Enterprise and Regulatory Reform Bill

Debate between Lord Whitty and Lord Marland

Tuesday 18th December 2012 Grand Committee

[Lord Whitty]

My Lords, we return to the issue that I raised in the Minister’s absence during our last session, on what exactly is happening to the functions and duties of the OFT which are not being subsumed within the CMA. I apologise to the noble Viscount, Lord Younger, that I had not seen his letter of 12 December when we debated it last time. Included with that letter was a draft order under the Public Bodies Act; reading that and its Explanatory Notes, I have to put Ministers on notice that when that comes before the House I shall object to a large range of its areas. It includes not only the abolition of various bits of consumer regulation and protection but the movement of functions from the OFT, and therefore the CMA, to the trading standards operation on the one hand and to Citizens Advice on the other.

That movement, which we debated briefly last time, includes the move of responsibilities to organisations that are not mentioned in statute, although some of them are mentioned in the draft order. This relates to the slightly shadowy national trading standards body and another body, which I think is called SIPEP. I forget what that stands for exactly, but it is another body that will absorb what were previously statutory duties of the OFT. We have debated that move but this amendment would provide for the ability of a future Secretary of State to reverse that devolution at any point.

While I have great admiration for Citizens Advice and for the trading standards organisation—indeed, I am a vice-president thereof—there is some doubt as to whether they will be able to cope. For example, will trading standards cope with a whole range of scam-busting or code-forming operations which were previously done or overseen by the OFT? Concerning Citizens Advice, while there are some functions of Consumer Focus and some of the OFT with which it will be able to cope in its present structure, on others there is some doubt whether Citizens Advice will have sufficient resources and expertise to conduct them. However, I strongly support the transfer of Consumer Direct from the OFT to Citizens Advice.

I wish Citizens Advice well with its new responsibilities but there has to be a reserve power somewhere here to reverse that decision. As far as I can see in this Bill, and as far as I read the order, there is no power to reverse those decisions. My amendment would provide for that power. It is one that I hope would not need to be used, because we will have to settle down with the consequences of earlier decisions. However, if it is needed it ought to be in the Bill and I therefore beg to move this amendment.

[Lord Marland]

My Lords, I recognise the amendment and I have just handed the noble Lord, Lord Whitty, a letter that was written to him. I am sorry that he has not been able to see it or that it did not arrive on time, but I hope that it deals with a number of issues raised earlier in the debate which run concurrently. As he will see, that is a copy; there is one out there for him.

A number of these elements have already been debated; they have had a good airing. In addition, to remind and inform, the Government understand that the consumer regime landscape needs reviewing. We have committed to do that in 2018, so we have a long-stop position if the system is not operating. We believe that reversing the generic powers of the Secretary of State would be wrong, because it would create fundamental uncertainty for consumers. It is important in all this that the consumer understands the direction of travel and where it is coming from. As I said, we will be reviewing the landscape in 2018, which gives us a long-stop position if we all agree that the system is not working, but we believe that it will. On that basis, I hope that the noble Lord will withdraw his amendment.

[Lord Whitty]

My Lords, I certainly hope that when everything settles down, it will all work, but it is interesting that on other matters which the Government are changing, they are providing accounts reviews, reversals, sunset clauses, or whatever. It seems odd that they do not do so in this case. I hope that the Government will keep that under review. It may eventually need to be covered in the order or some parallel order if it is not in the primary legislation but, for today, I beg leave to withdraw the amendment.

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[Lord Marland]

My Lords, I am much taken with the words of the noble Lord, Lord Whitty, which were underlined by the noble Lord, Lord Borrie. The three categories that the noble Lord, Lord Whitty, mentions—efficiency, global leadership and the long-term interest of consumers, which was amplified by the noble Lord, Lord Borrie—are fundamental to everything that we are trying to do. I am glad that they have been so accurately and succinctly encapsulated by the noble Lords opposite.

We have to remember that the CMA is an expert in competition and in these issues. We must also remember, although I am the wrong person to preach this, that competition law is based on the principle of improving consumer welfare. I firmly believe that the CMA—through its, some would say, very narrow area of activity, which is focusing on competition—will put at the front of its list improving consumer welfare, efficiency and things like that. There will be two phases, as we know. First it will go to the OFT and then to the CMA, so it will have been looked at twice. We will debate later, if we may, the super-complaints system and how that operates—an issue to which the noble Lord, Lord Whitty, made reference.

I turn to Amendment 24M. The CMA will be able to use its powers of assessment for any merger, and that is exactly what it should be doing; it will look at it from top to bottom. It is provided with these information-gathering powers, which will apply end to end for the whole process of a merger. Again, we have that base covered. I reiterate that I am glad that the noble Lord and I are singing from the same hymn sheet in our belief that efficiency, global leadership and the value of the long-term interests of the consumer are fundamental. I invite the noble Lord to withdraw his amendment.

[Lord Whitty]

My Lords, I did not understand the beginning of the Minister’s helpful reply because it seemed to refer to the OFT and then the CMA. I shall come to the issue of the complexity of the internal two-stage process at a later amendment—

[Lord Marland]

Sorry, I should clarify that the CMA has both phases. Currently it has the OFT and the CMA as we phase in that policy.

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[Lord Whitty]

My Lords, the body politic has suffered over the past few years from two major crises—a dreadful economic crisis as a result of problems in the financial sector and a major political crisis, which is about to be debated down the hall, on the media side. The amendment suggests that there have to be special considerations in the operation of the new CMA in relation to both these areas. This is a probing amendment to see whether the Government agree that one needs to look at those two sectors in a rather different way—particularly, in this regard, the financial sector.

This issue is complicated by the fact that the Financial Services Bill does not yet have Her Majesty’s signature on it, as well as by the fact that the FCA, as it will be, will not have exactly the same kind of concurrent powers as some of the other sector regulators. There will be some powers in the Bank of England and in the proposed PRA, as well as in the FCA. Well, good luck with all that; the Government seem to be replacing a much reviled tripartite system of regulation of the financial sector with a quintipartite one, and we will see how that works out. One of the factors in that, though, must be the CMA.

The complexity in the financial sector, with ever-increasing interrelations between the different parts of that sector both locally and nationally—plus we are waiting for a banking Bill shortly, and other provisions are coming out of the banking commission—means that there is turmoil in what we believe ought to be the structure of the financial sector. Do we believe in Glass-Steagall or in, as the EU Commission requires lawyers to do, selling off some outlets in order to provide more choice? How does this fit with a general duty on the CMA to look at the structure of, among other things, the financial system? Following the financial crisis—admittedly things could have changed a little since then—we had about 40% of retail banking and about 30% of the mortgage provisions in one place. That seems to be a market situation that deserves investigation. Indeed, I recall telling the previous Government that at the time. However, it is something that has not been completely and definitively tackled and it will fall in part, at least, in the CMA’s lap.

I do not expect the Government to accept the wording of this amendment, but it indicates that we will need to have some threshold provisions that probably need to be different. It may be in the area of the structure of the financial markets. We need to know which markets, how we define them and who does it—the CMA, the FCA or both?

Although I do not expect the Minister to accept the amendment, I do expect the Government to recognise that whatever happens, the CMA will have to give particular priority to the financial sector and will almost certainly need to have different criteria in relation to that sector than elsewhere, if only for global and political reasons. I beg to move.

[Lord Marland]

I am sorry that telling the previous Government fell on deaf ears. I fear that it might do the same as regards this Government, as the noble Lord has already recognised. We all recognise what the noble Lord is saying. Incredible hardship has been caused to our great country and we must make sure that it does not happen again. I believe that the OFT and CMA will inherit these powers. There is a governor in place with two criteria. One is that if the target’s turnover is greater than £70 million, the merger can be investigated and/or if the combined share of supply or acquisition of particular goods and services of the companies is 25% or more, that is known as the share supply threshold, which can also be investigated.

There are some pretty low thresholds in place which would capture the excellent examples given by the noble Lord, particularly in the mortgage market. These have to be applied rigorously. I hope that, as we debate the Bill, more will come out on the important issues that he raises. On that basis, I hope that he will withdraw his amendment.

[Lord Whitty]

I thank the Minister for that. We may well return to the issue, but for now I beg leave to withdraw the amendment.

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[Lord Marland]

I will rewind the clock, my Lords. This has been a brilliant debate and I do urge the noble Lord, Lord Whitty, to consider my offer of going next door and withdrawing the amendments. The offer is still open. The noble Lord, Lord Brooke, mentioned pay grades. I know exactly whose pay grade this is in. Certainly it is not in mine, because I am in the unpaid grade—voluntarily, I hasten to add, although most people would think that it was by necessity rather than by volunteering. This is in the pay grade of the Prime Minister. He will look at all this. There is a lot of aerial warfare going on at the moment—discussion which appropriately should be fully aired and debated. We have, obviously, notified DCMS of the noble Lord’s considerations of this recommendation, and it is considering them. It will consider them in the round in view of the overall Leveson position, and then that will rise like cream to the top to the Prime Minister for him to decide. As the noble Lord rightly says, we will doubtless revisit this. Indeed, more importantly, we should revisit it. On that basis, I hope that the noble Lord will withdraw his amendment.

[Lord Whitty]

My Lords, I am grateful to the noble Lord for his remarks. When the cream eventually reaches the Prime Minister I hope at least a footnote on this debate is enclosed.

This is a bigger and in some senses, a wider issue, but it is also an issue that is very relevant to this Bill. It is one that we need to get a decision on relatively early. There has been some move to all-party discussions on the other side of Leveson. If there is legislation to be proposed, in whatever form, it will have to include this. I would hope that we can come through this very difficult crisis with the news media with a cross-party agreement on how we should proceed. I hope that what little we can do here will help that. In the mean time, I beg leave to withdraw the amendment.

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[Viscount Eccles]

My Lords, I am very grateful to the noble Lord, Lord Whitty, because his contribution means I do not really have to say much about Clause 26 stand part. The real effect of knocking out Clause 26 would be to knock out Schedule 8, so perhaps we can elide the two.

This is a very tricky area and I am sure that it should be thought about again. There is already a time-limit regime—lots of it from 1998 and 2002—and there is a clear general duty of expedition, which is referred to in Clause 26:

“duty of expedition in relation to references”.

It is clear in the current legislation that everyone is supposed to do things in as timely manner as possible. The question then arises of why the Secretary of State thinks that his or her intervention is helpful in this matter, which was very much the line along which the noble Lord, Lord Whitty, was going. I cannot see that it is helpful, nor that it is consistent with the coalition’s policy towards these matters. I thought that we believed in decentralisation, deregulation and trusting the professionals. It seems quite strange to introduce this regime, and of course it has to be hedged about with all sorts of escape clauses. If something gets as far as Brussels, all time limits are off the table; it says so in the schedule. The 40 days can be extended by 20 days, you can stop the clock in certain circumstances and—again I agree with the noble Lord, Lord Whitty—the lawyers will have great fun, as they always do, with this kind of overcomplicated and apparently statutorily enforceable system because they find ways around it. I am very much in support of the noble Lord’s amendment—if it is not to be accepted as it is, I very much support the way in which he put it across.

[Lord Marland]

We have had two excellent points of view, but the reality is as follows. Britain is seventh worst out of eight regimes in the world in terms of speed, in a review carried out by KPMG. That is a terrible place to be. We are seeking here to give some real clout to the process. Yes, the OFT exists on a 40-day rule but it is not statutory, and as a result 15 out of 76 cases have exceeded that time limit. We want to enforce that limit because it is absolutely no good being seventh out of eight in the world. We are enforcing the 40 days and we have put a period of undertaking in lieu of 50 days, as opposed to nil, and a period of implementation of 12 weeks, as opposed to nil. That is a very big step forward.

Often you are damned if you do and damned if you don’t, but one thing is for certain: we have to get our speed and efficiency up in getting these deals sorted, because that sends a clear message to industries that are merging. As we know, businesses want one thing, and that is clear messages. I therefore feel that this is the right approach for this Government. I do not totally disagree with the noble Lord, Lord Whitty, as on many occasions—I have rarely disagreed with him—we could perhaps have taken a more aggressive stance. This is a very good start, though; we will of course keep these things under review, but this is progress. On that basis, I hope that the noble Lord will withdraw his amendment and, when we come to it, that my noble friend Lord Eccles will do the same.

[Lord Whitty]

My Lords, I thank the noble Viscount for his support on this issue; I shall definitely support him on the next one. He is probably silent because there is not a lot more to be said. But yes, speed is of the essence and expedition ought to be a clear and central responsibility of the board of the CMA. Frankly, having all this to check and double check is the enemy of expedition, not its friend. Although I totally agree with the Government’s objective here, I do not think this will achieve it. Perhaps they will look at it again at some point. I beg leave to withdraw.

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[Lord Whitty]

My Lords, the amendment deals with cross-market issues and, I hope helpfully, suggests some flexibility. Other amendments simply insert a clearer reference to the consumer interest. I greatly welcome the reference in this part of the Bill to cross-market cases. Often, consumer or supplier abuse found in one sector is also rife in others. Traditionally, monopolies commission, OFT or Competition Commission references and investigations have tended to be siloed in vertical divisions. There are some horizontal abuses, in particular in relation to what I would call trading practices rather than necessarily market dominance. I suspect that with the growth of digital selling, we will have more consumer detriment arising from techniques which apply across a whole range of sectors.

Amendment 25B is a probing amendment to try to find out how this will work. I am not clear whether the cross-market reference has to designate both the practice and the sector in which it is suspected that it applies, or whether it just has to designate the practice. That is unclear in the Bill. If it requires reference to the sector as well, then Amendment 25B says, if you have found it in one sector, or two or three sectors, and you are starting an investigation or a reference, you need to provide for that to be extended to others. One frequent market or unfair trading abuse is the misuse of prepayment. That is a traditional one. That can apply in different respects to everything from paying for a ticket to a pop concert to buying a sofa or booking a holiday—there were tragic issues with the Christmas club and Farepak a few years ago—or paying for gym membership. If the service does not transpire or the goods never arrive, it does not really matter which sector the business is in, the practice needs tying down.

I hope that that is what is covered by the cross-market reference. I need confirmation, however, that you do not have to stipulate sector by sector where the suspicion arises. An investigation could start out knowing that there are problems in one sector but not until well into the process identifying them in another.

The other amendments in the group simply re-emphasise the need explicitly to look at competition from the point of view of the long-term detriment of consumers. Schedule 9 again does not once mention consumers. Amendments 25C to 25E would simply write into the key paragraphs of that schedule,

“to the detriment of consumers”,

to make it clear. I beg to move.

[Lord Marland]

My Lords, no one knows more about consumer protection than the noble Lord, Lord Whitty. He had a distinguished time as chairman of Consumer Focus, for which we are very grateful. It is also interesting to learn what he does during the day: he went to a pop concert, bought a sofa and had a holiday—the man never fails to surprise me. He is of course right about the consumer, and far be it from me to disagree.

I would like to point out that his amendments, being probing amendments, have asked the right questions, and I can answer them. One of those questions was whether this applies to both practice and sector or one or the other. It applies to both, and I hope that that gives him assurance. The existing provisions in Section 135 of the Enterprise Act will enable the CMA to vary the scope of a cross-market investigation. That was news to me and I think it is to him as well. I assure him that enforcing effective competition for the benefit of consumers is already embedded within the market regime, and I hope that that gives him the comfort that he was looking for. I hope that on that basis he feels able to withdraw his amendment.

[Lord Whitty]

My Lords, I thank the Minister for that, particularly the reference back to the Competition Act, which I had not picked up. It is quite clear that we have that flexibility in a cross-market reference to a particular practice.

On the schedule itself, I accept that the Government’s intention is that it is the consumer detriment or benefit that needs to be assessed. It would be nice if the parliamentary draughtsman could occasionally remind us of that; I am afraid that he has failed to do so in this schedule. If there is anything that the Government can do quietly at later stages without upsetting too many people, but pleasing me, I would be extremely grateful. In the mean time, I beg leave to withdraw the amendment.

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[Lord Marland]

I am not sure I can respond to that.

[Lord Whitty]

I thank the Minister. The noble Viscount, Lord Eccles, as ever, is opening my eyes to wider objectives of government legislation. The objective of obfuscating everything is, I suspect, part of legislation more frequently than we would care to admit or like. I felt today it worked slightly to clarify the Government’s position. I am very grateful to the Minister for that. I shall study his words carefully, as they say. My initial take is that I might, on balance, disagree with it, but I will need to look at that and may return to it. It was a useful question to ask and we will see how this works out in practice and whether we need to return to it on Report. I beg leave to withdraw the Amendment.

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[Lord Whitty]

My Lords, this is very straightforward. It is a matter of clarity. Clause 31 refers at several points to “relevant authority” and I assume that that means the CMA or possibly, in some cases, trading standards through to local authorities. The amendments in this group refer to the CMA or a local authority. Is that right? If not, there is some confusion. Or is it just the CMA itself? The Minister might wish to consider this improvement. I beg to move.

[Lord Marland]

My Lords, I can get to the nub of this very quickly. The relevant bodies in this case are only the Secretary of State and the CMA. That is why we would not want to accept the amendment. It would not be appropriate to widen that, particularly embracing non-competition bodies in the organisation. I hope that that is the clarification that the noble Lord, Lord Whitty, was looking for and I hope that he withdraws his amendment.

[Lord Whitty]

In which case, my Lords, surely it would be sensible to say the Secretary of State or the CMA—then we would all be clear. I beg leave to withdraw the amendment.

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[Lord Whitty]

My Lords, these amendments are straightforward. Part of the rationale for the merger has been to speed everything up. The time limits here seem generous in relation to Schedule 12 on market studies—admittedly, that is only part of the Bill—and I thought I would take the opportunity to try to speed them up a bit. I am relying on the Minister to tell me why not. I beg to move.

[Lord Marland]

I cannot tell the noble Lord why not; I asked the very same question of my officials. It is a perfectly reasonable comment for him to make. If we can work together to see where the dynamics exist, we might be able to see if it is practical to improve this a little. I do not think that we will be able to do anything too dramatic, but the noble Lord makes a good point. We have said all along that this is all about speed of process. As I have agreed with his overall point, I hope that the noble Lord will agree for the moment to withdraw his amendment so that we can discuss this later.

[Lord Berkeley]

Before the noble Lord sits down, I have a question in relation to these time periods. I have had a little experience of trying to do something like this in the railway sector. My recollection is that a long time is taken between when the notice is issued saying that the authority will conduct such a study and when it has sufficient information to allow the clock to start running. Reading the Bill and my noble friend’s amendments, I am not sure whether these numbers—from six months to four months—apply to the time between the notice being issued or where the clock starts ticking and the authority believes that it has sufficient information. Maybe my noble friend has more information on this, but it is a point worth looking at when we come back to it.

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[Lord Marland]

That was a veritable tour de force from the noble Lord, Lord Borrie, as one would expect. Just to deal with the issue of whistleblowers, I want noble Lords to understand that nothing in this clause would affect the rules relating to whistleblowers at all; that is key. I shall read out the speaking note on this—my goodness, I might get used to this—because it is a complicated issue; the noble Lord, Lord Whitty, himself wanted to clarify this in his own mind, so between us we might be able to muddle through and clarify both our minds.

The amendment is to Clause 33, which gives the CMA an important new power to require certain individuals to answer questions during an anti-trust investigation. The new power is similar to the current power to require a person to answer questions, which exists under Section 193(1) of the Enterprise Act 2002 in the context of criminal cartel offence investigations. The Bill will correct the anomaly that a person can be required to answer questions in criminal cartel investigations but not anti-trust investigations, including into cartels.

Such a power should be subject to safeguards, however. We have proposed provisions akin to those made in relation to cartels by Section 197 of the Enterprise Act, to provide that statements made by an individual in response to a requirement imposed under the new section can be used in evidence against the individual or the relevant undertaking only in limited circumstances. Those are the safeguards that the amendment would remove, and I therefore hope that, on reflection, the noble Lord will see that in effect extending the power to ask questions to the anti-trust area, we also need to transpose the associated protections for individuals and undertakings.

I hope that that is as clear as daylight to the noble Lord. In the light of that, I hope that he will withdraw his amendment.

[Lord Whitty]

My Lords, it is six o’clock on 18 December, so there is not much daylight, but I am grateful to the noble Lord for some reassurance on that. I am not sure where we are restating the existing provisions. I am grateful for the intervention of my noble friend Lord Borrie, because he points out that, on the one hand, investigations depend on people telling the truth and that, in other countries, there are rather stronger protections than we have.

If the Minister is right that my amendment would make the protection worse, I will clearly withdraw it. I will have a look at how the interplay between the various existing provisions protects that position. Whether they are responsible themselves and therefore a degree of what the Americans would call plea-bargaining is appropriate or whether they are simply imparting knowledge which they have acquired in one way or another, we need to protect such people. Any hint that the Bill would change that is important.

Clearly, I am not doing it in the right way. I will read what the noble Lord said and see whether I need to take the matter any further, but I am very grateful for his response. I beg leave to withdraw the amendment.

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[Lord Whitty]

My Lords, I am in danger of re-establishing my alliance with the noble Viscount. There are aspects of this clause that could do with clarification. It had not struck me until he spoke that the wording,

“is or was … employed by”,

might refer to when they were an employee, a subcontractor or a director 20 years ago, and that would still be covered by this clause. Clearly the noble Viscount’s previous career flashed past him. Mine did so a little earlier this afternoon when watching the interplay between the Minister and his team; I recall that many decades ago my Civil Service career was clearly doomed when I passed the Secretary of State an illegible note during the course of one bit of legislation. There must be equivalent things that people have seen, and have had in their hands; they may not have realised their importance at the time but they still have vague knowledge of them. The criminal sanctions that are implied by the interplay of the various pieces of past legislation here could raise anxieties that the Government do not really intend. The noble Viscount is essentially right that perhaps once again the draftsman could have another look at this. Clearly the noble Viscount and I will quietly let any amendments on this front through at later stages.

[Lord Marland]

Perhaps I could explain to the noble Lord, Lord Whitty, and to my noble friend Lord Eccles that all that the clause does is to allow the CMA to conduct a more effective and timely anti-trust investigation. We are imposing civil fines, to be quicker and more effective, which will have some bite to them. The reason for this is that not one criminal prosecution for non-compliance has been pursued. That shows either that the CMA does not want to pursue it because it is too complicated, or that it is in the margin.

We are retaining criminal sanctions for obstructing an officer exercising powers to enter premises, destroying or falsifying documents, or giving false or misleading information—they will remain. The imposition of civil fines rather than criminal sanctions to speed up the action on anti-trust is also in line with the European law that features that. On that basis, I hope that my noble friend might withdraw his amendment.

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[Lord Whitty]

My Lords, I think that my noble friend Lord Berkeley is right to seek verification on this. A later government amendment will propose what he fears. At that stage, I shall certainly propose that we need a much more conciliatory regime between the Secretary of State, the CMA and the sector regulators, otherwise we shall get into serious trouble. It is important that we get clarity on the issue.

[Lord Marland]

The noble Lord, Lord Berkeley, gets to the point. I am grateful for his brevity. I am reliably informed that the rules under Section 51 will apply to the sector regulators. The same principles will apply but the rules may differ a little in detail. Of course, as he would say, the devil is in the detail but I am sure that within the detail there is quite a wide canvas. I hope that clarifies the situation for the noble Lord.

[Lord Berkeley]

I am grateful to the Minister but I wonder whether, within his broad canvas, or whatever, he has any views about whether any secondary legislation will be introduced on the issue which may or may not be helpful. I noticed that within this group there is the Question that Clause 40 stand part and Amendment 26BF, in the name of my noble friend Lord Whitty. I would be pleased to hear what he says about that because I have some comments on it too.

[Lord Whitty]

My Lords, I was going to leave that because my Amendment 26BF is an attempt to tidy up the provisions on review, along with another amendment that I cannot find immediately. There are separate provisions on the mergers, the markets and the anti-trust provisions, as to when we review them. I am in favour of the Government’s policy that we review legislation every so often but I think that it should be done simply and that we should look at the whole of the legislation. Essentially, that is what Amendment 26BF to Clause 48 is about. I was not going to move it today because I think that it requires the interplay of other parts of the Bill but I think a review of the totality of the Bill, all at the same time, would be helpful and should be built into the Bill in some way at a later stage.

[Lord Marland]

Perhaps I may first reply to the noble Lord, Lord Whitty. We will review this in five years’ time, as I think he recognises. That deals with his point. The precise detail will be discussed with sector regulators themselves and, once we have done that, we will obviously publish what has been achieved. On that basis, I hope that that satisfies the noble Lord.

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[Lord Whitty]

My Lords, this is really a drafting amendment. Section 35 of the 1998 Act refers to “serious, irreparable damage”. I agree that that is too high a threshold and I assume that is behind the government amendment, but what is wrong with the present definition is surely the reference to “irreparable” which, by definition, is prospective, difficult to define, a bit subjective and therefore should go. To dilute “serious” to “significant”—I think it is a dilution—seems to reduce the threshold too far and is equally subjective. I consider that the word “serious” is probably better unless the Minister has a very good reason for sticking with the word “significant”. I beg to move.

[Lord Marland]

As the noble Lord says, it is a matter of conjecture and we will obviously look at it. I am not sure that I would be prepared to concede that change. I think that both definitions hit the target and I know that the noble Lord, Lord Whitty, is trying to find the right word. We will look at it again to see whether it is the right word. At the moment I am perfectly happy with our drafting but, as the noble Lord knows from our past together, we are always open to discussing these things. I am glad that the noble Lord withdrew Amendment 26AA because there is an existing MoU between the OFT and the CMA, which answers that question.

[Lord Whitty]

I am grateful to the Minister for that and I beg to withdraw the amendment.

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[Lord Marland]

The Secretary of State would intervene only if an agreement had not been reached with the various parties on the direction of travel. As we all know, that is a big “if”. He then has to do an impact assessment and would have to consult for three months. I apologise, it would be for 12 weeks. Whether it is 12 weeks or three months is a very important differentiation because sometimes we work on working weeks and on others we do not. Therefore, let us say 12 weeks.

I do not think that any of this is unreasonable. If we have failed to determine through the channels of discussions why something is being done wrong, or are getting nowhere with it and feel that the public are better protected by the action that we are going to take, we have to have a way to be able to do it. That is all that we are seeking to do.

[Lord Whitty]

My Lords, I am grateful to the noble Lords, Lord Bradshaw and Lord Berkeley, and the Minister. That sounded fairly conciliatory from the Minister. I am not entirely sure that I should seize on “not unreasonable” or “not unnecessary” as indicating approval of my approach. Nevertheless, I think that it was generally positive.

However, probably neither of our amendments is ideal. I hope the main theme that the Minister is taking away from all this discussion is, if you want a reserved power, it has to be very clearly a reserved power in extremis. In order not to get there, you need some provisions of co-operation between the various regulators. All these regulators operate different types of market and you cannot have the CMA being asked to second-guess them every five minutes.

I am not quite as sanguine as the noble Lords, Lord Bradshaw and Lord Berkeley, are about some of the other regulators. It may all be fine in the railways, although I am not sure that I would agree with that as a consumer and passenger. Certainly, I have had my rows with Ofgem. I am not very happy about Ofwat and some aspects of even Ofcom, which generally speaking is a better regulator. I also had recent experience of the Northern Ireland regulator that regulates the energy industry except for the main supply of energy in the Province, which is the oil industry and definitely needs regulation.

I am not saying that everything in the garden is rosy with these independent regulators as they stand—it definitely is not. They all need to raise their game. But raising the game by having a prospect of an intervention by the Secretary of State and giving all their powers to someone else seems to be overkill. We must have an upfront co-operation and only a very distant reserve power in any alternative clause that the Minister may propose at a later stage. It would be sensible for him to consider mine and other representations that have been made.

The noble Lord, Lord Berkeley, raised a number of concerns, which are very important for the Government to take on board. The threat of this would undermine confidence in the markets. Key investment markets, such as energy, water, aviation, railways, telecoms and so on are key areas where we need to sustain a degree of confidence in the near permanence of the regulatory system.

The relationship between the regulators and the industry is very important. I am not talking about cosy relationships but about known, established and reasonably long-term relationships. The issue of the EU, which my noble friend Lord Berkeley raised, is also important. We need to be careful when we are intervening and what, at the end of the day, would be quite a draconian power.

I hope the Minister will take this away. It is important that we review the performance of regulators. But we should not do that on a case-by-case basis or because of suddenly saying that they are not doing their job 100%. Other forms of review could be built into the regulation—indeed, the Government are doing that in other areas—rather than taking a power that looks at first glance to be a draconian intervention by the Secretary of State.

I am sure that the Government and their Civil Service can come up with a better form of words for dealing with this if they wish to. It may be something that we should leave until much later. But if they intend to do so, I am happy to give my co-operation to them with my experience with regulators, as will my noble friends and the noble Lord, Lord Bradshaw. However, this will not work and it could be quite detrimental.

I am grateful to everyone who has participated. I am sure that we will return to this in some form or other at the next stage. I beg leave to withdraw my amendment.

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[Lord Marland]

My Lords, let me assure the noble Lord, Lord Whitty, that we totally recognise the need for specialist advice, which already exists in the Competition Commission. The CMA would take that expert body of experience and there is no intention of this being delegated to the staff. The CMA will have independent panellists, who will take on specialist areas, and we will ensure that those panellists take their decisions independently of their parties, of the regulators, of the Government and, indeed, of the CMA board if necessary. They will then deliver their advice to the CMA board, which will make the decision. I believe that this amendment is not necessary and I hope the noble Lord would agree that this deals with his concern. I therefore invite him to withdraw his amendment.

[Lord Whitty]

My Lords, I appreciate what the Minister says about the panels. I am not sure that I can identify where that is in the Bill, which was one reason for putting this down. In a sense, it is not about whether you leave it to the staff; it is about whether there is within the organisation the expertise—procedural and legal, as well as sector-specific—that is needed to take these appeals.

As this is the last amendment today, I thank the Minister for his patience, as I thank those of your Lordships who have persevered through the whole of this afternoon on this. I hope that we have at least given the Government some thoughts for improving the Bill. There will be a few issues to which we will return. I would welcome it if someone could write to me about where the panels bit is in the Bill and how the CMA is likely to deal with these appeals in future. For the moment, however, a happy Christmas to everybody and I beg leave to withdraw the amendment.

Employment: Rights

Debate between Lord Whitty and Lord Marland

Monday 19th November 2012 Lords Chamber

[Lord Whitty]

My Lords, does the Minister not accept that there is a difference between past employee shareholdings and a trade-off, which is what is proposed for employment rights? I suspect that our late colleague, Lord Bill McCarthy, would have asked a forensic question at this point. How does the Minister expect this scheme to run? Is it to be a one-off trading of all your employment rights or is there to be a sort of tariff, where you trade in flexible working for so many shares, maternity rights for so many more, the right to join a trade union for a few more and health and safety legislation for a few more than that? How is this actually going to work and what are employees being asked to sell?

[Lord Marland]

As the noble Lord, Lord Whitty, knows, I normally have a high regard for his interventions but not in this case. The Benches opposite have to be so careful about bandying words such as “bullying” and talking about giving away employees’ rights. Noble Lords need to read the text to understand that we are not giving away all employees’ rights.

Energy Bill [HL]

Debate between Lord Whitty and Lord Marland

Tuesday 15th March 2011 Lords Chamber

[Lord Whitty]

My Lords, until the noble Baroness made her last point, I was not going to intervene on this amendment, but I would like to associate myself with the words of both my noble friend Baroness Smith and the noble Baroness, Lady Parminter, regarding the way the Committee and Report stages of this Bill have been conducted. I appreciate that the Minister has come some considerable way towards meeting a number of concerns although on this particular one I think the noble Lord, Lord Best, is correct about the need for minimum standards and the noble Baroness, Lady Parminter, is right about the need for consumer protection.

It is important that the Government and the House recognise that, in supporting the provisions of this Bill on the Green Deal, we all recognise that there is still a substantial amount of work to be done in putting the deal together and thereby inspiring confidence in householders and landlords, on the one hand, and in the various different parts of the supply chain, on the other, which will need to act together to deliver the Green Deal.

At several points—I will return to this on a further amendment—during the discussion in Committee and on Report, the Minister said we may need to make a number of amendments in another place. I think the Government will find that there are some anxieties both in industry and on the part of consumers about how exactly the Green Deal is going to be sold and how it is going to be delivered. I suspect therefore the Government need to remain open to the possibility of amending the Bill in another place. I think everybody who was involved in the Committee wish the Green Deal good speed. However, we also know that there are some problems ahead and the Government would be wise to be flexible.

[Lord Marland]

Again, I value very much the comments made by noble Lords. These comments have been made on several occasions and I am grateful for the compliments that have been made. The noble Baroness, Lady Parminter, was the most complimentary so she is top of my class. Seriously, I am grateful to everyone for their kind words.

The noble Lord, Lord Best, made a very good point about PRS properties and with that in mind we have brought forward the idea of a review in 2013. It is fundamental that we make great inroads into the private rented sector—particularly the F and G categories my noble friend Baroness Maddock mentioned and raising them to the minimum standards of category E —and the Government are extremely committed to that. However, we should allow the sector to lead by example to start with and if it does not take that opportunity then we must help it on its way. The Government are committed to taking people out of fuel poverty. That is part of the reason for the Green Deal building on other initiatives that have taken place; it is fundamental and we owe it to the country to get people out of fuel poverty.

The noble Baroness, Lady Smith of Basildon, asked me whether things that I said on Report stand now. I can confirm that they were on the record and I meant what I said. She can take heart from what I said then and the disappointment that she had with these amendments will be carried through into another place and will be left for them to debate. I am sorry to hear there is a little bit of disappointment, but we have, I hope, persuaded and also given way on a vast number of amendments. It would nice every now and then if everyone carried me rejoicing from these Chambers saying how marvellous it was—I do not think I am going to get that—but in any case I hope I have responded to the questions.

--- Later in debate ---

[Lord Marland]

My Lords, may I say how delighted I am to see the noble Lord, Lord O’Neill of Clackmannan, in his place? He watched at first hand the horrific events in Japan, where I spoke to him. What an awful time that must have been for him. We are delighted to see him back and, as usual, making some very interesting points.

The amendment of the noble Lord, Lord Whitty, is extremely valuable. He makes, as always, some very good points. Fundamental to this debate has been public confidence: the public must have confidence about the rollout of smart meters. As a department, we are committing a substantial amount of resources to smart meters, as we must get this right. I am not sure that all operators will be as good as the one who came to the home of the noble Lord, Lord Oxburgh; I suspect that, because of his great scientific knowledge, the noble Lord was telling the operator how to install it. Twelve minutes sounds like a very good target for anyone to try to achieve. The training of technicians is fundamental, as the noble Lord, Lord Jenkin, said; there must be great vigilance in this area so that the consumer can have confidence.

The noble Lord, Lord Whitty, made two specific points on the strategy for consumer benefits. We have been carrying out consultation since July on the wide-ranging subject of smart meters. A principal consideration has been a strategy for consumer benefits. We will publish our findings by the end of this month, and I hope that the other place will have the opportunity to debate them.

The Government are sympathetic when it comes to transparency regarding information about and the progress of smart meters. I can assure the noble Lord, Lord Whitty, that we will be developing arrangements for reporting the benefits of smart meters, the progress of the rollout and the delivery resulting from the benefits. That is fundamental not only to the public but to the Government, as we need to know what progress we are making. I hope that I have given the noble Lord confidence that we will take this matter forward in the other place and that he will therefore withdraw the amendment.

[Lord Whitty]

My Lords, I thank the Minister for that explanation and the other speakers in this debate, particularly my noble friend Lord O’Neill. The noble Lords, Lord Oxburgh and Lord Jenkin, made important points that will need to be borne in mind during the rollout. Technical training in fitting meters and explaining to consumers how to use them will be an important part of the rollout, so customer service training as well as straightforward technical training will be necessary.

With a bit of willpower, these issues can be overcome. When we shifted to requiring A or B boilers a few years ago, the industry threw up its hands in horror and said that it did not have enough people to do that. However, we rapidly got a programme in place which enabled us to do it. It required a little bit of cross-Whitehall arm-twisting; I expect that the Minister is adept at that, and he may need to use that skill.

I am particularly pleased to hear that the assessment of consumer reaction, which I was aware the Government were undertaking, will be available to our colleagues in another place before they reach their final conclusions. The Minister will know that Consumer Focus, which I formerly chaired, has conducted a fair amount of research on this issue. It will be regrettable, if the Public Bodies Bill is passed, that it will not be in a position to do so on future occasions. It certainly threw up a number of incipient difficulties which are not insuperable but they are significant.

As noble Lords have said, we have to provide confidence. One problem is that the industry has a fairly low rating among consumers, and trust in energy supply companies, which will have to ensure that smart meters are installed, is pretty low. They have made some significant improvements in recent years but they have a poor history to overcome. I am afraid that that still informs a lot of customers’ attitudes towards those companies and causes them to make inferences about the reason for introducing these new machines into their houses. There is some suspicion surrounding the use to which the energy companies may put the data, whereas we can see that the data could be used to provide electricity in a smarter, more intelligent and more cost-effective way. From the other end of the telescope, people are wondering why their supplier needs to know whether they have the kettle on at four o’clock in the afternoon. That is an exaggeration; nevertheless, it is a fear that needs to be addressed in the Bill and in the regulations that come under the Bill, as well as in the way that the Government oversee the whole operation. I think that, from what the Minister has said, our colleagues in another place will have sufficient information on which to base their discussion on this matter. In the light of that, I beg leave to withdraw the amendment.

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[Lord Marland]

My Lords, I am very grateful to the noble Lord, Lord Whitty, for pointing out this particular area. We find ourselves perhaps in the crossfire between two interested bodies: RenewableUK and Oil & Gas UK, both of which are fighting for their own corners.

I am afraid I am attracted by the second option—I think it was the second option—to carry on the dialogue. We do not believe that the issue has been going on for six years, but I am very grateful for the historical information, which officials had not imparted to me. I think it is attractive for us to carry on the dialogue and, I might say, knock heads together, because it is important that we get these boundaries clearly defined. As the noble Lord, Lord Oxburgh, and the noble Baroness, Lady Parminter, both said, this is a complex thing that cannot be done quickly and needs negotiation. It needs both parties to come to the table to help us find the correct solution. The Government are immensely committed to it because it is important and therefore I am extremely grateful that this matter has been raised, but noble Lords have our assurance that we are pressing on with the negotiation. We intend to have a resolution, particularly as the renewables industry develops, as soon as possible, but we are in earnest.

I want to clarify something from Hansard that the noble Lord, Lord Whitty, said my noble friend Lady Northover said. Let me read out—another rare event for me—what the statement, in case he hears it incorrectly, should have said: I am happy to repeat the assurances we gave in Committee that where the oil company is not prepared to offer appropriate compensation, the Secretary of State will not intervene, on behalf of oil companies, and therefore the oil and gas development will not be permitted. I hope that clarifies that fundamental point.

With that, I hope the noble Lord will withdraw his amendment.

[Lord Whitty]

My Lords, I am very grateful to the Minister for clarifying that because that is not the way the original Hansard report read. As I say, I did not pick that up in Committee itself but only subsequently.

I think we all agree that we need diversity of supply and that we need oil and gas and offshore wind as a part of our energy mix. We also have a public policy objective of a certain level of renewables to which offshore wind will be the major contributor. Therefore there is another incentive for Government to get this right. Clearly, a general coexistence and co-operation agreement between the two sides would be highly desirable, and I am certainly happy to support the Government’s attempts to get that. I think he will find that this has been on the agenda for some considerable time. It might be five years and not six, but I think it is six years since I was a Minister and it was on the agenda within the former DTI, which sought comments from my department, which was Defra. So it has gone back that far. It may not have been a continuous negotiation, but the issue needs facing up to.

The renewables industry certainly feels, particularly in the present tight market, as the noble Lord, Lord Oxburgh, indicated, that this is a serious deterrent to getting the kind of funds needed to deliver what are, after all, the Government’s own objectives. He is certainly also right that—let us put it kindly—the nature of the legal advice that the Crown Estate appears to be getting does not help the situation either. It is a complex issue.

I am happy for today to accept the Minister’s assurance that we will continue to try to get an agreement. I suspect that the timescale of this Bill is not sufficient to get this agreement and the Government at some stage of the process may well consider they need a little bit of leverage here and may come back to something like this agreement. However, for today I withdraw the amendment.

Energy Bill [HL]

Debate between Lord Whitty and Lord Marland

Wednesday 2nd March 2011 Lords Chamber

[Lord Whitty]

My Lords, I support all the amendments in this group and wish to speak specifically to Amendments 14 and 15. These are the remnants of a pretty broad discussion that we had in Committee about the need to ensure consumer confidence in this scheme. Indeed, the noble Lord, Lord Oxburgh, has just referred to that matter. The noble Lords, Lord Teverson and Lord Jenkin, have indicated in relatively few sentences what a complicated arrangement this might appear to consumers. One of the reasons they need assurance is because this is more than a trilateral arrangement. In most cases there will be an assessor, who should be independent, and a provider, who will be the main provider and deal with the scheme, but the actual installer might be someone entirely different and under a certified, authorised subcontract to B&Q, the bank, Marks and Spencer or whoever might be the main provider. Then behind all that, financial arrangements that are closer to the householder may or may not come further downstream. It will be confusing. For that reason, the consumer—the householder or the landlord—needs serious confidence-building measures.

We were assured in Committee that some of those measures, apart from a bit of tweaking in the Bill, are already on the statute book in the provisions of the Consumer Credit Act and that they apply in this case. Most of those measures are, in fact; I am greatly reassured by that and I am grateful to the Minister for spelling that out. However, some areas are not so clearly covered by the consumer credit arrangements, and there are other markets where the consumer credit arrangements have not proved to be sufficient.

My two amendments address cross-selling and mis-selling. Amendment 14 talks about the assessments being dealt with by assessors who are independent of the providers. That does not mean that they will be totally independent, but that their assessment should be made on an unbiased basis and that they do not make recommendations that are geared to the specific offers of particular providers. Were that not to be the case, not only would the consumer interest be damaged but the Government’s desire—rightly so—to make this a competitive market would be seriously undermined.

The noble Lord, Lord Oxburgh, is right to say that there is ultimately no such thing as a completely objective assessment. However, it has to be an honest and clear assessment that is clear of bias towards any potential provider or installer. Amendment 14 deals with that, because there are no measures in the Bill to prevent Green Deal assessors being incentivised by providers to make assessments in their interests. It is important that the consumer is reassured on that. Similar provisions in other areas of financial credit have not proved to be sufficient to avoid biased financial advice appearing in some markets. Indeed, the FSA is still struggling with some of those issues.

My second amendment deals with transparency. Again, I am not sure that the Consumer Credit Act is sufficient. There are references to fees at various points in the Bill. The noble Earl, Lord Cathcart, referred to the fee for assessment, and I agree with him that it would be highly desirable if in all cases, not simply for the fuel poor, the fee for assessment was rolled up in the totality of the deal and arrangements were made for cross payment, as necessary. If you are faced with a threshold fee, that is a discouragement. You might end up paying the same money, but it should be part of the credit arrangement, not a separate arrangement.

There are subsequent references to fees, not all of which are entirely clear, and some of which may relate to exit fees. I understand that exit fees are an important provision for some credit providers in different markets, but it has to be made absolutely clear in the original agreement if there is to be an exit fee. We know that in other financial markets—mortgages and others—the regulations relating to exit fees are not clear enough. Certainly in the information provided to a person taking out a mortgage it is not always spelt out sufficiently when there is a substantial exit fee. In this case, the fee may relate to the owing of money, not to the person with whom you have dealt or who installed the energy-saving measures but to a financial company that lies behind that, via an energy bill from your energy supplier, and it is important that exit fees, if they exist, are specified. It is highly desirable that exit fees should not be another inhibition to the householder or a subsequent householder when deciding to move away from a particular supplier or form of credit.

Transparency is very important, and the current provisions of the Consumer Credit Act do not seem to tie this up sufficiently for application to these deals. The complexity of the arrangements, and the difficulty of explaining the range of organisations that will be involved in the totality of the deal for the average householder, make it even more important than in some other markets—where there is clearly a bilateral arrangement—that transparency exists. I therefore hope that the Government will take these amendments seriously.

Just to underline this, the real danger for the Government seems to come at the beginning. If one or two of these things go wrong because consumers are put off taking up the scheme, or very early on have some misunderstanding—to put it at its most neutral—with the installer, the provider or the financial vehicle, the rumour that this is not a good scheme will spread rapidly. We all want the scheme to succeed—to have a wide take-up and make the maximum possible impact on energy efficiency. However, it could stumble at a very early hurdle unless consumers are reassured. These two measures would help to reassure them.

[Lord Marland]

My Lords, I have just been handed a speaking note, which has slightly confused me. Ireland has beaten England in the one-day cricket—so much for the Green Deal. I am sorry to take away from the serious aspect of what we are talking about and I hope noble Lords will forgive me for imparting that. I know the noble Lord, Lord Davies of Oldham, will be as distraught as I am to hear that news.

The noble Lord, Lord Whitty, makes a very serious point, as always with his knowledge of consumers. At the heart of the Green Deal must be consumer confidence. Without consumer confidence we will not get this deal off the ground. It is imperative that the Government do this. The noble Baroness, Lady Smith, and the noble Lord, Lord Teverson, raise what I think are probing points that need to be ironed out in the passage of this Bill. The ironing out will be carried out with the platform of the Green Deal being very much consumer confidence, as we have debated in this Chamber and in Grand Committee rather exhaustively. On that basis, noble Lords will forgive me for reading out my speaking note, which is unusual for me. I will do it on this occasion because I want to get it right. Like the noble Lord, Lord Teverson, I suffer from meagre intelligence, so this has to be done in very big language.

Amendments 11 and 14 seek to ensure that consumers are offered the best possible energy efficiency solution. Clause 4 is central to the Green Deal and sets out the circumstances in which a Green Deal plan can be offered to the consumer. We envisage that a standardised methodology—mentioned by the noble Lord, Lord Oxburgh—will be used to carry out the assessment. This will ensure that the assessment is carried out in a robust, impartial way so that any measures recommended are suitable for the property in question and not influenced by other considerations.

Where the responsibility lies was the question asked by my noble friend Lord Jenkin of Roding. Assessors are responsible for getting the technical impartial assessment right. The Green Deal providers will be able to rely on this. They are responsible for financial advice. Installers will be responsible for the standard of installation.

I carry that theme a little further in response to the noble Lord, Lord Teverson, on how the financing will work for small builders, for example. Assessors and installers will not need to raise the capital. The Green Deal plan is between the Green Deal provider and the consumer, but that does not mean that assessors and installers will be paid a commission. Nor does it preclude independent assessment. In addition, Clause 3 provides for the code of practice that will regulate the proficiency of the Green Deal participants. The provisions in this clause seek to ensure that consumers are offered the best possible energy efficiency solution for their property.

Energy Bill [HL]

Debate between Lord Whitty and Lord Marland

Monday 31st January 2011 Grand Committee

[Lord Marland]

I am grateful to the noble Lord, Lord Oxburgh, for his commentary on this issue, which partly answered the question of the noble Lord, Lord Grantchester. It is mutually beneficial to both parties that smart meters are introduced. As I mentioned, Ofgem has consulted all groups closely to find a way forward. It is for it to report and to determine whether there should be a tightening of existing powers under the Energy Act following its spring package.

The total financial benefits of introduction are as yet unknown. There are a number of ways in which one could look at them. An executive of British Gas told me this morning that, when she was young, her father used to sit her down in front of the electricity meter to see it going round and round and to show the cost that was being incurred in the household. As I have said, I have sat my own children down and said, “Look, this is what’s going on”—I have one of those little boxes, which I commend to your Lordships. They are horrified that, at one point, it shows 298 an hour and then, at another, 130 an hour. There will obviously be a lifestyle change, which we cannot begin to assess, as people seek to reduce the cost of their electricity. I discussed with Centrica this morning the likely impact on bills. We estimate that there will be a saving of £14 to £15 on an electricity bill net of the cost of installation.

[Lord Whitty]

My Lords, I am grateful to all noble Lords who have taken part in this debate. The Minister said that provisions exist in the 2008 Act and it is clear, as the noble Lord, Lord Jenkin, said, that some progress on a voluntary code of practice has been made. However, this section of the Bill is intended to move that forward in a way that meets anxieties that interoperability and householders’ freedom of choice are protected.

I should probably have declared a past interest: until last month, I was the chair of Consumer Focus. There has been some engagement, but not all our points have been met, in particular the issue that, from the word go of the rollout, consumers should not be subject to cost when they switch. The Minister has already consulted with British Gas and Centrica. There are about 250,000 smart meters out there. The estimate is that, by 2014, there will be 4 million, most of which will be British Gas. This is before the standards on interoperability have risen. My understanding is that, at the moment, if British Gas customers who have one of these smart meters want to switch, they will effectively be in dumb mode if they switch to another supplier whose meters are not compatible. Likewise, if they are on pre-payment but wish to switch, the smart-meter systems for pre-payment and for direct debit, for example, are not compatible.

In many ways, I am pleased that British Gas has taken the initiative in starting to roll these things out for all the reasons that people have given—we want them out there as soon as possible. However, the fact of the matter is that we are going to have a whole number of them that are not compatible and, unless we lay down principles in this Bill, that will continue. Those principles need to apply to the ongoing rollout and they need to apply to the standardisation that is introduced beyond 2014.

I agree with the noble Lord, Lord Jenkin, that the manner of meeting those requirements can be flexible. I am in favour of a strong voluntary code of practice covering this area, but the principles that lie behind my amendments should surely be in primary legislation. I accept that these amendments are probably too complicated and that ongoing discussions and outcomes need to be taken into account when we reach the final draft, but I would be concerned if we were to pass the Bill without the principles of, in particular, no detriment in terms of choice and no mis-selling being written into the primary legislation.

[Lord Whitty]

My Lords, we get energy Acts rather frequently and one would hope that this would not provoke an even speedier reversion to new primary legislation in this field. As I understand what the Minister was referring to, he was speaking about the discussions involving the regulations that Ofgem is going to bring forward as part of its spring package, which—confusingly, as he says—will emerge in the summer. That is not necessarily the end of the line. I hope that, by the time the discussions are finalised in, shall we say, the late spring, the outline of this part of the Bill will be clear to Ofgem and those with whom Ofgem is consulting. If it is not, the situation to which my noble friend Lord O’Neill refers arises.

[Lord Marland]

I thought that I had explained this but, for clarification, Ofgem is dealing with this short-term interoperability under its existing licensing and code. We have the primary powers, which the previous Labour Government created under the Energy Act 2008, to enact the necessary changes that are thrown up as a result of this. Indeed, we will use them if we need to.

[Lord Whitty]

I am glad to hear that, but my recollection of the 2008 Act is that it does not deal specifically with this point.

[Lord Marland]

It does, according to my understanding.

Energy Bill [HL]

Debate between Lord Whitty and Lord Marland

Wednesday 26th January 2011 Grand Committee

[Lord Whitty]

My Lords, in some social housing there is a district heating scheme. I am strongly in favour of decentralised energy but one of the reasons why it has got a bad name in some areas is because of the lack of consumer protection. With district heating it is often difficult for the tenant or, whatever the form of tenure, for the individual flat to control the use of energy. It is therefore important that consumer protection dimensions apply to those kinds of social housing.

There are examples where the schemes have led to a substantial increase in the fuel costs over which the tenants and leaseholders have no control. Among the tenants in particular, and in some cases among the leaseholders because they will be pensioners who bought under the right to buy scheme and have not got a great income, there will effectively be fuel poverty by the normal definition as a result of something over which they have no control—in other words, the level of use of energy within their own premises.

That is an additional dimension to why we need to be clear on social housing and how far social housing is covered by the provisions of this Bill.

[Lord Marland]

My Lords, I am grateful to the noble Baroness for this valuable contribution which should be considered carefully. The idea of a new chapter in this Bill for energy efficiency in the social rented sector is a good one but I suggest that it should be inserted elsewhere in the Bill as a new chapter. However, that is by the by.

The intention of Chapters 2 and 3 of the Bill is to provide powers to improve the energy efficiency of private rented properties, should they be required. It is not the intention to intervene in the same way in the social housing market which we believe has made some of the biggest energy efficiency gains in recent years due to the priority that has been given to the investment in social housing stock. For example, the social housing stock is 10 points higher than the private sector, which answers the point of the noble Baroness, so it is already ahead of the curve.

To pick up on some of the concerns of my noble friend Lady Noakes that we should not regulate unnecessarily, if the social housing sector is leading the market, which it is, we should not start imposing regulation on it now but we should review it at a later stage to see whether it is still ahead of the game.

I am grateful to the noble Lord, Lord Whitty, who as always makes a valuable and learned contribution in this area. Decentralisation is a big issue and is a subject for local authorities as well as the housing authorities but I do not think it is a matter for this Green Deal. We should take it into consideration in the overall scheme of things for some interdepartmental progress and I take on board what he said. I invite the noble Baroness to withdraw her amendment.

Energy Bill [HL]

Debate between Lord Whitty and Lord Marland

Wednesday 19th January 2011 Grand Committee

[Lord Marland]

I am grateful to my noble friend for asking me to explain again. A lot of this will be picked up in the group of amendments that relate to the rental sector. When we reach that point we will be able to clarify the situation.

[Lord Whitty]

My Lords, I am grateful to the Minister for spelling out some of this, but I am still puzzled by bits of it. For example, there is the reference to the consumer credit regulations. He seems to be saying that they apply by default, but then referred us forward to Clause 23, which provides for some exemptions from it. It is not clear, as his words implied, that all such credit arrangements are covered by the Consumer Credit Act, except where specifically excluded. As he said himself, some of the organisations which will be Green Deal providers—with whom the householder actually has the deal, as distinct from the financial vehicle behind it—are not covered by the Consumer Credit Act. I am not necessarily asking for a detailed reply at this point but it would be useful for the Committee to have spelt out how and to whom the Consumer Credit Act applies and what, if any, are the exemptions referred to in Clause 23.

[Lord Marland]

Perhaps I may clarify that question for the noble Lord. Our legal advice is that the protection is in place. I am happy to debate the subject with him afterwards, but that is our legal advice.

[Lord Whitty]

It would probably be helpful to us to have that legal advice—or the gist of it—in writing, otherwise we may return to this.

The issue in Clause 13, equity between the original occupier signing up for the Green Deal and a subsequent occupier, is still important. I agree that aspects can be covered by secondary legislation or the code of conduct, but it is obviously key that any potential payment needs to be spelt out—this is where it links to Amendment 16 with relation, for example, to an exit fee. If you sign up for an agreement, and there is an exit fee included, you are going in with your eyes open—or you should be if everything is transparent and spelt out. However, the agreement is not with the person who may subsequently pay the exit fee; other things being equal, on acquiring the property, a subsequent owner will have calculated that it is better to pay off the debt early. If there is a fee attached that is not included in the deal, it is important that contingency is covered. Transparency, caveat emptor and a search on acquiring the property or taking up the tenancy or lease must all be taken into consideration, but if a subsequent owner is to be liable for such fees down the line this must be spelt out.

To some extent, I accept the view that Amendment 15 is not appropriate in that it would prescribe a fixed rate of interest. On the other hand, it is difficult to calculate, even within the range of outcomes we discussed on the earlier amendment, whether the golden rule works unless you have some understanding of the interest implied in the total package. Some will be marginal, and a fixed rate will give you at least the minimum rate of return and benefit, whereas with a variable rate it will be difficult to assess whether the golden rule has been met. We will have to assume certain things about energy use. As the noble Lord, Lord Jenkin, said, some people will use more energy because it is cheaper, for obvious reasons. However, on the basis of equal use and equal interest rates, you can make a reasonable stab at a calculation on the golden rule. If both of those are variable, it is more difficult to say how it applies.

I realise that we have to have flexibility, and therefore Amendment 15 in its absolutist sense is probably not appropriate. The previous amendment, with the clarification on compensation and Consumer Credit Act provisions, is needed. We need to protect consumers from the possibility that the whole structure of repayment is either to their detriment or unclear when they sign up.

Although I will withdraw the amendment at this stage—

[Lord Whitty]

I will press the Minister for communication with Members of the Committee who have taken an interest in the matter, on both the legal point and on any fee that applies.

[Lord Marland]

Given that there has been disruption and that not everyone heard what I said, I am happy to communicate with other Members of the Committee to clarify these things and carry on with the dialogue. That is the spirit in which this Committee, including the contributions of all noble Lords, is operating.

[Lord Whitty]

It would be relatively easy to say what any fee does not cover, which would provide some clarity. I would also welcome any communication from the Minister between now and Report. I would hope that that clarification indicates that fees paid up-front are not included, even if there is need for flexibility about fees paid later. On the understanding that we will be hearing from the Minister, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Whitty]

My Lords, I am not sure of the relevance of this argument to the actual clause before us. The issue here is that prepayment meters have a history, whether you are fuel-poor or not, of having significant charges over and above the cost reflectivity and over and above the degree of security which the supplier can assume on other means of payments. In other words, if you are on direct debit, there is a reasonable degree of security, but it is slightly less than on a prepayment meter, which is an almost absolute security of payment, because you do not get any electricity unless the meter is turning.

Historically, the issue has been pretty appalling. Frankly, the regulator denied the problem for many years. I declare my previous interest as former chair of Consumer Focus. Consumer Focus and Energy Watch banged on for years about that before the point about cost reflectivity was finally accepted by Ofgem. It does not matter whether the reason that you have a prepayment meter is because you are fuel poor or because your landlord, in various tenancy situations, insists on you having a prepayment meter. It does not matter whether it is a second home. It does not matter whether you are in a mansion block in Kensington, where many are on prepayment meters—generally speaking, the income of that particular subgroup is somewhat higher than the fuel-poor. The point is that they were being ripped off.

As I understand it, the new clause is proposed by my noble friend because we do not want a similar nontransparent rip-off to occur by clobbering the structure of tariffs on prepayment to hide the fact that, as a result of having a prepayment meter, you have a differentially poor repayment profile under the Green Deal.

The new clause also touches on a substantial point that, had I been present on Second Reading, I would have made: the fact that, at the same time as we are introducing the Green Deal, we are mandating energy supply companies over the next 10 years to install smart meters in every household in the land. The energy companies will have to carry out that provision, over which the landlord, the tenant or the owner-occupier has no real control. Whereas the Green Deal will be a voluntary sign-up, smart meters will not. I happen to be in favour of smart meters for energy efficiency, carbon saving and behaviour change reasons, but we could get those three things muddled up. It may be that the same supplier who is offering you a Green Deal is at almost the same time proposing to put the smart meter in, as they will be required to do, and perhaps negotiating with you the terms of your operation of a prepayment meter.

The point of the new clause, as I understand it, is to separate those different elements so that there is no distortion for the consumer. The wider point is whether the rollout of the Green Deal can in a conscious, planned way relate to the rollout of smart meters. The reality is that, on the one hand, people are going to go into every home in the land under the smart meter installation programme; and, on the other, somebody will be offering a deal under the Green Deal.

A lot of householders will be seriously confused as to which bit they have to accept, and the repayment for that, and which bit they have some option and flexibility about, and they do not have to take the deal at all if they do not want to. I assume that paragraph (a) in the new clause relates to any meter being installed, including the new requirement that smart meters be installed. We have to separate those things in terms of repayment; but in terms of delivery, there may be some benefit in associating them. I would like the Minister to comment on that point, and particularly to endorse the point lying behind my noble friend's amendment: that those three separate issues must be disentangled.

[Lord Marland]

There are two extremely valuable points here. If I may, I should like to defer the discussion on smart meters because there are a number of later amendments about them. As the noble Lord, Lord Whitty, said, it is important that we focus on this part of the Bill, Which is about the prepayment meter. It is fundamental that we get this bit right, and get smart meters right later. Of course, we need to have in our mind on joined-up thinking, and the two interrelate.

Through the Green Deal, people who pay bills through smart meters first receive information about extra payments that they incur as a result of meters being installed or existing Green Deal plans. We intend that the Green Deal charge can be collected by energy suppliers through all existing payment routes, which include prepayment meters as well as quarterly credit cards, which were mentioned earlier.

A number of licensing conditions are in place to protect customers who receive their energy supply through prepayment meters, including changes to prevent unfair price differentials between payment methods. We will ensure that all relevant protections extend to the Green Deal charge and we are working with Ofgem to make sure that that happens. I hope that that gives enough information for the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Whitty]

My Lords, since I packed my bag before we gave up, I will be brief. This group of amendments relates to fees, on which I have expanded at some length already. Some of these simply follow through from those that we have already discussed. Some relate to appeals, and I think that a disincentive to appeals is an area of significant concern. Some relate to other details of the way in which the Green Deal will be delivered. However, they all raise the issue of fees. I think that it would be helpful to the Committee—it would certainly be helpful to me—if, before we come to the next stage, the Minister could arrange for someone to set out why the issue of fees has to apply in these various situations. That can probably be done more logically than going through clause by clause, because some of them obviously hang together. There are only three or four subjects, but there are a lot of points where fees arise. If the Minister would commit to doing that, I would be prepared to withdraw the amendment.

[Lord Marland]

My Lords, at this point in the proceedings the noble Lord’s views on fees are well known, and he has our assurance that we will look at the issue very carefully. As we have already said, the level of any fee will be set out in secondary legislation. I think that the noble Lord is making the point that he would like us to develop a thinking process before we get to that and that, between us, we can develop it further before we get to that point. I look forward to discussing the matter with him in the near future.

[Lord Whitty]

My Lords, on that basis, I withdraw the amendment.