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Electricity Capacity (No. 2) Regulations 2019

Volume 799: debated on Wednesday 17 July 2019

Motion to Approve

Moved by

That the draft Regulations laid before the House on 5 June be approved.

Relevant document: 53rd Report from the Secondary Legislation Scrutiny Committee

My Lords, the capacity market is a key element of the Government’s strategy for maintaining the security of electricity supplies in Great Britain. This instrument will help maintain a strong security-of-supply position into the future. The capacity market secures the capacity required in Great Britain during periods of peak demand through competitive, technology-neutral auctions normally held four years and one year ahead of delivery. These are known as T-4 and T-1 auctions. Those who win capacity agreements—known as capacity providers—commit to providing capacity during periods of system stress in exchange for receiving capacity payments.

I will briefly provide some context before expanding on the provisions of this draft instrument. On 15 November 2018, the General Court of the Court of Justice of the European Union annulled the European Commission’s state aid approval for GB’s capacity market, introducing a “standstill period” until the scheme can be reapproved. The judgment means that the UK Government are not able to award capacity agreements or make capacity payments unless and until state aid approval is obtained. The Commission is currently conducting a state aid investigation for the capacity market, and we are working with it to ensure it can reapprove the scheme as quickly as possible.

We have taken steps, through an earlier instrument—the Electricity Capacity (No. 1) Regulations 2019—and associated changes to the capacity market rules, to maintain the operation of the capacity market, to the extent possible, while state aid approval is obtained. The steps we have taken to put in place these interim arrangements are currently subject to judicial review proceedings, which we are robustly defending. The House of Lords Secondary Legislation Scrutiny Committee has highlighted the continuing uncertainty for the capacity market resulting from these judicial review proceedings and from the Commission’s state aid investigation.

This second instrument put before the House today focuses on future auctions, which will not proceed unless and until the capacity market has state aid approval. This means the instrument is unlikely to be impacted by the judicial review. First, the instrument makes changes to enable the T-4 auction for the 2022-23 delivery year, which was postponed following the state aid judgment, to be replaced by a one-off T-3 auction. It will only be held if state aid approval has been received and would be held in early 2020. Secondly, this instrument makes changes to remove or reduce what might otherwise be unnecessary burdens on business in relation to credit cover.

Applicants seeking to enter certain types of capacity market unit—for example, those that are unproven or not yet constructed—into a capacity auction are required to provide and maintain credit cover. The instrument adjusts the credit cover requirements for a CMU entered into both the upcoming T-3 and T-4 auctions, to enable the credit cover obligations for both auctions to be satisfied jointly rather than separately.

It also extends the existing suspension of credit cover obligations, provided for by the Electricity Capacity (No. 1) Regulations 2019, to the three upcoming capacity auctions likely to take place in 2020. It makes changes to ensure that when the suspension of credit cover is lifted, following state aid reapproval, existing exceptions to credit cover requirements still operate as intended. Finally, the instrument makes changes to support the participation of certain unsubsidised renewable technologies in future auctions.

The capacity market was always intended to include all unsubsidised technologies. Some types of renewable technology, such as biomass, have always been able to participate provided they are not receiving other specified low-carbon subsidies. However, when the capacity market was conceived, wind and solar required subsidy, so were not included in its technical rules. With unsubsidised renewables now a prospect, the capacity market rules have recently been amended to allow wind and solar to participate.

This instrument supports this change by requiring state support for new-build renewable CMUs, which has been declared under the rules to be deducted or repaid from capacity payments. This enables renewable technologies in receipt of subsidies—other than those which exclude them from the scheme entirely—to participate without cumulation of state aid received through the capacity market and other schemes. Alongside these regulations, we have also laid complementary amendments to the capacity market rules, which govern the technical and administrative procedures relating to capacity market operation.

These regulations are necessary to ensure the smooth running of the capacity market in the period after state aid approval is received, and to broaden the participation of renewable technologies. I commend the draft regulations to the House.

My Lords, I will ask the Minister some questions, and I express some surprise that, in his presentation to the House, he did not mention demand-side response, which was the subject of an intervention I made on a previous occasion, and the reason why the state aid ruling was made by the European court. As it is absolutely at the centre of the reason why this matter has not been settled and the UK Government’s proposals were rejected, the Minister owes the House a little more detail about that, particularly because, as I understand it—he made the point himself—all the paperwork in front of us today is conditional on implementation on receiving state aid approval from the EU. At the moment, that is still outstanding.

That arose from an action taken at the European court back in 2015 by a small company called Tempus Energy, which claimed that the system was discriminatory against those who sought to reduce electricity consumption as opposed to increase electricity generation. The outcome of that was that its claim led to the UK’s scheme being sent back for a rethink.

The way it is supposed to work is that firms bid into the auction at the price they need, either to keep existing plants open to generate electricity or to create new capacity from scratch. It does not deal adequately with the situation of companies which have come forward with a commercial proposition that they will reduce overall electricity consumption. That is surprising because, in fact, overall electricity consumption is falling, not rising. The Government themselves recently took account of that, having for a long time somewhat denied the relevance of it to the whole question.

Having said all that, it is surprising that the Minister has not referred to the ECJ judgment, in particular to paragraphs 203 to 207 of it, and paragraphs 27(e) and 69 of the official guidance put in support of that judgment. Has the Minister read those paragraphs and, if he has, does he think that the plain and ordinary meaning of them could in any way be construed as a simple technical reprise as opposed to an outright rejection? How certain is he that the judgment of the European court was not, as the Minister in the House of Commons alleged it to be,

“a challenge to the nature of the UK capacity market mechanism itself”?—[Official Report, Commons, 19/11/18; col. 1090WS.]

It seems that it is not very easy to make that stand up, and as regards our taking a decision today, it needs at least a little amplification and clarification.

The allegation put to the European court was that our UK system was discriminating against those who had a commercial appetite to reduce electricity consumption as opposed to having proposals to provide generation. I hope the Minister will say that is not true and contradict the advice I have been given that, the way the system is designed at the moment, those who want to reduce consumption—the capacity supply industry—have to make sure they have a payback period in 12 months, whereas those on the demand side are given 15 years. That inequality is leading to discrimination, which means that DSR is extremely difficult to bring within the scope of the support that these regulations are intended to provide.

I hope the Minister will be able to give us some reassurances about the amount he has read and the legal interpretation of it he has, as well as something about demand-side response and getting that playing field level for all those who want to contribute to carbon reduction in the UK via the electricity market.

My Lords, I know the Minister always likes to hear optimism and congratulations on energy policy from these Benches. I will start with that, in that I am pleased that renewables—I understand the caveat about unsubsidised renewables—will be able to bid for the capacity market in future. The irony, somewhat, is that the form of renewables that costs the least and is most likely to be unsubsidised—onshore wind—has been banned by the Government. I think others will speak about that area later in this debate.

The capacity market came into operation in about 2014, which to us in this House probably sounds like yesterday, but in the development of the energy market—decarbonisation and the way in which variability, storage technology and all those other areas have moved forward—there has been a big change. The question we should come back to—as well as many of my noble friend Lord Stunell’s excellently made points—is: where do we need to go with the capacity market at this stage?

In this statutory instrument we have more of the same, to catch up with what we have not been able to do because of the European Court of Justice decision. I suggest that the capacity market, which was essential back when the Energy Act put it into place, is more questionable at the moment. I ask the Minister: what has the cost of the capacity market been to date? In recent years, what percentage of annual electricity consumption has the capacity market contributed? I am trying to get an idea of the scale of this instrument’s use and how important it has been. One thing is quite obvious: I understand that there has been an auction during this period of standstill. Given that there is no panic about this, do we need this capacity at all?

I repeat my noble friend’s points about demand-side management. It has been a characteristic of energy policy that we have always prioritised supply and capital investment, following demand, rather than trying to reduce demand and looking at the demand side rather than the supply side of the equation. Will we be in a position where demand-side response—the aggregators and that side of the industry, so important to our future —is able to compete not just in the one-year bids but in the three- and four-year bids? Will that now be the case? Where are we on storage? I believe that it is still not included as a sector that can bid for the capacity market. I hope that I am wrong on that, but I would be interested to hear that from the Minister.

So my real question is: how does the Minister see the capacity market moving in the future? I would love to see in the new energy White Paper—I hope the Minister will tell us this evening when it will be published—onshore wind coming back on to the system.

In terms of this particular statutory instrument, yes, it does the business, but we need a far more strategic approach to this part of the market than we have at the moment.

I thank the Minister for his explanation of the regulations before the House this evening. As he stated, they follow up on the Government’s Electricity Capacity (No. 1) Regulations 2019 passed in April. Those brought forward modifications to the capacity market that would operate during the standstill period following the legal challenges to the state aid provisions. These were made on the assumption that the Commission’s and the Government’s positions were indeed correct and lawful.

These regulations continue on that assumption and reintroduce T-3 auctions to take the place of the consequentially delayed T-4 auctions, which will now take place in 2020, after which the outcomes and judgments will be known. In response to questions from your Lordships’ Secondary Legislation Scrutiny Committee’s 53rd report, the Minister’s department replied that the Commission’s investigation is expected to conclude before this winter and that delay into 2020 is very improbable, and that on the judicial review, the UK court hearing is most likely to take place in October. These auctions will not be taking place under any scenario other than a status quo achievement for the Government.

Bearing in mind that the UK’s state aid rules under the authority of the CMA will not diverge from the EU state aid rules in either a deal or a no-deal scenario, the Minister is suddenly in a strong position to declare that nothing has changed. But of course, nothing can be taken with any great certainty. That was the position in the debate on the earlier regulations. The circumstances of the T-3 auction do not differ from that position at all. It is a provisional auction in the sense that whatever is collected or potentially disbursed will be held until the EU study of its processes for defying adherence to state aid is published.

The concerns that were voiced around the House on April’s regulations are still valid as there has been no further consideration of the fact that the court judgment was not merely a matter of process on state aid but included factors relating to demand-side management in the capacity auctions. It is not a foregone conclusion that business will continue as usual. The noble Lord, Lord Stunell, reminded the House of that tonight.

In response to questions regarding the department’s plan B on an adverse judgment, the Government’s reply will be that they will make necessary adjustments. But what is the department’s timing on publishing its five-year review of the capacity market under the Energy Act 2013? Will that be before any judgment, such that the review may need to be withdrawn subsequently? Is the review now ready, after the Minister in the other place stated that the Government’s intention was to publish this summer? As the capacity market is still in the same position as last April, and the UK has an 11% margin in supply, I repeat: what is the rush?

In saying that, I repeat that I appreciate that the continuity and consistency of the capacity market is important to industry, and Labour would not wish to undermine either the security of electricity supplies or industry confidence in the capacity market as an investable mechanism to drive through change and bring about cost savings and value for money.

However, in one respect, the T-3 auction proposed under this order would help clarify the trend in clearance prices. In February 2017, the T-4 auction cleared at £22.50 per kilowatt. In February 2018, the T-4 auction cleared at £8.40 per kilowatt, and the latest auction in December 2018—admittedly the T-1 auction following the court hearings—cleared at a mere 0.4p per kilowatt. Ministers have repeatedly stated that having an 11% margin on supply was an indication that the capacity market was working well. What does the Minister expect the results to be for these forthcoming auctions? Does the latest price indicate that the capacity market is not needed, that there is ample capacity and that payments will be virtually nil for standing by to supply into the market? I echo the remarks of the noble Lord, Lord Teverson, about storage and other aspects.

Labour does not oppose this order. It is important that the current chaos in the capacity market is resolved as much and as soon as possible. The regulations, although provisional, will stabilise the market, and judicial resolutions to the situation should be forthcoming shortly. Nevertheless, some serious probing is needed with regard to the future direction of policy in the capacity market.

Questions around the future of the capacity market are highlighted by the inclusion of subsidy-free renewable technologies to bid into the capacity market through these regulations. The capacity market was introduced to enable the energy market to transform from one based on fossil fuels to one based on new low-carbon technologies, while maintaining security of supply.

The Minister may say that it was always anticipated that the capacity market framework would allow the participation of renewable technologies at some point, so he is now confirming that this is that point. Despite any margin of supply, does the Minister expect that the capacity market will be a permanent feature? Can he clarify the difference under paragraph 7.14 of the Explanatory Memorandum whereby some renewables are excluded should they receive support from contracts for difference, the renewables obligation or the feed-in tariffs, whereas other participants receiving other forms of support can have their capacity payments adjusted to reflect other state support payments? Paragraph 7.15 states that regulation 49A of the principal regulations for low-carbon generation support is amended to allow this change.

The Minister in the other place stated on this point that onshore wind, offshore wind and solar technologies will now be able to participate, and the noble Lord the Minister has repeated that. Now that the Government believe that the capacity market is the right mechanism for achieving security of supply at the lowest cost to consumers, can he give a further update on the position of onshore wind? As it is the cheapest source of low-carbon energy, is it now a hollow achievement for it to be allowed to bid into the capacity market when it is banned from obtaining planning permission? Can the Minister now publicly endorse that onshore wind will be allowed to bid into the CfD framework on an equal basis?

In the report Quantifying Benefits of Onshore Wind to the UK, published yesterday by Vivid Economics—a group that does scenario modelling for the Treasury—it was stated that UK customers could achieve a £50 annual saving to their bills through onshore wind being made available. Will the Minister give his assessment of this report and indicate when onshore wind may participate in the UK’s energy market?

Finally, paragraph 7.18 of the Explanatory Memorandum it states that other technical issues have been addressed in these regulations. They do not seem to be material; nevertheless, I would be grateful if the Minister could write to me with an indication of which have now been improved. With the misgivings stated, I can approve the SI before the House tonight.

My Lords, I am grateful to all three noble Lords for their interventions and I will try to deal with as many of the questions as possible. I believe I have a certain amount of time in which to respond. I am not quite clear when the usual channels want to return to other matters but I imagine that, whenever it is, it should be seen as a limit rather than a target. Therefore, I will try to keep my responses as brief as possible, and there are possibly one or two that I hope noble Lords will accept in writing. I am thinking particularly of the last point on the Explanatory Memorandum made by the noble Lord, Lord Grantchester.

I think we are all, to some extent, singing from the same song sheet in that we all have the same clear aim of wanting to head in the direction of getting to zero carbon by 2050, as we made clear in our recent announcement. It might be that others feel that it can be done quicker or in different ways, but we are all trying to do the same thing and to see that we achieve increasing amounts of electricity generation by low-carbon means. As noble Lords will be aware, we have achieved a great deal—consumption is down to something of the order of 5% coming from carbon.

We also believe that the capacity market is the right mechanism for delivering security of supply at the lowest cost to consumers. I will write to the noble Lord, Lord Teverson, who asked for detailed figures on the overall costs of that over the years. The noble Lord, Lord Grantchester, asked whether we could speculate about future auctions in the light of the continuously lower prices achieved at repeated auctions. Obviously, it would be wrong for me to speculate in any way about what price might be obtained—that is not what one does in advance of an auction—but it is encouraging that the price has come down. We still believe that that process is necessary and the right way to deal with these matters.

The noble Lord, Lord Grantchester, also asked about the five-year review. I can tell him that it will be published soon. I cannot give him a precise date at this stage but I will say “soon”, “shortly” or something of that sort. However, it is certainly on its way and I very much hope that we can look at it in more detail in due course.

I turn now to the points raised by the noble Lord, Lord Stunell, particularly about the judgment of the European court and the decisions by the Commission. He said that the judgment was more than just procedural. The court identified elements of the capacity market which should have given the Commission doubts about whether the scheme was compatible with state aid requirements. That meant that the Commission should have conducted an in-depth investigation before deciding whether to approve the scheme. Importantly, however, the court did not rule that the design of the capacity market was incompatible with state aid requirements or direct that changes be made to the mechanism. We have carefully considered the matter. When I say “we”, I mean department officials and my right honourable friend the Minister for Energy. I cannot confess that I have read the detailed paragraphs that the noble Lord referred me to, but we have carefully considered each of the issues raised in the court judgments, and we remain confident that the design of the capacity market is compatible with the state aid requirements, including the way the system is designed in respect of demand-side response.

Why will the Government not offer long-term contracts for DSR in the capacity market? Longer-term agreements, where not needed, risk needlessly locking consumers into paying a long-term price. While there can be challenges to encouraging businesses to engage in DSR, the same capital costs do not apply, and there is no clear evidence to suggest that longer-term agreements are necessary to ensure that DSR can compete effectively.

The noble Lord also asked how the capacity market supported DSR. The purpose of the market is to ensure security of supply by giving capacity providers the right incentives to be on the system to deliver energy where needed. It is, as I have made clear, including with the noble Lord, Lord Grantchester, a number of times, technologically neutral.

I understand entirely the argument that a number of years are required for physical capacity to build what was originally the coalition Government’s hope that gas would come online. But what I do not understand is this: by having that exclusively for the supply side, a whole area of the capacity market is denied by the demand response. By the time you come around to the short-term one-year deals, where demand response can come in, you have already filled a major proportion of the capacity market. It therefore discriminates against that sector—or do I completely misunderstand this?

I might have to write in greater detail, but both T-1 and T-4—the short term and longer term—deal with the point about discrimination. I might be wrong, but I will think about that and come back to the noble Lord.

I am sure that the Minister is aware that for the cost of a gigawatt of generation capacity, you could have a great deal more demand reduction capacity, but only if the right trading environment is in place. If I can offer support to my noble colleague on the Front Bench, it does mean that by the time you have built the generating capacity, the case for the demand-side reduction shrinks. The noble Lord’s argument that six months was therefore justified in the one case, and 15 years was necessary in the other, is precisely the point that the European Court of Justice felt was evidence that the European Commission had not looked thoroughly enough at the UK Government’s scheme. I would have expected him to be saying that this aspect had been reviewed in bringing forward alternative regulations to the House.

Again, it might be better if I write to the noble Lord on that point. He is aware that the Commission—which we support on this—is not happy with that judgment. It needs to be looked at and, as I made clear earlier, we are working with the Commission to ensure that it has everything it needs to continue considering that wider state aid approval for the regime as quickly as possible. I will write to both noble Lords on that point. I made it clear to the noble Lord, Lord Teverson, that I will also write with a more detailed letter on the cost of capacity auctions and the amount of capacity that has been used in the past.

The noble Lord, Lord Teverson, also asked about storage. Both he and I have stressed on other occasions that we see storage playing a great role in the world of energy in the future. I can give an assurance that storage is able to compete in the capacity auctions and has been able to since the outset. I have dealt with the question from the noble Lord, Lord Grantchester, about when we will publish the five-year review; as I said, we hope to do so shortly. That will not be the end of the process, which will identify areas of the capacity market’s design where further amendments may be necessary.

The noble Lord, Lord Grantchester, also asked about support under some schemes preventing renewables participating in the capacity market altogether, where other schemes simply deduct from the capacity market payments. It remains appropriate to exclude CMUs which benefit from contracts for difference, the renewables obligation and feed-in tariff payments, as those are the most likely and significant alternative support for CMUs participating in the capacity market. That prevents the accumulation of state aid. Less significant forms of support do not exclude renewable CMUs from the capacity market. Instead, the rules require new-build wind and solar generation to declare this support, so that it can be deducted from capacity payments. What a capacity provider is authorised to receive under state aid, in addition to its capacity payments, does not need to be declared or deducted.

I turn to a matter rather beyond this debate: our general policy on onshore wind. I can tell both noble Lords who raised the subject that I know of no plans to change that policy. We have seen great improvements in offshore wind, which has the great benefit over onshore wind of being in windier, flatter places where it is possible to build even bigger windmills than are possible on land, as I think even the noble Lord would agree. I therefore cannot offer him any hope that our policy is about to change on that.

Lastly, the noble Lord asked about the energy Green Paper, which we still hope to publish before we break for the summer. He will have to be patient for only another four or five days.

I have dealt with most of the points raised and offered to write on others.

Motion agreed.

Sitting suspended.