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Energy Bill

If I thought that every action the Government take is to ban the bad and make compulsory the good, we would be even more radical than we already are and thus gain my even more enthusiastic support, but I know what the noble Lord is driving at. He is worried that we are increasing our powers of regulation. On that I want to set his mind at rest, and I am sure that I will be able to do so because the point being raised here concerns a clear legal technicality, and therefore I shall stay close to the text I have before me. The proposed amendment would specifically set out in the Bill that the Secretary of State must not unduly disadvantage an electricity supplier in competing against other electricity suppliers. As I am sure Members of the Committee know already, this provision is currently set out in Section 32A(3) of the Electricity Act 1989. In updating this legislation to implement the reforms we are making to the RO, we took the decision to remove unnecessary provisions from the statute book in line with best practice under better regulation principles. So in order to reduce regulation, we have taken this point out. As those of a legal inclination will know, in using the RO powers in this Bill, the Secretary of State is already bound by administrative law principles not to disadvantage particular suppliers or discriminate against them where they are in comparable positions. It is therefore unnecessary to include such a provision in the Bill; we are governed by more general administrative law principles. This is because consistency or equality of treatment is an important principle of administrative law. It means that like cases must be treated alike, that all persons who are in comparable positions should be treated similarly, and that a discretionary power must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it. Similar principles exist in European law, such as the principle of non-discrimination. If the Secretary of State, in exercising his powers under this legislation, were to discriminate against a particular supplier or class of suppliers, he would have to demonstrate that he had a valid reason for so doing. If he failed to exercise his powers in a proper way then judicial review proceedings could be brought against him. As suppliers will therefore be protected by general principles of administrative law and general principles of European law, we do not consider this amendment to be necessary. The noble Lord will recognise that we believe that competition wherever it is possible should form the basis of the industry and regulation only where appropriate. I hope that I have established for him that regulation is neither appropriate nor necessary, and that the Government have taken the right course in drafting the Bill in this way. As a result, I hope that he will feel able to withdraw the amendment.