My Lords, we endorse the anxieties highlighted by the noble Lord, Lord Jenkin, regarding the use of powers in the Bill. In saying that, I will speak to Amendments 55ZZA and 55ZZB, as well as Amendments 55ZD and 55ZE, which are grouped with the noble Lord’s stand part debate.
As the Committee’s proceedings have continued in scrutinising the Bill, the Government have issued a response to the Delegated Powers Committee’s uncharacteristic dismay at the discretionary powers being sought by the Secretary of State in the Bill. Your Lordships’ Committee has considered this response and issued a further deliberation in its sixth report. Amendments 55ZZA and 55ZZB would implement the recommendation of the Delegated Powers Committee that all secondary legislation relating to the capacity market be subject to the affirmative resolution procedure, with the exception of Clause 27, which relates to the provision of information and advice and would be subject to the negative.
Each day in proceedings on the Bill, it has continually been highlighted that the Government are asking Parliament for an extraordinary array of powers to put at the disposal of the Secretary of State, with very little detail on how these might be used and constrained. Your Lordships’ Delegated Powers Committee stated:
“It does not … seem to us to be satisfactory that the Bill should have reached Committee Stage in the second House with so little known about the likely shape of the provision to be made about an important aspect of Chapter 3. While welcoming the additional information about capacity agreements, we remain concerned that not enough has been done to redress the imbalance between the scarcity of provision on the face of the Bill and the preponderance of delegated powers … unless the Government is able to provide the House with adequate information about the regulations for capacity auctions, the powers conferred by Chapter 3 are inappropriately wide”.
Without much more detail, it is impossible to assess the requirements for the extent and relevance of these powers.
Similarly, Amendments 55ZD and 55ZE would implement the recommendations of the Delegated Powers Committee that all regulations bar those made under Clause 7(10) would be subject to the affirmative resolution procedure. To quote again from the committee’s sixth report:
“When we first considered Chapter 2 we found it very difficult, based only on the provision in the Chapter itself and the explanatory material then available to us, to get a clear idea of the real nature of what is being proposed there, and the scale and context of the delegations of legislative power involved”.
The report continues:
“Wide and significant powers of this kind deserve a high level of Parliamentary scrutiny, and we are not persuaded that the affirmative procedure should apply only to instruments which contain regulations made under any of clauses 9 to 11”.
While the committee was grateful for the Government’s co-operation in tabling a revised order of consideration for these clauses, which has meant that we have been able to debate today the clauses on contracts for difference with the strike price published, there is still an enormous amount of detail to come. On the capacity market, for instance, the issues just debated on the impact this will have on the continuation of old coal
have only just come to light as a result of information published last Wednesday, 18 July, in the draft delivery plan. Had the Committee not had this information before debating these clauses, we would have been very unlikely to pick up on this and parliamentary scrutiny would have been less effective.
I very much hope that the Government will at least accept the amendments today which implement the recommendations of the Delegated Powers Committee. It will be extremely important that the Government deliver on their commitment to publish the draft regulations by October so that, as the committee recommends,
“the House will be given time to consider the published drafts before Report Stage begins”.
We all want to see the Bill on the statute book as swiftly as possible to end the flat-lining of investment in renewables which we have seen over the past three years. Given the volume of detail delegated to secondary legislation, it will be not the primary legislation but the regulations that might in practice delay the implementation of EMR.