable.

(8) Except as provided by this section, the validity of a consumer redress order is not to be questioned by any legal proceedings whatever.

(9) In this section “the court” means—

(a) in relation to England and Wales, the High Court;

(b) in relation to Scotland, the Court of Session.

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27N Consumer redress orders: miscellaneous E+W+S

(1) If—

(a) compensation is required to be paid under a consumer redress order, and

(b) it is not paid by the date by which it is required to be paid in accordance with the order,

the unpaid balance from time to time carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838.

(2) The Authority may not make a consumer redress order where it is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.

(3) The Authority's power to make a consumer redress order as a result of a contravention of a relevant condition or requirement is not to be taken as limiting the Authority's power to impose a penalty under section 27A in relation to the same contravention (whether instead of, or in addition to, making a consumer redress order).

(4) The power of the Authority to make a consumer redress order is not exercisable in respect of any contravention before the coming into force of Schedule 14 to the Energy Act 2013.

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

27O Maximum amount of penalty or compensation E+W+S

(1) The maximum amount of penalty that may be imposed on a regulated person in respect of a contravention may not exceed 10 per cent of the person's turnover.

(2) The maximum amount of compensation that a regulated person may be required to pay in respect of a contravention may not exceed 10 per cent of the person's turnover.

(3) Subsections (1) and (2) are subject to subsection (4) if, in respect of a contravention, both a penalty is imposed and compensation is required to be paid.

(4) The maximum amount in total of the penalty and compensation combined in respect of the contravention may not exceed 10 per cent of the turnover of the regulated person.

(5) The Secretary of State may by order provide for how a person's turnover is to be determined for the purposes of this section.

(6) An order under subsection (5) may make different provision for penalties and compensation.

(7) An order under subsection (5) 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.

(8) In this section—

• “compensation” means compensation that a regulated person is required to pay by a consumer redress order;

• “penalty” means a penalty imposed on a regulated person under section 27A.]

Textual Amendments

F389 Ss. 27G-27O inserted (E.W.S.) (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(2) (with Sch. 14 para. 2(7))

Modifications etc. (not altering text)

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

28 Power to require information etc. E+W+S

(1) Where it appears to [F390 the Authority that a [F391 regulated person] —

(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 [F392 27O]] as are exercisable in relation to that matter, serve a notice under subsection (2) below on any person.

(2) A notice under this subsection is a notice signed by the Director and—

(a) requiring the person on whom it is served to produce, at a time and place specified in the notice, to the Director or to any person appointed by the Director for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or

(b) requiring that person, if he is carrying on a business, to furnish, at a time and place and in the form and manner specified in the notice, to the Director such information as may be specified or described in the notice.

[F393 (2A) Where a licence has been or is to be revoked or suspended, or has expired or is about to expire by effluxion of time, and it appears to the Authority, having regard to the duties imposed by section 3A, 3B or 3C, to be requisite or expedient to do so for any purpose connected with the revocation, suspension or expiry, the Authority may, with the consent of the Secretary of State, by notice in writing—

(a) require the licence holder to produce, at a time and place specified in the notice, to the Authority, or to any person so specified, any records which are specified or described in the notice and are in the licence holder’s custody or under his control; or

(b) require the licence holder to furnish to the Authority, or to any person specified in the notice, such information as may be specified or described in the notice, and specify the time, the manner and the form in which any such information is to be furnished.]

(3) No person shall be required under this section to produce any documents [F394 or records] which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.

(4) A person who without reasonable excuse fails to do anything required of him by notice under subsection (2) [F395 or (2A)] above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) A person who intentionally alters, suppresses or destroys any document [F396 or record] which he has been required by any notice under subsection (2) [F397 or (2A)] above to produce shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(6) If a person makes default in complying with a notice under subsection (2) [F398 or (2A)] above, the court may, on the application of the Director, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.

Textual Amendments

F390 Words and s. 28(1)(a)(b) substituted for words in s. 28(1) (1.10.2001) by 2000 c. 27, s. 59(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F391 Words in s. 28(1) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 39(3)(h)

F392 Word in s. 28(1) substituted (18.2.2014) by Energy Act 2013 (c. 32), s. 156(2)(h), Sch. 14 para. 2(5)

F393 S. 28(2A) inserted (20.12.2000) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 29(2); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F394 Words in s. 28(3) inserted (20.12.2000) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 29(3); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F395 Words in s. 28(4) inserted (20.12.2000) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 29(4); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F396 Words in s. 28(5) inserted (20.12.2000) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 29(5)(a); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F397 Words in s. 28(5) inserted (20.12.2000) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 29(5)(b); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F398 Words in s. 28(6) inserted (20.12.2000) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 29(6); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

Modifications etc. (not altering text)

C54 Ss. 25-28 applied (1.4.2005) by The Renewables Obligation (Scotland) Order 2005 (S.S.I. 2005/185), arts. 1(1), 18(22)

C55 Ss. 25-28 applied (1.4.2006) by The Renewables Obligation (Scotland) Order 2006 (S.S.I. 2006/173), arts. 1(1), 24(8)

C56 Ss. 25-28 applied (with modifications) (S.) (1.4.2007) by The Renewables Obligation (Scotland) Order 2007 (S.S.I. 2007/267), arts. 1(1), 31

C58 Ss. 25-28 applied (1.12.2015) by The Renewables Obligation Order 2015 (S.I. 2015/1947), arts. 1(2), 74(6)

Provisions with respect to supply generally E+W+S

29 Regulations relating to supply and safety. E+W+S

(1) The Secretary of State may make such regulations as he thinks fit for the purpose of—

(a) securing that supplies of electricity are regular and efficient;

(b) protecting the public from dangers arising from the generation, transmission[F399 , distribution] or supply of electricity, [F400 from the use of electricity interconnectors,] from the use of electricity supplied or from the installation, maintenance or use of any electric line or electrical plant; and

(c) without prejudice to the generality of paragraph (b) above, eliminating or reducing the risks of personal injury, or damage to property or interference with its use, arising as mentioned in that paragraph.

[F401 (1A) Regulations under this section may include provision for securing the purposes mentioned in subsection (1) in relation to the territorial sea adjacent to Great Britain or any Renewable Energy Zone.]

(2) Without prejudice to the generality of subsection (1) above, regulations under this section may—

(a) prohibit the [F402 distribution] or transmission of electricity except by means of a system approved by the Secretary of State;

(b) make provision requiring notice in the prescribed form to be given to the Secretary of State, in such cases as may be specified in the regulations, of accidents and of failures [F403 in the distribution or transmission] of electricity [F404 or in the use of electricity interconnectors];

(c) make provision as to the keeping, by persons authorised by a licence or exemption to [F405 distribute] or [F406 participate in the transmission of] electricity [F407 or to participate in the operation of an electricity interconnector], of maps, plans and sections and as to their production (on payment, if so required, of a reasonable fee) for inspection or copying;

(d) make provision for relieving [F408 electricity distributors from any duty under section 16 or authorising them to disconnect any premises or distribution system] in such cases as may be prescribed;

(e) make provision requiring compliance with notices given by the Secretary of State specifying action to be taken in relation to any electric line or electrical plant, or any electrical appliance under the control of a consumer, for the purpose of—

(i) preventing or ending a breach of regulations under this section; or

(ii) eliminating or reducing a risk of personal injury or damage to property or interference with its use;

(f) provide for particular requirements of the regulations to be deemed to be complied with in the case of any electric line or electrical plant complying with specified standards or requirements;

(g) provide for the granting of exemptions from any requirement of the regulations for such periods as may be determined by or under the regulations.

(3) Regulations under this section may provide that any person—

(a) who contravenes any specified provision of the regulations; or

(b) who does so in specified circumstances,

shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale; but nothing in this subsection shall affect any liability of any such person to pay compensation in respect of any damage or injury which may have been caused by the contravention.

(4) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or the Director of Public Prosecutions.

Textual Amendments

F399 Words in s. 29(1)(b) inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 30(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F400 Words in s. 29(1)(b) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 147(3)(a), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F401 S. 29(1A) inserted (5.10.2004) by Energy Act 2004 (c. 20), ss. 94(1), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

F402 Words in s. 29(2)(a) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 30(3)(a); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F403 Words in s. 29(2)(b) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 30(3)(b); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F404 Words in s. 29(2)(b) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 147(3)(b), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F405 Words in s. 29(2)(c) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 30(3)(c); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F406 Words in s. 29(2)(c) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 10; S.I. 2004/2184, art. 2(2), Sch. 2

F407 Words in s. 29(2)(c) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 147(3)(c), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F408 Words in s. 29(2)(d) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 30(3)(d); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

30 Electrical inspectors. E+W+S

(1) The Secretary of State may appoint competent and impartial persons to be electrical inspectors under this Part.

(2) The duties of an electrical inspector under this Part shall be as follows—

(a) to inspect and test, periodically and in special cases, electric lines and electrical plant belonging to persons authorised by a licence or exemption to generate, [F409 distribute or participate in the transmission of] electricity [F410 or to participate in the operation of electricity interconnectors];

(b) to examine, periodically and in special cases, the generation, transmission[F411 , distribution] or supply of electricity by such persons;

(c) to inspect and test, if and when required by any consumer, any such lines and plant on the consumer’s premises, for the purpose of determining whether any requirement imposed by or under this Part in respect of the lines or plant or the [F412 conveyance of electricity through] them has been complied with; and

(d) such other duties as may be imposed by regulations under this section or as the Secretary of State may determine.

(3) The Secretary of State may by regulations—

(a) prescribe the manner in which and the times at which any duties are to be performed by electrical inspectors;

(b) require persons authorised by a licence or exemption to [F413 carry on licensable activities]—

(i) to furnish electrical inspectors with records or other information; and

(ii) to allow such inspectors access to premises and the use of electrical plant and other facilities;

(c) make provision for relieving [F414 electricity distributors from any duty under section 16 or authorising them to disconnect any premises or distribution system] in such cases as may be prescribed; and

(d) prescribe the amount of the fees which are to be payable to such inspectors.

[F415 (3A) The regulations that may be made under this section include regulations—

(a) imposing duties on electrical inspectors in relation to anything in the territorial sea adjacent to Great Britain or a Renewable Energy Zone; or

(b) making any other provision authorised by this section in relation to activities carried on there.]

(4) Any fees received by electrical inspectors shall be paid to the Secretary of State; and any sums received by him under this subsection shall be paid into the Consolidated Fund.

Textual Amendments

F409 Words in s. 30(2)(a) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 11; S.I. 2004/2184, art. 2(2), Sch. 2

F410 Words in s. 30(2)(a) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 147(4), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F411 Words in s. 30(2)(b) inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 31(2)(b); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F412 Words in s. 30(2)(c) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 31(2)(c); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F413 Words in s. 30(3)(b) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 31(3)(a); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F414 Words in s. 30(3)(c) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 31(3)(b); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F415 S. 30(3A) inserted (5.10.2004) by Energy Act 2004 (c. 20), ss. 94(2), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

31 Use etc. of meters. E+W+S

The provisions of Schedule 7 to this Act (which relate to the use, certification, testing and maintenance of electricity meters) shall have effect.

Protection of public interest E+W+S

[F416 32 The renewables obligation E+W+S

(1) The relevant minister may make a renewables obligation order.

(2) “The relevant minister” means—

(a) in the case of Scotland, the Scottish Ministers,

(b) in any other case, the Secretary of State.

(3) In subsection (2) “Scotland” includes—

(a) so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland, and

(b) a Renewable Energy Zone, or any part of such a Zone, which is designated by order under section 84(5) of the Energy Act 2004 (areas in relation to which Scottish Ministers have functions).

(4) A renewables obligation order is an order which imposes the renewables obligation on each electricity supplier falling within a specified description (a “designated electricity supplier”).

(5) The descriptions of electricity supplier upon which a renewables obligation order may impose the renewables obligation are those supplying electricity to customers in the relevant part of Great Britain, excluding such categories of supplier (if any) as are specified.

(6) The renewables obligation is that the designated electricity supplier must, by each specified day, have produced to the Authority the required number of renewables obligation certificates in respect of the amount of electricity supplied by it during a specified period to customers in the relevant part of Great Britain.

(7) Subsection (6) is subject to sections 32A to 32M.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32A Further provision about the renewables obligation E+W+S

(1) A renewables obligation order may make provision generally in relation to the renewables obligation.

(2) A renewables obligation order may, in particular, specify—

(a) how the number of renewables obligation certificates required to be produced by an electricity supplier in respect of the amount of electricity supplied by it to customers in the relevant part of Great Britain during a specified period is to be calculated;

(b) different obligations for successive periods of time;

(c) that renewables obligation certificates issued in respect of electricity generated—

(i) using specified descriptions of renewable sources,

(ii) by specified descriptions of generating stations,

(iii) in specified ways, or

(iv) in other specified cases or circumstances,

are to count towards discharging an electricity supplier's obligation only up to a specified number, or a specified proportion, of the certificates required to be produced to discharge the obligation;

(d) that a specified number, or a specified proportion, of the renewables obligation certificates produced by an electricity supplier when discharging its renewables obligation must be certificates in respect of electricity generated—

(i) using specified descriptions of renewable sources,

(ii) by specified descriptions of generating station,

(iii) in specified ways, or

(iv) in other specified cases or circumstances;

(e) how the amount of electricity supplied by an electricity supplier to customers in the relevant part of Great Britain during a specified period is to be calculated;

(f) that specified information, or information of a specified nature, is to be given to the Authority;

(g) the form in which such information is to be given and the time by which it is to be given.

(3) A renewables obligation certificate may count once only towards the discharge of the renewables obligation.

(4) Except as provided by a renewables obligation order, a renewables obligation certificate counts towards discharging the renewables obligation regardless of whether the order under which it is issued is made by the Secretary of State or the Scottish Ministers.

(5) A renewables obligation order may specify that the only renewables obligation certificates which count towards discharging the renewables obligation are certificates which are issued—

(a) in respect of electricity supplied to customers in the relevant part of Great Britain, or

(b) in respect of electricity used in a permitted way (within the meaning of section 32B(9) and (10)) in that part of Great Britain.

(6) A renewables obligation order may, in relation to any specified period (“the current period”)—

(a) provide that renewables obligation certificates in respect of electricity supplied in a later period may, when available, be counted towards discharging the renewables obligation for the current period;

(b) provide that renewables obligation certificates in respect 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, or maximum number of, the renewables obligation certificates issued in respect of electricity supplied in any period which may be counted towards discharging the renewables obligation for a different period.

(7) For the purposes of subsection (6) a certificate which certifies that electricity has been used in a permitted way (within the meaning of section 32B(9) and (10)) in a particular period is to be treated as if it were a certificate which certifies that electricity has been supplied in that period.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32B Renewables obligation certificates E+W+S

(1) A renewables obligation order 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 (“a renewables obligation certificate”) to—

(a) the operator of a generating station,

(b) an electricity supplier or a Northern Ireland supplier, or

(c) if the order so provides, a person of any other description specified in the order.

(2) A renewables obligation certificate is to certify—

(a) the matters within subsection (3) or (4), or

(b) if the order provides that a certificate may certify the matters within subsection (5), (6), (7) or (8), the matters within that subsection.

(3) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, 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 by an electricity supplier to customers in Great Britain (or the part of Great Britain stated in the certificate).

(4) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate,

(b) that the generating station in question is not a generating station mentioned in Article 54(1) of the Energy (Northern Ireland) Order 2003, and

(c) that the electricity has been supplied by a Northern Ireland supplier to customers in Northern Ireland.

(5) The matters within this subsection are—

(a) that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate, and

(b) that it has been supplied by an electricity supplier to customers in Great Britain (or the part of Great Britain stated in the certificate).

(6) The matters within this subsection are—

(a) that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate,

(b) that none of them is a generating station mentioned in Article 54(1) of the Energy (Northern Ireland) Order 2003, and

(c) that the electricity has been supplied by a Northern Ireland supplier to customers in Northern Ireland.

(7) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been used in a permitted way.

(8) The matters within this subsection are—

(a) that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been used in a permitted way.

(9) For the purposes of subsections (7) and (8), electricity generated by a generating station, or generating stations, of any description is used in a permitted way if—

(a) it is used in one of the ways mentioned in subsection (10), and

(b) that way is specified in the order as a permitted way—

(i) in relation to all generating stations, or

(ii) in relation to generating stations of that description.

(10) Those ways are—

(a) being consumed by the operator of the generating station or generating stations by which it was generated;

(b) being supplied to customers in Great Britain through a private wire network;

(c) being provided to a distribution system or a transmission system in circumstances in which its supply to customers cannot be demonstrated;

(d) being used, as respects part, as mentioned in one of paragraph (a), (b) or (c) and as respects the remainder—

(i) as mentioned in one of the other paragraphs, or

(ii) as respects part, as mentioned in one of the other paragraphs and as respects the remainder as mentioned in the other;

(e) being used, as respects part, as mentioned in paragraph (a), (b), (c) or (d) and as respects the remainder by being supplied by an electricity supplier to customers in Great Britain or by a Northern Ireland supplier to customers in Northern Ireland, or both.

(11) For the purposes of subsection (10)(b) electricity is supplied through a private wire network if it is conveyed to premises by a system which is used for conveying electricity from a generating station in circumstances where—

(a) the operator of the generating station is exempt from section 4(1)(c) and does not hold a supply licence, and

(b) the electricity is supplied to one or more customers—

(i) by the operator directly, or

(ii) by a person to whom the operator supplies the electricity, being a person who is exempt from section 4(1)(c) and does not hold a supply licence.

(12) In this section “generating station”—

(a) in the case of an order made by the Scottish Ministers, means a generating station which is situated in Scotland;

(b) in the case of an order made by the Secretary of State, means a generating station which is not situated in Scotland.

(13) For this purpose “Scotland” is to be construed in accordance with section 32(3).

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32C Section 32B: supplemental provision E+W+S

(1) A renewables obligation order may provide—

(a) that no renewables obligation certificates are to be issued in respect of electricity generated in specified cases or circumstances, or

(b) that renewables obligation certificates are to be issued in respect of a proportion only of the electricity generated in specified cases or circumstances.

(2) In particular, provision made by virtue of subsection (1) may specify—

(a) electricity generated using specified descriptions of renewable sources,

(b) electricity generated by specified descriptions of generating station, or

(c) electricity generated in specified ways.

(3) Provision made by virtue of subsection (1)(b) may include—

(a) provision about how the proportion is to be determined;

(b) provision about what, subject to such exceptions as may be specified, constitutes sufficient evidence of any matter required to be established for the purpose of determining that proportion;

(c) provision authorising the Authority, in specified circumstances, to require an operator of a generating station to arrange—

(i) for samples of any fuel used (or to be used) in the generating station, or of any gas or other substance produced as a result of the use of such fuel, to be taken by a person, and analysed in a manner, approved by the Authority, and

(ii) for the results of that analysis to be made available to the Authority.

(4) In the case of electricity generated by a generating station fuelled or driven—

(a) partly by renewable sources, and

(b) partly by fossil fuel (other than waste which constitutes a renewable source),

only the proportion attributable to the renewable sources is to be regarded as generated from such sources.

(5) A renewables obligation order may specify—

(a) how the proportion referred to in subsection (4) is to be determined, and

(b) the consequences for the issuing of renewables obligation certificates if a generating station of the type mentioned in that subsection uses more than a specified proportion of fossil fuel during a specified period.

(6) Those consequences may include the consequence that no certificates are to be issued in respect of any of the electricity generated by that generating station during that period.

(7) A renewables obligation order may specify circumstances in which the Authority may revoke a renewables obligation certificate before its production for the purposes of the renewables obligation.

(8) A renewables obligation order must—

(a) prohibit the issue of a renewables obligation certificate certifying matters within section 32B(4) or (6) where the Northern Ireland authority has notified the Authority that it is not satisfied that the electricity in question has been supplied to customers in Northern Ireland, and

(b) require the revocation of such a certificate if the Northern Ireland authority so notifies the Authority at a time between the issue of the certificate and its production for the purposes of the renewables obligation.

(9) References in section 32B and this section to the supply of electricity to customers in Northern Ireland are to be construed in accordance with the definition of “supply” in Article 3 of the Electricity (Northern Ireland) Order 1992.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32D Amounts of electricity specified in certificates E+W+S

(1) A renewables obligation order may specify the amount of electricity to be stated in each renewables obligation certificate, and different amounts may be specified in relation to different cases or circumstances.

(2) In particular, different amounts may be specified in relation to—

(a) electricity generated from different renewable sources;

(b) electricity generated by different descriptions of generating station;

(c) electricity generated in different ways.

(3) In this section “banding provision” means provision made in a renewables obligation order by virtue of subsection (1).

(4) Before making any banding provision, the relevant minister must have regard to the following matters—

(a) the costs (including capital costs) associated with generating electricity from each of the renewable sources or with transmitting or distributing electricity so generated;

(b) the income of operators of generating stations in respect of electricity generated from each of those sources or associated with the generation of such electricity;

(c) the effect of paragraph 19 of Schedule 6 to the Finance Act 2000 (c. 17) (supplies of electricity from renewable sources exempted from climate change levy) in relation to electricity generated from each of those sources;

(d) the desirability of securing the long term growth, and economic viability, of the industries associated with the generation of electricity from renewable sources;

(e) the likely effect of the proposed banding provision on the number of renewables obligation certificates issued by the Authority, and the impact this will have on the market for such certificates and on consumers;

(f) the potential contribution of electricity generated from each renewable source to the attainment of any target which relates to the generation of electricity or the production of energy and is imposed by, or results from or arises out of, [F417 an EU] obligation.

(5) For the purposes of subsection (4)(a), the costs associated with generating electricity from a renewable source include any costs associated with the production or supply of heat produced in connection with that generation.

(6) For the purposes of subsection (4)(b), an operator's income associated with the generation of electricity from a renewable source includes any income connected with—

(a) the acquisition of the renewable source;

(b) the supply of heat produced in connection with the generation;

(c) the disposal of any by-product of the generation process.

(7) After the first order containing banding provision is made by the relevant minister, no subsequent order containing such provision may be made by that minister except following a review held by virtue of subsection (8).

(8) A renewables obligation order—

(a) may authorise the relevant minister to review the banding provision at such intervals as are specified in or determined in accordance with the order, and

(b) may authorise the relevant minister to review the whole or any part of the banding provision at any time when that minister is satisfied that one or more of the specified conditions is satisfied.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

F417 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5))

32E Section 32D: transitional provision and savings E+W+S

(1) This section applies where a renewables obligation order contains banding provision.

(2) The order may provide for the effect of any banding provision made in an earlier order, or of any provision of a pre-commencement order, to continue, in such circumstances as may be specified, in relation to—

(a) the electricity generated by generating stations of such a description as may be specified, or

(b) so much of that electricity as may be determined in accordance with the order.

(3) For the purposes of subsection (2) “pre-commencement order” means an order made under section 32 before the coming into force of this section.

(4) Subsection (6) applies to a generating station in respect of which a statutory grant has been awarded if—

(a) the generating station is of a specified description, or

(b) the circumstances of the case meet specified requirements.

(5) The requirements specified under subsection (4)(b) may relate to the time when the grant was awarded (whether a time before or after the coming into force of this section).

(6) A renewables obligation order which contains banding provision may provide for the operation of that provision in relation to electricity generated by a generating station to which this subsection applies to be conditional upon the operator of the station agreeing—

(a) if the grant or any part of it has been paid, to repay to the Secretary of State the whole or a specified part of the grant or part before the repayment date,

(b) to pay to the Secretary of State interest on an amount repayable under paragraph (a) for such period, and at such rate, as may be determined by the Secretary of State, and

(c) if the grant or any part of it has not yet been paid, to consent to the cancellation of the award of the grant or part.

(7) If the grant in respect of which an amount falls to be paid under paragraph (a) or (b) of subsection (6) was paid by the Scottish Ministers, the references in those paragraphs to the Secretary of State are to be read as references to those Ministers.

(8) For the purposes of subsection (6)—

(a) “the repayment date” means the date specified in or determined in accordance with the order, and

(b) the period for which interest is payable must not begin before the grant was paid or, if the repayment relates to an instalment of the grant, before the instalment was paid;

and, for the purposes of provision made under that subsection, a renewables obligation order may make provision about the cancellation of an award of a statutory grant or an instalment of such a grant.

(9) In this section “statutory grant” means—

(a) a grant awarded under section 5(1) of the Science and Technology Act 1965 (grants to carry on or support scientific research), or

(b) any other grant which is payable out of public funds and awarded under or by virtue of an Act.

(10) This section is without prejudice to section 32K(1)(b) (power for renewables obligation order to include transitional provision and savings).

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32F Use of renewables obligation certificates issued in Northern Ireland E+W+S

(1) A renewables obligation order may provide that—

(a) in such cases as may be specified in the order, and

(b) subject to such conditions as may be so specified,

an electricity supplier may (to the extent provided for in accordance with the order) discharge its renewables obligation (or its obligation in relation to a particular period) by the production to the Authority of a Northern Ireland certificate.

(2) In this section “Northern Ireland certificate” means a certificate issued by the Northern Ireland authority in accordance with provision included, by virtue of [F418 Articles 54 to 54D] of the Energy (Northern Ireland) Order 2003, in an order under Article 52 of that Order (renewables obligations for Northern Ireland suppliers).

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

F418 Words in s. 32F(2) substituted (1.4.2009) by The Energy Act 2008 (Consequential Amendments) Order 2009 (S.I. 2009/556), arts. 1, 2(2)

32G Payment as alternative to complying with renewables obligation order E+W+S

(1) A renewables obligation order may provide—

(a) that an electricity supplier may (in whole or in part) discharge its renewables obligation by making a payment to the Authority before the last discharge day, and

(b) that an electricity supplier's renewables obligation that was not discharged in whole or in part before the last discharge day is to be treated as having been discharged to the extent specified in the order where the payment for which the order provides is made to the Authority before the end of the late payment period.

(2) The order may make provision—

(a) as to the sum which for the purposes of subsection (1) is to correspond to a renewables obligation certificate,

(b) for the sums that must be paid in order for an obligation to be treated as having been discharged to increase at a rate specified in the order for each day after the last discharge day;

(c) for different sums or rates falling within paragraph (a) or (b) in relation to different periods;

(d) for different such sums or rates in relation to electricity generated in different cases or circumstances specified in the order (including those of a kind referred to in section 32A(2)(c));

(e) for any such sum or rate to be adjusted from time to time for inflation by a method specified in the order.

(3) The method specified under subsection (2)(e) may, in particular, refer to a specified scale or index (as it may have effect from time to time) or to other specified data of any description.

(4) A renewables obligation order may provide that, where—

(a) a renewables obligation is one in relation to which provision made by virtue of subsection (1)(b) applies in the case of the electricity supplier who is subject to the obligation, and

(b) the period ending with such day (after the last discharge day) as may be specified in or determined under the order has not expired,

the taking of steps under section 27A in respect of a contravention by that supplier of that obligation is prohibited or otherwise restricted to the extent specified in the order.

(5) A renewables obligation order may provide that, in a case in which the amount received by the Authority, or by the Northern Ireland authority, by way of discharge payments for a period falls short of the amount due in respect of that period, every person who—

(a) was subject to a renewables obligation for the relevant period or for a subsequent period specified in or determined under the order, and

(b) is of a description so specified or determined,

must by the time and in the circumstances so specified or determined make a payment (or further payment) to the Authority of an amount calculated in the manner so specified or determined.

(6) A renewables obligation order may not by virtue of subsection (5) confer an entitlement on the Authority to receive a payment in respect of the shortfall for any period—

(a) in the case of a shortfall in the amount received by the Authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of subsection (4) applies, in one or more cases, to the taking of steps in relation to contraventions of renewables obligations for that period, or

(b) in the case of a shortfall in the amount received by the Northern Ireland authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of a corresponding provision having effect in Northern Ireland applies, in one or more cases, to the taking of steps in relation to contraventions of Northern Ireland obligations for that period.

(7) The provision that may be made by virtue of subsection (5) includes—

(a) provision for the making of adjustments and repayments at times after a requirement to make payments in respect of a shortfall for a period has already arisen, and

(b) provision that sections 25 to 28 are to apply in relation to a requirement imposed by virtue of that subsection on a person who is not a licence holder as if the person were a licence holder.

(8) References in this section to an electricity supplier's renewables obligation include references to its renewables obligation in relation to a particular period.

(9) For the purposes of this section, the amount received by the Authority by way of discharge payments for a period falls short of the amount due in respect of that period if, and to the extent that, the Authority would have received more by way of discharge payments if every renewables obligation for that period, so far as it was not otherwise discharged, had been discharged by payment.

(10) For the purposes of this section the amount received by the Northern Ireland authority by way of discharge payments for a period falls short of the amount due in respect of that period if, and to the extent that, that authority would have received more by way of discharge payments if every Northern Ireland obligation for that period, so far as not otherwise discharged, had been discharged by payment.

(11) In this section—

• “discharge payment”, in relation to a period, means—

  (a)

  a payment by virtue of subsection (1)(a) for discharging (in whole or in part) an electricity supplier's renewables obligation for that period,

  (b)

  so much of a payment by virtue of subsection (1)(b) for securing that such an obligation is treated as discharged to any extent as does not exceed the payment that would have discharged that obligation to the same extent if it had been made before the last discharge day, or

  (c)

  so much of any payment to the Northern Ireland authority as corresponds in relation to a Northern Ireland obligation for that period, to anything falling within paragraph (a) or (b) above;

• “last discharge day” means the day specified as the day by which renewables obligation certificates must be produced for the purposes of section 32(6);

• “late payment period” means such period beginning with the last discharge day as may be specified;

• “Northern Ireland obligation” means a renewables obligation of a Northern Ireland supplier under Article 52 of the Energy (Northern Ireland) Order 2003;

• “the relevant period”—

  (a)

  in relation to a shortfall in amounts received by the Authority by way of discharge payments for a period, means that period, and

  (b)

  in relation to a shortfall in amounts received by the Northern Ireland authority by way of discharge payments for a period, means any period that includes the whole or a part of that period.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32H Allocation of amounts to electricity suppliers E+W+S

(1) The amounts received by the Authority by virtue of section 32G must be paid by it to electricity suppliers in accordance with a system of allocation specified in a renewables obligation order.

(2) Subsection (1) does not apply to those amounts to the extent that they are used by the Authority under section 32I.

(3) The system of allocation specified in the order may provide for payments to specified categories of electricity supplier only.

(4) That system may also provide for the postponement of a requirement to make payments to electricity suppliers of amounts received by the Authority under section 32G(1)(b) if, at the time the payments would otherwise fall to be made, the aggregate of the amounts so received (and not used under section 32I or already paid under subsection (1)) is less than an amount specified in the order.

(5) The references in this section to electricity suppliers include references to Northern Ireland suppliers.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32I Costs of the Authority and the Northern Ireland authority E+W+S

(1) A renewables obligation order may provide for amounts received by the Authority by virtue of section 32G to be used by the Authority—

(a) to make payments into the Consolidated Fund in respect of costs (or a proportion of costs) which have been or are expected to be incurred by the Authority in connection with the performance of its functions conferred by or under sections 32 to 32M, or

(b) to make payments to the Northern Ireland authority in respect of costs (or a proportion of costs) which have been or are expected to be incurred by that authority in connection with the performance of its functions conferred by or under Articles 52 to [F419 55F] of the Energy (Northern Ireland) Order 2003.

(2) A renewables obligation order—

(a) may exclude amounts of a specified description from being used as mentioned in subsection (1);

(b) may prevent the Authority using amounts to make payments in respect of costs of a specified description.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

F419 Word in s. 32I(1)(b) substituted (1.4.2009) by The Energy Act 2008 (Consequential Amendments) Order 2009 (S.I. 2009/556), arts. 1, 2(3)

32J Information E+W+S

(1) A renewables obligation order may provide for the Authority to require—

(a) an electricity supplier to provide the Authority with information, or with information of a particular kind, which in the Authority's opinion is relevant to the question whether the supplier is discharging, or has discharged, its renewables obligation;

(b) a person to provide the Authority with information, or with information of a particular kind, which in the Authority's opinion is relevant to the question whether a renewables obligation certificate is, or was or will in future be, required to be issued to the person.

(2) That information must be given to the Authority in whatever form it requires.

(3) A renewables obligation order may—

(a) require operators of generating stations generating electricity (wholly or partly) from biomass to give specified information, or information of a specified kind, to the Authority;

(b) specify what, for this purpose, constitutes “biomass”;

(c) require the information to be given in a specified form and within a specified period;

(d) authorise or require the Authority to postpone the issue of certificates under section 32B to the operator of a generating station who fails to comply with a requirement imposed by virtue of paragraph (a) or (c) until such time as the failure is remedied;

(e) authorise or require the Authority to refuse to issue certificates to such a person or to refuse to issue them unless the failure is remedied within a prescribed period.

(4) The Authority may publish information obtained by virtue of subsection (3).

(5) No person is required by virtue of this section to provide any information which the person could not be compelled to give in evidence in civil proceedings in the High Court or, in Scotland, the Court of Session.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

32K Renewables obligation order: general provision E+W+S

(1) A renewables obligation order may—

(a) make further provision as to the functions of the Authority in relation to the matters dealt with by the order;

(b) make transitional provision and savings;

(c) provide for anything falling to be calculated or otherwise determined under the order to be calculated or determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons, as may be specified in the order;

(d) make different provision for different cases or circumstances.

(2) Provision made by virtue of subsection (1)(b) may, in particular, include provision about the treatment of certificates issued under section 32B before the substitution of that section by section 37 of the Energy Act 2008 [F420 or certificates referred to in section 38(2)(b) of the Energy Act 2008 (Northern Ireland certificates issued under the Energy (Northern Ireland) Order 2003 before 1st April 2009)].

(3) Provision made by virtue of subsection (1)(d) may, in particular, make—

(a) different provision in relation to different suppliers;

(b) different provision in relation to generating stations of different descriptions;

(c) different provision in relation to different localities.

(4) In subsection (3) “supplier” means an electricity supplier or a Northern Ireland supplier.

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

F420 Words in s. 32K(2) inserted (1.4.2009) by The Energy Act 2008 (Consequential Amendments) Order 2009 (S.I. 2009/556), arts. 1, 2(4)

32L Renewables obligation orders: procedure E+W+S

(1) Before making a renewables obligation order, the relevant minister must consult—

(a) the Authority,

(b) [F421 Citizens Advice,

(ba) [F422 Consumer Scotland],]

(c) the electricity suppliers to whom the proposed order would apply,

(d) such generators of electricity from renewable sources as the relevant minister considers appropriate, and

(e) such other persons, if any, as the relevant minister considers appropriate.

(2) A renewables obligation order is not to be made by the Secretary of State unless a draft of the instrument containing it has been laid before and approved by a resolution of each House of Parliament.

(3) A renewables obligation order is not to be made by the Scottish Ministers unless a draft of the instrument containing it has been laid before and approved by a resolution of the Scottish Parliament.]

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

F421 S. 32L(1)(b)(ba) substituted for s. 32L(1)(b) (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(9) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F422 Words in s. 32L(1)(ba) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(9) (with art. 5)

[F423 32LA Renewables obligation closure order E+W+S

(1) The Secretary of State may make a renewables obligation closure order.

(2) A renewables obligation closure order is an order which provides that no renewables obligation certificates are to be issued under a renewables obligation order in respect of electricity generated after a specified date.

(3) Provision made under subsection (2) may specify different dates in relation to different cases or circumstances.

(4) The cases or circumstances mentioned in subsection (2) may in particular be described by reference to—

(a) accreditation of a generating station, or

(b) the addition of generating capacity to a generating station.

(5) A renewables obligation closure order may include provision about—

(a) the meaning of “accreditation” and “generating capacity” in subsection (4);

(b) when generating capacity is to be treated as added to a generating station for the purposes of that subsection.

(6) References in this section to a renewables obligation order are references to any renewables obligation order made under section 32 (whenever made, and whether or not made by the Secretary of State).

(7) Power to make provision in a renewables obligation order (and any provision contained in such an order) is subject to provision contained in a renewables obligation closure order; but this section is not otherwise to be taken as affecting power to make provision in a renewables obligation order of the kind mentioned in subsection (2).

(8) Section 32K applies in relation to a renewables obligation closure order as it applies in relation to a renewables obligation order (and subsection (3) above is not to be taken as limiting the application of that section).

Textual Amendments

F423 Ss. 32LA, 32LB inserted (E.W.S.) (18.12.2013) by Energy Act 2013 (c. 32), ss. 55(1), 156(3)

32LB Renewables obligation closure orders: procedure E+W+S

(1) Before making a renewables obligation closure order, the Secretary of State must consult—

(a) the Authority,

(b) the Council,

(c) such generators of electricity from renewable sources as the Secretary of State considers appropriate, and

(d) such other persons, if any, as the Secretary of State considers appropriate.

(2) The requirement to consult may be satisfied by consultation before, as well as consultation after, the passing of the Energy Act 2013.

(3) A renewables obligation closure order is not to be made unless a draft of the instrument containing it has been laid before and approved by a resolution of each House of Parliament.]

Textual Amendments

F423 Ss. 32LA, 32LB inserted (E.W.S.) (18.12.2013) by Energy Act 2013 (c. 32), ss. 55(1), 156(3)

[F424 32LC Onshore wind generating stations: closure of renewables obligation E+W+S

(1) No renewables obligation certificates are to be issued under a renewables obligation order in respect of electricity generated after the onshore wind closure date by an onshore wind generating station.

(2) Subsection (1) does not apply to electricity generated in the circumstances set out in any one or more of sections 32LD to 32LL.

(3) In this section and sections 32LD to 32LL—

• “the onshore wind closure date” means the date on which the Energy Act 2016 is passed;

• “onshore wind generating station” means a generating station that—

  (a)

  generates electricity from wind, and

  (b)

  is situated in England, Wales or Scotland, but not in waters in or adjacent to England, Wales or Scotland up to the seaward limits of the territorial sea.

(4) The reference in subsection (1) to a renewables obligation order is to any renewables obligation order made under section 32 (whenever made, and whether or not made by the Secretary of State).

(5) Power to make provision in a renewables obligation order or a renewables obligation closure order (and any provision contained in such an order) is subject to subsection (1) and sections 32LD to 32LL.

(6) This section is not otherwise to be taken as affecting power to make provision in a renewables obligation order or renewables obligation closure order.]

Textual Amendments

F424 S. 32LC inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 79(1), 84(1)

[F425 32LD Onshore wind generating stations accredited, or additional capacity added, on or before the onshore wind closure date E+W+S

The circumstances set out in this section are where the electricity is—

(a) generated by an onshore wind generating station which was accredited on or before the onshore wind closure date, and

(b) generated using—

(i) the original capacity of the station, or

(ii) additional capacity which in the Authority's view first formed part of the station on or before the onshore wind closure date.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LE Onshore wind generating stations accredited, or additional capacity added, in the year after the onshore wind closure date: grid or radar delay condition met E+W+S

The circumstances set out in this section are where the electricity is—

(a) generated using the original capacity of an onshore wind generating station—

(i) which was accredited during the period beginning immediately after the onshore wind closure date and ending with the first anniversary of the onshore wind closure date, and

(ii) in respect of which the grid or radar delay condition is met, or

(b) generated using additional capacity of an onshore wind generating station, where—

(i) the station was accredited on or before the onshore wind closure date,

(ii) in the Authority's view, the additional capacity first formed part of the station during the period beginning immediately after the onshore wind closure date and ending with the first anniversary of the onshore wind closure date, and

(iii) the grid or radar delay condition is met in respect of the additional capacity.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LF Onshore wind generating stations accredited, or additional capacity added, on or before 31 March 2017: approved development condition met E+W+S

The circumstances set out in this section are where the electricity is—

(a) generated using the original capacity of an onshore wind generating station—

(i) which was accredited on or before 31 March 2017, and

(ii) in respect of which the approved development condition is met, or

(b) generated using additional capacity of an onshore wind generating station, where—

(i) the station was accredited on or before the onshore wind closure date,

(ii) in the Authority's view, the additional capacity first formed part of the station on or before 31 March 2017, and

(iii) the approved development condition is met in respect of the additional capacity.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LG Onshore wind generating stations accredited, or additional capacity added, between 1 April 2017 and 31 March 2018: grid or radar delay condition met E+W+S

The circumstances set out in this section are where the electricity is—

(a) generated using the original capacity of an onshore wind generating station—

(i) which was accredited during the period beginning with 1 April 2017 and ending with 31 March 2018,

(ii) in respect of which the approved development condition is met, and

(iii) in respect of which the grid or radar delay condition is met, or

(b) generated using additional capacity of an onshore wind generating station, where—

(i) the station was accredited on or before the onshore wind closure date,

(ii) in the Authority's view, the additional capacity first formed part of the station during the period beginning with 1 April 2017 and ending with 31 March 2018,

(iii) the approved development condition is met in respect of the additional capacity, and

(iv) the grid or radar delay condition is met in respect of the additional capacity.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LH Onshore wind generating stations accredited, or additional capacity added, between 1 April 2017 and 31 January 2018: investment freezing condition met E+W+S

The circumstances set out in this section are where the electricity is—

(a) generated using the original capacity of an onshore wind generating station—

(i) which was accredited during the period beginning with 1 April 2017 and ending with 31 January 2018, and

(ii) in respect of which both the approved development condition and the investment freezing condition are met, or

(b) generated using additional capacity of an onshore wind generating station, where—

(i) the station was accredited on or before the onshore wind closure date,

(ii) in the Authority's view, the additional capacity first formed part of the station during the period beginning with 1 April 2017 and ending with 31 January 2018, and

(iii) both the approved development condition and the investment freezing condition are met in respect of the additional capacity.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LI Onshore wind generating stations accredited, or additional capacity added, between 1 February 2018 and 31 January 2019: grid or radar delay condition met E+W+S

The circumstances set out in this section are where the electricity is—

(a) generated using the original capacity of an onshore wind generating station—

(i) which was accredited during the period beginning with 1 February 2018 and ending with 31 January 2019,

(ii) in respect of which both the approved development condition and the investment freezing condition are met, and

(iii) in respect of which the grid or radar delay condition is met, or

(b) generated using additional capacity of an onshore wind generating station, where—

(i) the station was accredited on or before the onshore wind closure date,

(ii) in the Authority's view, the additional capacity first formed part of the station during the period beginning with 1 February 2018 and ending with 31 January 2019,

(iii) both the approved development condition and the investment freezing condition are met in respect of the additional capacity, and

(iv) the grid or radar delay condition is met in respect of the additional capacity.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LJ The approved development condition E+W+S

(1) This section applies for the purposes of sections 32LF to 32LI.

(2) The approved development condition is met in respect of an onshore wind generating station if the documents specified in subsections (4), (5) and (6) were provided to the Authority with the application for accreditation of the station.

(3) The approved development condition is met in respect of additional capacity if the documents specified in subsections (4), (5) and (6) were provided to the Authority on or before the date on which the Authority made its decision that the additional capacity could form part of an onshore wind generating station.

(4) The documents specified in this subsection are—

(a) evidence that—

(i) planning permission for the station or additional capacity was granted on or before 18 June 2015, and

(ii) any conditions as to the time period within which the development to which the permission relates must be begun have not been breached,

(b) evidence that—

(i) planning permission for the station or additional capacity was refused on or before 18 June 2015, but granted after that date following an appeal or judicial review, and

(ii) any conditions as to the time period within which the development to which the permission relates must be begun have not been breached,

(c) evidence that—

(i) an application for 1990 Act permission or 1997 Act permission was made on or before 18 June 2015 for the station or additional capacity,

(ii) the period allowed under section 78(2) of the 1990 Act or (as the case may be) section 47(2) of the 1997 Act ended on or before 18 June 2015 without any of the things mentioned in section 78(2)(a) to (b) of the 1990 Act or section 47(2)(a) to (c) of the 1997 Act being done in respect of the application,

(iii) the application was not referred to the Secretary of State, Welsh Ministers or Scottish Ministers in accordance with directions given under section 77 of the 1990 Act or section 46 of the 1997 Act,

(iv) 1990 Act permission or 1997 Act permission was granted after 18 June 2015 following an appeal, and

(v) any conditions as to the time period within which the development to which the permission relates must be begun have not been breached, or

(d) a declaration by the operator of the station that, to the best of the operator's knowledge and belief, planning permission is not required for the station or additional capacity.

(5) The documents specified in this subsection are—

(a) a copy of an offer from a licensed network operator made on or before 18 June 2015 to carry out grid works in relation to the station or additional capacity, and evidence that the offer was accepted on or before that date (whether or not the acceptance was subject to any conditions or other terms), or

(b) a declaration by the operator of the station that, to the best of the operator's knowledge and belief, no grid works were required to be carried out by a licensed network operator in order to enable the station to be commissioned or the additional capacity to form part of the station.

(6) The documents specified in this subsection are a declaration by the operator of the station that, to the best of the operator's knowledge and belief, as at 18 June 2015 a relevant developer of the station or additional capacity (or a person connected, within the meaning of section 1122 of the Corporation Tax Act 2010, with a relevant developer of the station or additional capacity)—

(a) was an owner or lessee of the land on which the station or additional capacity is situated,

(b) had entered into an agreement to purchase or lease the land on which the station or additional capacity is situated,

(c) had an option to purchase or to lease the land on which the station or additional capacity is situated, or

(d) was a party to an exclusivity agreement in relation to the land on which the station or additional capacity is situated.

(7) In this section—

• “the 1990 Act” means the Town and Country Planning Act 1990;

• “1990 Act permission” means planning permission under the 1990 Act (except outline planning permission, within the meaning of section 92 of that Act);

• “the 1997 Act” means the Town and Country Planning (Scotland) Act 1997;

• “1997 Act permission” means planning permission under the 1997 Act (except planning permission in principle, within the meaning of section 59 of that Act);

• “exclusivity agreement”, in relation to land, means an agreement by the owner or a lessee of the land not to permit any person (other than the persons identified in the agreement) to construct an onshore wind generating station on the land;

• “planning permission” means—

  (a)

  consent under section 36 of this Act,

  (b)

  1990 Act permission,

  (c)

  1997 Act permission, or

  (d)

  development consent under the Planning Act 2008.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LK The investment freezing condition E+W+S

(1) This section applies for the purposes of sections 32LH and 32LI.

(2) The investment freezing condition is met in respect of an onshore wind generating station if the documents specified in subsection (4) were provided to the Authority with the application for accreditation of the station.

(3) The investment freezing condition is met in respect of additional capacity if the documents specified in subsection (4) were provided to the Authority on or before the date on which the Authority made its decision that the additional capacity could form part of an onshore wind generating station.

(4) The documents specified in this subsection are—

(a) a declaration by the operator of the station that, to the best of the operator's knowledge and belief, as at the Royal Assent date—

(i) the relevant developer required funding from a recognised lender before the station could be commissioned or additional capacity could form part of the station,

(ii) a recognised lender was not prepared to provide that funding until enactment of the Energy Act 2016, because of uncertainty over whether the Act would be enacted or its wording if enacted, and

(iii) the station would have been commissioned, or the additional capacity would have formed part of the station, on or before 31 March 2017 if the funding had been provided before the Royal Assent date, and

(b) a letter or other document, dated on or before the date which is 28 days after the Royal Assent date, from a recognised lender confirming (whether or not the confirmation is subject to any conditions or other terms) that the lender was not prepared to provide funding in respect of the station or additional capacity until enactment of the Energy Act 2016, because of uncertainty over whether the Act would be enacted or its wording if enacted.

(5) In this section—

• “recognised lender” means a provider of debt finance which has been issued with an investment grade credit rating by a registered credit rating agency;

• “the Royal Assent date” means the date on which the Energy Act 2016 is passed.

(6) For the purposes of the definition of “recognised lender” in subsection (5)—

• “investment grade credit rating” means a credit rating commonly understood by registered credit rating agencies to be investment grade;

• “registered credit rating agency” means a credit rating agency registered in accordance with Regulation (EC) No 1060/2009 of the European Parliament and the Council of 16 September 2009 on credit rating agencies.

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

32LL The grid or radar delay condition E+W+S

(1) This section applies for the purposes of sections 32LE, 32LG and 32LI.

(2) The grid or radar delay condition is met in respect of an onshore wind generating station if, on or before the date on which the Authority made its decision to accredit the station, the documents specified in subsection (4), (5) or (6) were—

(a) submitted by the operator of the station, and

(b) received by the Authority.

(3) The grid or radar delay condition is met in respect of additional capacity if, on or before the date on which the Authority made its decision that the additional capacity could form part of an onshore wind generating station, the documents specified in subsection (4), (5) or (6) were—

(a) submitted by the operator of the station, and

(b) received by the Authority.

(4) The documents specified in this subsection are—

(a) evidence of an agreement with a network operator (“the relevant network operator”) to carry out grid works in relation to the station or additional capacity (“the relevant grid works”);

(b) a copy of a document written by, or on behalf of, the relevant network operator which estimated or set a date for completion of the relevant grid works (“the planned grid works completion date”) which was no later than the primary date;

(c) a letter from the relevant network operator confirming (whether or not such confirmation is subject to any conditions or other terms) that—

(i) the relevant grid works were completed after the planned grid works completion date, and

(ii) in the relevant network operator's opinion, the failure to complete the relevant grid works on or before the planned grid works completion date was not due to any breach by a generating station developer of any agreement with the relevant network operator; and

(d) a declaration by the operator of the station that, to the best of the operator's knowledge and belief, the station would have been commissioned, or the additional capacity would have formed part of the station, on or before the primary date if the relevant grid works had been completed on or before the planned grid works completion date.

(5) The documents specified in this subsection are—

(a) evidence of an agreement between a generating station developer and a person who is not a generating station developer (“the radar works agreement”) for the carrying out of radar works (“the relevant radar works”);

(b) a copy of a document written by, or on behalf of, a party to the radar works agreement (other than a generating station developer) which estimated or set a date for completion of the relevant radar works (“the planned radar works completion date”) which was no later than the primary date;

(c) a letter from a party to the radar works agreement (other than a generating station developer) confirming, whether or not such confirmation is subject to any conditions or other terms, that—

(i) the relevant radar works were completed after the planned radar works completion date, and

(ii) in that party's opinion, the failure to complete the relevant radar works on or before the planned radar works completion date was not due to any breach of the radar works agreement by a generating station developer; and

(d) a declaration by the operator of the station that, to the best of the operator's knowledge and belief, the station would have been commissioned, or the additional capacity would have formed part of the station, on or before the primary date if the relevant radar works had been completed on or before the planned radar works completion date.

(6) The documents specified in this subsection are—

(a) the documents specified in subsection (4)(a), (b) and (c);

(b) the documents specified in subsection (5)(a), (b) and (c); and

(c) a declaration by the operator of the station that, to the best of the operator's knowledge and belief, the station would have been commissioned, or the additional capacity would have formed part of the station, on or before the primary date if—

(i) the relevant grid works had been completed on or before the planned grid works completion date, and

(ii) the relevant radar works had been completed on or before the planned radar works completion date.

(7) In this section “the primary date” means—

(a) in a case within section 32LE(a)(i) or (b)(i) and (ii), the onshore wind closure date;

(b) in a case within section 32LG(a)(i) and (ii) or (b)(i) to (iii), 31 March 2017;

(c) in a case within section 32LI(a)(i) and (ii) or (b)(i) to (iii), 31 January 2018.]

Textual Amendments

F425 Ss. 32LD-32LL inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(2), 84(1)

[F426 32LM Use of Northern Ireland certificates: onshore wind power E+W+S

(1) The Secretary of State may make regulations providing that an electricity supplier may not discharge its renewables obligation (or its obligation in relation to a particular period) by the production to the Authority of a relevant Northern Ireland certificate, except in the circumstances, and to the extent, specified in the regulations.

(2) A “relevant Northern Ireland certificate” is a Northern Ireland certificate issued in respect of electricity generated after the onshore wind closure date (or any later date specified in the regulations)—

(a) using the original capacity of a Northern Ireland onshore wind generating station accredited after the onshore wind closure date (or any later date so specified), or

(b) using additional capacity of a Northern Ireland onshore wind generating station, where in the Authority's view the additional capacity first formed part of the station after the onshore wind closure date (or any later date so specified).

(3) In this section—

• “NIRO Order” means any order made under Articles 52 to 55F of the Energy (Northern Ireland) Order 2003;

• “Northern Ireland certificate” means a renewables obligation certificate issued by the Northern Ireland authority under the Energy (Northern Ireland) Order 2003 and pursuant to a NIRO Order;

• “Northern Ireland onshore wind generating station” means a generating station that—

  (a)

  generates electricity from wind, and

  (b)

  is situated in Northern Ireland, but not in waters in or adjacent to Northern Ireland up to the seaward limits of the territorial sea.

(4) Power to make provision in a renewables obligation order by virtue of section 32F (and any provision contained in such an order) is subject to provision contained in regulations under this section.

(5) This section is not otherwise to be taken as affecting power to make provision in a renewables obligation order.

(6) Regulations under this section may amend a renewables obligation order.

(7) Section 32K applies in relation to regulations under this section as it applies in relation to a renewables obligation order.]

Textual Amendments

F426 S. 32LM inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 81(2), 84(1)

[F416 32M Interpretation of sections 32 to 32M E+W+S

(1) In this section and sections 32 to [F427 32LM]—

• [F428 “accredited”, in relation to an onshore wind generating station, means accredited by the Authority as a generating station which is capable of generating electricity from renewable sources; and “accredit” and “accreditation” are to be construed accordingly;]

• [F428 “additional capacity”, in relation to an onshore wind generating station, means any generating capacity which does not form part of the original capacity of the station;]

• “banding provision” is to be construed in accordance with section 32D(3);

• [F429 “bioliquid” has the meaning given by Article 2(h) of Directive 2009/28/EC of the European Parliament and of the Council on the promotion of the use of energy from renewable sources;]

• [F428 “commissioned”, in relation to an onshore wind generating station, means having completed such procedures and tests in relation to the station as constitute, at the time they are undertaken, the usual industry standards and practices for commissioning that type of generating station in order to demonstrate that it is capable of commercial operation]

• “fossil fuel” means—

  (a)

  coal,

  (b)

  lignite,

  (c)

  natural gas (within the meaning of the Energy Act 1976),

  (d)

  crude liquid petroleum,

  (e)

  petroleum products (within the meaning of that Act), or

  (f)

  any substance[F429 , other than bioliquid,] produced directly or indirectly from a substance mentioned in paragraphs (a) to (e);

• “generated” means generated at any place whether situated in the United Kingdom or elsewhere, and cognate expressions are to be construed accordingly;

• [F428 “generating station developer”, in relation to an onshore wind generating station or additional capacity, means—

  (a)

  the operator of the station, or

  (b)

  a person who arranged for the construction of the station or additional capacity;]

• [F428 “grid works”, in relation to an onshore wind generating station, means—

  (a)

  the construction of a connection between the station and a transmission or distribution system for the purpose of enabling electricity to be conveyed from the station to the system, or

  (b)

  the carrying out of modifications to a connection between the station and a transmission or distribution system for the purpose of enabling an increase in the amount of electricity that can be conveyed over that connection from the station to the system;]

• [F428 “licensed network operator” means a distribution licence holder or a transmission licence holder;]

• [F428 “network operator” means a distribution exemption holder, a distribution licence holder or a transmission licence holder;]

• “Northern Ireland authority” means the Northern Ireland Authority for Utility Regulation;

• “Northern Ireland supplier” means an electricity supplier within the meaning of Part 7 of the Energy (Northern Ireland) Order 2003;

• [F428 “the onshore wind closure date” has the meaning given by section 32LC(3);]

• [F428 “onshore wind generating station” has the meaning given by section 32LC(3);]

• [F428 “original capacity”, in relation to an onshore wind generating station, means the generating capacity of the station as accredited;]

• [F428 “radar works” means—

  (a)

  the construction of a radar station,

  (b)

  the installation of radar equipment,

  (c)

  the carrying out of modifications to a radar station or radar equipment, or

  (d)

  the testing of a radar station or radar equipment;]

• [F428 “relevant developer”, in relation to an onshore wind generating station or additional capacity, means a person who—

  (a)

  applied for planning permission for the station or additional capacity,

  (b)

  arranged for grid works to be carried out in relation to the station or additional capacity,

  (c)

  arranged for the construction of any part of the station or additional capacity,

  (d)

  constructed any part of the station or additional capacity, or

  (e)

  operates, or proposes to operate, the station;]

• “the relevant minister” has the meaning given by section 32;

• “the relevant part of Great Britain” means—

  (a)

  in the case of a renewables obligation order made by the Secretary of State, England and Wales (including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to England or Wales);

  (b)

  in the case of a renewables obligation order made by the Scottish Ministers, Scotland (including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland);

• “the renewables obligation” is to be construed in accordance with section 32(4);

• “renewables obligation certificate” is to be construed in accordance with section 32B;

• “renewables obligation order” is to be construed in accordance with section 32;

• [F430 “renewables obligation closure order” is to be construed in accordance with section 32LA;]

• “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”, in relation to a renewables obligation order [F431 or a renewables obligation closure order], means specified in the order.

(2) For the purposes of the definition of “renewable sources”, a renewables obligation order may make provision—

(a) about what constitutes “waste”;

(b) about how the proportion of waste which is, or is derived from, fossil fuel is to be determined;

(c) about what, subject to such exceptions as may be specified, constitutes sufficient evidence of that proportion in any particular case;

(d) authorising the Authority, in specified circumstances, to require an operator of a generating station to arrange—

(i) for samples of any fuel used (or to be used) in the generating station, or of any gas or other substance produced as a result of the use of such fuel, to be taken by a person, and analysed in a manner, approved by the Authority, and

(ii) for the results of that analysis to be made available to the Authority.

(3) For the purposes of the definition of “the relevant part of Great Britain”, the territorial sea adjacent to England is the territorial sea adjacent to the United Kingdom, other than the territorial sea adjacent to Scotland, Wales or Northern Ireland.

(4) An Order in Council under section 126(2) of the Scotland Act 1998 (c. 46) (apportionment of sea areas) has effect for the purposes of this section and sections 32 to 32L if, or to the extent that, the Order is expressed to apply—

(a) by virtue of this subsection, for those purposes, or

(b) if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.

(5) An order or Order in Council made under or by virtue of section 158(3) or (4) of the Government of Wales Act 2006 (apportionment of sea areas) has effect for the purposes of this section if, or to the extent that, the order or Order in Council is expressed to apply—

(a) by virtue of this subsection, for those purposes, or

(b) if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.

(6) An Order in Council under section 98(8) of the Northern Ireland Act 1998 (c. 46) (apportionment of sea areas) has effect for the purposes of this section if, or to the extent that, the Order is expressed to apply—

(a) by virtue of this subsection, for those purposes, or

(b) if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.

(7) A renewables obligation order may make provision, for the purposes of sections 32 to [F432 32LM], about the circumstances in which electricity is to be regarded as having been supplied—

(a) to customers in Great Britain;

(b) to customers in the relevant part of Great Britain;

(c) to customers in Northern Ireland.]

Textual Amendments

F416 Ss. 32-32M substituted for (26.11.2008 for specified purposes, 1.4.2009 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 37, 110(1)(a) (with s. 38); S.I. 2009/45, art. 3(a) (with art. 5)

F427 Word in s. 32M(1) substituted (12.5.2016) by Energy Act 2016 (c. 20), ss. 81(3)(a), 84(1)

F428 Words in s. 32M inserted (12.5.2016) by Energy Act 2016 (c. 20), ss. 80(3)(b), 84(1)

F429 S. 32M(1) words inserted (1.4.2011) by The Renewables Obligation (Amendment) Order 2011 (S.I. 2011/984), arts. 1(1), 2

F430 Words in s. 32M(1) inserted (18.12.2013) by Energy Act 2013 (c. 32), ss. 55(2)(b), 156(3)

F431 Words in s. 32M(1) inserted (18.12.2013) by Energy Act 2013 (c. 32), ss. 55(2)(c), 156(3)

F432 Word in s. 32M(7) substituted (12.5.2016) by Energy Act 2016 (c. 20), ss. 81(3)(b), 84(1)

[F433 32N The certificate purchase obligation E+W+S

(1) The Secretary of State may make a certificate purchase order.

(2) A certificate purchase order is an order which imposes the certificate purchase obligation on—

(a) the purchasing body of GB certificates;

(b) the purchasing body of NI certificates.

(3) The certificate purchase obligation is that—

(a) the purchasing body of GB certificates must pay the redemption value of a GB certificate to the person presenting it;

(b) the purchasing body of NI certificates must pay the redemption value of a NI certificate to the person presenting it.

(4) The purchasing body of GB certificates is—

(a) the Authority, or

(b) such other eligible person as may be designated by the order as the purchasing body of GB certificates.

(5) The purchasing body of NI certificates is—

(a) the Northern Ireland authority, or

(b) such other eligible person as may be designated by the order as the purchasing body of NI certificates.

(6) A person is an “eligible person” for the purposes of designation under subsection (4)(b) if the person is—

(a) a CFD counterparty at the time when the designation is made, or

(b) the Secretary of State.

(7) A person is an “eligible person” for the purposes of designation under subsection (5)(b) if the person is a CFD counterparty at the time when the designation is made.

(8) Subsection (3) is subject to sections 32O to 32Z2.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32O Further provision about the certificate purchase obligation E+W+S

(1) A certificate purchase order may make provision generally in relation to the certificate purchase obligation.

(2) A certificate purchase order may, in particular—

(a) specify the redemption value of certificates or provide for how the redemption value is to be calculated;

(b) provide for different redemption values for successive periods of time;

(c) authorise the adjustment of redemption values from time to time for inflation by a method specified in the order (including by reference to a specified scale or index, as it has effect from time to time, or to other specified data of any description);

(d) require the relevant purchasing body or the Secretary of State (if not the relevant purchasing body) to publish the redemption value of certificates by a specified deadline;

(e) provide for the manner in which a certificate is to be presented to the relevant purchasing body;

(f) provide for the certificate purchase obligation in relation to certificates issued in respect of electricity generated—

(i) using specified descriptions of renewable sources,

(ii) by specified descriptions of generating stations,

(iii) in specified ways, or

(iv) in other specified cases or circumstances,

to apply only up to a specified number of the certificates that are presented for payment in any specified period;

(g) provide that certificates in respect of electricity generated—

(i) using specified descriptions of renewable sources,

(ii) by specified descriptions of generating stations,

(iii) in specified ways, or

(iv) in other specified cases or circumstances,

are to be issued only up to such number of certificates in any specified period as may be specified or determined in accordance with the order;

(h) provide that the certificate purchase obligation is not to apply on presentation of a certificate unless—

(i) the certificate is presented by such a deadline as may be specified or determined in accordance with the order, and

(ii) any other specified conditions are met (whether in relation to the certificate, the person presenting it or other matters);

(i) provide for how the relevant purchasing body is to determine whether specified conditions are met;

(j) provide that the certificate purchase obligation in relation to a certificate is to be discharged by such a deadline as may be specified or determined in accordance with the order;

(k) authorise the relevant purchasing body to determine the manner in which payments under the certificate purchase obligation are to be made;

(l) authorise the relevant purchasing body to deduct from payments specified descriptions of fees or charges incurred in making the payments;

(m) provide for a certificate purchase levy (see section 32P);

(n) authorise the Secretary of State to make payments for the purpose of enabling the certificate purchase obligation to be discharged;

(o) impose such other obligations, or confer such other functions, on the relevant purchasing body as the Secretary of State considers appropriate.

(3) Once the redemption value in relation to a certificate is paid (less any deductions permitted under the order by virtue of subsection (2)(l)), the certificate purchase obligation in relation to that certificate is discharged (and the certificate is not to be presented for payment again).

(4) For the purposes of carrying out its functions under a certificate purchase order, the relevant purchasing body may—

(a) require a person presenting a certificate to provide such information or documentation as the body may reasonably need for such purposes, and

(b) determine the form in which, and the time by which, such information or documentation is to be supplied.

(5) The certificate purchase obligation does not apply in relation to a certificate unless the person presenting the certificate has complied with any requirements imposed under subsection (4).

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32P Certificate purchase levy E+W+S

(1) A certificate purchase order may provide for a certificate purchase levy to be charged in connection with the provision of payments to the relevant purchasing body.

(2) A certificate purchase levy is a levy—

(a) charged in respect of supplies of electricity that have been, or are expected to be, made in each specified period, and

(b) payable in respect of each such period by persons who make, or are expected to make, the supplies.

(3) The order may (without limiting the generality of section 32Z(1)(d)) provide for different rates or different amounts of levy to be charged—

(a) in different cases or circumstances;

(b) in relation to different specified periods.

(4) The order may secure that the levy is not to be charged in respect of particular descriptions of supplies of electricity.

(5) The order may provide for amounts of the levy received in respect of any period to be applied for the purpose of discharging the certificate purchase obligation in another period.

(6) The order may, in particular, make provision about any of the following matters—

(a) what is a supply of electricity for the purposes of the levy;

(b) when a supply of electricity is, or is expected to be, made for those purposes;

(c) who makes, or is expected to make, a supply of electricity for those purposes;

(d) the rates or amounts of the levy, or how such rates or amounts are to be determined;

(e) payment of the levy, including deadlines for payment in respect of each period and interest in respect of late payment;

(f) administration of the levy;

(g) audit of information (whether by the administrator of the levy or a third party) including requirements for audits to be paid by the person whose information is subject to the audit;

(h) provision of information, including its provision to third parties in specified circumstances;

(i) enforcement of the levy;

(j) insolvency of persons liable to pay the levy;

(k) reviews and appeals;

(l) the functions of the administrator in connection with the levy.

(7) The administrator of the levy, in the case of persons who make, or are expected to make, supplies of electricity in Great Britain, is—

(a) the Authority, or

(b) such other eligible person as may be designated by the order as the administrator in the case of such persons.

(8) The administrator of the levy, in the case of persons who make, or are expected to make, supplies of electricity in Northern Ireland, is—

(a) the Northern Ireland authority, or

(b) such other eligible person as may be designated by the order as the administrator in the case of such persons.

(9) A person is an “eligible person” for the purposes of designation under subsection (7)(b) if the person is—

(a) a CFD counterparty at the time when the designation is made, or

(b) the Secretary of State.

(10) A person is an “eligible person” for the purposes of designation under subsection (8)(b) if the person is—

(a) a CFD counterparty at the time when the designation is made, or

(b) the Northern Ireland department.

(11) In a case where a person liable to pay the levy has made any overpayment or underpayment (whether arising because an estimate turns out to be wrong or otherwise), provision under subsection (6)(e) may require the amount of the overpayment or underpayment (including interest) to be set off against, or added to, any subsequent liability of the person to pay the levy.

(12) In a case where the amount received in respect of levy payments for a period falls short of the amount due for that period, provision under subsection (6)(e) or (j) may include a requirement on persons liable to pay the levy to make further payments, by the time and in the circumstances specified, of an amount calculated in the manner specified or determined in accordance with the order.

(13) Provision under subsection (6)(h) may provide for the administrator to determine the form in which any information that a person is required to give is to be given and the time by which it is to be given.

(14) Provision under subsection (6)(i) may—

(a) if the Authority is the administrator, apply sections 25 to 28 in relation to a requirement in respect of the levy imposed under the order on a person who is not a licence holder as if the person were a licence holder;

(b) in any other case, include provision for the imposition of penalties if a requirement in respect of the levy is breached (whether financial or not, but not including the creation of criminal offences).

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32Q Use of levy payments E+W+S

(1) Amounts payable in respect of the certificate purchase levy are to be paid to the administrator of the levy.

(2) Amounts received by the administrator under subsection (1) must be paid to—

(a) the purchasing body of GB certificates, or

(b) the purchasing body of NI certificates,

in accordance with such provision as may be contained in the order.

(3) Amounts paid to a purchasing body under subsection (2) may be used by that body only for the purpose of discharging the certificate purchase obligation.

(4) The order may contain further provision about—

(a) the calculation of amounts received by the administrator that are to be paid to a relevant purchasing body;

(b) the time by which the administrator must make payments of such amounts to a relevant purchasing body;

(c) the manner in which any such payments are to be made;

(d) how amounts are to be dealt with for the purposes of subsection (2) where the administrator and a relevant purchasing body to whom they are to be paid are the same person.

(5) Subsections (2) to (4) are subject to subsections (6) to (10).

(6) The order may provide for amounts received by the administrator under subsection (1) to be used by the administrator to make payments—

(a) into the Consolidated Fund in respect of costs (or a proportion of costs) which have been or are expected to be incurred—

(i) by the Authority,

(ii) by the Secretary of State, or

(iii) by a relevant designated person,

in connection with the performance of functions conferred by or under sections 32N to 32Z2;

(b) into the Consolidated Fund of Northern Ireland in respect of costs (or a proportion of costs) which have been or are expected to be incurred—

(i) by the Northern Ireland authority, or

(ii) by the Northern Ireland department,

in connection with the performance of functions conferred by or under sections 32N to 32Z2.

(7) For the purposes of subsection (6)(a), “relevant designated person” means a person who is designated—

(a) as the purchasing body of GB certificates by virtue of being an eligible person within section 32N(6)(a) (CFD counterparty);

(b) as the purchasing body of NI certificates by virtue of being an eligible person within section 32N(7) (CFD counterparty);

(c) as an administrator of the levy by virtue of being an eligible person within section 32P(9)(a) or (10)(a) (CFD counterparty).

(8) The order—

(a) may exclude amounts of a specified description from being used as mentioned in subsection (6);

(b) may prevent the administrator using amounts to make payments in respect of costs of a specified description.

(9) The purchasing body of GB certificates must, if directed to do so by the Secretary of State, pay into the Consolidated Fund any amounts received under subsection (2) that it would (but for the direction) be able to use under subsection (3) for the purpose of discharging the purchase obligation in respect of GB certificates.

(10) The purchasing body of NI certificates must, if directed to do so by the Secretary of State, pay into the Consolidated Fund of Northern Ireland any amounts received under subsection (2) that it would (but for the direction) be able to use under subsection (3) for the purpose of discharging the purchase obligation in respect of NI certificates.

(11) In this section “the order”, in relation to the certificate purchase levy, means the certificate purchase order that imposes the levy.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32R Designation of a CFD counterparty as purchasing body or administrator E+W+S

(1) This section applies in relation to the designation of a person who is a CFD counterparty—

(a) as a relevant purchasing body under section 32N(4)(b) or (5)(b), or

(b) as the administrator of the levy under section 32P(7)(b) or (8)(b).

(2) A designation may be made only with the consent of the person designated.

(3) A designation does not cease to have effect if the person's designation as a CFD counterparty ceases to have effect by virtue of section 7(6)(a) or (b) of the Energy Act 2013.

(4) A designation ceases to have effect if—

(a) the Secretary of State by order revokes the designation, or

(b) the person withdraws consent to the designation by giving not less than 3 months' notice in writing to the Secretary of State.

(5) The Secretary of State may by order make transitional provision in connection with a designation ceasing to have effect.

(6) An order under subsection (5) may in particular make provision about how obligations, imposed by virtue of a certificate purchase order on a person whose designation ceases to have effect, are to be discharged in any period before or after the time when the designation ceases to have effect.

(7) Subsection (5) is not to be taken as limiting the power to make transitional provision in a certificate purchase order by virtue of section 32Z(1)(b).

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32S GB certificates E+W+S

(1) A certificate purchase order may (subject to subsection (3)) 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 (“a GB certificate”) to—

(a) the operator of a generating station, or

(b) if the order so provides, a person of any other description specified in the order.

(2) A GB certificate is to certify—

(a) the matters within subsection (4) or (5), or

(b) if the order provides that a certificate may certify the matters within subsection (6), (7), (8) or (9), the matters within that subsection.

(3) A GB certificate certifying that an amount of electricity has been generated from renewable sources in any period may not be issued if—

(a) a renewables obligation order is in force, and

(b) a renewables obligation certificate has been, or could be, issued under the order in respect of the generation in that period of the same electricity.

(4) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been supplied by an electricity supplier to customers in Great Britain.

(5) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate,

(b) that the generating station in question is not in Northern Ireland, and

(c) that the electricity has been supplied by a Northern Ireland supplier to customers in Northern Ireland.

(6) The matters within this subsection are—

(a) that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been supplied by an electricity supplier to customers in Great Britain.

(7) The matters within this subsection are—

(a) that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate,

(b) that none of them is a generating station in Northern Ireland, and

(c) that the electricity has been supplied by a Northern Ireland supplier to customers in Northern Ireland.

(8) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been used in a permitted way.

(9) The matters within this subsection are—

(a) that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been used in a permitted way.

(10) For the purposes of subsections (8) and (9), electricity generated by a generating station, or generating stations, of any description is used in a permitted way if—

(a) it is used in one of the ways mentioned in subsection (11), and

(b) that way is specified in the order as a permitted way—

(i) in relation to all generating stations, or

(ii) in relation to generating stations of that description.

(11) Those ways are—

(a) being consumed by the operator of the generating station or generating stations by which it was generated;

(b) being supplied to customers in Great Britain through a private wire network;

(c) being provided to a distribution system or a transmission system in circumstances in which its supply to customers cannot be demonstrated;

(d) being used, as respects part, as mentioned in one of paragraphs (a), (b) or (c) and as respects the remainder—

(i) as mentioned in one of the other paragraphs, or

(ii) as respects part, as mentioned in one of the other paragraphs and, as respects the remainder, as mentioned in the other;

(e) being used, as respects part, as mentioned in paragraph (a), (b), (c) or (d) and, as respects the remainder, by being supplied by an electricity supplier to customers in Great Britain or by a Northern Ireland supplier to customers in Northern Ireland, or both.

(12) Subsection (11) of section 32B (meaning of supply of electricity through a private wire network) applies for the purposes of subsection (11)(b) as it applies for the purposes of subsection (10)(b) of that section.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32T NI certificates E+W+S

(1) A certificate purchase order may (subject to subsection (3)) provide for the Northern Ireland authority to issue from time to time, in accordance with such criteria (if any) as are specified in the order, a certificate (“a NI certificate”) to—

(a) the operator of a generating station in Northern Ireland, or

(b) if the order so provides, a person of any other description.

(2) A NI certificate is to certify—

(a) the matters within subsection (4), or

(b) if the order provides that a certificate may certify the matters within subsection (5), (6) or (7), the matters within that subsection.

(3) A NI certificate certifying that an amount of electricity has been generated from renewable sources in any period may not be issued if—

(a) an order under Article 52 of the Energy (Northern Ireland) Order 2003 is in force, and

(b) a Northern Ireland RO certificate has been, or could be, issued under that order in respect of the same electricity.

(4) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station in Northern Ireland specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate, and

(b) that it has been supplied by a Northern Ireland supplier to customers in Northern Ireland.

(5) The matters within this subsection are—

(a) that two or more generating stations in Northern Ireland have, between them, generated from renewable sources the amount of electricity stated in the certificate, and

(b) that it has been supplied by a Northern Ireland supplier to customers in Northern Ireland.

(6) The matters within this subsection are—

(a) that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station in Northern Ireland specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been used in a permitted way.

(7) The matters within this subsection are—

(a) that two or more generating stations in Northern Ireland have, between them, generated from renewable sources the amount of electricity stated in the certificate, and

(b) that the electricity has been used in a permitted way.

(8) For the purposes of subsections (6) and (7), electricity generated by a generating station, or generating stations, of any description is used in a permitted way if—

(a) it is used in one of the ways mentioned in subsection (9), and

(b) that way is specified in the order as a permitted way—

(i) in relation to all generating stations, or

(ii) in relation to generating stations of that description.

(9) Those ways are—

(a) being consumed by the operator of the generating station or generating stations by which it was generated;

(b) being supplied to customers in Northern Ireland through a private wire network;

(c) being provided to a distribution system located in Northern Ireland, or to transmission system located in Northern Ireland, in circumstances in which its supply to customers in Northern Ireland cannot be demonstrated;

(d) being used, as respects part, as mentioned in one of paragraphs (a), (b) or (c) and as respects the remainder—

(i) as mentioned in one of the other paragraphs, or

(ii) as respects part, as mentioned in one of the other paragraphs and, as respects the remainder, as mentioned in the other;

(e) being used, as respects part, as mentioned in paragraph (a), (b), (c) or (d) and, as respects the remainder, by being supplied by a Northern Ireland supplier to customers in Northern Ireland.

(10) Paragraph (9) of Article 54 of the Energy (Northern Ireland) Order 2003 (meaning of supply of electricity through a private wire network) applies for the purposes of subsection (9)(b) as it applies for the purposes of paragraph (8)(b) of that Article.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32U Sections 32S and 32T: supplemental provision E+W+S

(1) A certificate purchase order may provide—

(a) that no certificates are to be issued in respect of electricity generated in specified cases or circumstances, or

(b) that certificates are to be issued in respect of a proportion only of the electricity generated in specified cases or circumstances.

(2) In particular, provision made by virtue of subsection (1) may specify—

(a) electricity generated using specified descriptions of renewable sources,

(b) electricity generated by specified descriptions of generating station, or

(c) electricity generated in specified ways.

(3) Provision made by virtue of subsection (1)(b) may include—

(a) provision about how the proportion is to be determined;

(b) provision about what, subject to such exceptions as may be specified, constitutes sufficient evidence of any matter required to be established for the purpose of determining that proportion;

(c) provision authorising the relevant authority, in specified circumstances, to require an operator of a generating station to arrange—

(i) for samples of any fuel used (or to be used) in the generating station, or of any gas or other substance produced as a result of the use of such fuel, to be taken by a person, and analysed in a manner, approved by the relevant authority, and

(ii) for the results of that analysis to be made available to the relevant authority.

(4) In the case of electricity generated by a generating station fuelled or driven—

(a) partly by renewable sources, and

(b) partly by fossil fuel (other than waste which constitutes a renewable source),

only the proportion attributable to the renewable sources is to be regarded as generated from such sources.

(5) A certificate purchase order may specify—

(a) how the proportion referred to in subsection (4) is to be determined, and

(b) the consequences for the issuing of certificates if a generating station of the type mentioned in that subsection uses more than a specified proportion of fossil fuel during a specified period.

(6) Those consequences may include the consequences that no certificates are to be issued in respect of any electricity generated by that generating station during that period.

(7) A certificate purchase order may provide that ownership of a certificate may be transferred—

(a) only to persons of a specified description;

(b) only if other specified conditions are met.

(8) A certificate purchase order may specify circumstances in which the relevant authority may revoke a certificate before the certificate purchase obligation in respect of the certificate is discharged (whether before or after the certificate is presented for payment).

(9) A certificate purchase order must—

(a) prohibit the issue of GB certificates certifying that electricity has been supplied to customers in Northern Ireland by virtue of section 32S(5) or (7) where the Northern Ireland authority has notified the Authority that it is not satisfied that the electricity in question has been supplied to customers in Northern Ireland, and

(b) require the revocation of such a certificate if the Northern Ireland authority so notifies the Authority at a time between the issue of the certificate and its presentation for payment for the purposes of the certificate purchase obligation.

(10) A certificate purchase order may make provision requiring a person to whom a certificate is issued to pay to the relevant authority an amount equal to any amount that has been paid in respect of the certificate under the certificate purchase obligation if it appears to the authority that—

(a) the certificate should not have been issued to that person, and

(b) it is not possible to secure the recovery of such an amount by refusing to issue another certificate to the person.

(11) Provision under subsection (10) may include provision about enforcement and appeals.

(12) The Authority must pay any amounts it receives by virtue of subsection (10) into the Consolidated Fund.

(13) The Northern Ireland authority must pay any amounts it receives by virtue of subsection (10) into the Consolidated Fund of Northern Ireland.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32V Certificate purchase orders: amounts of electricity stated in certificates E+W+S

(1) A certificate purchase order may specify the amount of electricity to be stated in each certificate, and different amounts may be specified in relation to different cases or circumstances.

(2) In particular, different amounts may be specified in relation to—

(a) electricity generated from different renewable sources;

(b) electricity generated by different descriptions of generating station;

(c) electricity generated in different ways.

(3) In this section “banding provision” means provision made in a certificate purchase order by virtue of subsection (1).

(4) Before making any banding provision, the Secretary of State must have regard to the following matters—

(a) the costs (including capital costs) associated with generating electricity from each of the renewable sources or with transmitting or distributing electricity so generated;

(b) the income of operators of generating stations in respect of electricity generated from each of those sources or associated with the generation of such electricity;

(c) the effect of paragraph 19 of Schedule 6 to the Finance Act 2000 (supplies of electricity from renewable sources exempted from the climate change levy) in relation to electricity generated from each of those sources;

(d) the desirability of securing the long term growth, and economic viability, of the industries associated with the generation of electricity from renewable sources;

(e) the likely effect of the proposed banding provision on the number of certificate issued by the relevant authority, and the impact this will have on consumers;

(f) the potential contribution of electricity generated from each renewable source to the attainment of any target which relates to the generation of electricity or the production of energy and is imposed by, or results from or arises out of, an EU obligation.

(5) For the purposes of subsection (4)(a), the costs associated with generating electricity from a renewable source include any costs associated with the production or supply of heat produced in connection with that generation.

(6) For the purposes of subsection (4)(b), an operator's income associated with the generation of electricity from a renewable source includes any income connected with—

(a) the acquisition of the renewable source;

(b) the supply of heat produced in connection with the generation;

(c) the disposal of any by-product of the generation process.

(7) After the first order containing banding provision is made by the Secretary of State, no subsequent order containing such provision may be made by the Secretary of State except following a review held by virtue of subsection (8).

(8) A certificate purchase order may authorise the Secretary of State to review the whole or any part of the banding provision at any time when the Secretary of State is satisfied that one or more of the specified conditions is satisfied.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32W Section 32V: transitional provision and savings E+W+S

(1) This section applies where a certificate purchase order contains banding provision.

(2) The order may provide for the effect of any banding provision made in an earlier such order to continue, in such circumstances as may be specified, in relation to—

(a) the electricity generated by generating stations of such descriptions as may be specified, or

(b) so much of the electricity as may be determined in accordance with the order.

(3) The order may provide for—

(a) the effect of any banding provision made in a renewables obligation order by virtue of section 32D(1) to apply, in such circumstances as may be specified, in relation to GB certificates as it applied in relation to renewables obligation certificates;

(b) the effect of any banding provision made in an order under Article 52 of the Energy (Northern Ireland) Order 2003, by virtue of Article 54B(1) of the Order, to apply, in such circumstances as may be specified, in relation to NI certificates as it applied in relation to Northern Ireland RO certificates.

(4) Section 32V(4) and (7) do not apply in relation to provision of the kind mentioned in subsection (2) or (3) above.

(5) Subsection (7) applies to a generating station in respect of which a statutory grant has been awarded if—

(a) the generating station is of a specified description, or

(b) the circumstances of the case meet specified requirements.

(6) The requirements specified under subsection (5)(b) may relate to the time when the grant was awarded (whether a time before or after the coming into force of this section).

(7) A certificate purchase order which contains banding provision may provide for the operation of that provision in relation to electricity generated by a generating station to which this subsection applies to be conditional upon the operator of the station agreeing—

(a) if the grant or any part of it has been paid, to repay to the person who made the grant (“the payer”) the whole or a specified part of the grant or part before the repayment date,

(b) to pay to the payer interest on an amount repayable under paragraph (a) for such period, and at such rate, as may be determined in accordance with the order (which may confer the function of making the determination on a person), and

(c) if the grant or any part of it has not yet been paid, to consent to the cancellation of the award of the grant or part.

(8) For the purposes of subsection (7)—

(a) “the repayment date” means the date specified in or determined in accordance with the order, and

(b) the period for which interest is payable must not begin before the grant was paid or, if the repayment relates to an instalment of the grant, before the instalment was paid.

(9) In this section “statutory grant” means—

(a) a grant awarded under section 5(1) of the Science and Technology Act 1965 (grants to carry on or support scientific research), or

(b) any other grant which is payable out of public funds and awarded under or by virtue of an Act or other statutory provision (as defined by section 1(f) of the Interpretation Act (Northern Ireland) 1954).

(10) This section is without prejudice to section 32Z(1)(b).

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32X Certificate purchase orders: information E+W+S

(1) A certificate purchase order may provide for—

(a) the Authority to require a person to provide it with information, or with information of a particular kind, which in the Authority's opinion is relevant to the question whether a GB certificate is, or was or will in future be, required to be issued to the person;

(b) the Northern Ireland authority to require a person to provide it with information, or with information of a particular kind, which in the authority's opinion is relevant to the question whether a NI certificate is, or was or will in future be, required to be issued to the person.

(2) That information must be given to the relevant authority in whatever form it requires.

(3) A certificate purchase order may—

(a) require operators of generating stations generating electricity (wholly or partly) from biomass to give specified information, or information of a specified kind, to the relevant authority;

(b) specify what, for this purpose, constitutes “biomass”;

(c) require the information to be given in a specified form and within a specified period;

(d) authorise or require the relevant authority to postpone the issue of certificates to the operator of a generating station who fails to comply with a requirement imposed by virtue of paragraph (a) or (c) until such time as the failure is remedied;

(e) authorise or require the relevant authority to refuse to issue certificates to such a person or to refuse to issue them unless the failure is remedied within a specified period.

(4) The relevant authority may publish information obtained by virtue of subsection (3).

(5) No person is required by virtue of this section to provide any information which the person could not be compelled to give in evidence in civil proceedings in the High Court or, in Scotland, the Court of Session.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32Y Certificate purchase orders: corresponding provision E+W+S

(1) This section applies where the Secretary of State exercises a listed power in the making of a certificate purchase order.

(2) The Secretary of State must—

(a) so far as the order is made for a GB purpose, exercise the listed power in the way that the Secretary of State considers will replicate the effect of provision contained in a renewables obligation order (whenever made, and whether or not made by the Secretary of State) by virtue of the equivalent GB power;

(b) so far as the order is made for a NI purpose, exercise the listed power in the way that the Secretary of State considers will replicate the effect of provision contained in an order under Article 52 of the 2003 NI Order (whenever made) by virtue of the equivalent NI power.

(3) The duty in subsection (2) to exercise any listed power in the way mentioned in that subsection applies only to the extent that it appears to the Secretary of State that—

(a) it is reasonably practicable to exercise the listed power in that way, and

(b) exercising the power in that way is not inconsistent with other duties or requirements of the Secretary of State (whether arising under this Act or another enactment, by virtue of any EU obligation or otherwise).

(4) In the Table—

(a) a “listed power” is any power specified in the first column;

(b) the “equivalent GB power”, in relation to a listed power, is the power specified in the corresponding entry in the second column;

(c) the “equivalent NI power”, in relation to a listed power, is the power specified in the corresponding entry in the third column, and in that column references to an Article are to an Article of the 2003 NI Order.

Listed power	Equivalent GB power	Equivalent NI power
Section 32O(2)(a)	Sections 32A(2)(a) and 32G(2)(a)	Articles 53(2)(a) and 55(2)(a)
Section 32O(2)(b)	Sections 32A(2)(b) and 32G(2)(c)	Articles 53(2)(b) and 55(2)(c)
Section 32O(2)(c)	Section 32G(2)(e)	Article 55(2)(e)
Section 32O(2)(f)	Section 32A(2)(c)	Article 53(2)(c)
Section 32S	Section 32B	---
Section 32T	---	Article 54
Section 32U(5) and (6)	Section 32C(5) and (6)	Article 54A(5) and (6)
Section 32V(1)	Section 32D(1)	Article 54B(1)
Section 32W(5) to (8)	Section 32E(4) to (6) and (8)	Article 54C(4) to (7)
Section 32X	Section 32J	Article 55C
Section 32Z2(2) (so far as relating to definition of “renewable sources”) and (3)	Section 32M (so far as relating to that definition) and (2)	Article 55F(1) (so far as relating to that definition) and (2)
Section 32Z2(9)	Section 32M(7)	Article 55F(3)

(5) The duty in subsection (2), so far as it has effect in relation to the exercise of the listed power under section 32V(1) to specify different amounts of electricity in relation to different cases or circumstances, applies only to the first exercise of that listed power.

(6) The relevant part of Great Britain to which a renewables obligation order relates may be ignored for the purposes of subsection (2)(a).

(7) It does not matter for the purposes of subsection (2) whether or not a renewables obligation order, or an order made under Article 52 of the 2003 NI Order, is in force at the time when the listed powers in question are being exercised.

(8) In this section—

• “2003 NI Order” means the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6));

• “GB purpose” means the purpose of imposing the certificate purchase obligation on the purchasing body of GB certificates;

• “NI purpose” means the purpose of imposing the certificate purchase obligation on the purchasing body of NI certificates.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32Z Certificate purchase orders: general provision E+W+S

(1) A certificate purchase order may—

(a) make further provision as to the functions of the relevant authority in relation to matters dealt with by the order;

(b) make transitional provision and savings;

(c) provide for anything falling to be calculated or otherwise determined under the order to be calculated or determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons, as may be specified in the order;

(d) make different provision for different cases or circumstances.

(2) Provision made by virtue of subsection (1)(b) may, in particular, include provision for—

(a) renewables obligation certificates issued in respect of a period before the imposition of the certificate purchase obligation to be treated as if they were GB certificates issued in respect of a subsequent period for which the order is in force;

(b) Northern Ireland RO certificates issued in respect of a period before the imposition of the certificate purchase obligation to be treated as if they were NI certificates issued in respect of a subsequent period for which the order is in force.

(3) Provision made by virtue of subsection (1)(d) may, in particular, make—

(a) different provision in relation to different suppliers;

(b) different provision in relation to generating stations of different descriptions;

(c) different provision in relation to different localities or different parts of the United Kingdom.

(4) In subsection (3) “supplier” means an electricity supplier or a Northern Ireland supplier.

(5) The Authority and the Northern Ireland authority may enter into arrangements for the Authority to act on behalf of the Northern Ireland authority for, or in connection with, the carrying out of any functions conferred on the Northern Ireland authority under, or for the purposes of, a certificate purchase order.

(6) The duties imposed on the Secretary of State—

(a) by section 3A (principal objective and general duties in carrying out functions under this Part), and

(b) by section 132(2) of the Energy Act 2013 (duties in relation to strategy and policy statement),

do not apply in relation to the exercise of a power under section 32N to make a certificate purchase order so far as it is made for or in connection with imposing the certificate purchase obligation on the purchasing body of NI certificates.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32Z1 Certificate purchase orders: procedure E+W+S

(1) Before making a certificate purchase order, the Secretary of State must consult—

(a) the Authority,

(b) the Northern Ireland authority,

(c) the Council,

(d) the General Consumer Council for Northern Ireland,

(e) such electricity suppliers and Northern Ireland suppliers that may be required to pay the certificate purchase levy as the Secretary of State considers appropriate,

(f) such generators of electricity from renewable sources as the Secretary of State considers appropriate, and

(g) such other persons, if any, as the Secretary of State considers appropriate.

(2) A certificate purchase order is not to be made unless a draft of the instrument containing it has been laid before and approved by a resolution of each House of Parliament.

(3) The Secretary of State must, subject to subsection (5), consult the Scottish Ministers before making a certificate purchase order that extends to Scotland.

(4) The Secretary of State must, subject to subsection (5), obtain the consent of the Northern Ireland department before making a certificate purchase order that extends to Northern Ireland.

(5) Except as provided by subsection (6), the Secretary of State is not required to—

(a) consult the Scottish Ministers under subsection (3), or

(b) obtain the consent of the Northern Ireland department under subsection (4),

in respect of any provision of a certificate purchase order that is made by virtue of section 32O(2)(m), 32P or 32Q (which together confer power to make provision about the certificate purchase levy).

(6) Designation of the Northern Ireland department as the administrator of the certificate purchase levy by virtue of section 32P(8)(b) requires the consent of that department.

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

32Z2 Interpretation of sections 32N to 32Z2 E+W+S

(1) In this section and sections 32N to 32Z1 (“the relevant sections”), the following terms have the meanings given in section 32M(1)—

• “fossil fuel” (but see subsection (4));

• “generated”;

• “Northern Ireland authority”;

• “Northern Ireland supplier”;

• “renewables obligation certificate”;

• “renewables obligation order”.

(2) In the relevant sections—

• “administrator”, in relation to the certificate purchase levy, is to be construed in accordance with section 32P(7) to (10);

• “banding provision” is to be construed in accordance with section 32V(3);

• “CFD counterparty” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2013 (see section 7 of that Act);

• “certificate purchase levy” is to be construed in accordance with section 32P;

• “certificate purchase order” is to be construed in accordance with section 32N;

• “the certificate purchase obligation” is to be construed in accordance with section 32N(3);

• “distribution system” includes a distribution system within the meaning of Part 2 of the Electricity (Northern Ireland) Order 1992, and “distributing” is to be construed accordingly;

• “GB certificate” is to be construed in accordance with section 32S;

• “NI certificate” is to be construed in accordance with section 32T;

• “the Northern Ireland department” means the Department of Enterprise, Trade and Investment;

• “Northern Ireland RO certificate” means a certificate issued by the Northern Ireland authority in accordance with provision included in an order under Article 52 of the Energy (Northern Ireland) Order 2003;

• “the purchasing body of GB certificates” is to be construed in accordance with section 32N(4);

• “the purchasing body of NI certificates” is to be construed in accordance with section 32N(5);

• “relevant authority” means—

  (a)

  in relation to GB certificates, the Authority;

  (b)

  in relation to NI certificates, the Northern Ireland authority;

• “relevant purchasing body” means—

  (a)

  in relation to GB certificates, the purchasing body of GB certificates;

  (b)

  in relation to NI certificates, the purchasing body of NI certificates;

• “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”, in relation to a certificate purchase order, means specified in the order;

• “transmission system” includes a transmission system within the meaning of Part 2 of the Electricity (Northern Ireland) Order 1992, and “transmitting” is to be construed accordingly.

(3) For the purposes of the definition of “renewable sources”, a certificate purchase order may make provision—

(a) about what constitutes “waste”;

(b) about how the proportion of waste which is, or is derived from, fossil fuel is to be determined;

(c) about what, subject to such exceptions as may be specified, constitutes sufficient evidence of that proportion in any particular case;

(d) authorising the relevant authority, in specified circumstances, to require an operator of a generating station to arrange—

(i) for samples of any fuel used (or to be used) in the generating station, or of any gas or other substance produced as a result of the use of such fuel, to be taken by a person, and analysed in a manner, approved by the relevant authority;

(ii) for the results of that analysis to be made available to the relevant authority.

(4) In the application of the relevant sections to Northern Ireland, “fossil fuel” includes peat.

(5) In the relevant sections “Northern Ireland” does not include any part of the territorial sea of the United Kingdom, but this is subject to subsection (6).

(6) A certificate purchase order may provide that “Northern Ireland” includes the territorial sea adjacent to Northern Ireland.

(7) An Order in Council under section 98(8) of the Northern Ireland Act 1998 (apportionment of sea areas) has effect for the purposes of this section if, or to the extent that, the Order is expressed to apply—

(a) by virtue of this subsection, for those purposes, or

(b) if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.

(8) References in the relevant sections to the supply of electricity to customers in Northern Ireland are to be construed in accordance with the definition of “supply” in Article 3 of the Electricity (Northern Ireland) Order 1992.

(9) A certificate purchase order may make provision, for the purposes of the relevant sections, about the circumstances in which electricity is to be regarded as having been supplied—

(a) to customers in Great Britain;

(b) to customers in Northern Ireland.]

Textual Amendments

F433 Ss. 32N-32Z2 inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 56(2), 156(2)

F434 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F434 S. 33 ceased to have effect (21.11.2000) by virtue of 2000 c. 27, s. 66; S.I. 2000/2414, art. 2 (subject to saving in art. 3(2)) and s. 33 repealed (1.10.2001) by 2000 c. 27, s. 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C60 S. 33 saved (with modifications) (27.10.2000 with effect on 21.11.2000) by S.I. 2000/2727, art. 11; and, as so saved, further modified (E.W.) (1.10.2001) by S.I. 2001/3268, art. 3 and (S.) (1.10.2001) by S.I. 2001/3269, art. 9; and, as so saved, further modified (E.W.) (30.12.2001) by S.I. 2001/3914, art. 2; and, as so saved, further modified (S.) (31.3.2002) by S.S.I. 2002/92, art. 2(2)

C61 S. 33 applied (2.10.2001) by S.I. 1990/266, reg. 2(1) (as inserted (2.10.2001) by S.I. 2001/3286, reg. 3(4))

C62 S. 33 as saved modified (S.) (30.11.2005) by The Electricity from Non-Fossil Fuel Sources (Scotland) Saving Arrangements Order 2005 (S.S.I. 2005/549), arts. 1(1), 10

34 Fuel stocks etc. at generating stations. E+W+S

(1) This section applies to any generating station which—

(a) is of a capacity not less than 50 megawatts; and

(b) is fuelled otherwise than by waste or manufactured gases;

and in this subsection “waste” has the same meaning as in the M5 Control of Pollution Act 1974.

(2) The Secretary of State may by order provide that subsection (1) above shall have effect as if for the capacity mentioned in paragraph (a) there were substituted such other capacity (not exceeding 100 megawatts) as may be specified in the order.

(3) In respect of any generating station to which this section applies, the Secretary of State may give a direction requiring the person who operates it—

(a) to make such arrangements with respect to stocks of fuel and other materials held at or near that generating station for the purposes of its operation as will—

(i) enable those stocks to be brought within a specified time to, and thereafter maintained at, a specified level; and

(ii) ensure that they do not fall below that level, except as may be permitted by the terms of the direction or by a direction under subsection (4) below;

(b) to create such stocks and make such arrangements with respect to them;

and the amount of any stocks may be specified by reference to the period for which it would enable the generating station to be maintained in operation.

(4) In respect of any generating station to which this section applies, the Secretary of State may give a direction—

(a) authorising or requiring the person who operates it to make such use as may be specified of any stocks held at or near that generating station; and

(b) requiring that person to operate, or not to operate, that generating station for specified periods, at specified levels of capacity or using specified fuels.

(5) In subsections (3) and (4) above “specified” means specified by or under the Secretary of State’s direction; and a direction may—

(a) specify the cases and circumstances in which any stocks are to be treated as held at or near any generating station;

(b) specify the extent to which the direction may be treated as complied with where, under arrangements made or approved by the Secretary of State, access can be had to stocks held for the use of a number of consumers;

(c) specify the manner in which any period mentioned in subsection (3) or (4) above is to be determined;

(d) require anything falling to be specified under the direction to be specified by such persons and by reference to such matters as may be specified.

(6) A direction under subsection (3) or (4) above which confers on any person the function of specifying anything falling to be specified under the direction may require that person to exercise that function in such manner as may be specified by the direction.

Modifications etc. (not altering text)

C63 S. 34: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7)

C64 By S.I. 1990/1066, art. 2 it is provided that s. 34(1) shall have effect as if for the capacity of 50 megawatts mentioned in para. (a), there were substituted the capacity of 10 megawatts

Marginal Citations

M5 1974 c. 40.

35 Provisions supplementary to section 34. E+W+S

(1) The Secretary of State may give a direction requiring [F435 the holder of a transmission licence] to give to the Secretary of State, after consultation with specified persons, any information or advice which the Secretary of State may reasonably require for purposes connected with the exercise of his functions under section 34 above.

[F436 (2) The Secretary of State may give a direction requiring any person who is authorised by a licence to participate in the transmission of electricity to carry on the activities which the licence authorises (or any of them), at any time when a direction under section 34(4) above is in force, either in a specified manner or with a view to achieving specified objectives.]

(3) In subsections (1) and (2) above “specified” means specified by or under the Secretary of State’s direction; [F437 and a person subject to a direction under subsection (2) above shall give effect to it notwithstanding any other duty imposed on him by or under this Part.]

(4) The Secretary of State shall lay before each House of Parliament a copy of every direction given under section 34 above or this section unless he is of the opinion that disclosure of the direction is against the interests of national security or the commercial interests of any person.

(5) A person who, without reasonable excuse, contravenes or fails to comply with a direction of the Secretary of State under section 34 above or this section shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(6) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State.

(7) Paragraphs 1 to 4, 7 and 8 of Schedule 2 to the M6 Energy Act 1976 (administration of Act and other matters) shall have effect as if—

(a) section 34 above were contained in that Act;

(b) the powers of paragraph 1 were exercisable for any purpose connected with securing compliance with a direction under that section;

(c) information obtained by virtue of that paragraph could lawfully be disclosed to any person by whom anything falls to be specified under such a direction; and

(d) the powers conferred by sub-paragraph (1)(c) of that paragraph included power to direct that information and forecasts be furnished to any such person.

Textual Amendments

F435 Words in s. 35(1) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 12(2); S.I. 2004/2184, art. 2(2), Sch. 2

F436 S. 35(2) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 12(3); S.I. 2004/2184, art. 2(2), Sch. 2

F437 Words in s. 35(3) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 12(4); S.I. 2004/2184, art. 2(2), Sch. 2

Modifications etc. (not altering text)

C65 S. 35: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7)

Marginal Citations

M6 1976 c. 76.

36 Consent required for construction etc. of generating stations. E+W+S

(1) Subject to subsections [F438 (1A) to] (2) and (4) below, a generating station shall not be constructed [F439 at a relevant place (within the meaning of section 4), and a generating station at such a place shall not be], extended or operated except in accordance with a consent granted by the [F440 appropriate authority].

[F441 (1A) So far as relating to the construction or extension of a generating station, subsection (1) is subject to section 33(1) of the Planning Act 2008 (exclusion of requirement for other consents for development for which development consent required).

(1B) So far as relating to the operation of a generating station, subsection (1) does not apply if the operation is authorised by an order granting development consent under the Planning Act 2008.]

[F442 (1C) This section is subject to section 12 of the Marine and Coastal Access Act 2009 (which transfers certain functions of the Secretary of State to the Marine Management Organisation).]

[F443 (1D) Subsection (1) does not apply to an English or Welsh onshore wind generating station.

(1E) “English or Welsh onshore wind generating station” means a generating station that—

(a) generates electricity from wind, and

(b) is situated in England or Wales, but not in waters in or adjacent to England or Wales up to the seaward limits of the territorial sea.]

(2) Subsection (1) above shall not apply to a generating station whose capacity—

(a) [F444 in the case of a generating station otherwise than in Wales,] does not exceed the permitted capacity, that is to say, 50 megawatts; F445 ...

(b) in the case of a generating station which is to be constructed or extended, will not exceed the permitted capacity when it is constructed or extended [F446 otherwise than in Wales];

[F447 (c) in the case of a generating station in Wales, does not exceed the devolved capacity, that is to say, 350 megawatts; and

(d) in the case of a generating station which is to be constructed or extended in Wales, will not exceed the devolved capacity when it is constructed or extended;]

and an order under this subsection may make different provision for generating stations of different classes or descriptions.

(3) The Secretary of State may by order provide that subsection (2) above shall have effect as if for the permitted capacity mentioned in paragraph (a) there were substituted such other capacity as may be specified in the order.

(4) The [F448 appropriate authority] may by order direct that subsection (1) above shall not apply to generating stations of a particular class or description, either generally or for such purposes as may be specified in the order.

(5) [F449 Subject to subsections (5A) and (5B),] A consent under this section—

(a) may include such conditions (including conditions as to the ownership or operation of the station) as appear to the [F450 appropriate authority] to be appropriate; and

(b) shall continue in force for such period as may be specified in or determined by or under the consent.

[F451 (5A) In the case of a generating station in respect of which a controlled activity, within the meaning of the Water Environment (Controlled Activities) (Scotland) Regulations 2005, will be carried on, the Secretary of State shall, before granting a consent under subsection (1), obtain and have regard to the advice of the Scottish Environment Protection Agency on matters relating to the protection of the water environment and have regard to the purposes of Part 1 of the Water Environment and Water Services (Scotland) Act 2003.

(5B) In the event that the conditions of a consent granted under subsection (1) on matters relating to the protection of the water environment, and the conditions of an authorisation granted under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 differ, and cannot reasonably be reconciled, the relevant conditions of that consent shall be treated as modified to the extent necessary to be consistent with the conditions of that authorisation.]

(6) Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(7) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of

[F452 (a) the Welsh Ministers, if they are the appropriate authority, or

(b) the Secretary of State, in all other cases.]

(8) The provisions of Schedule 8 to this Act (which relate to consents under this section and section 37 below) shall have effect.

[F453 (8A) The Welsh Ministers may by regulations make provision about the grant of consents under section 36 in relation to generating stations in respect of which they are the appropriate authority, including in particular provision about—

(a) the making and withdrawal of applications;

(b) fees;

(c) publicity and consultation requirements;

(d) rights to make representations;

(e) public inquiries;

(f) consideration of applications.

(8B) The Welsh Ministers may by regulations make provision for applications in respect of which they are the appropriate authority to be determined by a person appointed by them for that purpose.]

(9) In this Part “extension”, in relation to a generating station, includes the use by the person operating the station of any land [F454 or area of waters] (wherever situated) for a purpose directly related to the generation of electricity by that station and “extend” shall be construed accordingly.

[F455 (10) In this section "appropriate authority” means—

(a) the Scottish Ministers, in relation to a generating station in or to be constructed in Scotland;

(b) the Welsh Ministers, in relation to a generating station in or to be constructed in Welsh waters that—

(i) does not exceed the devolved capacity, that is to say, 350 megawatts;

(ii) in the case of a generating station which is to be constructed or extended, will not exceed the devolved capacity when constructed or extended;

(c) the Secretary of State, in all other cases.

(11) In this section—

• "Scotland” has the same meaning as in section 32(2) (see section 32(3));

• "Welsh waters” means so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Wales, and the Welsh zone;

• "Welsh zone” has the meaning given in section 158 of the Government of Wales Act 2006.]

Textual Amendments

F438 Words in s. 36(1) inserted (1.3.2010) by Planning Act 2008 (c. 29), s. 241(8), Sch. 2 para. 32(2) (with s. 226); S.I. 2010/101, art. 2 (with art. 6)

F439 Words in s. 36(1) inserted (1.3.2005) by Energy Act 2004 (c. 20), s. 93(1)(4), 198(2); S.I. 2005/442, art. 2(1), Sch. 1

F440 Words in s. 36(1) substituted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(8), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F441 S. 36(1A)(1B) inserted (1.3.2010) by Planning Act 2008 (c. 29), s. 241(8), Sch. 2 para. 32(3) (with s. 226); S.I. 2010/101, art. 2 (with art. 6)

F442 S. 36(1C) inserted (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), s. 12(7)(a)(8), 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

F443 S. 36(1D)(1E) inserted (12.7.2016) by Energy Act 2016 (c. 20), ss. 78, 84(3); S.I. 2016/602, reg. 3(g) (with reg. 4) (as substituted by S.I. 2016/710, reg. 2)

F444 Words in s. 36(2)(a) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(9)(a)(i), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F445 Word in s. 36(2)(a) omitted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by virtue of Wales Act 2017 (c. 4), ss. 39(9)(a)(ii), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F446 Words in s. 36(2)(b) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(9)(b), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F447 S. 36(2)(c)(d) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(9)(c), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F448 Words in s. 36(4) substituted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(8), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F449 Words in s. 36(5) inserted (S.) (1.4.2006) by The Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006 (S.I. 2006/1054), art. 1(1), Sch. 1 para. 1(2)(a)

F450 Words in s. 36(5)(a) substituted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(8), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F451 S. 36(5A)(5B) inserted (1.4.2006) by The Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006 (S.I. 2006/1054), art. 1(1), Sch. 1 para. 1(2)(b)

F452 Words in s. 36(7) substituted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(10), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F453 S. 36(8A)(8B) inserted (1.4.2019) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 47 (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(b)

F454 Words in s. 36(9) inserted (1.3.2005) by Energy Act 2004 (c. 20), s. 93(3)(4), 198(2); S.I. 2005/442, art. 2(1), Sch. 1

F455 S. 36(10)(11) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(11), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

Modifications etc. (not altering text)

C66 S. 36 restricted by S.I. 1990/442, art. 3(1)(a)

C67 S. 36 modified (S.) (27.5.1997) by 1997 c. 8, ss. 57(2), 278(2) (with ss. 64, 219)

S. 36 modified (S.) (27.5.1997) by 1997 c. 10, ss. 10(2), 31, 40(2) (with ss. 9(3), 10(5), 38(6))

C68 S. 36: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, art. 2, Sch. 1 (with art. 7)

C69 S. 36 restricted (21.11.2003) by The Norfolk Offshore Wind Farm Order 2003 (S.I. 2003/2830), arts. 1, 16 (with art. 23)

C70 S. 36 excluded (16.4.2004) by The Gunfleet Sands Offshore Wind Farm Order 2004 (S.I. 2004/933), arts. 1, 16

C71 S. 36 excluded (19.11.2004) by The Scarweather Sands Offshore Wind Farm Order 2004 (S.I. 2004/3054), arts. 1, 26 (with art. 38)

C72 S. 36 functions modified (12.4.2006) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006 (S.I. 2006/1040), arts. 1(2), 2 (with art. 6)

C73 S. 36: transfer of functions (13.4.2006) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006 (S.I. 2006/1040), arts. 1(1), 3 (with art. 6)

C74 S. 36 excluded (E.W.) (22.12.2021) by The Morlais Demonstration Zone Order 2021 (S.I. 2021/1478), arts. 1, 37(1) (with arts. 15, 50, Sch. 11 para. 29)

C75 S. 36(1): transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

C76 S. 36(1) excluded (E.W.) (1.3.2016) by The Onshore Wind Generating Stations (Exemption) (England and Wales) Order 2016 (S.I. 2016/21), arts. 1(1), 3 (with art. 4)

C77 S. 36(1) excluded (2.12.2020) by The Electricity Storage Facilities (Exemption) (England and Wales) Order 2020 (S.I. 2020/1217), arts. 1(1), 4(2) (with arts. 4(3), 5)

C78 S. 36(1) excluded (2.12.2020) by The Electricity Storage Facilities (Exemption) (England and Wales) Order 2020 (S.I. 2020/1217), arts. 1(1), 3(2) (with arts. 3(3), 5)

C79 S. 36(2) modified (S.) by S.I. 1990/392, art. 2

C80 S. 36(2) modified (E.W.) (1.12.2001) by S.I. 2001/3642, art. 2

C81 S. 36(2) modified (S.) (26.9.2002) by The Electricity Act 1989 (Requirement of Consent for Offshore Generating Stations) (Scotland) Order 2002 (S.S.I. 2002/407), art. 3

C82 S. 36(5): transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

C83 S. 36(7): transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

[F456 36A Declarations extinguishing etc. public rights of navigation E+W+S

(1) Where a consent is granted by [F457 the appropriate authority] in relation to—

(a) the construction or operation of a generating station that comprises or is to comprise (in whole or in part) renewable energy installations situated at places in relevant waters, or

(b) an extension of a generating station that is to comprise (in whole or in part) renewable energy installations situated at places in relevant waters or an extension of such an installation,

[F458 the appropriate authority] may, at the same time, make a declaration under this section as respects rights of navigation so far as they pass through some or all of those places.

[F459 (1A) This section is subject to section 12 of the Marine and Coastal Access Act 2009 (which transfers certain functions of the Secretary of State to the Marine Management Organisation).]

(2) [F460 The appropriate authority] may make such a declaration only if the applicant for the consent made an application for such a declaration when making his application for the consent.

(3) A declaration under this section is one declaring that the rights of navigation specified or described in it—

(a) are extinguished;

(b) are suspended for the period that is specified in the declaration;

(c) are suspended until such time as may be determined in accordance with provision contained in the declaration; or

(d) are to be exercisable subject to such restrictions or conditions, or both, as are set out in the declaration.

(4) A declaration under this section—

(a) has effect, in relation to the rights specified or described in it, from the time at which it comes into force; and

(b) continues in force for such period as may be specified in the declaration or as may be determined in accordance with provision contained in it.

(5) A declaration under this section—

(a) must identify the renewable energy installations, or proposed renewable energy installations, by reference to which it is made;

(b) must specify the date on which it is to come into force, or the means by which that date is to be determined;

(c) may modify or revoke a previous such declaration, or a declaration under section 100 of the Energy Act 2004; and

(d) may make different provision in relation to different means of exercising a right of navigation.

(6) Where a declaration is made under this section by [F461 the appropriate authority], or a determination is made by [F462 the appropriate authority] for the purposes of a provision contained in such a declaration, he or (as the case may be) they must either—

(a) publish the declaration or determination in such manner as appears to [F462 the appropriate authority] to be appropriate for bringing it, as soon as is reasonably practicable, to the attention of persons likely to be affected by it; or

(b) secure that it is published in that manner by the applicant for the declaration.

(7) In this section—

• [F463 “appropriate authority” has the same meaning as in section 36;]

• “consent” means a consent under section 36 above;

• “extension”, in relation to a renewable energy installation, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;

• “relevant waters” means waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea.

Textual Amendments

F456 Ss. 36A, 36B inserted (1.3.2005 for specified purposes, 1.9.2005 for specified purposes, 1.10.2005 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 99(1), 198(2); S.I. 2005/442, art. 2(1)(3), Sch. 1, Sch. 3; S.I. 2005/877, art. 2(2), Sch. 2

F457 Words in s. 36A(1) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(2)(a), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F458 Words in s. 36A(1) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(2)(b), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F459 S. 36A(1A) inserted (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), s. 12(7)(b)(8), 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

F460 Words in s. 36A(2) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(3), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F461 Words in s. 36A(6) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(4)(a), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F462 Words in s. 36A(6) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(4)(b), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F463 Words in s. 36A(7) inserted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(5), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

Modifications etc. (not altering text)

C84 S. 36A: transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

C85 Ss. 36A(4)-(6) applied (1.9.2005) by Energy Act 2004 (c. 20), ss. 100(5), 198(2); S.I. 2005/442, art. 2(3), Sch. 3

36B Duties in relation to navigation E+W+S

(1) [F464 The appropriate authority may not] grant a consent in relation to any particular offshore generating activities if [F465 the appropriate authority considers] that interference with the use of recognised sea lanes essential to international navigation—

(a) is likely to be caused by the carrying on of those activities; or

(b) is likely to result from their having been carried on.

[F466 (1A) This section is subject to section 12 of the Marine and Coastal Access Act 2009 (which transfers certain functions of the Secretary of State to the Marine Management Organisation).]

(2) It shall be the duty [F467 of the appropriate authority], in determining—

(a) whether to give a consent for any particular offshore generating activities, and

(b) what conditions to include in such a consent,

to have regard to the extent and nature of any obstruction of or danger to navigation which (without amounting to interference with the use of such sea lanes) is likely to be caused by the carrying on of the activities, or is likely to result from their having been carried on.

(3) In determining for the purposes of this section what interference, obstruction or danger is likely and its extent and nature, [F468 the appropriate authority] must have regard to the likely overall effect (both while being carried on and subsequently) of—

(a) the activities in question; and

(b) such other offshore generating activities as are either already the subject of consents or are activities in respect of which it appears likely that consents will be granted.

(4) For the purposes of this section the effects of offshore generating activities include—

(a) how, in relation to those activities, [F469 the appropriate authority has exercised or will exercise its powers] under section 36A above and section 100 of the Energy Act 2004 (extinguishment of public rights of navigation); and

(b) how, in relation to those activities, the Secretary of State has exercised or will exercise his powers under sections 95 and 96 and Chapter 3 of Part 2 of that Act (safety zones and decommissioning).

(5) If the person who has granted a consent in relation to any offshore generating activities thinks it appropriate to do so in the interests of the safety of navigation, he may at any time vary conditions of the consent so as to modify in relation to any of the following matters the obligations imposed by those conditions—

(a) the provision of aids to navigation (including, in particular, lights and signals);

(b) the stationing of guard ships in the vicinity of the place where the activities are being or are to be carried on; or

(c) the taking of other measures for the purposes of, or in connection with, the control of the movement of vessels in that vicinity.

(6) A modification in exercise of the power under subsection (5) must be set out in a notice given by the person who granted the consent to the person whose obligations are modified.

(7) In this section—

• “consent” means a consent under section 36 above;

• “offshore generating activities” means—

  (a)

  the construction or operation of a generating station that is to comprise or comprises (in whole or in part) renewable energy installations; or

  (b)

  an extension of a generating station that is to comprise (in whole or in part) renewable energy installations or an extension of such an installation;

• “the use of recognised sea lanes essential to international navigation” means—

  (a)

  anything that constitutes the use of such a sea lane for the purposes of Article 60(7) of the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941); or

  (b)

  any use of waters in the territorial sea adjacent to Great Britain that would fall within paragraph (a) if the waters were in a Renewable Energy Zone.

(8) In subsection (7) “extension”, in relation to a renewable energy installation, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.]

Textual Amendments

F456 Ss. 36A, 36B inserted (1.3.2005 for specified purposes, 1.9.2005 for specified purposes, 1.10.2005 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 99(1), 198(2); S.I. 2005/442, art. 2(1)(3), Sch. 1, Sch. 3; S.I. 2005/877, art. 2(2), Sch. 2

F464 Words in s. 36B(1) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(7)(a), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F465 Words in s. 36B(1) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(7)(b), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F466 S. 36B(1A) inserted (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), s. 12(7)(b)(8), 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

F467 Words in s. 36B(2) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(8), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F468 Words in s. 36B(3) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(9), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F469 Words in s. 36B(4)(a) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 40(10), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

Modifications etc. (not altering text)

C86 S. 36B: transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

[F470 36C Variation of consents under section 36 E+W+S

(1) The person for the time being entitled to the benefit of a section 36 consent may make an application to the appropriate authority for the consent to be varied.

(2) Regulations may make provision about the variation of a section 36 consent, including in particular provision about—

(a) the making and withdrawal of applications;

(b) fees;

(c) publicity and consultation requirements;

(d) rights to make representations;

(e) public inquiries;

(f) consideration of applications.

(3) Regulations under subsection (2) may provide for any statutory provision applicable to the grant of a section 36 consent to apply with specified modifications to the variation of a section 36 consent.

(4) On an application for a section 36 consent to be varied, the appropriate authority may make such variations to the consent as appear to the authority to be appropriate, having regard (in particular) to—

(a) the applicant's reasons for seeking the variation;

(b) the variations proposed;

(c) any objections made to the proposed variations, the views of consultees and the outcome of any public inquiry.

(5) Regulations may make provision treating, for prescribed purposes, a section 36 consent varied under this section as granted in its varied form when the original consent was granted (rather than when the variation was made).

[F471 (5A) Regulations may provide that, where the Welsh Ministers are the appropriate authority, applications under this section are to be determined by a person appointed by the Welsh Ministers for that purpose.]

(6) In this section—

• “the appropriate authority” means—

  (a)

  the Scottish Ministers, in a case where the section 36 consent relates to a generating station (or proposed generating station) in Scotland;

  (ab)

  [F472 the Welsh Ministers, in a case where the section 36 consent relates to a generating station (or proposed generating station) in Welsh waters that does not or will not when constructed or extended exceed 350 megawatts;]

  (b)

  the Marine Management Organisation, in a case where the section 36 consent was granted by it [F473 and does not relate to a generating station (or proposed generating station) in Welsh waters that does not or will not when constructed or extended exceed 350 megawatts];

  (c)

  the Secretary of State, in any other case;

• “regulations” means regulations made by—

  (a)

  the Scottish Ministers, in the case of section 36 consents relating to generating stations (or proposed generating stations) in Scotland;

  (aa)

  [F474 the Welsh Ministers, in the case of section 36 consents relating to generating stations (or proposed generating stations) in Welsh waters that do not or will not when constructed or extended exceed 350 megawatts;]

  (b)

  the Secretary of State, in any other case;

• “Scotland” has the same meaning as in section 32(2) (see section 32(3));

• “section 36 consent” means a consent granted under section 36 (construction, extension or operation of generating station), whenever granted;

• “statutory provision” means a provision of or made under an Act, whenever passed or made; and for this purpose “Act” includes an Act of the Scottish Parliament [F475 and an Act of the Assembly].

• [F476 "Welsh waters” has the meaning given in section 36.]]

Textual Amendments

F470 S. 36C inserted (19.6.2013 for specified purposes, 31.7.2013 in relation to E.W. so far as it is not already in force, 1.12.2013 in relation to S. so far as it is not already in force) by Growth and Infrastructure Act 2013 (c. 27), ss. 20(2), 35(1); S.I. 2013/1488, arts. 2, 5(a), 7

F471 S. 36C(5A) inserted (1.4.2019) by Wales Act 2017 (c. 4), s. 71(4), Sch. 6 para. 48 (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 5(b)

F472 Words in s. 36C(6) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(12)(a)(i), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F473 Words in s. 36C(6) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(12)(a)(ii), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F474 Words in s. 36C(6) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(12)(b), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F475 Words in s. 36C(6) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(12)(c), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

F476 Words in s. 36C(6) inserted (1.4.2018 for specified purposes, 1.4.2019 in so far as not already in force) by Wales Act 2017 (c. 4), ss. 39(12)(d), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, regs. 3(h), 5(a)

[F477 36D Proceedings for questioning certain decisions under section 36 E+W+S

(1) If a person is aggrieved by a decision of the Scottish Ministers to which this section applies, and wishes to question the validity of the decision on either of the grounds mentioned in subsection (2), the person (the “aggrieved person”) may make an application to the Inner House of the Court of Session under this section.

(2) The grounds are that—

(a) the decision is not within the powers of the Scottish Ministers under this Part,

(b) one or more of the relevant requirements have not been complied with in relation to the decision.

(3) This section applies to a decision under section 36 in relation to an application for consent to construct, extend or operate a generating station that comprises or is to comprise (in whole or in part) renewable energy installations situated at places in relevant waters.

(4) An application under this section must be made within the period of 6 weeks beginning with the date on which the decision to which the application relates is taken.

(5) On an application under this section, the Inner House of the Court of Session—

(a) may suspend the decision until the final determination of the proceedings,

(b) may quash the decision either in whole or in part if satisfied that—

(i) the decision in question is not within the powers of the Scottish Ministers under this Part, or

(ii) the interests of the aggrieved person have been substantially prejudiced by failure to comply with any of the relevant requirements in relation to the decision.

(6) In this section—

• [F478 “relevant waters” means—

  (a)

  waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; and

  (b)

  waters in the area designated by the Renewable Energy Zone (Designation of Area) (Scottish Ministers) Order 2005 as the area in which the Scottish Ministers are to have functions.]

• “the relevant requirements”, in relation to a decision to which this section applies, means the requirements of this Act, or of any order or regulations made under this Part, which are applicable to that decision.

Textual Amendments

F477 Ss. 36D, 36E inserted (26.2.2015) by The Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015 (S.I. 2015/374), arts. 1(1), 4(2) (with art. 4(4))

F478 Words in s. 36D(6) substituted (2.5.2019) by The Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2019 (S.I. 2019/911), arts. 1(1), 2(a)

36E Applications under section 36D: requirement for permission E+W+S

(1) No proceedings may be taken in respect of an application under section 36D(1) unless the Inner House of the Court of Session has granted permission for the application to proceed.

(2) The Court may grant permission under subsection (1) for an application to proceed only if it is satisfied that—

(a) the applicant can demonstrate a sufficient interest in the subject matter of the application, and

(b) the application has a real prospect of success.

(3) The Court may grant permission under subsection (1) for an application to proceed—

(a) subject to such conditions as the Court thinks fit, or

(b) only on such of the grounds specified in the application as the Court thinks fit.]

Textual Amendments

F477 Ss. 36D, 36E inserted (26.2.2015) by The Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015 (S.I. 2015/374), arts. 1(1), 4(2) (with art. 4(4))

37 Consent required for overhead lines. E+W+S

(1) Subject to [F479 subsections (1A) to [F480 (2A)]] below, an electric line shall not be installed or kept installed above ground except in accordance with a consent granted by the Secretary of State.

[F481 (1A) So far as relating to the installation of an electric line, subsection (1) is subject to section 33(1) of the Planning Act 2008 (exclusion of requirement for other consents for development for which development consent required).

(1B) So far as relating to keeping an electric line installed, subsection (1) does not apply if keeping the line installed is authorised by an order granting development consent under the Planning Act 2008.]

(2) Subsection (1) above shall not apply—

(a) in relation to an electric line which has a nominal voltage not exceeding 20 kilovolts and is used or intended to be used for supplying a single consumer;

(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or

(c) in such other cases as may be prescribed.

[F482 (2A) Subsection (1) above shall not apply in relation to an electric line that—

(a) has a nominal voltage of 132 kilovolts or less, and

(b) is associated with the construction or extension of a devolved Welsh generating station granted planning permission or consented to on or after the day on which section 39 of the Wales Act 2017 comes into force.

(2B) “Devolved Welsh generating station” means a generating station that—

(a) is in Wales and—

(i) generates electricity from wind, or

(ii) has a maximum capacity of 350 megawatts or less; or

(b) is in Welsh waters and has a maximum capacity of 350 megawatts or less.

(2C) “Welsh waters” has the meaning given in section 36 above.]

(3) A consent under this section—

(a) may include such conditions (including conditions as to the ownership and operation of the line) as appear to the Secretary of State to be appropriate;

(b) may be varied or revoked by the Secretary of State at any time after the end of such period as may be specified in the consent; and

(c) subject to paragraph (b) above, shall continue in force for such period as may be specified in or determined by or under the consent.

(4) Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State.

Textual Amendments

F479 Words in s. 37(1) substituted (1.3.2010) by Planning Act 2008 (c. 29), s. 241(8), Sch. 2 para. 33(2) (with s. 226); S.I. 2010/101, art. 2 (with art. 6)

F480 Word in s. 37(1) substituted (1.4.2019) by Wales Act 2017 (c. 4), ss. 42(2), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

F481 S. 37(1A)(1B) inserted (1.3.2010) by Planning Act 2008 (c. 29), s. 241(8), Sch. 2 para. 33(3) (with s. 226); S.I. 2010/101, art. 2 (with art. 6)

F482 S. 37(2A)-(2C) inserted (1.4.2019) by Wales Act 2017 (c. 4), ss. 42(3), 71(4) (with Sch. 7 paras. 1, 6, 8); S.I. 2017/1179, reg. 5(a)

Modifications etc. (not altering text)

C87 S. 37 restricted by S.I. 1990/442, art. 3(1)(b)

C88 S. 37 excluded (16.3.1992) by Midland Metro Act 1992 (c. vii), s. 10(3)

C89 S. 37 modified (S.) (27.5.1997) by 1997 c. 8, ss. 57(2), 278(2) (with ss. 64, 219)

C90 S. 37: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, art. 2, Sch. 1 (with art. 7)

C91 S. 37 excluded (19.11.2004) by The Scarweather Sands Offshore Wind Farm Order 2004 (S.I. 2004/3054), arts. 1, 26 (with art. 38)

C92 S. 37(1) excluded (1.1.1993) by S.I. 1992/3074, reg.3

C93 S. 37(1) excluded (18.12.1996) by 1996 c. 61, s. 50(1)

C94 S. 37(1) excluded (22.7.2008) by Crossrail Act 2008 (c. 18), s. 4(1)

C95 S. 37(1) excluded (E.W.) (6.4.2009) by The Overhead Lines (Exemption) (England and Wales) Regulations 2009 (S.I. 2009/640), regs. 1(3), 3-5

C96 S. 37(1) excluded (S.) (1.11.2013) by The Overhead Lines (Exemption) (Scotland) Regulations 2013 (S.S.I. 2013/264), regs. 1, 3(1) (with regs. 3(3), 4, 5, 6(2))

C97 S. 37(1) excluded (23.2.2017) by High Speed Rail (London - West Midlands) Act 2017 (c. 7), ss. 31(1), 70(1)

C98 S. 37(1) excluded (11.2.2021) by High Speed Rail (West Midlands - Crewe) Act 2021 (c. 2), ss. 26(1), 64(1)

38 Preservation of amenity and fisheries. E+W+S

The provisions of Schedule 9 to this Act (which relate to the preservation of amenity and fisheries) shall have effect.

Consumer protection: standards of performance E+W+S

39 Electricity supply: performance in individual cases. E+W+S

[F483 (1) The Authority may, with the consent of the Secretary of State, make regulations prescribing such standards of performance in connection with the activities of electricity suppliers, so far as affecting customers or potential customers of theirs, as in the Authority’s opinion ought to be achieved in individual cases.]

(2) Regulations under this section may—

(a) prescribe circumstances in which [F484 electricity suppliers] are to inform persons of their rights under this section [F485 or their rights under section 39A];

(b) prescribe such standards of Performance in relation to any duty arising under paragraph (a) above as, in the Director’s opinion, ought to be achieved in all cases; and

(c) prescribe circumstances in which [F484 electricity suppliers] are to be exempted from any requirements of the regulations or this section,

[F486 and, if the Authority is of the opinion that the differences are such that no electricity supplier would be unduly disadvantaged in competing with other electricity suppliers, may make different provision for different electricity suppliers.]

(3) If [F487 an electricity supplier] fails to meet a prescribed standard, he shall make to any person who is affected by the failure and is of a prescribed description such compensation as may be determined by or under the regulations.

(4) The making of compensation under this section in respect of any failure by [F487 an electricity supplier] to meet a prescribed standard shall not prejudice any other remedy which may be available in respect of the act or omission which constituted that failure.

F488 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F488 (5A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F488 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In this section “prescribed” means prescribed by regulations under this section.

Textual Amendments

F483 S. 39(1) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 para. 32(a); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F484 Words in s. 39(2)(a)(c) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 para. 32(c); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F485 Words in s. 39(2)(a) inserted (1.10.2001) by 2000 c. 27, s. 54(1)(a); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F486 Words in s. 39(2) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 para. 32(b); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F487 Words in s. 39(3)(4) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 para. 32(d); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F488 S. 39(5)(5A)(6) repealed (1.10.2001) by 2000 c. 27, ss. 54(1)(b), 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

[F489 39A Standards of performance in individual cases: electricity distributors. E+W+S

(1) The Authority may with the consent of the Secretary of State make regulations prescribing such standards of performance in connection with the activities of electricity distributors, so far as affecting customers or potential customers of electricity suppliers, as in the Authority’s opinion ought to be achieved in individual cases.

(2) If an electricity distributor fails to meet a prescribed standard, he shall make to any person who is affected by the failure and is of a prescribed description such compensation as may be determined by or under the regulations.

(3) The regulations may—

(a) prescribe circumstances in which electricity distributors are to inform customers or potential customers of electricity suppliers of their rights under this section;

(b) prescribe such standards of performance in relation to any duty arising under paragraph (a) as, in the Authority’s opinion, ought to be achieved in all cases;

(c) make provision as to the manner in which compensation under this section is to be made;

(d) prescribe circumstances in which electricity distributors are to be exempted from any requirements of the regulations or this section; and

(e) if the Authority is of the opinion that the differences are such that no electricity distributor would be unduly disadvantaged in competing with other electricity distributors, make different provision with respect to different electricity distributors.

(4) Provision made under subsection (3)(c) may—

(a) require or permit compensation to be made on behalf of electricity distributors by electricity suppliers to customers or potential customers; and

(b) require electricity suppliers to provide services to electricity distributors in connection with the making of compensation under this section.

(5) The making of compensation under this section in respect of any failure to meet a prescribed standard shall not prejudice any other remedy which may be available in respect of the act or omission which constituted that failure.

(6) In this section “prescribed” means prescribed by regulations under this section.]

Textual Amendments

F489 Ss. 39A, 39B inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 54(2); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

[F490 39B Standards of performance in individual cases: disputes. E+W+S

(1) Any dispute arising under section 39 or 39A or regulations made under either of those sections—

(a) may be referred to [F491 Authority—

(i) by either party, or

(ii) with the consent of either party, by [F492 Citizens Advice, Citizens Advice Scotland or Consumer Scotland or those bodies or any two of them acting jointly];] and

(b) on such a reference, shall be determined by order made by the Authority or, if it thinks fit, by such person (other than [F493 Citizens Advice [F494 , Citizens Advice Scotland or Consumer Scotland]]) as may be prescribed.

(2) A person making an order under subsection (1) shall include in the order his reasons for reaching his decision with respect to the dispute.

(3) The practice and procedure to be followed in connection with any such determination shall be such as may be prescribed.

(4) An order under subsection (1) shall be final and shall be enforceable—

(a) in England and Wales, as if it were a judgment of [F495 the county court]; and

(b) in Scotland, as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.

(5) In this section “prescribed” means prescribed by regulations made by the Authority with the consent of the Secretary of State.]

Textual Amendments

F490 Ss. 39A, 39B inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 54(2); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F491 Words in s. 39B(1)(a) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(10)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F492 Words in s. 39B(1)(a)(ii) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(10)(a) (with art. 5)

F493 Words in s. 39B(1)(b) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(10)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F494 Words in s. 39B(1)(b) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(10)(b) (with art. 5)

F495 Words in s. 39B(4)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 52; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

40 Electricity supply: overall performance. E+W+S

(1) The Director may, F496 . . . from time to time—

(a) determine such standards of overall performance in connection with the provision of electricity supply services as, in his opinion, ought to be achieved by [F497 electricity] suppliers; and

(b) arrange for the publication, in such form and in such manner as he considers appropriate, of the standards so determined.

F498 (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Different standards may be determined under this section for different [F499 electricity suppliers] [F500 if the Authority is of the opinion that the differences are such that no electricity supplier would be unduly disadvantaged in competing with other electricity suppliers].

F501 [(3) It shall be the duty of every [F502 electricity supplier] to conduct his business in such a way as can reasonably be expected to lead to his achieving the standards set under this section.]

Textual Amendments

F496 Words in s. 40(1) repealed (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), ss. 20(2), 56(7), Sch. 2; Commencement Order No. 1 made on 29.5.1992, art. 3, Sch. Pt. I.

F497 Words in s. 40(1)(a) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 33(a); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F498 S. 40(1A) repealed (1.10.2001) by 2000 c. 27, s. 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F499 Words in s. 40(2) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 33(c); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F500 Words in s. 40(2) inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 33(b); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F501 S. 40(3) added (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 24; Commencement Order No. 1 made on 29.5.1992, art. 3, Sch. Pt. I

F502 Words in s. 40(3) substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 33(d); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

[F503 40A Overall standards of performance: electricity distributors. E+W+S

(1) The Authority may from time to time—

(a) determine such standards of overall performance in connection with the activities of electricity distributors as, in its opinion, ought to be achieved by them; and

(b) arrange for the publication, in such form and in such manner as it considers appropriate, of the standards so determined.

(2) Different standards may be determined for different electricity distributors if the Authority is of the opinion that the differences are such that no electricity distributor would be unduly disadvantaged in competing with other electricity distributors.

(3) It shall be the duty of every electricity distributor to conduct his business in such a way as can reasonably be expected to lead to his achieving the standards set under this section.]

Textual Amendments

F503 S. 40A inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 55; S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

[F504 40B Procedures for prescribing or determining standards of performance. E+W+S

(1) Before prescribing standards of performance in regulations under section 39 or 39A, or determining standards of performance under section 40 or 40A, the Authority shall—

(a) arrange for such research as the Authority considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected and consider the results;

(b) publish a notice of its proposals in accordance with subsections (2) and (3) and consider any representations which are duly made in respect of those proposals; and

(c) consult [F505 Citizens Advice and [F506 Consumer Scotland]] and other persons or bodies mentioned in subsection (4).

(2) The notice required by subsection (1)(b) is a notice—

(a) stating that the Authority proposes to prescribe or determine standards of performance and setting out the standards of performance proposed;

(b) stating the reasons why it proposes to prescribe or determine those standards of performance; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations with respect to the proposals may be made.

(3) A notice required by subsection (1)(b) shall be published in such manner as the Authority considers appropriate for the purpose of bringing it to the attention of those likely to be affected by the proposals.

(4) The persons or bodies to be consulted by the Authority under subsection (1)(c) are—

(a) electricity suppliers (in the case of standards of performance under section 39 or 40) or electricity distributors and electricity suppliers (in the case of standards of performance under section 39A or 40A); and

(b) persons or bodies appearing to the Authority to be representative of persons likely to be affected by the regulations or determination.

(5) The Authority shall make arrangements for securing that notices under subsection (1)(b), regulations under section 39 or 39A and determinations under section 40 or 40A are made available to the public by whatever means it considers appropriate.]

Textual Amendments

F504 S. 40B inserted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 56; S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F505 Words in s. 40B(1)(c) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(11) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F506 Words in s. 40B(1)(c) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(11) (with art. 5)

[F509 41A [F507 Promotion of reductions in carbon emissions: F508 ... electricity distributors and electricity suppliers] E+W+S

(1) The Secretary of State may by order impose—

F510 (za) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(a) on each electricity distributor (or each electricity distributor of a specified description); and

(b) on each electricity supplier (or each electricity supplier of a specified description),

an obligation to achieve, within a specified period and in accordance with the order, the [F511 carbon emissions reduction target] to be determined by [F512 the Administrator] under the order for that F513 ... distributor or supplier (and that obligation is referred to in this section as [F514 a “carbon emissions reduction obligation”]).

[F515 (1A) The power to make orders under this section may be exercised so as to impose more than one carbon emissions reduction obligation on a person in relation to the same period or to periods that overlap to any extent.]

[F516 (2) In this section “carbon emissions reduction target” means a target for the promotion of any of the following—

(a) measures for improving energy efficiency, that is to say, efficiency in the use by consumers of electricity, gas conveyed through pipes or any other source of energy which is specified in the order;

(b) if the order so provides—

(i) measures for increasing the amount of electricity generated, or heat produced, by microgeneration;

(ii) any other measures of a description specified in the order for increasing the amount of electricity generated, or heat produced, using low-emissions sources or technologies;

(iii) measures for reducing the consumption of such energy as is mentioned in paragraph (a).]

[F517 (2A) In this section “the Administrator” means—

(a) the Authority; or

(b) if the order so provides, the Secretary of State or a specified body other than the Authority.]

(3) An order under this section may specify criteria by reference to which [F518 the Administrator] is to determine [F519 carbon emissions reduction targets] for the F520 ... electricity distributors or electricity suppliers on whom obligations are imposed by the order.

(4) The Secretary of State and [F521 (subject to any directions given under subsection (9B)) the Administrator] shall carry out their respective functions under this section in the manner he or it considers is best calculated to ensure that [F522 —

F523 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) no electricity distributor is unduly disadvantaged in competing with other electricity distributors, and

(c) no electricity supplier is unduly disadvantaged in competing with other electricity suppliers.]

(5) The order may make provision generally in relation to the [F524 carbon emissions reduction obligations] which it imposes, including in particular provision—

(a) as to the treatment of persons who become F525 ... electricity distributors or electricity suppliers after the beginning of the period to which the order relates;

(b) as to the action which qualifies for the purpose of meeting the whole or any part of [F526 a carbon emissions reduction target];

[F527 (ba) requiring part of a carbon emissions reduction target to be met by action of a specified description;

(bb) requiring the whole or any part of a carbon emissions reduction target to be met by action relating to—

(i) individuals of a specified description,

(ii) property of a specified description,

(iii) specified areas or areas of a specified description, or

(iv) individuals or property of a specified description in specified areas or areas of a specified description;

(bc) enabling the Administrator to direct a distributor or supplier to meet part of a carbon emissions reduction target by action relating to an individual named in the direction;

(bd) preventing action from qualifying for the purpose of meeting the whole or any part of a carbon emissions reduction target unless such persons as are specified in, or determined in accordance with, the order—

(i) have been consulted about the action;

(ii) have consented to the action;

(be) requiring action which qualifies for the purpose of meeting both a carbon emissions reduction target and a home-heating cost reduction target to be treated as qualifying only for the purpose of meeting such one of those targets as the distributor or supplier concerned elects;

(c) determining, or specifying the method for determining, the contribution that any action makes towards meeting a carbon emissions reduction target;]

(d) requiring F528 ... distributors and suppliers to give to [F529 the Administrator] specified information, or information of a specified nature, about their proposals for complying with their [F530 carbon emissions reduction obligations];

(e) requiring [F531 the Administrator] to determine—

(i) whether any proposed action qualifies for the purpose of achieving the whole or any part of a person’s [F532 carbon emissions reduction target]; and

[F533 (ii) if so, what contribution the proposed action (or any result of that action specified in the determination) is to make towards achieving the carbon emissions reduction target;]

(f) requiring F534 ... distributors or suppliers to produce to [F535 the Administrator] evidence of a specified kind demonstrating that they have complied with their [F536 carbon emissions reduction obligations][F537 ; and

(g) requiring the Administrator or a specified body to offer services of a specified kind and authorising a specified fee to be charged to those who take up the offer.]

[F538 (5A) If the order makes provision by virtue of subsection (5)(bc) enabling the Administrator to direct a distributor or supplier to meet part of a carbon emissions reduction target by action relating to an individual named in the direction the order may also make provision—

(a) authorising the Administrator to require specified persons to provide it with information for the purpose of enabling it to identify and select individuals who are to be the subject of a direction;

(b) specifying criteria in accordance with which the Administrator is to select individuals who are to be the subject of a direction;

(c) determining, or specifying the method for determining, which distributor or supplier is to be given a direction in relation to any particular individual selected in accordance with provision made under paragraph (b);

(d) authorising the Administrator, if it gives a direction to a distributor or supplier, to provide the distributor or supplier with information relating to the individual concerned for the purpose of assisting the distributor or supplier to comply with the direction;

(e) as to the times at which a direction may be given;

(f) as to the circumstances in which a direction need not be complied with.

(5B) Provision made by virtue of subsection (5)(c) may in particular provide for an action to be treated as making a greater contribution than it would otherwise do if the action relates to—

(a) an individual of a specified description,

(b) a property of a specified description, or

(c) both an individual of a specified description and a property of a specified description.]

(6) The order may make provision authorising the [F539 the Administrator] to require a F540 ... distributor or supplier to provide it with specified information, or information of a specified nature, relating to—

(a) his proposals for complying with his [F541 carbon emissions reduction obligation]; or

(b) the question whether he has complied with that obligation.

(7) The order may make provision as to circumstances in which—

(a) a person’s [F542 carbon emissions reduction target] may be altered during the period to which the order relates;

(b) the whole or any part of a person’s [F542 carbon emissions reduction target] may be treated as having been achieved by action taken otherwise than by or on behalf of that person;

(c) any action taken before the period to which the order relates may be treated as qualifying action taken during that period;

(d) the whole or any part of a person’s [F543 carbon emissions reduction target] may be transferred to another F544 ... electricity distributor or electricity supplier or to a gas transporter or gas supplier (within the meaning of Part I of the M7 Gas Act 1986); or

(e) a person may carry forward the whole or any part of his [F543 carbon emissions reduction target] for the period to which the order relates to a subsequent period.

[F545 (7A) The order may—

(a) make provision for any specified requirement contained in it to be treated as a relevant requirement for the purposes of this Part; or

(b) if it provides for the Administrator to be a person other than the Authority, make provision for and in connection with enabling the Administrator to enforce any requirement imposed by the order.

(7B) Provision made by virtue of paragraph (b) of subsection (7A) may, in particular, include provision corresponding to or applying (with or without modifications) any of sections 25 to 28.]

[F546 (7C) The order may make provision as to circumstances in which a distributor or supplier may meet the whole or any part of a carbon emissions reduction target by making a buy-out payment.

(7D) In this section, “buy-out payment” means a payment—

(a) of an amount (“the buy-out price”) determined by the Secretary of State,

(b) to a person approved by the Administrator (an “approved person”),

(c) for a purpose approved by the Administrator (an “approved purpose”).

(7E) Provision made by virtue of subsection (7C) may include provision about the determination by the Secretary of State of the buy-out price, including provision—

(a) enabling the Secretary of State to set different buy-out prices—

(i) for different parts of the period to which the order relates;

(ii) for different cases (including different buy-out prices for different distributors or suppliers);

(b) requiring the Secretary of State to publish the buy-out price.

(7F) If the order makes provision by virtue of subsection (7C), the order may also make provision—

(a) as to the procedure to be followed by the Administrator in approving a person as an approved person or a purpose as an approved purpose;

(b) specifying criteria by reference to which the Administrator is to determine whether to approve a person or purpose.

(7G) Provision made by virtue of subsection (7C) may include further provision about buy-out payments, including in particular provision—

(a) as to the procedure to be followed by a distributor or supplier who proposes to make a buy-out payment, including provision—

(i) requiring a distributor or supplier to notify the Administrator of specified matters by a specified time;

(ii) as to circumstances in which a distributor or supplier must make the buy-out payment to which notification given to the Administrator relates;

(iii) about the process for seeking approval of a person as an approved person, or of a purpose as an approved purpose;

(b) preventing a distributor or supplier from treating a buy-out payment as a payment pursuant to any other obligation (whether statutory or contractual), or vice versa;

(c) setting out circumstances in which a requirement imposed on a distributor or supplier by provision made by virtue of subsection (5)(ba) or (bb) may be—

(i) met, in whole or in part, by the making of a buy-out payment;

(ii) varied as a result of a buy-out payment;

(d) about the effect of provision included in the order by virtue of subsection (7)(c) to (e) on a person’s ability to meet the whole or any part of a carbon emissions reduction target by making a buy-out payment.

(7H) Where an order includes provision for the making of a buy-out payment, the references in subsections (5)(be) and (7)(b) to action include a reference to the making of a buy-out payment.]

(8) The order may—

(a) provide for exceptions from any requirement of the order;

F547 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) make supplementary, incidental and transitional provision; and

(d) subject to subsection (4), make different provision for different cases (including different provision in relation to different F548 ... distributors or suppliers).

(9) The order may include provision for treating the promotion of the supply to premises of—

(a) electricity generated by a generating station which is operated for the purposes of producing heat, or a cooling effect, in association with electricity;

(b) heat produced in association with electricity or steam produced from (or air or water heated by) such heat;

(c) any gas or liquid subjected to a cooling effect produced in association with electricity,

as promotion of energy efficiency.

[F549 (9A) The order may make provision requiring the Administrator to give guidance to distributors or suppliers concerning such matters relating to the order as are specified.

(9B) The Administrator shall carry out its functions under this section in accordance with any general or specific directions given to it by the Secretary of State.]

(10) 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.

[F550 (10A) The Secretary of State must obtain the consent of the Scottish Ministers before making an order under this section which contains provision that—

(a) is included by virtue of subsection (2)(b),

(b) extends to Scotland, and

(c) would be within the legislative competence of the Scottish Parliament if contained in an Act of that Parliament.]

(11) Before making an order under this section the Secretary of State shall consult the Authority, [F551 Citizens Advice, [F552 Consumer Scotland]], F553 ... electricity distributors and electricity suppliers and such other persons as he considers appropriate.

(12) 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.

[F554 (12A) Subsection (12) does not apply to an order under this section made only for the purpose of amending an earlier order under this section so as to alter the provision included in the earlier order by virtue of any of paragraphs (b), (ba) or (c) of subsection (5). But such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(12B) If an order under this section provides for the Administrator to be a body other than the Authority, the Secretary of State may make payments to the body of such amounts as the Secretary of State considers appropriate.]

[F555 (13) In this section—

• [F556 “home-heating cost reduction target” has the meaning given by section 41B(2)(a);]

• “microgeneration” has the same meaning as in the Climate Change and Sustainable Energy Act 2006;

• “plant” includes any equipment, apparatus or appliance.

• [F557 “specified” means specified in the order.]

(14) For the purposes of subsection (2)(b)(ii), electricity is generated, or heat is produced, using low-emissions sources or technologies if it is generated, or produced, by plant which relies wholly or mainly on a source of energy or a technology mentioned in section 26(2) of the Climate Change and Sustainable Energy Act 2006.]]

Textual Amendments

F507 S. 41A heading substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(2); S.I. 2007/538, art. 2

F508 Words in s. 41A heading omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(2)

F509 S. 41A inserted (1.10.2001) by 2000 c. 27, ss. 70, 198(2); S.I. 2001/3266, art. 2, Sch. (with arts. 3-20)

F510 S. 41A(1)(za) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(3)(a)

F511 Words in s. 41A(1) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 16(2)(a), 28(3); S.I. 2007/538, art. 2

F512 Words in s. 41A(1) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(2), 121(3) (with s. 67(16))

F513 Word in s. 41A(1) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(3)(b)

F514 Words in s. 41A(1) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 16(2)(b), 28(3); S.I. 2007/538, art. 2

F515 S. 41A(1A) inserted (26.1.2009) by Climate Change Act 2008 (c. 27), s. 100(5), Sch. 8 para. 3(3)

F516 S. 41A(2) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 16(3), 28(3); S.I. 2007/538, art. 2

F517 S. 41A(2A) inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(3), 121(3) (with s. 67(16))

F518 Words in s. 41A(3) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(4), 121(3) (with s. 67(16))

F519 Words in s. 41A(3) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(3); S.I. 2007/538, art. 2

F520 Words in s. 41A(3) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(4)

F521 Words in s. 41A(4) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(5), 121(3) (with s. 67(16))

F522 Words in s. 41A(4) substituted (26.1.2009) by Climate Change Act 2008 (c. 27), s. 100(5), Sch. 8 para. 3(5)

F523 S. 41A(4)(a) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(5)

F524 Words in s. 41A(5) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(4)(a); S.I. 2007/538, art. 2

F525 Words in s. 41A(5)(a) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(6)(a)

F526 Words in s. 41A(5)(b) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(4)(b); S.I. 2007/538, art. 2

F527 Ss. 41A(5)(ba)-(be) (c) substituted for (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(6)(a), 121(3) (with s. 67(16))

F528 Word in s. 41A(5)(d) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(6)(b)

F529 Words in s. 41A(5)(d) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(6)(b), 121(3) (with s. 67(16))

F530 Words in s. 41A(5)(d) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(4)(d); S.I. 2007/538, art. 2

F531 Words in s. 41A(5)(e) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(6)(c)(i), 121(3) (with s. 67(16))

F532 Words in s. 41A(5)(e)(i) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(4)(e)(i); S.I. 2007/538, art. 2

F533 S. 41A(5)(e)(ii) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(6)(c)(ii), 121(3) (with s. 67(16))

F534 Word in s. 41A(5)(f) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(6)(c)

F535 Words in s. 41A(5)(f) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(6)(d), 121(3) (with s. 67(16))

F536 Words in s. 41A(5)(f) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(4)(d); S.I. 2007/538, art. 2

F537 S. 41A(5)(g) and preceding word inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(6)(e), 121(3) (with s. 67(16))

F538 S. 41A(5A)(5B) inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(7), 121(3) (with s. 67(16))

F539 Words in s. 41A(6) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(8), 121(3) (with s. 67(16))

F540 Word in s. 41A(6) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(7)

F541 Words in s. 41A(6) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(5); S.I. 2007/538, art. 2

F542 Words in s. 41A(7)(a)(b) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(6); S.I. 2007/538, art. 2

F543 Words in s. 41A(7)(d)(e) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 5(6); S.I. 2007/538, art. 2; S.I. 2007/538, art. 2

F544 Words in s. 41A(7)(d) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(8)

F545 S. 41A(7A)(7B) inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(9), 121(3) (with s. 67(16))

F546 S. 41A(7C)-(7H) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(4), 334(3)(g)

F547 S. 41A(8)(b) omitted (18.12.2011) by virtue of Energy Act 2011 (c. 16), ss. 67(10), 121(3) (with s. 67(16))

F548 Word in s. 41A(8)(d) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(9)

F549 S. 41A(9A)(9B) inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(11), 121(3) (with s. 67(16))

F550 S. 41A(10A) substituted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(12), 121(3) (with s. 67(16))

F551 Words in s. 41A(11) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(12) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F552 Words in s. 41A(11) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(12) (with art. 5)

F553 Words in s. 41A(11) omitted (1.1.2013) by virtue of Energy Act 2011 (c. 16), s. 121(5)(b), Sch. 1 para. 4(10)

F554 S. 41A(12A)(12B) inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(13), 121(3) (with s. 67(15)(16))

F555 S. 41A(13)(14) added (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 16(5), 28(3); S.I. 2007/538, art. 2

F556 Words in s. 41A(13) inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 67(14), 121(3) (with s. 67(16))

F557 Words in s. 41A(13) inserted (26.1.2009) by Climate Change Act 2008 (c. 27), s. 100(5), Sch. 8 para. 3(11)

Modifications etc. (not altering text)

C99 S. 41A(2) modified (15.12.2001) by S.I. 2001/4011, art. 5

Marginal Citations

M7 1986 c. 44.

[F558 41AA Scottish Ministers' promotion of reductions in carbon emissions: electricity suppliers E+W+S

(1) Where the Secretary of State under section 41A imposes on electricity suppliers obligations to achieve a target within a specified period, the power to make orders under that section is exercisable by the Scottish Ministers for the purposes of those obligations imposed in relation to Scotland and not, except as provided by subsections (9) and (10), by the Secretary of State.

(2) An obligation is imposed in relation to Scotland to the extent that measures to meet that obligation may be carried out in Scotland (disregarding any power to elect under section 103 of the Utilities Act 2000).

(3) For the purposes of the exercise by the Scottish Ministers of the power to make an order under section 41A, that section applies with the following modifications—

(a) for subsection (1) there is substituted a power by order to specify how electricity suppliers may meet their obligations to achieve the carbon emissions reduction target through measures carried out in Scotland;

(b) subsections (1A), (3), (5)(a), (7)(a) [F559 , (7C), (7E)] and (10A) are omitted;

(c) in subsection (2A) at the beginning of paragraph (b) there is inserted “where the Secretary of State has apportioned the overall carbon emissions reduction target under section 103(2A) of the Utilities Act 2000, and”;

[F560 (ca) in subsection (7F), for “order makes” is substituted “Secretary of State has made”;

(cb) in subsection (7G), for “(7C)” is substituted “(7F)”;

(cc) in subsection (7H), for “an order includes” is substituted “the Secretary of State has made”;]

(d) in subsection (11) “Citizens Advice” and “electricity distributors” are omitted;

(e) in subsection (12), for the words from “shall not be made” to the end is substituted “ is subject to the affirmative procedure ”;

(f) in subsection (12A) for the words from “shall be subject to” to the end is substituted “ is subject to the negative procedure ”;

(g) for “Secretary of State” in each place [F561 other than in subsection (7D)(a)] is substituted “ Scottish Ministers ”.

(4) The power of the Scottish Ministers under section 41A does not include power to make provision in relation to the subject-matter of sections 88 to 90 of the Energy Act 2008 (smart meters).

(5) Where an overall carbon emissions reduction target has been apportioned under section 103(2A) of the Utilities Act 2000, the Scottish Ministers must—

(a) when making any order under section 41A, comply with the duty in subsection (6), and

(b) if the Secretary of State amends any order under that section, make any provision they think necessary, in consequence of the amendment, to comply with that duty.

(6) The duty of the Scottish Ministers where subsection (5)(a) or (b) applies is to exercise their powers under section 41A (subject to subsection (8)) in the way they think most likely to secure that the proportion of compliance costs that is represented by costs relating to Scotland is no greater than the proportion of the overall carbon emissions reduction target that is represented by the part of it apportioned to measures carried out in Scotland.

(7) In subsection (6)—

(a) “compliance costs” means the total costs to electricity suppliers of complying with carbon emissions reduction obligations that, in relation to any period, are imposed by order under section 41A, and

(b) “costs relating to Scotland” means the total costs to electricity suppliers of complying with obligations that, in relation to the same period, are imposed in relation to Scotland.

(8) The Scottish Ministers may not make an order under section 41A unless—

(a) they have consulted the Secretary of State about the proposed order, and

(b) the Secretary of State has agreed to the order being made.

(9) Subsection (1) does not prevent the Secretary of State from making provision under—

(a) section 41A(1A), (3), (5)(a) [F562 , (7)(a), (7C) or (7E)], or

(b) section 41A(2A) where an overall carbon emissions reduction target has not been apportioned under section 103(2A) of the Utilities Act 2000.

(10) Subsection (1) does not prevent the Secretary of State from making any other provision under section 41A or from varying or revoking an order made by the Scottish Ministers under that section—

(a) with the agreement of the Scottish Ministers, or

(b) without their agreement, if subsection (11) applies.

(11) This subsection applies if it appears to the Secretary of State, in the case of obligations imposed in relation to Scotland (the “Scottish obligations”), taking into account any provision made by the Scottish Ministers, that the Scottish obligations are, alone or in conjunction with obligations imposed or to be imposed in relation to England and Wales, likely to—

(a) cause detriment to the United Kingdom,

(b) adversely affect the ability of the United Kingdom to comply with an international agreement or arrangement in relation to climate change or energy efficiency, or

(c) result in costs incurred by suppliers that are not broadly equivalent in relation to England and Wales and in relation to Scotland,

and the Scottish Ministers have failed to comply with a request made to them by the Secretary of State to make modifications specified by the Secretary of State.

(12) In determining for the purposes of subsection (11), whether detriment is likely to be caused to the United Kingdom, considerations that the Secretary of State may take into account include the costs imposed on suppliers by virtue of obligations imposed or to be imposed by the Secretary of State under section 41A or any provision made by the Scottish Ministers under that section.

(13) A request by the Secretary of State to the Scottish Ministers for the purposes of subsection (11)—

(a) must be in writing;

(b) must specify only modifications that appear to the Secretary of State to be necessary to prevent the effect mentioned in subsection (11)(a), (b) or (c);

(c) must specify the time within which the modifications are to be made, which must not be less than 2 months from the date of the request.]

Textual Amendments

F558 S. 41AA inserted (1.12.2017 for specified purposes, 1.10.2018 in so far as not already in force) by Scotland Act 2016 (c. 11), ss. 59(5), 72(4)(d) (with s. 59(7)); S.I. 2017/1157, regs. 3(b), 5(a)

F559 Words in s. 41AA(3)(b) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(5)(a)(i), 334(3)(g)

F560 S. 41AA(3)(ca)-(cc) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(5)(a)(ii), 334(3)(g)

F561 Words in s. 41AA(3)(g) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(5)(a)(iii), 334(3)(g)

F562 Words in s. 41AA(9)(a) substituted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(5)(b), 334(3)(g)

[F563 41B Promotion of reductions in home-heating costs: electricity distributors and electricity suppliers E+W+S

(1) The Secretary of State may by order impose—

(a) on each electricity distributor (or each electricity distributor of a specified description); and

(b) on each electricity supplier (or each electricity supplier of a specified description),

an obligation to achieve, within a specified period and in accordance with the order, the home-heating cost reduction target to be determined by the Administrator under the order for that distributor or supplier (and that obligation is referred to in this section as a “home-heating cost reduction obligation”).

(2) In this section—

(a) “the Administrator” means—

(i) the Authority; or

(ii) if the order so provides, the Secretary of State or a specified body other than the Authority;

(b) “home-heating cost reduction target” means a target for the promotion of measures for reducing the cost to individuals of heating their homes;

(c) “specified” means specified in the order.

(3) The power to make orders under this section may be exercised so as to impose more than one home-heating cost reduction obligation on a person in relation to the same period or to periods that overlap to any extent.

(4) Subsections (3), (5) to (8), (9A) and (10A) to (12B) of section 41A apply to an order under this section as they apply to an order under that section, with the following modifications—

(a) for “carbon emissions reduction obligation” (in each place) substitute “home-heating cost reduction obligation”;

(b) for “carbon emissions reduction obligations” (in each place) substitute “home-heating cost reduction obligations”;

(c) for “carbon emissions reduction target” (in each place other than in paragraph (be) of subsection (5)) substitute “home-heating cost reduction target”;

(d) for “carbon emissions reduction targets” (in each place) substitute “home-heating cost reduction targets”; and

(e) omit paragraph (a) of subsection (10A).

(5) Subsections (4) and (9B) of section 41A apply to the carrying out by the Secretary of State and the Administrator of their respective functions under this section as they apply to the carrying out by those persons of their functions under that section.

(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.]

Textual Amendments

F563 S. 41B inserted (18.12.2011) by Energy Act 2011 (c. 16), ss. 69, 121(3)

[F564 41BA Scottish Ministers' promotion of reductions in home-heating costs: electricity suppliers E+W+S

(1) Where the Secretary of State under section 41B imposes on electricity suppliers obligations to achieve a target within a specified period, the power to make orders under that section is exercisable by the Scottish Ministers for the purposes of those obligations imposed in relation to Scotland and not, except as provided by subsections (9) and (10), by the Secretary of State.

(2) An obligation is imposed in relation to Scotland to the extent that measures to meet that obligation may be carried out in Scotland (disregarding any power to elect under section 103A of the Utilities Act 2000).

(3) For the purposes of the exercise by the Scottish Ministers of the power to make an order under section 41B, that section applies with the following modifications—

(a) for subsection (1) there is substituted a power by order to specify how electricity suppliers may meet their obligations to achieve the home-heating cost reduction target through measures carried out in Scotland;

(b) subsection (3) is omitted;

(c) subsections (3), (5)(a), (7)(a) [F565 , (7C), (7E)] and (10A) of section 41A as applied by subsection (4) are omitted;

(d) in subsection (2)(a) at the beginning of sub-paragraph (ii) there is inserted “where the Secretary of State has apportioned the overall home-heating costs reduction target under section 103A(3A) of the Utilities Act 2000, and”;

[F566 (da) in section 41A(7F) as applied by subsection (4), for “order makes” is substituted “Secretary of State has made”;

(db) in section 41A(7G) as applied by subsection (4), for “(7C)” is substituted “(7F)”;

(dc) in section 41A(7H) as applied by subsection (4), for “an order includes” is substituted “the Secretary of State has made”;]

(e) in section 41A(11) as applied by subsection (4) “Citizens Advice” and “electricity distributors” are omitted;

(f) in section 41A(12) as applied by subsection (4) for the words from “shall not be made” to the end is substituted “ is subject to the affirmative procedure ”;

(g) in section 41A(12A) as applied by subsection (4) for the words from “shall be subject to” to the end is substituted “ is subject to the negative procedure ”;

(h) for “Secretary of State” in each place (including any references in section 41A that apply by virtue of subsection (4) [F567 other than in section 41A(7D)(a)]), is substituted “ Scottish Ministers ”.

(4) The power of the Scottish Ministers under section 41B does not include power to make provision in relation to the subject-matter of sections 88 to 90 of the Energy Act 2008 (smart meters).

(5) Where an overall home-heating cost reduction target has been apportioned under section 103A(3A) of the Utilities Act 2000, the Scottish Ministers must—

(a) when making any order under section 41B, comply with the duty in subsection (6), and

(b) if the Secretary of State amends any order under that section, make any provision they think necessary, in consequence of the amendment, to comply with that duty.

(6) The duty of the Scottish Ministers where subsection (5)(a) or (b) applies is to exercise their powers under section 41B (subject to subsection (8)) in the way they think most likely to secure that the proportion of compliance costs that is represented by costs relating to Scotland is no greater than the proportion of the overall home-heating cost reduction target that is represented by the part of it apportioned to measures carried out in Scotland.

(7) In subsection (6)—

(a) “compliance costs” means the total costs to electricity suppliers of complying with home-heating cost reduction obligations that, in relation to any period, are imposed by order under section 41B, and

(b) “costs relating to Scotland” means the total costs to electricity suppliers of complying with obligations that, in relation to the same period, are imposed in relation to Scotland.

(8) The Scottish Ministers may not make an order under section 41B unless—

(a) they have consulted the Secretary of State about the proposed order, and

(b) the Secretary of State has agreed to the order being made.

(9) Subsection (1) does not prevent the Secretary of State from making provision under—

(a) section 41B(3),

(b) section 41A(3), (5)(a) [F568 , (7)(a), (7C) or (7E)] as applied by section 41B(4), or

(c) section 41B(2)(a) where an overall home-heating cost reduction target has not been apportioned under section 103A(3A) of the Utilities Act 2000.

(10) Subsection (1) does not prevent the Secretary of State from making any other provision under section 41B or from varying or revoking an order made by the Scottish Ministers under that section—

(a) with the agreement of the Scottish Ministers, or

(b) without their agreement, if subsection (11) applies.

(11) This subsection applies if it appears to the Secretary of State, in the case of obligations imposed in relation to Scotland (the “Scottish obligations”), taking into account any provision made by the Scottish Ministers, that the Scottish obligations are, alone or in conjunction with obligations imposed or to be imposed in relation to England and Wales, likely to—

(a) cause detriment to the United Kingdom,

(b) adversely affect the ability of the United Kingdom to comply with an international agreement or arrangement in relation to climate change or energy efficiency, or

(c) result in costs incurred by suppliers that are not broadly equivalent in relation to England and Wales and in relation to Scotland,

and the Scottish Ministers have failed to comply with a request made to them by the Secretary of State to make modifications specified by the Secretary of State.

(12) In determining for the purposes of subsection (11), whether detriment is likely to be caused to the United Kingdom, considerations that the Secretary of State may take into account include the costs imposed on suppliers by virtue of obligations imposed or to be imposed by the Secretary of State under section 41B or any provision made by the Scottish Ministers under that section.

(13) A request by the Secretary of State to the Scottish Ministers for the purposes of subsection (11)—

(a) must be in writing;

(b) must specify only modifications that appear to the Secretary of State to be necessary to prevent the effect mentioned in subsection (11)(a), (b) or (c);

(c) must specify the time within which the modifications are to be made, which must not be less than 2 months from the date of the request.]

Textual Amendments

F564 S. 41BA inserted (1.12.2017 for specified purposes, 1.10.2018 in so far as not already in force) by Scotland Act 2016 (c. 11), ss. 59(6), 72(4)(d) (with s. 59(7)); S.I. 2017/1157, regs. 3(b), 5(a)

F565 Words in s. 41BA(3)(c) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(6)(a)(i), 334(3)(g)

F566 S. 41BA(3)(da)-(dc) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(6)(a)(ii), 334(3)(g)

F567 Words in s. 41BA(3)(h) inserted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(6)(a)(iii), 334(3)(g)

F568 Words in s. 41BA(9)(b) substituted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(6)(b), 334(3)(g)

42 Information with respect to levels of performance. E+W+S

(1) The Director shall from time to time collect information with respect to—

(a) the compensation made by [F569 electricity suppliers] under section 39 above;

(b) the levels of overall performance achieved by such suppliers in connection with the provision of electricity supply services; F570 . . .

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F571 (1A) The Authority shall from time to time collect information with respect to—

(a) the compensation made by electricity distributors under section 39A above;

(b) the levels of overall performance achieved by electricity distributors.]

(2) [F572 At such times] as may be specified in a direction given by the Director, each [F573 electricity supplier] shall furnish to the Director the following information, namely—

(a) as repects each standard prescribed by regulations under section 39 above, the number of cases in which compensation was made and the aggregate amount or value of that compensation; and

(b) as repects each standard determined under section 40 F574 . . ., such information with respect to the level of performance achieved by the supplier as may be so specified.

[F575 (2A) At such times as may be specified in a direction given by the Authority, each electricity distributor shall furnish to the Authority the following information, namely—

(a) as respects each standard prescribed by regulations under section 39A, the number of cases in which compensation was made and the aggregate amount or value of that compensation; and

(b) as respects each standard determined under section 40A, such information with respect to the level of performance achieved by the distributor as may be so specified.]

F576 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F577 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F577 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F569 Words in s. 42(1)(a) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 34(a); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F570 S. 42(1)(c) and the word “and” immediately preceding it repealed (1.10.2001) by 2000 c. 27, ss. 57(2), 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F571 S. 42(1A) inserted (1.10.2001) by 2000 c. 27, s. 57(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F572 Words in s. 42(2) substituted (1.10.2001) by 2000 c. 27, s. 57(4); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F573 Words in s. 42(2) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 34(b); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F574 Words in s. 42(2)(b) repealed (1.10.2001) by 2000 c. 27, ss. 57(4), 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F575 S. 42(2A) inserted (1.10.2001) by 2000 c. 27, s. 57(5); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F576 S. 42(3) repealed (1.10.2001) by 2000 c. 27, ss. 57(6), 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F577 S. 42(4)(5) repealed (1.10.2001) by 2000 c. 27, ss. 20(7), 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C100 S. 42: functions transferred to Scottish Ministers (S.) (14.12.2000) by virtue of S.I. 2000/3253, arts. 1(1), 2, Sch. (with art. 6)

[F578 42A Information to be given to customers about overall performance. E+W+S

(1) The Authority may make regulations requiring such information as may be specified or described in the regulations about—

(a) the standards of overall performance determined under section 40 or 40A; and

(b) the levels of performance achieved as respects those standards,

to be given by electricity suppliers or electricity distributors to customers or potential customers of electricity suppliers.

(2) Regulations under this section may include provision—

(a) specifying the form and manner in which and the frequency with which information is to be given; and

(b) requiring information about the matters mentioned in subsection (1)(a) or (b) and relating to electricity distributors to be given by electricity distributors to electricity suppliers and by electricity suppliers to their customers or potential customers.]

Textual Amendments

F578 S. 42A substituted (16.5.2001 for certain purposes and otherwise 1.10.2001) by 2000 c. 27, s. 58; S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C101 S. 42A continued (with modifications) (1.10.2001) by S.I. 2001/3266, arts. 1(2), 9(1)

[F579 42AA Publication of statistical information about standards of performance. E+W+S

(1) [F580 It shall be the duty of both Citizens Advice and Citizens Advice Scotland to secure the publication, in such form and manner and with such frequency as the particular body thinks appropriate, of such statistical information as the particular body considers appropriate] relating to—

(a) the levels of performance achieved by F581 ... electricity suppliers and electricity distributors in respect of—

(i) standards of performance prescribed or determined under sections 39, 39A, 40 and 40A; and

(ii) [F582 carbon emissions reduction obligations] imposed by order under section 41A; and

[F583 (iii) home-heating cost reduction obligations imposed by order under section 41B; and]

(b) complaints made by consumers about any matter relating to the activities of such F584 ... suppliers or distributors and the handling of such complaints.

[F585 (1A) Citizens Advice and Citizens Advice Scotland may comply with the duty in subsection (1) by publishing information jointly or by securing that information is published on behalf of both of them.]

(2) In subsection (1)(b) “complaints” includes complaints made directly to F586 ... electricity suppliers and electricity distributors (or anyone carrying on activities on their behalf) and complaints to the Authority [F587 , Citizens Advice or Citizens Advice Scotland].]

Textual Amendments

F579 S. 42AA inserted (7.11.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 20(6); S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F580 Words in s. 42AA(1) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(13)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F581 Words in s. 42AA(1)(a) omitted (6.4.2014) by virtue of Energy Act 2011 (c. 16), s. 121(5)(c), Sch. 1 para. 5(2)(a)

F582 Words in s. 42AA(1)(a)(ii) substituted (28.2.2007) by Climate Change and Sustainable Energy Act 2006 (c. 19), s. 28(3), Sch. para. 6; S.I. 2007/538, art. 2

F583 S. 42AA(1)(a)(iii) inserted (6.4.2014) by Energy Act 2011 (c. 16), s. 121(5)(c), Sch. 1 para. 5(2)(b)

F584 Word in s. 42AA(1)(b) omitted (6.4.2014) by virtue of Energy Act 2011 (c. 16), s. 121(5)(c), Sch. 1 para. 5(3)

F585 S. 42AA(1A) inserted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(13)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F586 Words in s. 42AA(2) omitted (6.4.2014) by virtue of Energy Act 2011 (c. 16), s. 121(5)(c), Sch. 1 para. 5(4)

F587 Words in s. 42AA(2) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(13)(c) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

[F588 42AB Information relating to complaints handling standards E+W+S

(1) This section applies in relation to standards prescribed by the Authority by regulations under section 43 of the Consumers, Estate Agents and Redress Act 2007 (standards for complaints handling) in relation to licence holders (or some of them).

(2) The Authority must from time to time collect information with respect to the levels of compliance with the standards which those licence holders have achieved.

(3) At such times as the Authority may direct, each of those licence holders must give the Authority such information as the Authority may direct with respect to the levels of compliance with the standards which the licence holder has achieved.]

Textual Amendments

F588 S. 42AB inserted (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 5 para. 2(3) (with s. 48(3)); S.I. 2008/2550, art. 2, Sch.

F589 [F590 42B Procedures for dealing with complaints. E+W+S

(1) Each public electricity supplier shall establish a procedure for dealing with complaints made by his customers or potential customers in connection with the provision of electricity supply services.

(2) No such procedure shall be established, and no modification of such a procedure shall be made, unless—

F591 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the proposed procedure or modification has been approved by the Director.

(3) The supplier shall—

(a) publicise the procedure in such manner as may be approved by the Director; and

(b) send a description of the procedure, free of charge, to any person who asks for one.

(4) The Director may give a direction to any public electricity supplier requiring the supplier to review his procedure or the manner in which it operates.

(5) A direction under subsection (4) above—

(a) may specify the manner in which the review is to be conducted; and

(b) shall require a written report of the review to be made to the Director.

(6) Where the Director receives a report under subsection (5)(b) above, he may, after consulting the supplier, direct him to make such modifications of—

(a) the procedure; or

(b) the manner in which the procedure operates,

as may be specified in the direction.

(7) Subsection (2) above does not apply to any modification made in compliance with a direction under subsection (6) above.]

Textual Amendments

F589 S. 42B inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 22; Commencement Order No. 1 made on 29.5.1992, art. 3, Sch. Pt. I

F590 S. 42B ceased to have effect (7.11.2000) by virtue of 2000 c. 27, s. 108, Sch. 6 Pt. II para. 35; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

F591 S. 42B(2)(a) repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

[F592 42C Remuneration and service standards. E+W+S

(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)

  a maximum price which may be charged by the company, or a method for calculating such a maximum price; or

  (b)

  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;

• [F593 “company” means a company (as defined in section 1(1) of the Companies Act 2006) that—

  (a)

  is limited by shares, and

  (b)

  has its registered office in Great Britain.]

• “remuneration” in relation to a director of a company—

  (a)

  means any form of payment, consideration or other benefit (including pension benefit), paid or due to or in respect of the director; and

  (b)

  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—

  (a)

  set by or under any conditions included in a licence granted under this Part;

  (b)

  prescribed by the Authority in regulations made under section 39 or 39A;

  (c)

  determined by the Authority under section 40 or 40A; or

  (d)

  set or agreed to by the company.]

Textual Amendments

F592 S. 42C inserted (1.10.2001) by 2000 c. 27, s. 61; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F593 Words in s. 42C(10) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 1(2), Sch. 1 para. 102(2) (with art. 10)

Consumer protection: miscellaneous E+W+S

43 Functions with respect to competition. E+W+S

F594 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F595 (2) The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the [F596 CMA].

(2A) This subsection applies to the functions of the [F597 CMA] under Part 4 of the Enterprise Act 2002 (other than sections 166 [F598 , 171 and 174E]) so far as [F599 those functions—

(a) are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b) relate to] commercial activities connected with the generation, transmission or supply of electricity [F600 or the use of electricity interconnectors].

(2B) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) [F601 above—

(a) references] in Part 4 of the Act of 2002 to the [F602 CMA] (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 [F603 , 171 and 174E] of that Act and in any other provision of that Act where the context otherwise [F604 requires);

(b) references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 47(1) of this Act.]]

[F605 (2C) Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to the Authority by virtue of subsections (2) and (2A)—

(a) as if for subsection (1) of that section there were substituted—

“(1) Where the Gas and Electricity Markets Authority—

(a) is proposing to carry out its functions under section 47(1) of the Electricity Act 1989 in relation to a matter for the purposes mentioned in subsection (2), and

(b) considers that the matter is one in respect of which it would be appropriate for the Authority to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,

the Authority must publish a notice under this section (referred to in this Part as a “market study notice”).”, and

(b) as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with the generation, transmission or supply of electricity or the use of electricity interconnectors”.]

[F606 (3) The Authority shall be entitled to exercise, concurrently with the [F607 CMA], the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) [F608 , 40B(1) to (4)] and 51), so far as relating to—

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b) conduct of the kind mentioned in section 18(1) of that Act, [F609 or]

[F610 (c) transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),]

which relate to commercial activities connected with the generation, transmission or supply of electricity [F600 or the use of electricity interconnectors].]

[F611 (3A) So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to [F612 CMA] are to be read as including a reference to [F613 the Authority] ([F614 except in sections 31D(1) to (6), 38(1) to (6) [F608 , 40B(1) to (4)]], 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).]

[F615 (4) Before the [F616 CMA] or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, it shall consult the other.

(4A) Neither the [F616 CMA] nor the Authority shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.]

(5) It shall be the duty of [F613 the Authority], for the purpose of assisting [F617 a CMA group] in carrying out an investigation on [F618 market investigation reference made by the Authority (under section 131 of the Act of 2002)] by virtue of subsection (2) F619 ... above, to give to the [F620 group] —

(a) any information which is in [F621 its] possession and which relates to matters falling within the scope of the investigation and—

(i) is requested by the [F620 group] for that purpose; or

(ii) is information which in [F621 its] opinion it would be appropriate for that purpose to give to the [F620 group] without any such request; and

(b) any other assistance which the [F620 group] may require and which it is within [F621 its] power to give, in relation to any such matters,

and the [F620 group] shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

[F622 (5A) In subsection (5) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

(6) [F623 If any question arises as to whether subsection (2) or (3) above applies to any particular case] F624 ... F625 ... , that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a) [F626 Part 4 of the Enterprise Act 2002]; or

F627 [(b) Part I of the Competition Act 1998 ([F628 other than sections 31D(1) to (6), 38(1) to (6) [F629 , 40B(1) to (4)]] and 51),]

by or in relation to [F613 the Authority] on the ground that it should have been done by or in relation to [F630 the CMA] .

[F631 (6A) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Authority by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the [F632 CMA] included references to the Authority.]

F633 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F594 S. 43(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(7)(a), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F595 S. 43(2)-(2B) substituted for s. 43(2) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(2); S.I. 2003/1397, art. 2(1), Sch.

F596 Word in s. 43(2) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(2) (with art. 3)

F597 Word in s. 43(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(3)(a) (with art. 3)

F598 Words in s. 43(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(3)(b) (with art. 3)

F599 Words in s. 43(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(3)(c) (with art. 3)

F600 Words in s. 43(2A)(3) inserted (14.8.2006) by Energy Act 2004 (c. 20), ss. 147(5), 198(2); S.I. 2006/1964, art. 2, Sch.

F601 Words in s. 43(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(4)(a) (with art. 3)

F602 Word in s. 43(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(4)(b) (with art. 3)

F603 Words in s. 43(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(4)(c) (with art. 3)

F604 Words in s. 43(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(4)(d) (with art. 3)

F605 S. 43(2C) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(5) (with art. 3)

F606 S. 43(3) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(a)

F607 Word in s. 43(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(6) (with art. 3)

F608 Words in s. 43(3)(3A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 3; S.I. 2014/416, art. 2(1)(f) (with Sch.); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F609 Word in s. 43(3)(b) inserted (31.12.2020) by S.I. 2019/93, Sch. 1 para. 3(2) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 15)

F610 S. 43(3)(c) substituted (31.12.2020) for s. 43(3)(c)(d) by S.I. 2019/93, Sch. 1 para. 3(3) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 15)

F611 S. 43(3)(3A) substituted for s. 43(3) (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 4(4)(5) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F612 Words in s. 43(3A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(7) (with art. 3)

F613 Words substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F614 Words in s. 43(3A) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(b)

F615 S. 43(4)(4A) substituted for s. 43(4) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(3); S.I. 2003/1397, art. 2(1), Sch.

F616 Word in s. 43(4)(4A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(8) (with art. 3)

F617 Words in s. 43(5) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(9)(a)(i) (with art. 3)

F618 Words in s. 43(5) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(9)(a)(ii) (with art. 3)

F619 Words in s. 43(5) repealed (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. II para. 4(7), Sch. 14 Pt. I (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F620 Word in s. 43(5) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(9)(b) (with art. 3)

F621 Word substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F622 S. 43(5A) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(10) (with art. 3)

F623 Words in s. 43(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 7; S.I. 2014/416, art. 2(1)(e) (with Sch.)

F624 Words in s. 43(6) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(4)(b); S.I. 2003/1397, art. 2(1), Sch.

F625 Words in s. 43(6) omitted by virtue of Deregulation and Contracting Out Act 1994 (c. 40), s.81, Sch. 17

F626 Words in s. 43(6)(a) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(4)(c); S.I. 2003/1397, art. 2(1), Sch.

F627 S. 43(6)(b) substituted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10, Pt. II para. 4(8) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F628 Words in s. 43(6)(b) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(c)

F629 Words in s. 43(6)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 3; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F630 Words in s. 43(6) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(11) (with art. 3)

F631 S. 43(6A) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(5); S.I. 2003/1397, art. 2(1), Sch.

F632 Word in s. 43(6A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(12) (with art. 3)

F633 S. 43(7) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(6), Sch. 26; S.I. 2003/1397, art. 2(1), Sch.

Modifications etc. (not altering text)

C102 S. 43(2) applied (3.1.1995) by 1994 c. 40, ss. 7(2), 82(2)(a)(b), Sch. 2 para. 4(2)

C103 S. 43(3) restricted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 4(1) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F634 43A Adjustment of charges to help disadvantaged groups of customers. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F634 S. 43B omitted (8.6.2010) by virtue of Energy Act 2010 (c. 27), s. 38(3), Sch. para. 9

F634 43B Orders: supplementary. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F634 S. 43B omitted (8.6.2010) by virtue of Energy Act 2010 (c. 27), s. 38(3), Sch. para. 9

[F635 44 Maximum prices for reselling electricity. E+W+S

(1) The Authority may from time to time direct that the maximum prices at which electricity supplied by authorised suppliers may be resold—

(a) shall be such as may be specified in the direction; or

(b) shall be calculated by such method and by reference to such matters as may be so specified;

and shall publish directions under this section in such manner as in its opinion will secure adequate publicity for them.

(2) A direction under this section may—

(a) require any person who resells electricity supplied by an authorised supplier to furnish the purchaser with such information as may be specified or described in the direction; and

(b) provide that, in the event of his failing to do so, the maximum price applicable to the resale shall be such as may be specified in the direction, or shall be reduced by such amount or such percentage as may be so specified.

(3) Different directions may be given under this section as respects different classes of cases, which may be defined by reference to areas or any other relevant circumstances.

(4) If any person resells electricity supplied by an authorised supplier at a price exceeding the maximum price determined by or under a direction under this section and applicable to the resale—

(a) the amount of the excess; and

(b) if the direction so provides, interest on that amount at a rate specified or described in the direction,

shall be recoverable by the person to whom the electricity was resold.]

Textual Amendments

F635 S. 44 substituted (1.10.2001) by 2000 c. 27, s. 73(1) (with s. 73(2)); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Modifications etc. (not altering text)

C104 S. 44(1)(2)(b): functions transferred to Scottish Ministers (S.) (14.12.2000) by virtue of S.I. 2000/3253, arts. 1(1), 2, Sch. (with art. 6)

[F636 [F637 Section 44B disputes] E+W+S

Textual Amendments

F636 Ss. 44B-44D and cross-heading inserted (E.W.S.) (29.6.2009) by The Gas and Electricity (Dispute Resolution) Regulations 2009 (S.I. 2009/1349), regs. 1(1), 3

F637 Words in s. 44B cross-heading substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 55; 2020 c. 1, Sch. 5 para. 1(1)

44B Meaning of “[F638 section 44B] dispute” E+W+S

[F639 (1) For the purposes of sections 44C and 44D a dispute is [F640 a “section 44B dispute”] if—

(a) it arises from a written complaint—

(i) made against the holder of a transmission licence,

(ii) made against the holder of a distribution licence,

(iii) made against the holder of an interconnector licence,

(iv) made against a distribution exemption holder, or

(v) made by a person falling within paragraph (a) of subsection (1A) against a person falling within paragraph (b) of that subsection;

(b) it is wholly or mainly a dispute regarding an obligation of the person complained against [F641 which falls within subsection (2A)]; and

(c) it is a dispute between the complainant and the person complained against.

(1A) For the purposes of subsection (1)(a)(v)—

(a) a person falls within this paragraph if the person is certified on the ground mentioned in section 10E(5) in respect of a transmission system or electricity interconnector;

(b) a person falls within this paragraph if the person is designated under section 10H(3) in respect of the transmission system or electricity interconnector mentioned in paragraph (a).]

(2) The reference in subsection [F642 (1)(a)] to a complaint does not include a reference to—

(a) a complaint about a modification (or failure to make a modification) of—

(i) a term or condition of [F643 a licence] held by the person complained against, or

(ii) an obligation or right contained in any code or other document and having effect by virtue of such a term or condition; or

(b) a complaint made by a person as a household customer or potential household customer.

[F644 (2A) An obligation of the person complained against falls within this subsection if it is—

(a) an obligation under a relevant condition or relevant requirement in relation to that person imposed before IP completion day for the purpose of implementing the Electricity Directive, including such an obligation as modified on or after IP completion day, or

(b) an obligation under a relevant condition or relevant requirement in relation to that person imposed on or after IP completion day which, if it had been imposed immediately before IP completion day, would have been an obligation imposed for the purpose of implementing the Electricity Directive.]

[F645 (3) In this section, “household customer” means a customer who purchases electricity for consumption by the customer’s own household.]

Textual Amendments

F638 Words in s. 44B title substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 56(2); 2020 c. 1, Sch. 5 para. 1(1)

F639 S. 44B(1)(1A) substituted for s. 44B(1) (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(3)(a)

F640 Words in s. 44B(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 56(3)(a); 2020 c. 1, Sch. 5 para. 1(1)

F641 Words in s. 44B(1)(b) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 56(3)(b); 2020 c. 1, Sch. 5 para. 1(1)

F642 Words in s. 44B(2) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(3)(b)(i)

F643 Words in s. 44B(2)(a)(i) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(3)(b)(ii)

F644 S. 44B(2A) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 56(4) (as amended (31.12.2020) by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(23); 2020 c. 1, Sch. 5 para. 1(1)

F645 S. 44B(3) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(3)(c)

44C Determination of disputes E+W+S

(1) [F646 A section 44B] dispute (other than one which may be referred to the Authority under or by virtue of any other provision of this Act) may be referred to the Authority under this section by the person who is the complainant in relation to the dispute.

(2) [F647 A section 44B] dispute referred to the Authority under this section shall be determined by order made either by the Authority or, if the Authority thinks fit, by an arbitrator (or in Scotland an arbiter) appointed by the Authority.

(3) The practice and procedure to be followed in connection with [F648 a section 44B] dispute referred to the Authority under this section shall be such as the Authority may consider appropriate.

(4) An order under this section—

(a) may include such incidental, supplemental and consequential provision as the person making the order considers appropriate; and

(b) shall be final.

(5) The provision that may be included in an order under this section by virtue of subsection (4)(a) above includes provision requiring either party to pay a sum in respect of the costs or expenses incurred by the person making the order (“costs provision”).

(6) In including costs provision in an order under this section, the person making the order shall have regard to the conduct and means of the parties and any other relevant circumstances.

(7) Costs provision included in an order under this section shall be enforceable—

(a) in England and Wales, as if it were a judgment of the county court;

(b) in Scotland, as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.

[F649 (8) Sections 25 to 28 have effect in relation to a person against whom a complaint is made as mentioned in section 44B(1)(a), and on whom a duty or other requirement is imposed by an order under this section—

(a) as if references in those sections to a relevant requirement (other than the reference in section 25(8)) included references to that duty or requirement;

(b) if the complaint is made against the person as mentioned in sub-paragraph (v) of section 44B(1)(a), also as if references in those sections to a regulated person included references to that person.]

Textual Amendments

F646 Words in s. 44C(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 57(2); 2020 c. 1, Sch. 5 para. 1(1)

F647 Words in s. 44C(2) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 57(3); 2020 c. 1, Sch. 5 para. 1(1)

F648 Words in s. 44C(3) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 57(4); 2020 c. 1, Sch. 5 para. 1(1)

F649 S. 44C(8) substituted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(4)(b)

44D Time limit for determinations E+W+S

(1) An order determining [F650 a section 44B] dispute (whether made under section 44C or made under or by virtue of any other provision of this Act) shall be made within the permitted period.

(2) Subject to subsection (3) F651 ..., the permitted period is the period of two months beginning with the day on which the dispute is referred to the Authority.

(3) Where the person determining the dispute requests further information from anyone for the purposes of determining the dispute, the person may, by giving notice to the parties, extend the permitted period—

(a) by two months, or

(b) with the agreement of the complainant, by a longer period.

F652 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F653 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) If a person refers a dispute to the Authority, or purports to do so, and the Authority gives to that person a notice—

(a) specifying information which it requires in order to assess whether the dispute is [F654 a section 44B] dispute, or whether there is a dispute at all, and

(b) requesting the person to provide that information,

the dispute shall be treated for the purposes of subsection (2) as not referred to the Authority until the information is provided.]

Textual Amendments

F650 Words in s. 44D(1) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 58(2); 2020 c. 1, Sch. 5 para. 1(1)

F651 Words in s. 44D(2) omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(5)(b)

F652 S. 44D(4) omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(5)(c)

F653 S. 44D(5) omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 29(5)(c)

F654 Words in s. 44D(6)(a) substituted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 58(3); 2020 c. 1, Sch. 5 para. 1(1)

Investigation of complaints E+W+S

F655 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F655 S. 45 repealed (7.11.2000) by 2000 c. 27, ss. 22(3), 108, Sch. 8 (with Sch. 7 para. 32); S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

F656 46 Consumer complaints. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F656 S. 46 repealed (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 8; S.I. 2008/2550, art. 2, Sch.

F657 46A Power of Council to investigate other matters. E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F657 S. 46A repealed (1.10.2008) by Consumers, Estate Agents and Redress Act 2007 (c. 17), s. 66(2), Sch. 8; S.I. 2008/2550, art. 2, Sch.

Other functions of Director E+W+S

F658 47ZA Annual report by Authority on security of electricity supply E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F658 S. 47ZA repealed (1.1.2015) by The Electricity Capacity Regulations 2014 (S.I. 2014/2043), regs. 1(4), 88

47 General functions. E+W+S

(1) It shall be the duty of the Director, so far as it appears to him practicable from time to time to do so—

(a) to keep under review the carrying on both in Great Britain and elsewhere of activities to which this subsection applies; and

(b) to collect information with respect to those activities, and the persons by whom they are carried on, with a view to facilitating the exercise of his functions under this Part;

and this subsection applies to any activities connected with the generation, transmission and supply of electricity, including in particular activities connected with the supply to any premises of heat produced in association with electricity and steam produced from and air and water heated by such heat[F659 , and to the provision of smart meter communication services].

[F660 (1A) The activities to which subsection (1) applies also include, in particular, activities connected with the generation of electricity by microgeneration [F661 or small-scale low-carbon generation] or with the transmission and supply of electricity so generated.

[F662 (1B) In subsection (1A)—

• “microgeneration” has the same meaning as in the Climate Change and Sustainable Energy Act 2006;

• “small-scale low-carbon generation” has the same meaning as in section 41 of the Energy Act 2008.]

[F663 (1C) The activities to which subsection (1) applies also include, in particular, the matters specified in the following provisions of the Electricity Directive as matters to be monitored—

(a) Article 26(3);

(b) Article 37(1)(g) to (k), (m) and (q) to (t); and

(c) where a person is certified on the ground mentioned in subsection (5) of section 10E, Article 37(3)(a), (b) and (f).]

[F664 (1D) The references in subsection (1C) to the following provisions of the Electricity Directive are to be treated as references to those provisions with the following modifications—

(a) Article 37(1)(q) is to be read as if for “Regulation (EC) No 714/2009” there were substituted “ the Electricity Regulation ”;

(b) Article 37(1)(s) is to be read as if—

(i) the words “Community and third country” were omitted, and

(ii) after “operators” there were inserted “ in the United Kingdom and transmission system operators in countries outside the United Kingdom ”;

(c) Article 37(1)(t) is to be read as if the reference to Article 42 were to Article 42 with the omission of the words from “must cause” to “market and”;

(d) Article 37(3)(f) is to be read as if for “Regulation (EC) No 714/2009” there were substituted “ the Electricity Regulation ”.]

(2) The Secretary of State may give general directions indicating—

(a) considerations to which the Director should have particular regard in determining the order of priority in which matters are to be brought under review in performing his duty under subsection (1)(a) or (b) above; and

(b) considerations to which, in cases where it appears to the Director that any of his functions under this Part are exercisable, he should have particular regard in determining whether to exercise those functions.

(3) It shall be the duty of the Director, where either he considers it expedient or he is requested by the Secretary of State or [F665 the CMA] to do so, to give information, advice and assistance to the Secretary of State or [F665 the CMA] with respect to any matter in respect of which any function of the Director under this Part is exercisable.

F666 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F659 Words in s. 47(1) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 10

F660 S. 47(1A)(1B) inserted (21.8.2006) by Climate Change and Sustainable Energy Act 2006 (c. 19), ss. 9, 28(1)

F661 Words in s. 47(1A) inserted (26.1.2009) by Energy Act 2008 (c. 32), s. 110(2), Sch. 5 para. 4(a); S.I. 2009/45, art. 2(e)(iv)

F662 S. 47(1B) substituted (26.1.2009) by Energy Act 2008 (c. 32), s. 110(2), Sch. 5 para. 4(b); S.I. 2009/45, art. 2(e)(iv)

F663 S. 47(1C) inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 31(2)

F664 S. 47(1D) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 59; 2020 c. 1, Sch. 5 para. 1(1)

F665 Words in s. 47(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 66 (with art. 3)

F666 S. 47(4) repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

[F667 47A Power to require information etc for the purpose of monitoring E+W+S

(1) The Authority may, for the purpose of performing its duty under subsection (1)(a) or (b) of section 47 in relation to activities falling within subsection (1C) of that section, serve a notice under subsection (2) on any regulated person.

(2) A notice under this subsection is a notice signed by the Authority which—

(a) requires the person on whom it is served to produce, at a time and place specified in the notice, to the Authority any documents which are specified or described in the notice and are in that person’s custody or under that person’s control; or

(b) requires that person, if that person is carrying on a business, to furnish, at a time and place and in the form and manner specified in the notice, to the Authority such information as may be specified or described in the notice.

(3) In paragraphs (a) and (b) of subsection (2) the reference to the Authority includes a reference to a person appointed by the Authority for the purpose of exercising the power in question.

(4) Sections 25 to 27 have effect in relation to a person on whom a notice is served under subsection (2) as if references in those sections to a relevant requirement (other than the reference in section 25(8)) included references to a requirement of that notice.

(5) A person who intentionally alters, suppresses or destroys any document or record of information which that person has been required to produce by a notice under subsection (2) is liable—

(a) on summary conviction—

(i) in England and Wales, to a fine not exceeding the statutory maximum, and

(ii) in Scotland, to a fine not exceeding £5,000; or

(b) on conviction on indictment, to a fine.]

Textual Amendments

F667 S. 47A inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 31(3)

48 Publication of information and advice. E+W+S

[F668 (1) If it appears to the Authority that the publication of any advice and information would promote the interests of consumers in relation to electricity conveyed by distribution systems [F669 or transmission systems], the Authority may publish that advice or information in such manner as it thinks fit.

(2) In publishing advice or information under this section the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

(2A) Before deciding to publish under this section any advice or information relating to a particular individual or body of persons the Authority shall consult that individual or body.]

(3) [F670 The CMA] shall consult the Director before publishing under [F671 section 6 of the Enterprise Act 2002] any information or advice which may be published by the Director under this section.

[F672 (4) In this section “consumers” includes both existing and future consumers.]

Textual Amendments

F668 S. 48(1)(2)(2A) substituted for s. 48(1)(2) (20.12.2000) by 2000 c. 27, s. 6(2); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F669 Words in s. 48(1) inserted (1.4.2006 for specified purposes, 1.4.2010 in so far as not already in force) by Energy Act 2004 (c. 20), s. 179(2)(3)(c), 198(2); S.I. 2005/2965, art. 3

F670 Words in s. 48(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 67 (with art. 3)

F671 Words in s. 48(3) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(10)(b); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

F672 S. 48(4) inserted (20.12.2000) by 2000 c. 27, s. 6(2); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

49 Keeping of register. E+W+S

(1) The Director shall, F673 ... in such form as he may determine, maintain a register for the purposes of this Part.

(2) Subject to subsection (3) and to any direction given under subsection (4) below, the Director shall cause to be entered in the register the provisions of—

(a) every licence and every exemption granted to a particular person;

(b) every modification or revocation of a licence;

(c) every direction or consent given or determination made under [F674 or in respect of] a licence; F675 ...

(d) every final or provisional order, every revocation of such an order and every notice under section 25(6) above [F676 ; and

(e) every penalty imposed under section 27A(1) and every notice under section 27A(5)].

[F677 (3) The Authority may enter the provisions of anything in the register in a manner that excludes, so far as practicable, so much of the details of those provisions as it considers it appropriate to exclude for the purpose of maintaining the confidentiality of—

(a) matters relating to the affairs of an individual the publication of which would or might, in its opinion, seriously and prejudicially affect the interests of that individual; and

(b) matters relating specifically to the affairs of a particular body of persons the publication of which would or might, in the Authority’s opinion, seriously and prejudicially affect the interests of that body.]

(4) If it appears to the Secretary of State that the entry of any provision in the register would be against the public interest or the commercial interests of any person, he may direct the Director not to enter that provision in the register.

[F678 (5) The contents of the register must be shown on the Authority's website.]

(6) Any person may, on the payment of such fee as may be specified in an order [F679 made by the Secretary of State], require the Director to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the Director to be a true copy or extract.

(7) Any sums received by the Director under this section shall be paid into the Consolidated Fund.

Textual Amendments

F673 Words in s. 49(1) omitted (26.5.2015) by virtue of Deregulation Act 2015 (c. 20), ss. 97(6), 115(3)(k)

F674 Words in s. 49(2)(c) inserted (31.1.2024) by Energy Act 2023 (c. 52), s. 334(1), Sch. 11 para. 7; S.I. 2024/32, reg. 3(a)(ix)

F675 Word in s. 49(2)(c) repealed (1.10.2001) by 2000 c. 27, s. 108, Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F676 S. 49(2)(e) and the word “; and” immediately preceding it inserted (1.10.2001) by 2000 c. 27, s. 59(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F677 S. 49(3) substituted (5.10.2004) by Energy Act 2004 (c. 20), ss. 183(3), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

F678 S. 49(5) substituted (26.5.2015) by Deregulation Act 2015 (c. 20), ss. 97(7), 115(3)(k)

F679 Words in s. 49(6) substituted (26.5.2015) by Deregulation Act 2015 (c. 20), ss. 97(8), 115(3)(k)

[F680 49A Reasons for decisions. E+W+S

(1) This section applies to the following decisions of the Authority or the Secretary of State, namely—

(a) the revocation of a licence;

(b) the modification of the conditions of a licence;

(c) the giving of any directions or consent in pursuance of a condition included in a licence by virtue of section 7(3)(a) or (b);

(d) the determination of a question referred in pursuance of a condition included in a licence by virtue of section 7(3)(c);

(e) the determination of a dispute referred under section 23(1);

(f) the making of a final order, the making or confirmation of a provisional order or the revocation of a final order or of a provisional order which has been confirmed.

(2) As soon as reasonably practicable after making such a decision the Authority or the Secretary of State shall publish a notice stating the reasons for the decision in such manner as it or he considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be interested.

(3) The Authority shall send a copy of a notice published in respect of a decision mentioned in paragraph (a), (b), (c), (d) or (f) of subsection (1) to the licence holder to whose licence, or to whom, the decision relates.

(4) In preparing a notice under subsection (2) the Authority or the Secretary of State shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where it or he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.

(5) This section does not apply to a decision resulting in any provision which the Secretary of State has under section 49(4) directed the Authority not to enter in the register required to be kept under that section.]

Textual Amendments

F680 S. 49A inserted (1.10.2001) by 2000 c. 27, s. 42; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F681 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F681 S. 50 repealed (20.12.2000 subject to saving in Sch. of commencing S.I.) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/3343, art. 2 (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2) and subject to an amendment (1.10.2001) by 2000 c. 27, s. 108, Sch. 7 Pt. IV para. 29(5); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Provisions with respect to committees E+W+S

F682 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F682 S. 51 repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

F683 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F683 S. 52 repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

F684 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F684 S. 53 repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

Provisions with respect to Consumers’ etc. Councils E+W+S

F685 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F685 S. 54 repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

F686 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F686 S. 55 repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

56 Continuity of employment of officers of abolished Councils. E+W+S

(1) This section applies to any person who—

(a) immediately before the date on which section 54 above comes into force is an officer of one of the Councils ceasing to exist by virtue of that section (in this section referred to as his “former employer”); and

(b) within four weeks after that date, is employed by one of the successor companies or the Director (in this section referred to as his “new employer”) in pursuance of an offer made before that date;

and in this subsection “successor company” has the same meaning as in Part II.

F687 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) [F688 Chapter I of Part XIV of the Employment Rights Act 1996] (computation of period of employment) shall have effect in relation to a person to whom this section applies as if it included the following provisions, that is to say—

(a) the period of his employment with his former employer shall count as a period of employment with his new employer; and

(b) the change of employer shall not break the continuity of the period of employment.

(4) Where this section applies to a person, the period of his employment with his former employer shall count as a period of employment with his new employer for the purposes of any provision of his contract of employment with his new employer which depends on his length of service with that employer.

Textual Amendments

F687 S. 56(2) repealed (22.8.1996) by 1996 c. 18, ss. 242, 243, Sch. 3 Pt. I (with ss. 191-195, 202)

F688 Words in s. 56(3) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 43(2) (with ss. 191-195, 202)

[F689 Alteration of activities requiring licence E+W+S

Textual Amendments

F689 Ss. 56A-56F and cross-heading inserted (1.10.2001) by 2000 c. 27, s. 43; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

56A Power to alter activities requiring licence. E+W+S

(1) The Secretary of State may by order provide—

(a) that specified activities are to become licensable activities; or

(b) that specified activities are to cease to be licensable activities.

(2) For the purposes of this Part activities are licensable activities if undertaking them without the authority of a licence or exemption constitutes an offence under section 4(1).

(3) An order under this section may make consequential, transitional, incidental or supplementary provision including—

(a) amendments (or repeals) in any provision of this Act or any other enactment; and

(b) provision modifying any standard conditions of licences or (in the case of an order under subsection (1)(a)) provision determining the conditions which are to be standard conditions for the purposes of licences authorising the undertaking of activities which are to become licensable activities.

(4) An order under this section may only provide for activities to become licensable activities if they are activities connected with the generation, transmission, distribution or supply of electricity[F690 , or with providing a smart meter communication service].

[F691 (4A) For the purposes of subsection (4), activities connected with the supply of electricity include the following activities, whether or not carried on by a person supplying electricity—

(a) giving advice, information or assistance in relation to contracts for the supply of electricity to persons who are or may become customers under such contracts, and

(b) providing any other services to such persons in connection with such contracts.]

(5) An order under this section providing for activities to become licensable activities may only be made on the application of the Authority made in accordance with section 56B.

(6) An order under this section providing for activities to cease to be licensable activities may be made either—

(a) on the application of the Authority made in accordance with section 56E; or

(b) following consultation by the Secretary of State in accordance with section 56F.

(7) An order under this section may provide that it is to remain in force only for a period specified in the order.

(8) An order shall not be made under this section unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.

Textual Amendments

F690 Words in s. 56A(4) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 11

F691 S. 56A(4A) inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 143(2), 156(2)

56B Application by Authority for order including new activities. E+W+S

(1) If the Authority proposes to make an application for an order providing for activities to become licensable activities, it shall give notice—

(a) stating that it proposes to make an application for an order providing for the activities to become licensable activities;

(b) setting out the conditions which it would expect such an order to determine to be standard conditions for the purposes of licences authorising the undertaking of the activities and any other conditions which it would expect to be included in such licences; and

(c) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) The notice shall be given by serving a copy on [F692 Citizens Advice and [F693 Consumer Scotland]] and by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of—

(a) persons appearing to it to be carrying on, or be intending to carry on, the activities; and

(b) any other persons appearing to it to be likely to be affected by an order providing for the activities to become licensable activities.

(3) If an objection has been duly made (and not withdrawn) by a person who is carrying on or intends to carry on the activities, the Authority [F694 shall, before making the application, make a reference under section 56C to the CMA].

(4) In any other case where the Authority considers it appropriate to make a reference to the [F695 CMA] under section 56C before making the application, the Authority may make such a reference.

(5) If a reference is made to the [F695 CMA], the application shall not be made unless the [F695 CMA] has reported on the reference that the fact that the activities to which the application relates are not licensable activities operates, or may be expected to operate, against the public interest.

(6) The application shall set out—

(a) the activities which the Authority considers should become licensable activities; and

(b) the conditions which the Authority would expect to be determined to be standard conditions for the purposes of licences authorising the undertaking of the activities in question and any other conditions which it would expect to be included in such licences.

[F696 (7) The functions of the CMA with respect to a reference under section 56C (including functions under sections 109 to 115 of the Enterprise Act 2002, as applied by section 56CB) are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

Textual Amendments

F692 Words in s. 56B(2) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(14) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F693 Words in s. 56B(2) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(13) (with art. 5)

F694 Words in s. 56B(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 38(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F695 Word in s. 56B(4)(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 38(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F696 S. 56B(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 38(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

56C References to [F697 CMA] . E+W+S

(1) A reference to the [F698 CMA] under this section shall require [F699 the CMA] to investigate and report on whether the fact that the activities specified in the reference are not licensable activities operates, or may be expected to operate, against the public interest.

(2) The Authority may, at any time, by notice given to the [F700 CMA] vary the reference by adding to the activities specified in the reference or by excluding from the reference some of the activities so specified; and on receipt of such notice the [F700 CMA] shall give effect to the variation.

(3) The Authority shall specify in the reference, or a variation of the reference, for the purpose of assisting the [F700 CMA] in carrying out the investigation on the reference—

(a) the conditions which the Authority would expect to be determined to be standard conditions for the purposes of licences authorising the undertaking of the activities specified in the reference and any other conditions which it would expect to be included in such licences; and

(b) any effects adverse to the public interest which, in its opinion, the fact that the activities so specified are not licensable activities has or may be expected to have.

(4) As soon as practicable after making the reference, or a variation of the reference, the Authority shall serve a copy of it on [F701 Citizens Advice and [F702 Consumer Scotland]] and publish particulars of it in such manner as the Authority considers appropriate for bringing it to the attention of—

(a) persons appearing to the Authority to be carrying on, or be intending to carry on, the activities specified in it; and

(b) any other persons appearing to the Authority to be likely to be affected by it.

(5) The Authority shall, for the purpose of assisting the [F703 CMA] in carrying out the investigation on the reference, give to the [F703 CMA]—

(a) any information which is in its possession and which relates to matters falling within the scope of the investigation, and which is either requested by the [F703 CMA] for that purpose or is information which in its opinion it would be appropriate for that purpose to give to the [F703 CMA] without any such request; and

(b) any other assistance which the [F703 CMA] may require, and which it is within its power to give, in relation to any such matters,

and the [F703 CMA] shall take account of the information for the purpose of carrying out the investigation.

(6) In determining for the purposes of this section whether the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, the [F703 CMA] shall have regard to—

(a) the matters referred to in section 3A;

(b) any social or environmental policies set out or referred to in guidance issued under section 3B; and

(c) any advice given by [F704 the Health and Safety Executive [F705 , the Office for Nuclear Regulation]] or the Secretary of State under section 3C (advice about health and safety in relation to electricity).

F706 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F706 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]

Textual Amendments

F697 Word in s. 56C heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 39(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F698 Word in s. 56C(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 39(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F699 Word in s. 56C(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 39(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F700 Word in s. 56C(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 39(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F701 Words in s. 56C(4) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(15) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F702 Words in s. 56C(4) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(14) (with art. 5)

F703 Word in s. 56C(5)(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 39(3); S.I. 2014/416, art. 2(1)(d) (with Sch.); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F704 Words in s. 56C(6)(c) substituted (1.4.2008) by The Legislative Reform (Health and Safety Executive) Order 2008 (S.I. 2008/960), art. 1, Sch. 3 (with art. 21, Sch. 2)

F705 Words in s. 56C(6)(c) inserted (1.4.2014) by Energy Act 2013 (c. 32), s. 156(1), Sch. 12 para. 62; S.I. 2014/251, art. 4

F706 S. 56C(7)(8) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(11), Sch. 26; S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

Modifications etc. (not altering text)

C105 S. 56C amended (16.5.2001) by 2000 c. 27, s. 104(1)(b)(2) (with s. 104(6)); S.I. 2001/1781, art. 2, Sch. (subject to transitional provisions in arts. 3-10)

[F707 56CA References under section 56C: time limits E+W+S

(1) Every reference under section 56C above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2) A report of the [F708 CMA] on a reference under section 56C above shall not have effect (in particular for the purposes of section 56B(5) above) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.

(3) The Authority may, if it has received representations on the subject from the [F708 CMA] and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4) No more than one extension is possible under subsection (3) above in relation to the same reference.

(5) The Authority shall publish an extension under subsection (3) above in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

Textual Amendments

F707 Ss. 56CA, 56CB inserted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

F708 Word in s. 56CA(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 40; S.I. 2014/416, art. 2(1)(d) (with Sch.)

56CB References under section 56C: application of Enterprise Act 2002 E+W+S

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections [F709 (1A),] (2) and (3) below, for the purposes of references under section 56C above as they apply for the purposes of references under that Part—

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

[F710 (1A) Section 109 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for subsection (A1), there were substituted—

“(A1) For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with a reference under section 56C of the Electricity Act 1989.”, and

(b) subsection (8A) were omitted.]

(2) Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; F711 ...

[F712 (aa) after subsection (3), there were inserted—

“(3A) No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication of the report of the CMA on the reference concerned; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.”; and]

(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

[F713 (3) Section 111(5)(b) shall, in its application by virtue of subsection (1) above, have effect as if for sub-paragraph (ii) there were substituted—

“(ii) if earlier, the day on which the report of the CMA on the reference concerned is made or, if no such report is made within the period permitted for that purpose, the latest day on which the report may be made within the permitted period.”.]

(4) Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the [F714 CMA] in connection with references under section 56C above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2)[F715 —

(a) the words “, OFCOM or the Secretary of State” were omitted; and

(b) for the words “their functions” there were substituted “ its functions ”.]

(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by virtue of those subsections.

(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.]

Textual Amendments

F707 Ss. 56CA, 56CB inserted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(12); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

F709 Word in s. 56CB(1) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 68(2) (with art. 3, Sch. 2 para. 2)

F710 S. 56CB(1A) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 68(3) (with art. 3, Sch. 2 para. 2)

F711 Word in s. 56CB(2)(a) omitted (1.4.2014) by virtue of The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 68(4)(a) (with art. 3, Sch. 2 para. 2)

F712 S. 56CB(2)(aa) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 68(4)(b) (with art. 3, Sch. 2 para. 2)

F713 S. 56CB(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 68(5) (with art. 3, Sch. 2 para. 2)

F714 Word in s. 56CB(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 41(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F715 Words in s. 56CB(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 41(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

[F689 56D Reports on references. E+W+S

(1) In making a report on a reference under section 56C, the [F716 CMA] shall include in the report definite conclusions on whether the fact that the activities specified in the reference (or the reference as varied) are not licensable activities operates, or may be expected to operate, against the public interest.

(2) The [F717 CMA] shall also include in the report such an account of its reasons for those conclusions as in its opinion is expedient for facilitating proper understanding of the questions raised by the reference and of its conclusions.

(3) Where the [F717 CMA] concludes that the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, it shall specify in the report—

(a) the effects adverse to the public interest which that fact has or may be expected to have; and

(b) any modifications to the conditions specified in the reference in accordance with section 56C(3)(a) which they consider appropriate.

[F718 (3A) For the purposes of section 56B(5), a conclusion contained in a report of the [F719 CMA] is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted [F720 by the chair of the CMA for the purpose of carrying out the functions of the CMA with respect to the reference].

(3B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 56C as the conclusions of the [F721 CMA], the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.]

[F722 (4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the [F721 CMA] on a reference under section 56C.

(4A) In making any report on a reference under section 56C the [F721 CMA] must have regard to the following considerations before disclosing any information.

(4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the [F721 CMA] thinks is contrary to the public interest.

(4C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the [F721 CMA] thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the [F721 CMA] thinks might significantly harm the individual’s interests.

(4D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4C)(a) or (b) is necessary for the purposes of the report.]

(5) A report of the [F723 CMA] on a reference under section 56C shall be made to the Authority.

(6) On receiving the report, the Authority shall send a copy of it to the Secretary of State.

(7) Subject to subsection (8), the Authority shall, not less than 14 days after the copy is received by the Secretary of State, [F724 send a copy of the report to Citizens Advice and [F725 Consumer Scotland]] and publish [F726 the copy sent to Citizens Advice and [F725 Consumer Scotland]] in such manner as the Authority considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(8) If it appears to the Secretary of State that the publication of any matter in the report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in subsection (7), direct the Authority to exclude that matter from the copy of the report to be sent to [F727 Citizens Advice and [F728 Consumer Scotland]] and published under that subsection.

Textual Amendments

F716 Words in s. 56D(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 42(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F717 Word in s. 56D(2)(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 42(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F718 S. 56D(3A)(3B) inserted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(13)(a); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

F719 Words in s. 56D(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 42(4)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F720 Words in s. 56D(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 42(4)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F721 Words in ss. 56D(3B)-(4C) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 42(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F722 S. 56D(4)-(4D) substituted for s. 56D(4) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(13)(b); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)

F723 Word in s. 56D(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 42(6); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F724 Words in s. 56D(7) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(16)(a)(i) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F725 Words in s. 56D(7) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(15)(a) (with art. 5)

F726 Words in s. 56D(7) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(16)(a)(ii) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F727 Words in s. 56D(8) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(16)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F728 Words in s. 56D(8) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(15)(b) (with art. 5)

56E Application by Authority for order excluding activities. E+W+S

(1) Before making an application for an order providing for activities to cease to be licensable activities, the Authority shall give notice—

(a) stating that it proposes to make an application for an order providing for the activities to cease to be licensable activities; and

(b) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) The notice shall be given—

(a) by serving a copy on the Secretary of State and the [F729 , Citizens Advice and [F730 Consumer Scotland]]; and

(b) by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of persons appearing to the Authority to be likely to be affected by such an order.

(3) An application under this section shall set out—

(a) the activities which the Authority considers should cease to be licensable activities; and

(b) the Authority’s reasons for proposing that the order be made.

Textual Amendments

F729 Words in s. 56E(2)(a) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(17) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F730 Words in s. 56E(2)(a) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(16) (with art. 5)

56F Consultation by Secretary of State about order excluding activities. E+W+S

(1) If the Secretary of State proposes to make an order providing for activities to cease to be licensable activities (otherwise than on an application by the Authority under section 56E), he shall give notice—

(a) stating that he proposes to make an order providing for the activities to cease to be licensable activities; and

(b) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,

and shall consider any representations or objections duly made (and not withdrawn).

(2) The notice shall be given—

(a) by serving a copy on the Authority [F731 , Citizens Advice and [F732 Consumer Scotland]]; and

(b) by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons appearing to him to be likely to be affected by such an order.]

Textual Amendments

F731 Words in s. 56F(2)(a) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(18) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F732 Words in s. 56F(2)(a) substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(17) (with art. 5)

[F733 56FA New licensable activities: smart meters E+W+S

(1) The Secretary of State may by order amend this Part so as to provide—

(a) for one or more activities within subsection (3) to be added to the activities which are licensable activities, or

(b) where an order has previously been made under paragraph (a) in relation to an activity, for the activity to cease to be a licensable activity.

(2) For the purposes of this Part activities are licensable activities if undertaking them without the authority of a licence or exemption constitutes an offence under section 4(1).

(3) The activities within this subsection are activities connected with the provision, installation or operation of relevant meters, including the provision or installation of infrastructure, or the provision of services, in connection with the communication of information by or to such meters.

(4) In this section—

(a) “relevant meter” means a meter of a kind prescribed by the order;

(b) a reference to a meter includes a reference to a visual display unit, or any other device, associated with or ancillary to a meter.

(5) An order under this section may make consequential, transitional, incidental or supplementary provision, including—

(a) amendments (or repeals) in any provision of this Act or any other enactment;

(b) in the case of an order under subsection (1)(a), provision determining the conditions which are to be standard conditions for the purposes of licences authorising the undertaking of the activities;

(c) provision modifying any standard conditions of licences.

(6) Without prejudice to the generality of subsections (1) and (5), an order under this section may also make provision—

(a) for licences to authorise the holder to carry out the licensable activities in any area, or only in an area specified in the licence;

(b) enabling the terms of the licence to be modified so as to extend or restrict the area in which the licence holder may carry on the licensable activities;

(c) specifying that a licence, and any modification of a licence, must be in writing;

(d) for a licence, if not previously revoked, to continue in force for such period as may be specified in or determined by or under the licence;

(e) conferring functions on the Secretary of State or the Authority.

(7) An order under this section may provide that it is to remain in force only for the period specified in the order.

Textual Amendments

F733 Ss. 56FA-56FC inserted (26.11.2008) by Energy Act 2008 (c. 32), s. 110(1)(b), Sch. 4 para. 2

56FB Section 56FA: supplemental E+W+S

(1) Before making an order under section 56FA, the Secretary of State must consult—

(a) the Authority, and

(b) such other persons as the Secretary of State thinks appropriate.

(2) The power to make such an order may not be exercised after [F734 1 November 2028].

(3) An order under section 56FA may not be made unless a draft of the statutory instrument containing it has been laid before, and approved by resolution of, each House of Parliament.

(4) Section 60 applies in relation to an order under this section as it applies in relation to regulations under this Part.]

Textual Amendments

F733 Ss. 56FA-56FC inserted (26.11.2008) by Energy Act 2008 (c. 32), s. 110(1)(b), Sch. 4 para. 2

F734 Words in s. 56FB(2) substituted (26.10.2023) by Energy Act 2023 (c. 52), ss. 215(3)(b), 334(2)(k)

[F735 56FBA New licensable activities: load control of energy smart appliances E+W+S

(1) The Secretary of State may by regulations amend this Part so as—

(a) to provide for one or more activities within subsection (2) to be added to the activities which are licensable activities, or

(b) where regulations have previously been made under paragraph (a) in relation to an activity—

(i) to amend the definition of the activity, or

(ii) to provide for the activity to cease to be a licensable activity.

(2) The activities within this subsection are activities connected with—

(a) the carrying on or facilitating of load control;

(b) the provision of services or facilities related to load control;

but not the activities mentioned in subsection (3).

(3) The activities within this subsection are—

(a) the provision of relevant electronic communications networks;

(b) the making, selling, importing or distributing of energy smart appliances;

(c) things done by end-users of energy smart appliances (in their capacity as such).

(4) Regulations under subsection (1)(a) may define activities which are to become licensable activities in any manner the Secretary of State considers appropriate, including—

(a) by reference to the purpose for which an activity is carried out; and

(b) by reference to the position of an activity in a sequence of activities necessary to secure a particular outcome.

(5) Regulations under this section may make consequential, transitional, incidental or supplementary provision, including—

(a) amendments (or repeals) of any provision of this Act or any other enactment, including any enactment comprised in, or an instrument made under, an Act of the Scottish Parliament;

(b) in the case of regulations under subsection (1)(a), provision determining the conditions which are to be standard conditions for the purposes of licences authorising the undertaking of the activities;

(c) provision modifying any standard conditions of licences.

(6) Transitional provision under subsection (5) may in particular include provision about persons already undertaking activities that are to become licensable activities by virtue of subsection (1)(a), such as provision—

(a) about the application to such persons of section 4(1);

(b) about the granting of licences to such persons.

(7) Regulations under this section may, in particular, also make provision—

(a) for licences to authorise the holder to carry out the licensable activities in any area, or only in an area specified in the licence;

(b) enabling the terms of the licence to be modified so as to extend or restrict the area in which the licence holder may carry on the licensable activities;

(c) specifying that a licence, and any modification of a licence, must be in writing;

(d) for a licence, if not previously revoked, to continue in force for such period as may be specified in or determined by or under the licence;

(e) conferring functions on the Secretary of State or the Authority.

(8) In this section, “energy smart appliance”, “load control” and “relevant electronic communications network” have the same meaning as in Part 8 of the Energy Act 2023.

Textual Amendments

F735 Ss. 56FBA, 56FBB inserted (11.1.2024) by Energy Act 2023 (c. 52), s. 334(1), Sch. 19 para. 2; S.I. 2024/32, reg. 2(b)(iii)

56FBB Regulations under section 56FBA E+W+S

(1) Before making regulations under section 56FBA, the Secretary of State must consult—

(a) the Authority, and

(b) such other persons as the Secretary of State thinks appropriate.

(2) Subsection (1) may be satisfied by consultation before, as well as by consultation after, the passing of this Act.

(3) The power to make such regulations may not be exercised after the end of a period of seven years beginning with the day on which the first such regulations come into force (for any purpose).

(4) Regulations under section 56FBA may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by resolution of, each House of Parliament.]

Textual Amendments

F735 Ss. 56FBA, 56FBB inserted (11.1.2024) by Energy Act 2023 (c. 52), s. 334(1), Sch. 19 para. 2; S.I. 2024/32, reg. 2(b)(iii)

[F733 56FC Competitive tenders for licences for new licensable activities E+W+S

(1) The Secretary of State may by regulations make provision for a determination on a competitive basis of the person to whom a licence in respect of new licensable activities is to be granted.

(2) In this section “new licensable activities” means one or more activities which are the subject of an order under section 56FA(1)(a) [F736 or regulations under section 56FBA(1)(a)].

(3) The regulations may—

(a) provide for the determination to be made by the Secretary of State or the Authority;

(b) provide, in prescribed cases, for the publication of a proposal to grant a licence in respect of the new licensable activities;

(c) provide for the inclusion in such a proposal of an invitation to apply for such a licence;

(d) impose conditions in relation to the making of an application for a licence;

(e) impose restrictions in relation to persons who may apply for a licence;

(f) impose requirements as to the period within which applications must be made;

(g) make provision for regulating the manner in which applications are to be considered or determined;

(h) authorise or require the Secretary of State or the Authority, when determining to whom a licence is to be granted, to have regard to the person's suitability for being granted both the licence and a gas licence;

(i) confer on the Authority or the Secretary of State functions in connection with tender exercises.

(4) The regulations may also include provision—

(a) enabling the Secretary of State or the Authority to require prescribed persons, in relation to a tender exercise, to make payments, in the form and manner prescribed, in respect of tender costs;

(b) about the effect on a person's participation in the tender exercise of a failure to comply with a requirement imposed by virtue of paragraph (a), and the circumstances in which the tender exercise is to stop as a result of such a failure.

(5) In this section—

• “gas licence” means a licence for an activity to which an order under section 41HA of the Gas Act 1986 applies;

• “prescribed” means prescribed in or determined under regulations under this section;

• “tender costs”, in relation to a tender exercise, means any costs incurred or likely to be incurred by the Authority or the Secretary of State for the purposes of the exercise;

• “tender exercise” means the steps taken in accordance with regulations with a view to determining to whom a particular licence is to be granted.

(6) Any sums received by the Secretary of State or the Authority under regulations made by virtue of this section are to be paid into the Consolidated Fund.]

Textual Amendments

F733 Ss. 56FA-56FC inserted (26.11.2008) by Energy Act 2008 (c. 32), s. 110(1)(b), Sch. 4 para. 2

F736 Words in s. 56FC(2) inserted (11.1.2024) by Energy Act 2023 (c. 52), s. 334(1), Sch. 19 para. 3; S.I. 2024/32, reg. 2(b)(iii)

Miscellaneous E+W+S

[F737 56G Service by Authority of certain notices on [F738 Citizens Advice and [F739 Consumer Scotland]]. E+W+S

Where the Authority is required by any provision of this Part to publish a notice or any other document, the Authority shall send a copy of the document to [F740 Citizens Advice and [F741 Consumer Scotland]].]

Textual Amendments

F737 S. 56G inserted (20.12.2000) by 2000 c. 27, s. 18(6); S.I. 2000/3343, art. 2, Sch. (subject to transitional provisions in arts. 3-15) (as amended by S.I. 2001/1780, art. 2)

F738 Words in s. 56G heading substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(19)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F739 Words in s. 56G heading substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(18)(a) (with art. 5)

F740 Words in s. 56G substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 5(19)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F741 Words in s. 56G substituted (13.1.2022) by The Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022 (S.I. 2022/34), art. 1(1), Sch. para. 3(18)(b) (with art. 5)

F742 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F742 S. 57 repealed (7.11.2000) by 2000 c. 27, s. 108, Sch. 8; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

58 Directions restricting the use of certain information. E+W+S

(1) The Secretary of State may give to [F743 the holder of a transmission licence] (“the authorised person”) such directions as appear to the Secretary of State to be requisite or expedient for the purpose of securing that, in any case where subsection (2) below applies, neither the person by whom the information mentioned in that subsection is acquired nor any other person obtains any unfair commercial advantage from his possession of the information.

(2) This subsection applies where, in the course of any dealings with an outside person who is, or is an associate of, a person authorised by a licence or exemption to generate, [F744 supply or participate in the transmission of] electricity [F745 or to participate in the operation of electricity interconnectors] [F746 or to provide a smart meter communication service], the authorised person or any associate of his is furnished with or otherwise acquires any information which relates to the affairs of that outside person or any associate of his.

(3) As soon as practicable after giving any directions under subsection (1) above, the Secretary of State shall publish a copy of the directions in such manner as he considers appropriate for the purpose of bringing the directions to the attention of persons likely to be affected by a contravention of them.

(4) The obligation to comply with any directions under subsection (1) above is a duty owed to any person who may be affected by a contravention of them.

(5) Where a duty is owed by virtue of subsection (4) above to any person any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.

(6) In any proceedings brought against any person in pursuance of subsection (5) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the directions.

(7) Without prejudice to any right which any person may have by virtue of subsection (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of any directions under this section, compliance with any such directions shall be enforceable by civil proceedings by the Secretary of State for an injunction or interdict or for any other appropriate relief.

(8) In this section—

• “dealings” includes dealings entered into otherwise than for purposes connected with the transmission of electricity;

• “outside person”, in relation to any person, means any person who is not an associate of his;

and for the purposes of this section a person is an associate of another if he and that other are connected with each other within the meaning of [F747 section 1122 of the Corporation Tax Act 2010].

Textual Amendments

F743 Words in s. 58(1) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 14(a); S.I. 2004/2184, art. 2(2), Sch. 2

F744 Words in s. 58(2) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 14(b); S.I. 2004/2184, art. 2(2), Sch. 2

F745 Words in s. 58(2) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 147(6), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F746 Words in s. 58(2) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 12

F747 Words in s. 58(8) substituted (1.4.2010) (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 218 (with Sch. 2)

Modifications etc. (not altering text)

C106 S. 58: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7)

59 Making of false statements etc. E+W+S

(1) If any person, in giving any information or making any application under or for the purposes of any provision of this Part, or of any regulations made under this Part, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, he shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(2) Any person who seeks to obtain entry to any premises by falsely pretending to be—

(a) an employee of[F748 , or other person acting on behalf of, an electricity distributor or electricity supplier];

(b) an electrical inspector; or

(c) a meter examiner,

shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) No proceedings shall be instituted in England and Wales in respect of an offence under subsection (1) above except by or with the consent of the Secretary of State or the Director of Public Prosecutions.

Textual Amendments

F748 Words in s. 59(2)(a) substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 37; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

Supplemental E+W+S

60 Powers to make regulations. E+W+S

(1) Regulations made under any provision of this Part may provide for the determination of questions of fact or of law which may arise in giving effect to the regulations and for regulating (otherwise than in relation to any court proceedings) any matters relating to the practice and procedure to be followed in connection with the determination of such questions, including provision—

(a) as to the mode of proof of any matter;

(b) as to parties and their representation;

(c) for the right to appear before and be heard by the Secretary of State, the Director and other authorities; and

(d) as to awarding costs or expenses of proceedings for the determination of such questions, including the amount of the costs or expenses and the enforcement of the awards.

(2) Regulations made under any provision of this Part which prescribe a period within which things are to be done may provide for extending the period so prescribed.

(3) Regulations made under any provision of this Part may—

(a) provide for anything falling to be determined under the regulations to be determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be prescribed by the regulations;

(b) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(c) make such supplemental, consequential and transitional provision as the Secretary of State or, as the case may be, the Director considers appropriate.

Modifications etc. (not altering text)

C107 S. 60 applied (29.9.2000 for specified purposes and otherwise 7.11.2000) by 2000 c. 27, s. 27(6); S.I. 2000/2412, art. 2, Sch.; S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)

C108 S. 60: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7)

61 Concurrent proceedings. E+W+S

(1) Subsection (2) below applies where a licence holder makes an application to the Secretary of State for his consent under section 36 above for the construction or extension of a generating station and, for a purpose connected with the proposed construction or extension of that station, makes either or both of the following, namely—

(a) a compulsory purchase order; and

(b) an application to the Secretary of State for authorisation under paragraph 1 of Schedule 5 to this Act (water rights for hydro-electric generating stations in Scotland).

(2) The proceedings which—

(a) in the case of a compulsory purchase order, are required by Part II of the M8 Acquisition of Land Act 1981 or Schedule 1 to the M9 Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to be taken for the purpose of confirming that order;

(b) in the case of an application under paragraph 1 of Schedule 5 to this Act, are required by paragraphs 7 to 12 of that Schedule to be taken in relation to that application,

may be taken concurrently (so far as practicable) with the proceedings required by Schedule 8 to this Act to be taken in relation to the application for consent under section 36 above [F749 and with any related proceedings under Schedule 16 to the Energy Act 2004].

(3) Subsection (4) below applies where a licence holder makes an application to the Secretary of State for his consent under section 37 above for the installation of an electric line above ground and, for a purpose connected with the proposed installation of that line, makes one or more of the following, namely—

(a) a compulsory purchase order;

(b) an application to the Secretary of State under paragraph 6 of Schedule 4 to this Act for a necessary wayleave; and

(c) a reference to the Secretary of State under paragraph 9 (felling and lopping of trees) of that Schedule.

(4) The proceedings which—

(a) in the case of a compulsory purchase order, are required by Part II of the Acquisition of Land Act 1981 or Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to be taken for the purpose of confirming that order;

(b) in the case of an application under paragraph 6 of Schedule 4 to this Act, are required by that paragraph to be taken in relation to that application;

(c) in the case of a reference under paragraph 9 of that Schedule, are required by that paragraph to be taken in relation to that reference,

may be taken concurrently (so far as practicable) with the proceedings required by Schedule 8 to this Act to be taken in relation to the application for consent under section 37 above.

(5) Where, for a purpose connected with the proposed installation of an electric line, a licence holder makes—

(a) an application to the Secretary of State under paragraph 6 of Schedule 4 to this Act for the necessary wayleave; and

(b) a reference to the Secretary of State under paragraph 9 of that Schedule,

the proceedings required by the said paragraph 9 to be taken in relation to the reference under that paragraph may be taken concurrently (so far as practicable) with the proceedings required by the said paragraph 6 to be taken in relation to the application under that paragraph.

Textual Amendments

F749 Words in s. 61(2) inserted (1.10.2005) by Energy Act 2004 (c. 20), ss. 102(2), 198(2); S.I. 2005/877, art. 2(2), Sch. 2

Modifications etc. (not altering text)

C109 S. 61: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7)

Marginal Citations

M8 1981 c. 67.

M9 1947 c. 42.

62 Public inquiries. E+W+S

(1) The Secretary of State may cause an enquiry to be held in any case where he considers it advisable to do so in connection with any matter arising under this Part other than a matter in respect of which any functions of the Director under section 25 above are or may be exercisable [F750 or a matter relating to a function which is exercisable by the Scottish Ministers] [F751 or the Welsh Ministers].

[F752 (1A) The Scottish Ministers may cause an inquiry to be held in any case where they consider it advisable to do so in connection with any matter relating to the exercise by them of a function under this Part.]

[F753 (1B) The Welsh Ministers may cause an inquiry to be held in any case where they consider it advisable to do so in connection with any matter relating to the exercise by them of any function under this Part.]

(2) The provisions of subsections (2) to (5) of section 250 of the M10 Local Government Act 1972 or subsections (2) to (8) of section 210 of the M11 Local Government (Scotland) Act 1973 (which relate to the giving of evidence at, and defraying the cost of, local enquiries) shall apply in relation to any inquiry held under this Part as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section.

(3) Where—

(a) an enquiry is to be [F754 caused to be held by the Secretary of State] under this Part [F755 or Schedule 16 to the Energy Act 2004] in connection with any matter; and

(b) in the case of some other matter required or authorised (whether by this Part[F756 , that Schedule] or by any other enactment) to be the subject of an enquiry (“the other enquiry”), it appears to the relevant Minister or Ministers that the matters are so far cognate that they should be considered together,

the relevant Minister or Ministers may direct that the two inquiries be held concurrently or combined as one inquiry.

(4) In subsection (3) above “the relevant Minister or Ministers” means the Secretary of State or, where causing the other inquiry to be held is a function of some other Minister of the Crown, the Secretary of State and that other Minister acting jointly.

[F757 (5) Where–

(a) an inquiry is to be caused to be held by the Scottish Ministers under this Part in connection with any matter; and

(b) in the case of some other matter required or authorised (whether by this Part or by any other enactment) to be the subject of an inquiry which is to be caused to be held by the Scottish Ministers, it appears to the Scottish Ministers that the matters are so far cognate that they should be considered together,

the Scottish Ministers may direct that the two inquiries be held concurrently or combined as one inquiry.]

[F758 (6) Where—

(a) an inquiry is to be caused to be held by the Welsh Ministers under this Part or Schedule 16 to the Energy Act 2004 in connection with any matter; and

(b) in the case of some other matter required or authorised (whether by this Part, that Schedule or by any other enactment) to be the subject of an inquiry which is to be caused to be held by the Welsh Ministers, it appears to the Welsh Ministers that the matters are so far cognate that they should be considered together,

the Welsh Ministers may direct that the two inquiries be held concurrently or combined as one inquiry.]

Textual Amendments

F750 Words in s. 62(1) added (1.7.1999) by S.I. 1999/1750, arts. 1, 6(1), Sch. 5 para. 8(1)(2) (with art. 7)

F751 Words in s. 62(1) inserted (24.5.2018) by The Welsh Ministers (Transfer of Functions) Order 2018 (S.I. 2018/644), arts. 1(1), 24(2)

F752 S. 62(1A) inserted (1.7.1999) by S.I. 1999/1750, arts. 1, 6(1), Sch. 5 para. 8(3) (with art. 7)

F753 S. 62(1B) inserted (24.5.2018) by The Welsh Ministers (Transfer of Functions) Order 2018 (S.I. 2018/644), arts. 1(1), 24(3)

F754 Words in s. 62(1) substituted (1.7.1999) by S.I. 1999/1750, arts. 1, 6(1), Sch. 5 para. 8(4) (with art. 7)

F755 Words in s. 62(3)(a) inserted (1.10.2005) by Energy Act 2004 (c. 20), ss. 102(3)(a), 198(2); S.I. 2005/877, art. 2(2), Sch. 2

F756 Words in s. 62(3)(b) inserted (1.10.2005) by Energy Act 2004 (c. 20), ss. 102(3)(b), 198(2); S.I. 2005/877, art. 2(2), Sch. 2

F757 S. 62(5) added (1.7.1999) by S.I. 1999/1750, arts. 1, 6(1), Sch. 5 para. 8(5) (with art. 7)

F758 S. 62(6) inserted (24.5.2018) by The Welsh Ministers (Transfer of Functions) Order 2018 (S.I. 2018/644), arts. 1(1), 24(4)

Marginal Citations

M10 1972 c. 70.

M11 1973 c. 65.

63 Application to Crown land. E+W+S

(1) No power (whether a power of compulsory acquisition or other compulsory power, a power to carry out works or a power of entry) which is conferred by or under this Part shall, exept with the consent of the appropriate authority, be exercisable in relation to any land in which there is a Crown or Duchy interest, that is to say, an interest—

(a) belonging to Her Majesty in right of the Crown or of the Duchy of Lancaster, or to the Duchy of Cornwall; or

(b) belonging to a government department or held in trust for Her Majesty for the purposes of a government department.

(2) A consent given for the purposes of subsection (1) above may be given on such financial and other conditions as the appropriate authority giving the consent may consider appropriate.

(3) Subject to subsection (1) above, the provisions of this Part shall have effect in relation to land in which there is a Crown or Duchy interest as they have effect in relation to land in which there is no such interest.

(4) In this section “the appropriate authority”—

(a) in relation to land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners;

(b) in relation to any other land belonging to Her Majesty in right of the Crown, means the government department having the management of the land [F759 or the relevant person];

(c) in relation to land belonging to Her Majesty in right of the Duchy of Lancaster, means the Chancellor of that Duchy;

(d) in relation to land belonging to the Duchy of Cornwall, means such person as the Duke of Cornwall, or the possessor for the time being of that Duchy, appoints;

(e) in relation to land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, means that department;

and, if any question arises as to what authority is the appropriate authority in relation to any land, that question shall be referred to the Treasury, whose decision shall be final.

[F760 (5) In subsection (4), “relevant person”, in relation to any land to which section 90B(5) of the Scotland Act 1998 applies, means the person who manages that land.]

Textual Amendments

F759 Words in s. 63(4)(b) inserted (1.4.2017) by The Crown Estate Transfer Scheme 2017 (S.I. 2017/524), art. 1(2), Sch. 5 para. 22(a)

F760 S. 63(5) inserted (1.4.2017) by The Crown Estate Transfer Scheme 2017 (S.I. 2017/524), art. 1(2), Sch. 5 para. 22(b)

64 Interpretation etc. of Part I. E+W+S

(1) In this Part, unless the context otherwise requires—

• “the 1973 Act” means the M12 Fair Trading Act 1973;

• “the 1980 Act” means the M13 Competition Act 1980;

• F761 ...

• F762 ...

• [F763 “the Agency” means the Agency for the Cooperation of Energy Regulators established under the Agency Regulation;]

• [F764 “the Agency Regulation” means Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators (recast), and “predecessor”, in relation to that Regulation, means Regulation (EC) 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators;]

• [F765 “authorised distributor” means a person who is authorised by a licence or exemption to distribute electricity;]

• [F766 “authorised supplier” means a person who is authorised by a licence or exemption to supply electricity;]

• F767 ...

• " [F768 the CMA "means the Competition and Markets Authority;]

• [F769 “construct” and “construction”, in relation to so much of a generating station as comprises or is to comprise renewable energy installations, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;]

• [F770 “contract counterparty” has the meaning given by section 6BA;]

• F771 ...

• F772 ...

• [F770 “delivery body” has the meaning given by section 6BB;]

• [F773 “designated regulatory function” means—

  (a)

  a function of the Authority conferred by—

  (i)

  a provision of [F774 assimilated] law, or

  (ii)

  a condition in a licence under section 6 as that condition is modified from time to time after IP completion day,

  where that function was, immediately before IP completion day, one of its functions as a regulatory authority designated in accordance with Article 35 of the Electricity Directive;

  (b)

  a function of the Northern Ireland Authority as a regulatory authority designated in accordance with Article 35 of the Electricity Directive;]

• [F765 “distribute” in relation to electricity, has the meaning given by section 4(4), and cognate expressions shall be construed accordingly;]

• [F763 “distribution exemption holder” means a person who—

  (a)

  is distributing electricity for the purpose mentioned in section 4(1)(bb); and

  (b)

  is authorised to do so by an exemption;]

• “electrical plant” means any plant equipment, apparatus or appliance used for, or for purposes connected with the generation, transmission[F775 , distribution] or supply of electricity, other than—

  (a)

  an electric line;

  (b)

  a meter used for ascertaining the quantity of electricity supplied to any premises; or

  (c)

  an electrical appliance under the control of a consumer;

• “electric line” means any line which is used for carrying electricity for any purpose and includes, unless the context otherwise requires—

  (a)

  any support of any such line, that is to say, any structure, pole or other thing in, on, by or from which any such line is or may be supported, carried or suspended;

  (b)

  any apparatus connected to any such line for the purpose of carrying electricity; and

  (c)

  any wire, cable, tube, pipe or other similar thing (including its casing or coating) which surrounds or supports, or is surrounded or supported by, or is installed in close proximity to, or is supported, carried or suspended in association with, any such line;

• [F763 “the Electricity Directive” means Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC;]

• [F776 “electricity distributor”F777 ... and “electricity supplier” have the meanings given by section 6(9);]

• [F778 “electricity interconnector” has the meaning given by section 4(3E);]

• [F779 “the Electricity Regulation” means Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (recast), and “predecessor”, in relation to that Regulation, means Regulation (EC) 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity;]

• [F763 “electricity undertaking” has the meaning given by section 10O;]

• [F763 “exempt distribution system” means a distribution system operated or controlled by a distribution exemption holder who is covered by an exemption granted to it in relation to that system;]

• “exemption” means an exemption under section 5 above;

• “extension”, in relation to a generating station, has the meaning given by section 36(8) above and “extend” shall be construed accordingly;

• “final order” and “provisional order” have the meanings given by section 25(8) above;

• [F780 “generate”, in relation to electricity, has the meaning given by section 4(4) above, and cognate expressions shall be construed accordingly;]

• “generating station”, in relation to a generating station wholly or mainly driven by water, includes all structures and works for holding or channelling water for a purpose directly related to the generation of electricity by that station;

• [F781 “high voltage line” means an electric line which—

  (a)

  if it is in Scotland or is a relevant offshore line (as defined in subsection (1A)), is of a nominal voltage of 132 kilovolts or more; and

  (b)

  in any other case, is of a nominal voltage of more than 132 kilovolts,

  and “low voltage line” shall be construed accordingly;]

• “information” includes accounts, estimates and returns;

• “licence” means a licence under section 6 above and “licence holder” shall be construed accordingly;

• [F782 “licensable activity” means an activity which, if carried on without the authority of a licence or exemption, constitutes an offence under section 4(1);]

• “line” means any wire, cable, tube, pipe or any other similar thing (including its casing or coating) which is designed or adapted for use in carrying electricity;

• F783 ...

• F784 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• [F785 “Northern Ireland Authority” means the Northern Ireland Authority for Utility Regulation;]

• “notice” means notice in writing;

• [F770 “offshore transmission” and “offshore transmission licence” have the meaning given by section 6F(8);]

• [F770 “offshore waters” means—

  (a)

  waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea, and

  (b)

  waters within an area designated under section 1(7) of the Continental Shelf Act 1964;]

• “premises” includes any land, building or structure;

• “prescribed”, [F786 means prescribed by regulations made, unless the context otherwise requires,] by the Secretary of State;

• F787 ...

• F787 ...

• [F788 “providing a smart meter communication service” has the meaning given in section 4(3G) above, and cognate expressions shall be construed accordingly;]

• [F763 “regulated person” has the meaning given by section 25(8);]

• “relevant condition”and “relevant requirement” have the meanings given by section 25(8) above;

• [F770 “relevant contract” and “relevant licence” have the meaning given by section 6BA;]

• [F770 “relevant electricity project” has the meaning given by section 6BA;]

• [F770 “relevant licence” has the meaning given by section 6BA;]

• [F763 “relevant producer or supplier” has the meaning given by section 10O;]

• [F789 “renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004;]

• [F763 “senior officer” means—

  (a)

  in relation to a company, a director;

  (b)

  in relation to a partnership, a partner;

  (c)

  in any other case, a person holding a position equivalent to that of a director or partner;]

• [F790 “special connection agreement” means a special agreement under section 22;]

• “supply”, in relation to electricity, has the meaning given by section 4(4) above, and cognate expressions shall be construed accordingly;

• [F763 “supply exemption holder” means a person who—

  (a)

  is carrying on the activity mentioned in section 4(1)(c); and

  (b)

  is authorised to do so by an exemption;]

• F787 ...

• [F791 “transmission”, in relation to electricity, has the meaning given by section 4(4) above;

• “transmission system” has the same meaning given by section 4(4) above;]

• “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday within the meaning of the M14 Banking and Financial Dealings Act 1971.

[F792 (1A) An electric line is a relevant offshore line for the purposes of the definition in subsection (1) of “high voltage line” if—

(a) it is wholly or partly in an area of GB internal waters, an area of the territorial sea adjacent to the United Kingdom or an area designated under section 1(7) of the Continental Shelf Act 1964, and

(b) it is—

(i) used to convey electricity to a place in Scotland, or

(ii) constructed wholly or mainly for the purpose of conveying, to any other place, electricity generated by a generating station situated in an area mentioned in paragraph (a).

(1AA) In subsection (1A)(a) “GB internal waters” means waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea adjacent to Great Britain, but do not form part of that territorial sea.]

[F793 (1B) In this Part, references to participation, in relation to the transmission of electricity, are to be construed in accordance with section 4(3A) and (3B) above [F794 and section 6F].]

(2) The provision of section 3 of the M15 Administration of Justice (Scotland) Act 1972 (power of arbiter to state case to Court of Session) shall not apply in relation to any determination under this Part made by an arbiter.

Textual Amendments

F761 Words in s. 64(1) omitted (25.2.2020) by virtue of The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(8)(a)

F762 Words in s. 64(1) repealed (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 23 Pt. 1; S.I. 2004/2184, art. 2(2), Sch. 2

F763 Words in s. 64(1) inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 48

F764 Words in s. 64(1) substituted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(8)(b)

F765 S. 64(1): definitions of “authorised distributor” and “distribute” inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(2); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F766 S. 64(1): definition of “authorised supplier” inserted (7.11.2000 for specified purposes and otherwise 1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(2); S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F767 Words in s. 64(1) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 60(2); 2020 c. 1, Sch. 5 para. 1(1)

F768 Words in s. 64(1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 43; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F769 Words in s. 64(1) inserted (5.10.2004) by Energy Act 2004 (c. 20), ss. 102(4)(a), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

F770 Words in s. 64(1) inserted (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(i), Sch. 15 para. 9

F771 Words in s. 64(1) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 60(3); 2020 c. 1, Sch. 5 para. 1(1)

F772 Words in s. 64(1) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 60(4); 2020 c. 1, Sch. 5 para. 1(1)

F773 Words in s. 64(1) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 60(6) (as amended by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(24)); 2020 c. 1, Sch. 5 para. 1(1)

F774 Word in s. 64(1) substituted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (S.I. 2023/1424), reg. 1(2), Sch. para. 26(2)(c)

F775 S. 64(1): words in definition of “electrical plant” inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(3); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F776 S. 64(1): definitions of “electricity distributor” and “electricity supplier” inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(4); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F777 Words in s. 64(1) omitted (6.4.2014) by virtue of Energy Act 2011 (c. 16), s. 121(5)(c), Sch. 1 para. 6

F778 Words in s. 64(1) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 147(7), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F779 Words in s. 64(1) substituted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 3(8)(c)

F780 Words in s. 64(1) inserted (1.3.2005 for specified purposes, 29.7.2010 for specified purposes, 10.6.2014 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 89(4), 198(2); S.I. 2005/442, art. 2(1), Sch. 1; S.I. 2010/1889, art. 2; S.I. 2014/1460, art. 2

F781 Words in s. 64(1) substituted (29.7.2010 for specified purposes, 10.6.2014 in so far as not already in force) by Energy Act 2004 (c. 20), ss. 180(1), 198(2); S.I. 2010/1889, art. 2; S.I. 2014/1460, art. 2

F782 S. 64(1): definition of “licensable activity” inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(5); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F783 Words in s. 64(1) omitted (31.12.2020) by virtue of The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 60(5); 2020 c. 1, Sch. 5 para. 1(1)

F784 S. 64(1): definition of “Monopolies Commission” repealed (1.4.1999) by S.I. 1999/506, art. 24(c)

F785 Words in s. 64(1) inserted (31.12.2020) by The Electricity and Gas etc. (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/530), regs. 1(1), 60(7); 2020 c. 1, Sch. 5 para. 1(1)

F786 S. 64(1): words in definition of “prescribed” substituted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(6); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F787 S. 64(1): definitions of “private electricity supplier”, “public electricity supplier” and “tariff customer” repealed (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(8), Sch. 8; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F788 Words in s. 64(1) inserted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 13

F789 Words in s. 64(1) inserted (5.10.2004) by Energy Act 2004 (c. 20), ss. 102(4)(b), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1

F790 S. 64(1): definition of “special connection agreement” inserted (1.10.2001) by 2000 c. 27, s. 108, Sch. 6 Pt. II para. 38(7); S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)

F791 Words in s. 64(1) substituted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 15(2); S.I. 2004/2184, art. 2(2), Sch. 2

F792 S. 64(1A)(1AA) inserted (29.7.2010 for specified purposes, 10.6.2014 in so far as not already in force) by Energy Act 2008 (c. 32), ss. 44(3), 110(2); S.I. 2010/1888, art. 2(1); S.I. 2014/1461, art. 2(a)

F793 S. 64(1B) inserted (1.9.2004) by Energy Act 2004 (c. 20), s. 198(2), Sch. 19 para. 15(3); S.I. 2004/2184, art. 2(2), Sch. 2

F794 Words in s. 64(1B) inserted (18.2.2014) by Energy Act 2013 (c. 32), ss. 147(4), 156(2)

Modifications etc. (not altering text)

C110 S. 64: definitions applied by Heathrow Express Railway Act 1991 (c. vii), s. 37(1)(a)

Marginal Citations

M12 1973 c. 41.

M13 1980 c. 21.

M14 1971 c. 80.

M15 1972 c. 59