Before speaking to amendments 157 and 158 to clause 49, I would like to comment on clauses 50 and 51, which relate to fuel poverty support schemes and energy company obligations. I would like the Minister to explain—indeed, to justify—why those clauses are constructed as they are. They amend existing primary legislation, but they are far from clear.
Our starting point must be paragraph 68 of the Smith commission’s report, which states:
“Powers to determine how supplier obligations in relation to energy efficiency and fuel poverty… will be devolved. Responsibility for setting the way the money is raised… will remain reserved.”
Importantly, it then states:
“This provision will be implemented in a way that is not to the detriment of the rest of the UK or to the UK’s international obligations and commitments on energy efficiency and climate change.”
Indeed, paragraph 68 is one of the more prescriptive in the report.
Clauses 50 and 51 also state clearly that any action proposed by Scottish Ministers should not be to the detriment of the United Kingdom as a whole. I want to press the Minister on the criteria to be used by the Secretary of State to determine whether a course of action proposed by Scottish Ministers would be to the detriment of the UK. That is clearly stated in clause 50, and at several points in clause 51. Specifically, proposed new section 14A(8)(b) in clause 50 refers to schemes likely to
“cause detriment to the United Kingdom”.
However, it does not state how detriment in all cases may be judged to have occurred. Proposed new section 14A(9) states that
“considerations that the Secretary of State may take into account include the costs imposed on suppliers by virtue of schemes made, or to be made, by the Secretary of State and the Scottish Ministers under section 9.”
That is section 9 of the Energy Act 2010.
In clause 51, proposed new section 33BCA(7) and others make similar references to “detriment” and to “costs”. Here, too, the phrase “may take into account” is used, which strongly implies that the Secretary of State will not be obliged to take costs into account. It seems that he will also be able to take other, non-specified factors into account. The same can be said of other amendments to existing legislation proposed in clause 51.
What I find worrying about the proposed new sections in clauses 50 and 51 is the lack of specificity and the significant discretion placed in the hands of the Secretary of State. Apart from the politics of this, there is a question of the lack of clarity and, with it, the possibility of any course of action being justiciable. I am not a lawyer—I am an ordinary person—but my experiences over the past decade or so tell me that if there is a lack of clarity in legislation, all too often it is the judges who end up providing that clarity.
I am thinking of the action taken two years ago by the UK Government against the Welsh Government. The Welsh Government wanted to protect Welsh agricultural workers after the UK Government abolished the Agricultural Wages Board, and the UK Government lost the case in the Supreme Court. That is simply an example that springs to mind of what can happen when legislative imprecision leads to legal problems. I would welcome the Minister’s response to the points I have made.
Let me turn to clause 49—Rail: franchising of passenger services. It amends section 25 of the Railways Act 1993 to remove the prohibition on public sector operators bidding for a franchise in relation to a Scottish franchise agreement. The Smith commission’s report stated clearly, in paragraph 65:
“The power will be devolved to the Scottish Government to allow public sector operators to bid for rail franchises funded and specified by Scottish Ministers.”
Labour’s amendment 157 would take a small but significant step further, but in a way that is in keeping with the spirit of the Smith commission’s report. In proposing to allow not-for-profit operators, it echoes the proposal by Gordon Brown prior to the referendum.
9.15 pm
As things stand, the Scottish Government are already responsible for letting and funding the ScotRail franchise. The legal framework for letting the franchise is provided by the Railways Act 1993, the Transport Act 2000 and the Railways Act 2005. These, collectively, preclude state-controlled organisations from bidding for franchises. Members might find it surprising, however, that state-controlled bodies from other countries are not precluded from holding a franchise. Abellio, an offshoot of the Dutch national state railway, was recently awarded the ScotRail franchise by the Scottish Government. That decision raised a few eyebrows. The general secretary of the RMT union said:
“Scotland could have taken control of its own railways. Instead, they have opted to go Dutch, meaning that profits will be sucked out of the system to underpin investment in fares in Holland.”
That is a real concern for many people. ASLEF’s general secretary spoke for many when he criticised the “perverse” decision by the SNP Government in Scotland.