PART 2Electricity Market Reform

CHAPTER 9Miscellaneous

63Exemption from liability in damages

1

The Secretary of State may include in regulations under section 6 or 27, or under paragraph 6 of Schedule 2, provision that—

a

the national system operator,

b

any director of the national system operator, or

c

any employee, officer or agent of the national system operator,

is not liable in damages for anything done or omitted in the exercise or purported exercise of a relevant function specified in the regulations.

2

A relevant function is a function conferred by or by virtue of Chapter 2, 3 or 4.

3

Provision made by virtue of subsection (1) may not exempt a person from liability for an act or omission which—

a

is shown to be in bad faith;

b

is unlawful by virtue of section 6(1) of the Human Rights Act 1998 (public authorities not to act incompatibly with convention rights);

c

is a breach of a duty owed by virtue of section 27(4) of EA 1989 (compliance with final or provisional order under that Act).

4

Whenever—

a

the Secretary of State makes or revokes regulations of a kind mentioned in subsection (1) or exercises a modification power under section 26 or 37 or paragraph 19 of Schedule 2, and

b

provision is not in force under subsection (1) in respect of a relevant function,

the Secretary of State must publish a statement of the reasons why no such provision is in force.

5

In this section “national system operator” means the person operating the national transmission system for Great Britain (and for this purpose “transmission system” has the same meaning as in EA 1989 - see section 4(4) of that Act).