Energy Company Licence Revocation

Debate between Alan Whitehead and Huw Irranca-Davies

Wednesday 3rd September 2014 Commons Chamber

[Dr Alan Whitehead (Southampton, Test) (Lab)]

The first thing that would be of interest to the House in this debate this afternoon would be to find out what the Secretary of State really thinks about this matter. I was at an interesting meeting yesterday when I was privileged to hear the Secretary of State speak. First, he effectively apologised for being a Minister in the coalition—[Interruption.] I was there; I was listening to it. To put the record entirely straight, what he said was not exactly couched in terms of an apology, rather, “Here are the limitations under which I work as Secretary of State when we are addressing the issues that are coming forward from questions.” Then the Secretary of State said, “Well, of course, I want to cut loose from this; I want to tell you what I would really do were I really a Liberal Democrat.” The Secretary of State then had some interesting things to say, a number of which I agreed with, and I would be interested to hear more about the Liberal Democrat policy on these matters.

Even in the context of what was said at that meeting yesterday, I cannot really believe that one half of the Secretary of State’s hat is entirely comfortable with the other side of his hat as he speaks this afternoon. He probably really agrees with what is being put forward this afternoon, and the circumstantial evidence for that is to be found in the meandering circumlocutions that we heard from him today as to why the present system of regulation is pretty dead good and really can do the things that the Opposition are suggesting that it ought to do in any event, even though the Secretary of State accepts that in fact there is not a power in reality to revoke the licence of a supply company or electricity distribution company, on the basis, effectively, of cumulative offences.

[Huw Irranca-Davies]

In fairness to the Secretary of State, does my hon. Friend suspect that one of the limitations to which he refers might be the bizarre rule on regulation that is now imposed across Whitehall? It was one in, one out, but now I understand it is one in, two out. So even if there is good, proportionate, sensible regulation, it is damn hard to get it on the statute book.

[Dr Whitehead]

My hon. Friend makes an interesting point. Given where the regulations stand now, it is quite possible that the introduction of the regulation that my right hon. Friend the Member for Don Valley (Caroline Flint) suggests, would lead to several other regulations being removed, so therefore would meet the golden rule of one in, two out. It is something that I can recommend right now to those on the Government Front Bench as a way of earning additional deregulation brownie points.

I mentioned the Secretary of State’s circumlocutions and made considerable play of the fact that, because the regulator can undertake a final order, that is the nuclear option. The Secretary of State will be aware—he has received legal advice to this effect, although I do wonder whether the legal advisers did this during their lunch hour to assist him—that clause 25(1) of the Electricity Act 1989, from which the final order derives, before Ofgem was introduced but the powers were incorporated into its powers, states that

“where the Director is satisfied that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement, he shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.”

According to that piece of legislation, one is required to find out what any relevant condition or requirement is. In order to do that, it is necessary to refer to schedule 2 with the imposing title “Revocation”. We may want to look there to find out how nuclear that final order is. The final order not only has to relate to the relevant conditions or requirements, it has to stick to the relevant conditions or requirements. That is what it says in the legislation.

As the Secretary of State has said, there are a number of circumstances under which the licence can be revoked. Where someone has not paid their fine and it remains unpaid, a final order can be issued. If a final order is issued and the licensee fails to comply with that final order, which is something of a tautology, that licence can be revoked. But in order not to comply with the final order the licensee has not to comply with something within the revocation schedule in the first instance. If the licensee refuses to pay the financial penalty, that triggers a final order. Various orders were made under the Competition Act 1998 relating to unfair competition. If the licensee does not supply any electricity within a year or has stopped supplying electricity to a property, a final order can be levied against it. If the licensee is unable to pay its debts according to the Insolvency Act 1986 or has an administration order, or a receiver has been appointed, the licensee may have a final order levied against it. Obviously, if it is insolvent and has ceased trading, it is hardly likely to comply with the final order so its licence would be revoked.

The revocation schedule, upon which the Secretary of State’s magnificent argument about the final order rests, simply states, as has already been rehearsed, that various things could lead to revocation if they are not put right. That seems to be the central point that is being addressed this afternoon. These are all things that might be levied against a company and could be put right, and if they are not put right a nuclear option of revocation can be undertaken. But if those things are put right, case by case by case, section by section by section, that final order cannot be used. So the entire basis of the Secretary of State’s argument, that that really exists to enable Ofgem to revoke a licence for the sort of cumulative issues that we have been discussing this afternoon, simply falls down. We must accept that there simply is no such power in reality, by implication, in legislation or by regulation.

That makes the case fairly simple. Yes, it is true that with regard to competition, the problem of losing a number of customers may cause an energy company to think again about certain of its actions. The possibility of losing all of one’s customers might make one think rather more seriously about the problems being faced and how to deal with them, in addition to the fact that some customers may be lost through competition.

There we have it, in terms of the difference between the present position and a significant change in what Ofgem would be required to do under the proposals set out this afternoon. They require Ofgem to take account of cumulative bad behaviour—of a company getting away with it, not putting right things required under legislation, and living to fight another day and do it again.