Utilities Act 2000

(26A) (1) The Competition Commission (in this section referred to as “the Commission”) may, within the period of four weeks after the date on which it is given a notice under section 26(4A), direct the Authority— (a) not to make the modifications set out in that notice; or (b) not to make such of the modifications as may be specified in the direction; and the Authority shall comply with any such direction. (2) The Secretary of State may, within the period of four weeks after the date on which the Commission is given a notice under section 26(4A) and on the application of the Commission, direct that the period for giving a direction under subsection (1) (and, accordingly, the period mentioned in section 26(4C)) shall be extended by 14 days. (3) The power to give a direction under subsection (1) may only be exercised in respect of such of the modifications set out in the notice under section 26(4A)(a) as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications. (4) If the Commission gives a direction under subsection (1), the Commission— (a) shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and (b) shall itself make such modifications of the relevant conditions as appear to it to be requisite for the purpose of remedying or preventing— (i) if the direction was given under subsection (1)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications; (ii) if the direction was given under subsection (1)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under section 26(4C)(b). (5) In exercising its function under subsection (4)(b) the Commission shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a licence. (6) Before making modifications under subsection (4)(b) the Commission shall give notice— (a) stating that it proposes to make the modifications and setting them out; (b) stating the reason why it proposes to make them; (c) 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 modifications may be made, and shall consider any representations or objections which are duly made and not withdrawn. (7) A notice under subsection (4)(a) or (6) shall be given— (a) by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and (b) by serving a copy on the Authority and the holder of the licence in question or, as the case may be, the relevant licence holders. (8) After making modifications under this section the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them. (9) Where, in consequence of a reference under section 24(1A), the Commission modifies under subsection (4)(b) the standard conditions of licences of any type (that is to say, licences under section 7 or section 7A(1) or 7A(2)) the Authority may make such incidental and consequential modifications as it considers necessary or expedient of any conditions of licences of that type granted before that time. (10) Where the Commission modifies the standard conditions of licences of any type as mentioned in subsection (9) the Authority— (a) shall 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) shall publish the modifications made for those purposes in such manner as it considers appropriate. (11) The modification under this section of part of a standard condition of a particular licence in consequence of a reference under section 24(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part. (12) The provisions mentioned in subsection (13) are to apply in relation to the exercise by the Commission of its functions under this section as if— (a) in section 82(1) and (2) of the Fair Trading Act 1973 references to a report of the Commission under that Act were references to a notice under subsection (4)(a), (6) or (8) of this section; (b) in section 85 of that Act references to an investigation on a reference made to the Commission were references to an investigation by the Commission for the purposes of the exercise of its functions under this section. (13) The provisions are— (a) section 82(1) and (2) of the Fair Trading Act 1973 (general provisions as to reports under that Act); (b) section 85 of that Act (attendance of witnesses and production of documents); (c) section 24 of the Competition Act 1980 (modification of provisions about the Competition Commission’s general functions); and (d) Part II of Schedule 7 to the Competition Act 1998 (the Competition Commission’s general functions). (14) This section does not apply to the modification of a licence following a report of the Commission made before the commencement of section 83(4) of the Utilities Act 2000.

• (5) In section 27 of that Act (modification of licences by order under enactments other than the 1986 Act), after subsection (1) there is inserted—

(1A) The modification under subsection (1)(a) of part of a standard condition of a particular licence in consequence of a reference under section 24(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.

The gas code

84

• (1) Schedule 2B to the 1986 Act is amended as follows.

• (2) After paragraph 6 (meters for disabled persons) there is inserted—

(6A) A pre-payment meter installed by an authorised supplier on any premises shall not be used to recover any sum other than a sum owing to an authorised supplier in respect of the supply of gas to those premises or the provision of the meter.

• (3) In paragraph 7 (recovery of gas charges etc.)—

• (a) in sub-paragraph (1)(a) for the words from “the consumer’s” to “him” there is substituted “ any premises of his (in this paragraph referred to as “the premises”) ”;

• (b) sub-paragraph (2) shall cease to have effect; and

• (c) in sub-paragraph (3) for paragraphs (a) and (b) there is substituted—

(a) install a pre-payment meter on the premises in place of the existing meter; or (b) cut off the supply to the premises by disconnecting the service pipe at the meter or by such other means as he thinks fit; and the supplier may recover any expenses incurred in so doing from the consumer.

• (4) In paragraph 23(2), for paragraph (c) there is substituted—

(c) exercising a power conferred by paragraph 3(5) or 7(3)(a) (and testing gas fittings, and making any adjustments required for their safe operation, after the exercise of the power).

Transfer of gas licences

85

For section 8AA of the 1986 Act (assignment of gas licences) there is substituted—

(8AA) (1) A licence— (a) shall be capable of being transferred by the licence holder, with the consent of the Authority, in accordance with this section and subject to any term of the licence relating to its transfer; (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 to carry on). (4) Such consent may be given subject to compliance with such modification or other conditions as the Authority considers necessary or expedient. (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— (a) give the Health and Safety Executive not less than 28 days’ notice of any proposal to consent to any proposed transfer; and (b) give that Executive and 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 given to the Secretary of State under subsection (7)(b), 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. (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. (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.

Exemptions from gas licensing

86

• (1) In subsection (1) of section 6A of the 1986 Act (exemptions from prohibition) the words “, after consultation with the Director,” shall be omitted.

• (2) After subsection (1) of that section there is inserted—

(1A) 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. (1B) The notice required by subsection (1A) shall be given— (a) by serving a copy of it on the Authority and the Council; 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.

• (3) For subsections (2) and (3) of that section there is substituted—

(2) 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. (2A) 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. (3) An exemption may be granted— (a) indefinitely; or (b) for a period specified in, or determined by or under, the exemption.

• (4) For subsection (5) of that section there is substituted—

(5) 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. (6) 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. (7) 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. (8) Before— (a) making an order under subsection (5)(b) or (c) or (6); or (b) giving a direction under subsection (7)(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. (9) The notice under subsection (8) shall be given— (a) where the Secretary of State is proposing to make an order under subsection (5)(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 (6), 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 (7)(b) or (c), by serving a copy of it on the person from whom he proposes to withdraw the exemption.

Reasons for decisions under 1986 Act

87

For section 38A of the 1986 Act (duty to consider representations and give reasons) there is substituted—

(38A) (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 7B(5)(a)(i) or (ii); (d) the determination of a question referred in pursuance of a condition included in a licence by virtue of section 7B(5)(a)(iii); (e) the determination of a dispute referred under section 27A(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 36(3) directed the Authority not to enter in the register required to be kept under that section. (6) In this section “final order” and “provisional order” have the same meanings as in section 28.

Altering activities requiring gas licence

88

After section 41B of the 1986 Act (which is inserted by section 98 below) there is inserted—

(41C) (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 5(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— (a) the conveyance of gas through pipes to premises or to pipe-line systems operated by gas transporters; (b) the supply to premises of gas conveyed through pipes; or (c) arranging with gas transporters for gas to be introduced into, conveyed by means of or taken out of pipe-line systems operated by the gas transporters. (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 41D. (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 41G; or (b) following consultation by the Secretary of State in accordance with section 41H. (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. (41D) (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 the Council 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 shall make a reference to the Competition Commission under section 41E before making the application. (4) In any other case where the Authority considers it appropriate to make a reference to the Commission under section 41E before making the application, the Authority may make such a reference. (5) If a reference is made to the Commission, the application shall not be made unless the Commission 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 the Authority would expect to be included in such licences. (41E) (1) A reference to the Competition Commission under this section shall require the Commission 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 Commission 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 Commission 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 Commission 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 the Authority 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 the Council 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 Commission in carrying out the investigation on the reference, give to the Commission— (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 Commission for that purpose or is information which in its opinion it would be appropriate for that purpose to give to the Commission without any such request; and (b) any other assistance which the Commission may require, and which it is within its power to give, in relation to any such matters, and the Commission 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 Commission shall have regard to— (a) the matters referred to in section 4AA; (b) any social or environmental policies set out or referred to in guidance issued under section 4AB; and (c) any advice given by the Health and Safety Commission under section 4A (advice about health and safety in relation to gas). (7) The provisions mentioned in subsection (8) are to apply in relation to references under this section as if— (a) the functions of the Commission in relation to those references were functions under the Fair Trading Act 1973; (b) the expression “merger reference” included a reference under this section; (c) in section 70 of the Fair Trading Act 1973— (i) references to the Secretary of State were references to the Authority; and (ii) the reference to three months were a reference to six months. (8) The provisions are— (a) sections 70 (time limit for report on merger), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the Fair Trading Act 1973; (b) Part II of Schedule 7 to the Competition Act 1998 (performance of the Commission’s general functions); and (c) section 24 of the Competition Act 1980 (modification of provisions about performance of such functions). (41F) (1) In making a report on a reference under section 41E, the Competition Commission 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 Commission 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 Commission 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 41E(3)(a) which they consider appropriate. (4) Section 82 of the Fair Trading Act 1973 (general provisions as to reports) shall apply in relation to reports of the Commission on references under section 41E as it applies to reports of the Commission under that Act. (5) A report of the Commission on a reference under section 41E 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, send another copy to the Council and publish that other copy 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 the Council and published under that subsection. (41G) (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 duly made and not withdrawn. (2) The notice shall be given— (a) by serving a copy on the Secretary of State, the Health and Safety Executive and the Council; and (b) by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of persons 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. (41H) (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 41G), 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, the Health and Safety Executive and the Council; and (b) by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons likely to be affected by such an order.

Gas performance standards

Repeal of section 10(2) to (5) of Gas Act 1995

89

Subsections (2) to (5) of section 10 of the Gas Act 1995 shall cease to have effect and, accordingly, sections 33A to 33E of the 1986 Act are not liable to expire in accordance with those subsections.

Standards of performance in individual cases

90

• (1) In section 33A of the 1986 Act—

• (a) in subsection (3)(a), after “section” there is inserted “or their rights under section 33AA”; and

• (b) subsections (6) to (9) shall cease to have effect.

• (2) After section 33A of the 1986 Act there is inserted—

(33AA) (1) The Authority may make regulations prescribing such standards of performance in connection with the activities of gas transporters, so far as affecting customers or potential customers of gas suppliers, as in the Authority’s opinion ought to be achieved in individual cases. (2) Regulations under this section may only be made with the consent of the Secretary of State. (3) If a gas transporter fails to meet a prescribed standard, he shall make to any customer or potential customer of a gas supplier 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 regulations may— (a) prescribe circumstances in which gas transporters are to inform customers or potential customers of gas 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 gas transporters 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 gas transporter would be unduly disadvantaged in competing with other gas transporters, make different provision with respect to different gas transporters. (5) Provision made under subsection (4)(c) may— (a) require or permit compensation to be made on behalf of gas transporters by gas suppliers to customers or potential customers; (b) require gas suppliers to provide services to gas transporters in connection with the making of compensation under this section. (6) 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. (33AB) (1) Any dispute arising under section 33A or 33AA or regulations made under either of those sections— (a) may be referred to the Authority by either party or, with the agreement of either party, by the Council; 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 the Council) 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 a 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.

Overall standards of performance

91

After section 33B of the 1986 Act there is inserted—

(33BA) (1) The Authority may from time to time— (a) determine such standards of overall performance in connection with the activities of gas transporters as, in its opinion, ought to be achieved by them; and (b) arrange for the publication, in such form and in such manner as he considers appropriate, of the standards so determined. (2) Different standards may be determined for different gas transporters if the Authority is of the opinion that the differences are such that no gas transporter would be unduly disadvantaged in competing with other gas transporters. (3) It shall be the duty of every gas transporter to conduct his business in such a way as can reasonably be expected to lead to his achieving the standards set under this section.

Standards of performance: procedures

92

After section 33BA of the 1986 Act (which is inserted by section 91 above) there is inserted—

(33BAA) (1) Before prescribing standards of performance in regulations under section 33A or 33AA, or determining standards of performance under section 33B or 33BA, 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 the Council 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) gas suppliers (in the case of standards of performance under section 33A or 33B) or gas transporters and gas suppliers (in the case of standards of performance under section 33AA or 33BA); 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 33A or 33AA and determinations under section 33B or 33BA are made available to the public by whatever means it considers appropriate.

Information with respect to levels of performance

93

• (1) Section 33C of the 1986 Act is amended as follows.

• (2) In subsection (1), paragraph (c) (and the word “and” preceding it) shall cease to have effect.

• (3) After subsection (1) there is inserted—

(1A) The Authority shall from time to time collect information with respect to— (a) the compensation made by gas transporters under section 33AA; (b) the levels of overall performance achieved by gas transporters.

• (4) In subsection (2)(b) the words “or 33BB above” shall cease to have effect.

• (5) After subsection (2) there is inserted—

(2A) At such times as the Authority may direct, each gas transporter shall give the following information to the Authority— (a) as respects each standard prescribed by regulations under section 33AA, 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 33BA, such information with respect to the level of performance achieved by the transporter as the Authority may direct.

• (6) Subsection (3) shall cease to have effect.

Information to be given to customers

94

For section 33D of the 1986 Act there is substituted—

(33D) (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 33B or 33BA; and (b) the levels of performance achieved as respects those standards, to be given by gas suppliers or gas transporters to customers or potential customers of gas suppliers. (2) Regulations under this section may include provision— (a) as to 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 gas transporters to be given by gas transporters to gas suppliers and by gas suppliers to their customers or potential customers.

Enforcement of obligations

Financial penalties

95

• (1) After section 30 of the 1986 Act there is inserted—

(30A) (1) Where the Authority is satisfied that a licence holder— (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 33A or 33AA, the Authority may, subject to section 30C, impose on the licence holder a penalty of such amount as is reasonable in all the circumstances of the case. (2) The Authority shall not impose a penalty on a licence holder under subsection (1) where it is satisfied that the most appropriate way of proceeding is under the Competition Act 1998. (3) Before imposing a penalty on a licence holder 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 licence holder 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 licence holder, by which the penalty is required to be paid. (6) The licence holder 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 licence holder; and (c) by serving a copy of the notice on the Council. (8) No penalty imposed by the Authority under this section may exceed 10 per cent. of the turnover of the licence holder (determined in accordance with provisions specified in an order made by the Secretary of State). (9) An order under subsection (8) 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. (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 95 of the Utilities Act 2000. (30B) (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. (30C) (1) Where no final or provisional order has been made in relation to a contravention or failure, the Authority may not impose a penalty in respect of the contravention or failure later than the end of the period of 12 months from the time of the contravention or failure, unless before the end of that period— (a) the notice under section 30A(3) relating to the penalty is served on the licence holder under section 30A(7), or (b) a notice relating to the contravention or failure is served on the licence holder under section 38(1). (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 30A(3) was served on the licence holder under section 30A(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. (30D) (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 Judgments Act 1838. (2) If an application is made under subsection (6) of section 30A 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. (30E) (1) If the licence holder on whom a penalty is imposed is aggrieved by— (a) the imposition of the penalty; (b) the amount of the penalty; or (c) the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid, the licence holder may make an application to the court under this section. (2) An application under subsection (1) must be made— (a) within 42 days from the date of service on the licence holder of a notice under section 30A(5), or (b) where the application relates to a decision of the Authority on an application by the licence holder under section 30A(6), within 42 days from the date the licence holder is notified of the decision. (3) On any such application, where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within subsection (4), the court— (a) may quash the penalty; (b) may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; or (c) in the case of an application under subsection (1)(c), may substitute for the date or dates imposed by the Authority an alternative date or dates. (4) The grounds falling within this subsection are— (a) that the imposition of the penalty was not within the power of the Authority under section 30A; (b) that any of the requirements of subsections (3) to (5) or (7) of section 30A have not been complied with in relation to the imposition of the penalty and the interests of the licence holder have been substantially prejudiced by the non-compliance; or (c) that it was unreasonable of the Authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid. (5) If an application is made under this section in relation to a penalty, the penalty is not required to be paid until the application has been determined. (6) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable. (7) Where the court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable. (8) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever. (9) In this section “the court” means— (a) in relation to England and Wales, the High Court; and (b) in relation to Scotland, the Court of Session. (30F) Where a penalty imposed under section 30A(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 30E during the period within which such an application can be made, or (b) an application has been made under that section and determined, the Authority may recover from the licence holder, as a civil debt due to it, any of the penalty and any interest which has not been paid.

• (2) In section 28 of the 1986 Act (orders for securing compliance with certain provisions)—

• (a) subsection (7A) (power to impose financial penalty in a final order under section 28) and subsection (9) (payment of sums received by way of financial penalty under section 28 to be paid into the Consolidated Fund) shall cease to have effect;

• (b) in subsection (8) (interpretation) for “and 30” there is substituted “ to 30F ”.

• (3) Section 30(2)(b) of the 1986 Act (power of court to quash or substitute a monetary penalty on an application under section 30) shall cease to have effect.

• (4) In section 36 of the 1986 Act (keeping of a register)—

• (a) in subsection (1), for “and final and provisional orders” there is substituted “ , final and provisional orders and penalties imposed under section 30A(1) ”;

• (b) in subsection (2), after paragraph (e) there is inserted

; and (f) every notice under section 30A(5).

• (5) In section 38(1) of the 1986 Act (power to require information, etc.)—

• (a) for “Director” in each place where it appears, there is substituted “ Authority ”;

• (b) after “requirement” there is inserted “ or may be failing, or may have failed, to achieve any standard of performance prescribed under section 33A or 33AA, ”;

• (c) for the words from “his functions” to “signed by him” there is substituted “ its functions under section 28 or 30A to 30F in relation to that matter, by notice in writing ”;

• (d) for “him” there is substituted “ it ”.

Licence enforcement

96

• (1) The 1986 Act is amended as follows.

• (2) In subsection (1) of section 28 (orders for securing compliance with certain provisions), for “and (5)” there is substituted “ , (5) and (5A) ”.

• (3) In subsections (2), (4) and (6) of that section, for “subsection (5)” there is substituted “ subsections (5) and (5A) ”.

• (4) In subsection (5) of that section paragraphs (aa) and (b) shall cease to have effect.

• (5) After subsection (5) of that section there is inserted—

(5A) The Authority is not required to make a final order or make or confirm a provisional order if it is satisfied— (a) that the licence holder has agreed to take and is taking all such steps as it appears to the Authority for the time being to be appropriate for the licence holder to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or (b) that the contraventions were or the apprehended contraventions are of a trivial nature.

• (6) In section 29 (procedural requirements for making or confirming orders under section 28), in subsections (1)(c) and (4)(b), for “28” there is substituted “ 21 ”.

• (7) Subsections (2) to (6) do not have effect in relation to—

• (a) a provisional order which has been made before the commencement of the subsection making the amendment; or

• (b) a final order in respect of which notice has been given under section 29(1) of the 1986 Act before the commencement of the subsection making the amendment.

Remuneration and service standards

Links between directors' remuneration and gas service standards

97

After section 33E of the 1986 Act there is inserted—

(33F) (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— 1. a maximum price which may be charged by the company, or a method for calculating such a maximum price; or 2. a maximum revenue which may be received by the company, or a method for calculating such a maximum revenue, - “company” means a company within the meaning of the Companies Act 1985 which is limited by shares; - “remuneration” in relation to a director of a company— 1. means any form of payment, consideration or other benefit (including pension benefit), paid or due to or in respect of the director; and 2. 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— 1. set by or under any conditions included in a licence granted under this Part; 2. prescribed by the Authority in regulations made under section 33A and 33AA; 3. determined by the Authority under section 33B or 33BA; or 4. set or agreed to by the company.

Miscellaneous

Help for disadvantaged groups of gas customers

98

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

Energy efficiency requirements for gas transporters and suppliers

99

For section 33BB of the 1986 Act (promotion of efficient use of gas) there is substituted—

(33BC) (1) The Secretary of State may by order impose— (a) on each gas transporter (or each gas transporter of a specified description); and (b) on each gas supplier (or each gas supplier of a specified description), an obligation to achieve, within a specified period and in accordance with the order, the energy efficiency target to be determined by the Authority under the order for that transporter or supplier (and that obligation is referred to in this section as an “energy efficiency obligation”). (2) In this section “energy efficiency target” means a target for the promotion of improvements in energy efficiency, that is to say, efficiency in the use by consumers of gas conveyed through pipes, electricity or any other source of energy which is specified in the order. (3) An order under this section may specify criteria by reference to which the Authority is to determine energy efficiency targets for the gas transporters and gas suppliers on whom obligations are imposed by the order. (4) The Secretary of State and the Authority shall carry out their respective functions under this section in the manner he or it considers is best calculated to ensure that no gas transporter is unduly disadvantaged in competing with other gas transporters and no gas supplier is unduly disadvantaged in competing with other gas suppliers. (5) The order may make provision generally in relation to the energy efficiency obligations which it imposes, including in particular provision— (a) as to the treatment of persons who become gas transporters or gas 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 an energy efficiency target; (c) as to the method by which improvements in energy efficiency attributable to any qualifying action are to be assessed; (d) requiring transporters and suppliers to give to the Authority specified information, or information of a specified nature, about their proposals for complying with their energy efficiency obligations; (e) requiring the Authority to determine— (i) whether any proposed action qualifies for the purpose of achieving the whole or any part of a person’s energy efficiency target; and (ii) if so, what improvement in energy efficiency is to be attributed for that purpose to the proposed action or to any result of that action specified in the determination; and (f) requiring transporters or suppliers to produce to the Authority evidence of a specified kind demonstrating that they have complied with their energy efficiency obligations. (6) The order may make provision authorising the Authority to require a transporter or supplier to provide it with specified information, or information of a specified nature, relating to— (a) his proposals for complying with his energy efficiency 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 energy efficiency target may be altered during the period to which the order relates; (b) the whole or any part of a person’s energy efficiency 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 energy efficiency target may be transferred to another gas transporter or gas supplier or to an electricity distributor or electricity supplier (within the meaning of Part I of the Electricity Act 1989); or (e) a person may carry forward the whole or any part of his energy efficiency target for the period to which the order relates to a subsequent period. (8) The order may— (a) provide for exceptions from any requirement of the order; (b) provide that any specified requirement contained in it is to be treated as a relevant requirement for the purposes of this Part; (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 transporters 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; or (c) any gas or liquid subjected to a cooling effect produced in association with electricity, as promotion of improvements in energy efficiency. (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. (11) Before making an order under this section the Secretary of State shall consult the Authority, the Council, gas transporters and gas 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.

Exercise of powers to make regulations

100

For section 47(7) of the 1986 Act (power to make regulations to be exercisable by statutory instrument) there is substituted—

(7) Any power to make regulations conferred by this Part on the Secretary of State or the Authority shall be exercisable by statutory instrument. (8) Any statutory instrument containing regulations under this Part made by the Secretary of State shall, except as otherwise provided by this Act, be subject to annulment in pursuance of a resolution of either House of Parliament.

Standards of gas quality

101

After section 15A of the 1986 Act (billing disputes) there is inserted—

(16) (1) The Authority may, with the consent of the Secretary of State, prescribe— (a) standards of pressure and purity to be complied with by gas transporters in conveying gas to premises or to pipe-line systems operated by other gas transporters; and (b) other standards with respect to the properties, condition and composition of gas so conveyed. (2) Before making any regulations under this section the Authority shall consult such persons and organisations as it considers appropriate and such gas transporters as appear to it to be affected by the regulations. (3) The Authority shall appoint competent and impartial persons for the purpose of— (a) carrying out tests of gas, apparatus or equipment in accordance with regulations under this section; and (b) assisting the Authority in exercising functions under this section and regulations made under it. (4) Regulations under this section may make provision— (a) for requiring tests of gas conveyed by gas transporters to be carried out by persons appointed under subsection (3) or by gas transporters for the purpose of ascertaining whether the gas conforms with the standards prescribed by the regulations; (b) for requiring such tests to be carried out on the basis of samples taken by persons appointed under subsection (3) or by gas transporters; and (c) for requiring samples of gas taken under paragraph (b) to be provided by gas transporters for the purpose of carrying out such tests. (5) Regulations under this section may make provision— (a) for requiring such premises, apparatus and equipment as the Authority may direct to be provided and maintained by gas transporters for the purpose of carrying out tests required under subsection (4)(a); (b) for requiring tests of apparatus and equipment so provided to be carried out by persons appointed under subsection (3); and (c) for requiring gas transporters to carry out tests of apparatus and equipment so provided and maintained by them. (6) Regulations under this section may make provision— (a) as to the places or premises and the times at which, and the manner in which— (i) tests under this section are to be carried out; (ii) samples of gas are to be taken and provided under this section; and (iii) results of tests under this section are to be notified or made available; (b) for the Authority to require by direction any matter which may be required by regulations by virtue of paragraph (a); (c) for persons representing the gas transporter concerned to be present during the carrying out of any tests carried out by persons appointed under subsection (3); (d) for the results of tests under this section to be made available to other licence holders and to the public; (e) for requiring gas transporters to notify the results of such tests carried out by them to the Authority or to any person appointed under subsection (3); (f) for conferring powers of entry on property owned or occupied by gas transporters for the purpose of carrying out tests under this section and otherwise for the purposes of the regulations. (7) Subject to subsection (8), the Authority may by notice in writing require a gas transporter to give to the Authority, or to any person appointed by it for the purpose, within such time and at such place as may be specified in the notice, such information as the Authority may reasonably require for the purpose of making regulations under this section or of giving directions under such regulations. (8) A gas transporter shall not be required under subsection (7) to give any information which he could not be compelled to give in evidence in civil proceedings before the High Court or, in Scotland, the Court of Session. (9) Every person who is a gas transporter during any period shall pay to the Authority such proportion as the Authority may determine of such part of its expenses for that period as the Authority may determine to be attributable to its functions in connection with the testing of gas for the purposes of this section. (10) It shall be the duty of every gas transporter to conduct his business in such a way as can reasonably be expected to secure compliance with the standards set under subsection (1).

Maximum prices for reselling gas

102

In section 37 of the 1986 Act (maximum prices for reselling gas)—

• (a) in subsection (1), for “shall” (in the first place it appears) and “gas suppliers” there is substituted respectively “ may ” and “ authorised suppliers ”; and

• (b) in subsections (2) and (4) for “a gas supplier” there is substituted “ an authorised supplier ”.

Part VI — Miscellaneous and Supplementary

Miscellaneous

Overall energy efficiency targets

103

• (1) For the purposes of the exercise of the functions of the Administrator under either or both of—

• (a) section 33BC of the 1986 Act (promotion of reductions in carbon emissions: gas transporters and suppliers) and any order made under that section, and

• (b) section 41A of the 1989 Act (promotion of reductions in carbon emissions: electricity ... distributors and suppliers) and any order made under that section,

the Secretary of State may by order specify an overall target for the promotion of the measures mentioned in subsection (2) of each of those sections.

• (1A) The power conferred by this section may be exercised so as to specify more than one overall target in relation to the same period or to periods that overlap to any extent.

• (2) Where an overall target applies in relation to both sections mentioned in subsection (1), the order specifying the target may make provision the target to be apportioned between—

• (a) persons who are gas transporters or gas suppliers (for the purposes of section 33BC of the 1986 Act and any order under that section); and

• (b) persons who are ... electricity distributors or electricity suppliers (for the purposes of section 41A of the 1989 Act and any order under that section),

by reference to such criteria as may be specified in the order.

• (2A) Where an overall target applies in relation to a section mentioned in subsection (1) the order specifying the target may make provision for the target to be apportioned between—

• (a) measures carried out in England and Wales, and

• (b) measures carried out in Scotland,

by reference to such criteria as may be specified in the order.

• (3) The Administrator shall exercise its functions under the provisions mentioned in subsection (1) in relation to which an overall target applies (and in particular its functions relating to the determination of carbon emissions reduction targets) in the manner it considers best calculated to result in the achievement of the overall target.

• (3A) Where a target is apportioned under subsection (2A) for the purposes of a section, an order under that section may include provision for a supplier to elect, subject to any conditions specified in the order—

• (a) that, for the purposes of meeting the carbon emissions reduction target under an obligation imposed by the order in relation to England and Wales, a measure carried out in Scotland is to be treated instead as carried out in England and Wales;

• (b) that, for the purposes of meeting the carbon emissions reduction target under an obligation imposed by the order in relation to Scotland, a measure carried out in England and Wales is to be treated instead as carried out in Scotland.

• (3B) An order may not make provision under subsection (3A)(b) unless the Scottish Ministers have agreed to such provision being made.

• (4) Before making an order under this section the Secretary of State shall consult the Authority, Citizens Advice, Consumer Scotland, gas transporters, gas suppliers, ... electricity distributors, electricity suppliers, and such other persons as he considers appropriate.

• (5) 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.

Specialist members of the Competition Commission

104

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

General restrictions on disclosure of information

105

• (1) Information which—

• (a) has been obtained under or by virtue of the provisions of this Act, Part I of the 1986 Act , Part 1 of the 1989 Act ... , section 184(5) or 185(5) of the Energy Act 2004 or Part 2 or section 27 or 28 of the Energy Act 2010 or section 50 or 51 of the Energy Act 2013 or section 41 or 100 of the Energy Act 2008 or the Domestic Gas and Electricity (Tariff Cap) Act 2018 or the Nuclear Energy (Financing) Act 2022 or a relevant scheme or regulations made under section 9(1) or (2) or section 16 of the Energy Prices Act 2022 or Part 1, 5 or 6, or Chapter 1 of Part 8 of the Energy Act 2023; and

• (b) relates to the affairs of any individual or to any particular business,

shall not be disclosed during the lifetime of the individual or so long as the business continues to be carried on, except as provided below.

• (2) Subsection (1) does not apply to a disclosure made with the consent of the individual or the person for the time being carrying on the business.

• (3) Subsection (1) does not apply to a disclosure if—

• (a) it is made for the purpose of facilitating the performance of any functions of the Secretary of State, the Authority, Citizens Advice, Citizens Advice Scotland , Consumer Scotland or the Competition and Markets Authority under the 1986 Act, the 1989 Act , section 184 or 185 of the Energy Act 2004 sections 41 to 43 ... of the Energy Act 2008 , Part 2 or section 28 of the Energy Act 2010 , section 50 or 51 of the Energy Act 2013 , the REMIT Regulations or this Act;

• (aza) it is made for the purpose of facilitating the performance, by a body specified as the Administrator under an order under section 33BC or 33BD of the Gas Act 1986 or under section 41A or 41B of the Electricity Act 1989, of its functions under that section and the order;

• (azb) it is made for the purpose of facilitating the performance of any functions of the Authority under Part 3 of the Enterprise Act 2002 or under the Domestic Gas and Electricity (Tariff Cap) Act 2018;

• (azc) it is made for the purpose of facilitating the performance of any functions of the Authority under or by virtue of the Nuclear Energy (Financing) Act 2022;

• (azd) it is made for the purpose of facilitating the performance of any functions of the Authority under or by virtue of Part 1 of the Energy Act 2023;

• (aa) it is made for the purpose of facilitating any functions of any person under section 100 of the Energy Act 2008;

• (ab) it is required by a notice under section 103B of this Act or is permitted by subsection (6) of that section;

• (ac) it is required by any person in exercise of a power to require information conferred by regulations under section 16 of the Energy Prices Act 2022;

• (aca) it is made for the purpose of facilitating the performance of any functions of—

• (i) the Secretary of State under section 13 of the Energy Prices Act 2022, or

• (ii) any person under regulations under section 19 of that Act;

• (acb) it is made by a person who is subject to a direction given under section 22 of the Energy Prices Act 2022 for the purpose of complying with the direction;

• (ad) it is made for the purpose of facilitating any functions of the Authority, a delivery body or a contract counterparty (within the meaning of Part 1 of the 1989 Act) under regulations under section 6C of that Act;

• (ae) it is made for the purpose of facilitating the performance of any functions of—

• (i) any person under or by virtue of Chapter 1 of Part 8 of the Energy Act 2023,

• (ii) a person designated as the Heat Network Zones Authority by regulations made by virtue of section 227(1) of that Act, or

• (iii) a person designated as a heat network zone coordinator by regulations made by virtue of section 228(3)(a) of that Act;

• (af) it is a disclosure of information that relates to relevant heat networks (as defined in section 216 of the Energy Act 2023) and it is made for the purpose of facilitating the performance of the functions of—

• (i) the Scottish Ministers under the Climate Change (Scotland) Act 2009 (asp 12) or the Fuel Poverty (Targets, Definition and Strategy) (Scotland) Act 2019 (asp 10), or

• (ii) any person under the Heat Networks (Scotland) Act 2021 (asp 9);

• (b) it is required by a notice under section 38(1A) of the 1986 Act or section 28(2A) of the 1989 Act;

• (ba) it is a protected disclosure for the purposes of the Employment Rights Act 1996 (and for the purposes of ascertaining whether it is a protected disclosure, subsection (9) is to be disregarded);

• (c) it is made by a licence holder and is required to be made by a condition of his licence; or

• (d) it is made by one licence holder to another and is required by that other licence holder for purposes connected with the carrying on of relevant activities.

• (4) Subsection (1) does not apply to any disclosure of information made—

• (a) for the purpose of facilitating the performance by a person or body mentioned in subsection (5) of any function under an Act or instrument specified in subsection (6);

• (b) for the purpose of facilitating the performance by the Comptroller and Auditor General, ...the Health and Safety Executive of any of his or its functions;

• (ba) for the purpose of facilitating the performance by the Office for Nuclear Regulation of any of its functions;

• (bb) for the purpose of facilitating the performance by the Independent System Operator and Planner of any of its functions;

• (c) for the purpose of facilitating the exercise by the Secretary of State of any power conferred . . . by the enactments relating to companies ... or insolvency;

• (d) for the purpose of facilitating the performance of the functions of an inspector appointed under the enactments relating to companies;

• (da) for the purpose of facilitating the performance by the Secretary of State, the Treasury , the Financial Conduct Authority, the Prudential Regulation Authority or the Bank of England of any functions under the Financial Services and Markets Act 2000 or the Consumer Credit Act 1974;

• (db) for the purpose of facilitating the discharge of any function by a person appointed under—

• (i) section 97 of the financial Services and Markets Act 2000 (investigations into a breach of listing rules etc.),

• (ii) section 167 of that Act (general investigations), or

• (iii) section 168 of that Act (investigations in particular cases);

• (e) for the purpose of facilitating the performance by an official receiver of his functions under the enactments relating to insolvency or by a recognised professional body for the purposes of section 391 of the Insolvency Act 1986 of its functions as such a body;

• (f) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings;

• (g) for the purposes of any civil proceedings brought —

• (i) under or by virtue of the 1986 Act, the 1989 Act, this Act or any Act or instrument specified in subsection (6), or

• (ii) in reliance on section 47B or 103A of the Employment Rights Act 1996;

• (ga) in connection with the investigation of any failure to comply with a REMIT requirement or an EU REMIT requirement or for the purposes of any proceedings brought under or by virtue of REMIT or any proceedings brought under or by virtue of EU REMIT in a member State; or

• (h) in pursuance of an assimilated obligation.

• (5) The persons and bodies specified for the purposes of subsection (4)(a) are—

• (a) a Minister of the Crown;

• (b) the Competition and Markets Authority;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) the Office of Communications;

• (e) the Water Services Regulation Authority;

• (f) the Northern Ireland Authority for Utility Regulation;

• (h) the Office of Rail and Road;

• (i) the Civil Aviation Authority;

• (j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (k) the Coal Authority; ...

• (l) a local weights and measures authority in Great Britain , ...

• (m) Citizens Advice, ...

• (n) Citizens Advice Scotland , and

• (o) Consumer Scotland.

• (6) The Acts and instruments specified for the purposes of subsection (4)(a) and (g) are—

• (a) the Trade Descriptions Act 1968;

• (b) the Fair Trading Act 1973;

• (c) the Consumer Credit Act 1974;

• (d) the Estate Agents Act 1979;

• (e) the Competition Act 1980;

• (f) the National Audit Act 1983;

• (g) the Telecommunications Act 1984;

• (h) the Airports Act 1986;

• (i) the Insolvency Act 1986;

• (j) the Consumer Protection Act 1987;

• (k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (l) the Water Act 1989, the Water Industry Act 1991 or any of the other consolidation Acts (within the meaning of section 206 of the Water Industry Act 1991) or the Water Act 2003 or the Water and Sewerage Services (Northern Ireland) Order 2006 or the Water Act 2014;

• (m) the Electricity (Northern Ireland) Order 1992;

• (n) the Railways Act 1993;

• (o) the Coal Industry Act 1994;

• (p) the Gas (Northern Ireland) Order 1996;

• (q) the Competition Act 1998.

• (r) Part I of the Transport Act 2000.

• (s) the Enterprise Act 2002

• (t) the Communications Act 2003.

• (u) the Railways Act 2005.

• (v) the Business Protection from Misleading Marketing Regulations 2008;

• (w) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (x) the Consumers, Estate Agents and Redress Act 2007.

• (x) Part 1 of the Civil Aviation Act 2012

• (y) the Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations (Northern Ireland) 2013.

• (y) Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013;

• (z) the Domestic Gas and Electricity (Tariff Cap) Act 2018;

• (z1) Part 1 of the Energy Act 2023;

• (z2) the following provisions of the Digital Markets, Competition and Consumers Act 2024—

• (i) Part 3;

• (ii) Chapter 1 of Part 4;

• (iii) Chapter 2 of Part 5.

• (6A) If the Authority is making a decision whether to disclose information to a national regulatory authority of a member State under subsection (4)(ga), the Authority must have regard in particular to whether there are arrangements in place for the provision of mutual assistance in relation to the disclosure of information.

• (7) The Secretary of State may by order modify subsection (3), (4), (5) or (6).

• (8) Nothing in subsection (1) is to be construed either as limiting the matters which may be—

• (a) published under section ... 35 of the 1986 Act or section 32J or ... 48 of the 1989 Act , section 32J or 48 of the 1989 Act or regulations made by virtue of paragraph 11(4) of Schedule 18 to the Energy Act 2023;

• (b) made public by the Authority as part of a notice under section 26; or

• (c) included in, or made public as part of, a report of the Authority ... or the Competition and Markets Authority under any provision of this Act, Part I of the 1986 Act , Part 1 of the 1989 Act or regulations made by virtue of paragraph 41 of Schedule 18 to the Energy Act 2023;

or as applying to information which has been so published or has been made public as part of such a notice or such a report.

• (8A) Subsection (1) does not apply to a disclosure of information which has been obtained—

• (a) under or by virtue of a relevant scheme if it is made by a person in connection with that person’s performance of the terms of that relevant scheme, or

• (b) under or by virtue of regulations made under section 9(1) or (2) of the Energy Prices Act 2022 if the disclosure is made by a person in connection with the exercise of that person’s functions under the regulations.

• (9) A person who discloses any information in contravention of this section is guilty of an offence and liable—

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

• (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

• (10) In this section—

• “EU REMIT” means Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326, 8.12.2011, p.1–16), as it has effect in EU law as amended from time to time;

• “EU REMIT requirement” means a requirement imposed by any of Articles 3(1) and (5), 4(1), (2) and (3), 5, 8(1) and (5), 9(1), (4) and (5) and 15 of EU REMIT;

• “the Independent System Operator and Planner” means the person for the time being designated under section 162(1) of the Energy Act 2023;

• “licence holder” means the holder of a gas licence or an electricity licence; and

• “national regulatory authority” has the same meaning as in EU REMIT;

• “relevant activities”, in relation to a licence holder, means activities he is authorised by his licence to carry on (including, in the case of a gas transporter, the activities mentioned in section 7(1)(b) and (c) of the 1986 Act).

• “relevant scheme” means—a domestic electricity price reduction scheme for Great Britain, ora domestic gas price reduction scheme for Great Britain,within the meaning of the Energy Prices Act 2022 (see section 1 of that Act);

• “REMIT” means Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency;

• “the REMIT Regulations” means the Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations 2013;

• “REMIT requirement” has the same meaning as in the REMIT Regulations ; and

• the reference to the Bank of England does not include the Bank acting in its capacity as the Prudential Regulation Authority.

• (11) Information obtained by the Authority in the exercise of functions which are exercisable concurrently with the Competition and Markets Authority under Part I of the Competition Act 1998 is subject to Part 9 of the Enterprise Act 2002 (Information) and not to subsections (1) to (10) of this section.

• (11A) Nothing in this section applies to information within section 29(3) of the Consumers, Estate Agents and Redress Act 2007 (application of disclosure regime in Part 9 of the Enterprise Act 2002 to information obtained by Citizens Advice , Citizens Advice Scotland or Consumer Scotland).

• (11B) Nothing in this section applies to information to which section 105A applies.

• (12) The power to make an order under subsection (7) is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Supplementary

Interpretation

106

• (1) In this Act—

• ...

• ...

• “Authority” means the Gas and Electricity Markets Authority;

• “Citizens Advice” means the National Association of Citizens Advice Bureaux;

• “Citizens Advice Scotland” means the Scottish Association of Citizens Advice Bureaux;

• ...

• ...

• ...

• “designated regulatory function” means—a function of the Authority conferred by—a provision of assimilated law,a condition in a licence under section 7, 7ZA or 7A of the 1986 Act, as that condition is modified from time to time on or after IP completion day, ora condition in a licence under section 6 of the 1989 Act, as that condition is modified from time to time on or 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 or Article 39 of the Gas Directive;a function of the Northern Ireland Authority conferred by—a provision of retained EU law, ora condition in a licence under Article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)), as that condition is modified from time to time on or 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 39 of the Gas Directive;a function of the Northern Ireland Authority as a regulatory authority designated in accordance with Article 35 of the Electricity Directive;

• “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;

• “electricity licence” means a licence under section 6 of the 1989 Act;

• “the Gas Directive” means Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC( ), as amended by the 2019 Amending Directive;

• “gas licence” means a licence under section 7 , 7A , 7AA, 7AB or 7AC of the 1986 Act;

• “the 1986 Act” means the Gas Act 1986;

• “the 1989 Act” means the Electricity Act 1989.

• “the 2019 Amending Directive” means Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019 amending Directive 2009/73/EC concerning common rules for the internal market in natural gas.

• (2) Expressions used in this Act, as regards matters relating to gas, which are defined in section 48 or 66 of the 1986 Act or used in Part I of that Act have, unless the context otherwise requires, the same meaning as in that Part of that Act.

• (3) Expressions used in this Act, as regards matters relating to electricity, which are defined in section 64 or 111 of the 1989 Act or used in Part I of that Act have, unless the context otherwise requires, the same meaning as in that Part of that Act.

• (4) Section 46 of the 1986 Act (service of notices, etc.) shall apply to any document authorised or required by virtue of any provision of this Act to be served on or given to any person as if it were authorised or required to be served or given by virtue of that Act.

Financial provisions

107

There shall be paid out of money provided by Parliament—

• (a) any expenditure incurred by the Authority by virtue of this Act;

• (b) any expenditure incurred by the Secretary of State by virtue of this Act;

• (c) any increase attributable to this Act in the sums payable out of money so provided under any other Act.

Amendments, transitional provisions and repeals

108

Schedule 6 (minor and consequential amendments), Schedule 7 (transitional provisions and savings) and Schedule 8 (repeals) have effect.

Power to make transitional provision etc

109

• (1) The Secretary of State may by regulations make such transitional and consequential provisions and such savings as he considers necessary or expedient in preparation for, or in connection with, or in consequence of—

• (a) the coming into force of any provision of this Act; or

• (b) the operation of any enactment repealed or amended by a provision of this Act during any period when the repeal or amendment is not wholly in force.

• (2) Such regulations may make modifications of any enactment contained in any Act or subordinate legislation (including an enactment contained in this Act or in any Act passed or subordinate legislation made in the same Session as this Act).

• (3) The power of the Secretary of State to make regulations under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Short title, commencement and extent

110

• (1) This Act may be cited as the Utilities Act 2000.

• (2) This Act (apart from this section and section 68) shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed for different purposes.

• (3) An order under subsection (2) may contain transitional provisions and savings relating to the provisions being brought into force by the order.

• (4) Any amendment or repeal made by this Act has the same extent as the enactment being amended or repealed.

• (5) Subject to subsection (4), this Act does not extend to Northern Ireland.

SCHEDULE 1

Membership

1

• (1) The Authority shall consist of a chairman, and no fewer than two other members, appointed by the Secretary of State.

• (2) The Secretary of State shall consult the chairman before appointing any other member.

Terms of appointment, remuneration, pensions etc.

2

• (1) Subject to this Schedule, the chairman and other members shall hold and vacate office as such in accordance with the terms of their respective appointments.

• (2) The terms of appointment of the chairman and other members shall be determined by the Secretary of State.

3

• (1) An appointment of a person to hold office as chairman or other member must be for a term of not less than 5 years and not more than 7 years.

• (2) But in appointing as chairman or other member a person who is on the Authority’s staff, the Secretary of State may make the appointment subject to a condition that the appointment will end if that person ceases to be on the Authority’s staff.

• (3) The appointment of a person as chairman or other member may be renewed only once.

• (4) The Secretary of State must ensure that there is sufficient continuity in the persons holding office as chairman or other member in determining—

• (a) the term of a person’s appointment in accordance with sub-paragraph (1) (whether initially or on renewal); and

• (b) whether or not to renew an appointment in accordance with sub-paragraph (3).