A push by the Office of Utilities Regulation (OUR) for an amendment to the 2015 Electricity Act hit a snag at Thursday’s meeting of the joint select committee, which is reviewing the legislation.

The OUR is seeking to have only unresolved breaches of agreements between Jamaica Public Service (JPS) and entities licensed to sell the company power, translate to or be deemed a breach of licence.

Under the current relevant section, the licensee or single buyer (JPS) could be at risk for suspension or revocation for such breaches, if an energy portfolio minister so determines.

Section 13 of the Act provides that the portfolio minister may revoke or suspend an electricity licence, where the licensee is a party to an agreement with the single buyer (JPS) for the sale or other supply of electricity to the JPS, and either side breaches that agreement. Currently, a breach of the agreement by either, also constitutes a breach of the electricity licence, held by the licensee or the single buyer.

The OUR noted in its submission, which the committee reviewed proposals from on Thursday, that these agreements usually make room for the remedying of a breach, and that a contractual breach should therefore not automatically mean a breach of licence.

Government Senator Sherene Golding Campbell and minister without portfolio in the Office of the Prime Minister, Floyd Green, argued that there was no automaticity attached to any decision to suspend or revoke a licence. Golding Campbell insisted that to accept the OUR recommendation would create a regime where agreements can be breached repeatedly, and parties escape penalty, as long as those breaches are remedied.

“I’m proposing that it remains as is, that the minister retains the decision to act if there is a breach, and that the OUR’s proposal not be accepted because it is not the correct view to suggest that there is an automatic revocation or suspension,” she told the committee, which is chaired by Energy Minister Daryl Vaz.

“What is bestowed upon the minister is a discretion. If there is a breach, he may do these things [revoke or suspend]. We are going down a rabbit hole. How do you even define unresolved? It should remain as is,” Green added.

However, senior assistant director for legal reform in the ministry of legal reform and constitutional affairs, Peter Simmonds, pointed out that the issues of the agreement with the single buyer, and the electricity licence itself, were being conflated. “There are two things at play — an agreement with the single buyer for sale or supply of electricity as well as the electricity licence itself,” he said, noting that section 13:1B of the Bill addresses situations where there is a breach of the electricity licence; while the section, which the OUR wants amended, speaks to a breach of the agreement shall constituting a breach of the licence.

He explained that, “What the OUR is saying is that these agreements provide for breaches to be remedied, so where there is an unremedied breach of the agreement, that is where it should be a breach of the electricity licence. In other words, the person who has the agreement with the single buyer must be given the opportunity to remedy the breach before it can be a breach of the electricity licence.”

“OUR is saying that an unremedied breach is what must trigger the discretion, and I am still saying that the discretion ought to remain so that at the end of the day the State can intervene if it needs to intervene,” Senator Golding Campbell asserted, pointing out that the OUR itself would have no room to act if breaches are allowed to go unfettered unless they are unresolved.

At the same time, the current provision also says that this revocation or suspension provision doesn’t apply to an existing licence unless that licence so specifies.

Simmonds stressed that the section would have to be amended so that the parties are allowed time to remedy any breach of agreement, before those breaches are deemed in contravention of the licence, as is now set out in the law.

The committee differed the issue for internal discussions.