Thirty-First Report of Session 2007–08

House of Lords House of Commons Joint Committee on Statutory Instruments Thirty-first Report of Session 2007–08

Drawing special attention to: Tax Credits (Miscellaneous Amendments) (No. 2) Regulations 2008 (S.I. 2008/2169)

Town and Country Planning (Trees) (Amendment) (England) Regulations 2008 (S.I. 2008/2260)

Gas and Electricity Regulated Providers (Redress Scheme) Order 2008 (S.I. 2008/2268)

Zoonoses and Animal By-Products (Fees) (England) Regulations 2008 (S.I. 2008/2270)

Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment No.2) Regulations 2008 (S.I. 2008/2363)

Ordered by The House of Lords to be printed 12 November 2008 Ordered by The House of Commons to be printed 12 November 2008

HL Paper 196 HC 38-xxxi Published on 17 November 2008 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £0.00

Joint Committee on Statutory Instruments

Current membership House of Lords House of Commons Lord Campbell of Alloway (Conservative) David Maclean MP (Conservative, Penrith and The Border) Lord Dykes (Liberal Democrat) (Chairman) Baroness Jones of Whitchurch (Labour) Dr Roberta Blackman-Woods MP (Labour, City of Durham) Lord Kimball (Conservative) Mr Peter Bone MP (Conservative, Wellingborough) Countess of Mar (Crossbench) Michael Jabez Foster MP (Labour, Hastings and Rye) Lord Walpole (Crossbench) Mr David Kidney MP (Labour, Stafford) David Simpson MP (Democratic Unionist, Upper Bann)

Powers The full constitution and powers of the Committee are set out in House of Commons Standing Order No. 151 and House of Lords Standing Order No. 74, available on the Internet via www.parliament.uk/jcsi.

Remit The Joint Committee on Statutory Instruments (JCSI) is appointed to consider statutory instruments made in exercise of powers granted by Act of Parliament. Instruments not laid before Parliament are included within the Committee's remit; but local instruments and instruments made by devolved administrations are not considered by JCSI unless they are required to be laid before Parliament.

The role of the JCSI, whose membership is drawn from both Houses of Parliament, is to assess the technical qualities of each instrument that falls within its remit and to decide whether to draw the special attention of each House to any instrument on one or more of the following grounds: i. that it imposes, or sets the amount of, a charge on public revenue or that it requires payment for a licence, consent or service to be made to the Exchequer, a government department or a public or local authority, or sets the amount of the payment; ii. that its parent legislation says that it cannot be challenged in the courts; iii. that it appears to have retrospective effect without the express authority of the parent legislation; iv. that there appears to have been unjustifiable delay in publishing it or laying it before Parliament; v. that there appears to have been unjustifiable delay in sending a notification under the proviso to section 4(1) of the Statutory Instruments Act 1946, where the instrument has come into force before it has been laid; vi. that there appears to be doubt about whether there is power to make it or that it appears to make an unusual or unexpected use of the power to make; vii. that its form or meaning needs to be explained; viii. that its drafting appears to be defective; ix. any other ground which does not go to its merits or the policy behind it.

The Committee usually meets weekly when Parliament is sitting.

Publications The reports of the Committee are published by The Stationery Office by Order of both Houses. All publications of the Committee are available on the Internet from www.parliament.uk/jcsi.

Committee staff The current staff of the Committee are John Whatley (Commons Clerk), Kath Kavanagh (Lords Clerk) and Jacqueline Cooksey (Committee Secretary). Advisory Counsel: Peter Davis, Peter Brooksbank and Christine Cogger (Commons); Allan Roberts and Peter Milledge (Lords).

Contacts All correspondence should be addressed to the Clerk of the Joint Committee on Statutory Instruments, Delegated Legislation Office, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2830; the Committee's email address is: [email protected].

Contents

Report Page

Instruments reported 2 1 S.I. 2008/2169: reported for defective drafting and an unjustified breach of the 21- day rule 2 2 S.I. 2008/2260: reported for defective drafting 3 3 S.I. 2008/2268: reported for defective drafting 3 4 S.I. 2008/2270: reported for defective drafting 5 5 S.I. 2008/2363: reported for failure to accord with proper legislative practice 5

Instruments not reported 6

Annex 7

Appendix 1 8 S.I. 2008/2169: memorandum from Her Majesty’s Revenue and Customs 8

Appendix 2 10 S.I. 2008/2260: memorandum from the Department for Communities and Local Government 10

Appendix 3 11 S.I. 2008/2268: memorandum from the Department For Business, Enterprise and Regulatory Reform 11

Appendix 4 12 S.I. 2008/2270: memorandum from the Department for Environment, Food and Rural Affairs 12

Appendix 5 13 S.I. 2008/2363: memorandum from the Department for Communities and Local Government 13

Instruments reported

At its meeting on 12 November 2008 the Committee scrutinised a number of Instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to five of those considered. The Instruments and the grounds for reporting them are given below. Relevant Departmental memoranda are published as appendices to this report.

1 S.I. 2008/2169: reported for defective drafting and an unjustified breach of the 21-day rule

Tax Credits (Miscellaneous Amendments) (No. 2) Regulations 2008 (S.I. 2008/2169)

1.1 The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and that there was an unjustified breach of the 21 day rule.

1.2 Regulation 2(3) inserts new paragraph (2B) into regulation 14 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002. That new paragraph provides that “Care provided for a child in England is not registered or approved care under paragraph (2)(a)(iii)” in two specified circumstances. In a memorandum printed at Appendix 1 HM Revenue and Customs acknowledges that the words “registered or approved” are not appropriate, regrets their inclusion though those words could be argued not to alter the effect of the provision and states that they will be omitted by an amending instrument. The Committee reports regulation 2(3) for defective drafting, acknowledged by the Department.

1.3 The Regulations breach the 21 day rule mentioned in section 4.13 of Statutory Instrument Practice, which requires that instruments subject to annulment should not normally be brought into force until at least 21 days after laying. In its memorandum and its earlier Explanatory Memorandum (a relevant extract of which is also printed at Appendix 1) the Department explains that the Regulations had to come into force on 1 September 2008 to coincide with the implementation of Part 3 of the Childcare Act 2006 and that the fact that the Regulations were laid on 14 August 2008 resulted from lengthy consultation with the Department for Children, Schools and Families on a number of issues and the need for approval of a connected instrument by Parliamentary Counsel. The Committee does not regard consultation within Government, taken alone, as an adequate reason for breach of the rule and therefore asked what factors (if any) apart from discussions within Government contributed to it. In its response the Department accepted that there were none. The Committee accordingly reports the Regulations for an unjustified breach of the 21 day rule.

2 S.I. 2008/2260: reported for defective drafting

Town and Country Planning (Trees) (Amendment) (England) Regulations 2008 (S.I. 2008/2260)

2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that regulation 5 is defectively drafted in one respect.

2.2 Regulation 1 provides for the Regulations to come into force on 1 October 2008 and to apply in relation to applications and appeals made on or after that date. Regulation 5 substitutes a new Part 4 in the Town and Country Planning (Trees) Regulations 1999. New regulation 11(1) in that Part provides that Part 4 applies in relation to certain types of appeal “where that appeal is made on or after the date on which these Regulations come into force” (Committee’s italics). New regulation 11(1) forms part of the text of the 1999 Regulations; those Regulations came into force on 2 August 1999.

2.3 In a memorandum printed at Appendix 2 the Department for Communities and Local Government explains that the intended date for the application of new Part 4 was 1 October 2008. The Department accepts that the drafting of new regulation 11(1) does not reflect this and states that it will amend the Regulations at the earliest opportunity to clarify that only appeals made on or after that date will be subject to the new Part 4 procedures. The Committee points out that it was strictly unnecessary for new regulation 11(1) to make any provision as to the date, given regulation 1 of the present Regulations, and would invite the Department, unless it can justify the apparent retrospection of including 1 October 2008 in an instrument made now, to amend the Regulations simply to delete the quoted text. The Committee reports regulation 5 of these Regulations for defective drafting, acknowledged by the Department. 3 S.I. 2008/2268: reported for defective drafting

Gas and Electricity Regulated Providers (Redress Scheme) Order 2008 (S.I. 2008/2268)

3.1 The Committee draws the special attention of both Houses to this Order on the ground that it appears to be drafted defectively in one respect.

3.2 The Order (articles 2 and 3) requires regulated providers of gas and electricity to be members of a qualifying redress scheme in relation to complaints of particular types by any relevant consumer. Article 2(1)(b) specifies, as a class of “relevant consumer”, a consumer who is—

“a person supplied or requiring to be supplied with gas or electricity at premises other than domestic premises, with— (i) an annual consumption of— (aa) electricity of not more than 55,000 kWH; or (bb) gas of not more than 200,000 kWh; or (ii) (aa) fewer than 10 employees (or their full time equivalent); and (bb) an annual turnover or annual balance sheet total not exceeding Euros 2 million.”.

3.3 Given that consumption of electricity and gas, staff size, turnover and balance sheet total can vary, the Committee asked the Department for Business, Enterprise and Regulatory Reform what dates were to be taken into account in relation to these factors and why they were not specified further. The Committee also asked how the limit of 2 million euros was to be calculated; that question was limited to circumstances other than those where section 469 of the Companies Act 2006 (which provides a required method for conversion of annual company accounts from sterling into euros) would apply.

3.4 In a memorandum (undated but received on 4 November 2008) printed at Appendix 3 the Department for Business, Enterprise and Regulatory Reform explains how it understands that the matters referred to in paragraph (b) of the definition should be determined and argues that it was unnecessary to provide further specificity in the Order. The Department’s understanding on each such matter is tabulated below together with the Committee’s view.

Department’s understanding Committee’s view Annual energy consumption falls to be The Committee has no difficulty in accepting determined “under the date of” the consumer’s that determination by standard readings will be contract with the regulated provider “in used for contracts. However there appears to accordance with the relevant contract for be no convincing reason why the start date of a energy supply and services”. consumer’s contract should be used for measuring the year (as opposed—for example— to an end date as at the last bill). Staff numbers, annual turnover or annual Underlying these understandings there appear balance sheet total fall to be determined “on to be two tacit assumptions on the part of the the basis of the individual relevant consumer’s Department (neither of which is justified by the latest accounts”, and (on euro conversion) explanation provided): either the consumer will convert sterling into • first, that non-domestic consumers who euros or the official rate for conversion at the are not companies will automatically date of the balance sheet or annual accounts produce annual accounts or a balance will apply. sheet; [The Committee assumes that the phrase • secondly, that such documents if “balance sheet for annual accounts” (in produced will automatically include paragraph 4 of the memorandum) includes a staff numbers. misprint.] Furthermore, on staff numbers, there appears to be no convincing reason to use date of accounts (as opposed—for example— to the date of the incident giving rise to the complaint).

3.5 It therefore appears to the Committee that there are possible permutations that have not been addressed and that (in relation to consumption and staff numbers) at least two equally possible interpretations of the text are available. The Committee accordingly reports article 2(1) of this Order on the ground that paragraph (b) of the definition of “relevant consumer” is drafted defectively and also invites the Department, if the Department amends the definition in the light of this report, to use the occasion in addition to provide clarity in relation to the first year of consumption on non-domestic premises.

4 S.I. 2008/2270: reported for defective drafting

Zoonoses and Animal By-Products (Fees) (England) Regulations 2008 (S.I. 2008/2270)

4.1 The Committee draws the special attention of both Houses to these Regulations on the ground that regulation 2 is defectively drafted in one respect.

4.2 Regulation 3(1) provides that the relevant person must pay to the Secretary of State the fee prescribed in the Schedule. “[T]he relevant person” is defined in regulation 2 as “the person in charge of a holding where official control samples are taken or the operator of the laboratory in the case of the other activities specified in the Schedule”. The Schedule consists of a table with two columns; the first is headed “Activity” and the second is headed “Fee (£)”. Six activities are listed; the first two are “Taking or supervising the taking of official control samples” and “Examination of official control samples”. The other activities in the Schedule do not concern official control samples.

4.3 The Committee was concerned that the Regulations did not clearly reflect the policy intention as set out in paragraph 4 of the Explanatory Memorandum that the person liable to pay the fee in respect of examination of official control samples was the person in charge of the holding rather than the operator of the laboratory where examination takes place.

4.4 In a memorandum printed at Appendix 4 the Department for Environment, Food and Rural Affairs states that “the relevant person”, as defined in regulation 2, is either the person in charge of the holding or the operator of the laboratory, depending on whether official control samples have been taken; that official control sampling activities are the first and second activities in the Schedule; and that persons in charge of holdings are obliged to pay the fees in respect of them.

4.5 The Committee is not fully reassured by the Department’s reasoning in the case of examination of official control samples. It notes that the definition does not expressly use the test identified in italics in the paragraph above, but rather appears to contrast a holding where official control samples are taken with the other activities specified in the Schedule. Examination of samples is an official control sampling activity but it is an activity different from the taking of samples, and on that basis the fee could equally be interpreted as being payable by the operator of the laboratory. The Committee accordingly reports the definition of “the relevant person” in regulation 2 for defective drafting. 5 S.I. 2008/2363: reported for failure to accord with proper legislative practice

Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment No.2) Regulations 2008 (S.I. 2008/2363)

5.1 The Committee draws the special attention of both Houses to these Regulations on the ground that the preamble does not accord with proper legislative practice.

5.2 These Regulations are made by the Secretary of State in part under section 2(2) of the European Communities Act 1972 pursuant to a designation made by Order in Council under that section. In a memorandum printed at Appendix 5 the Department for

Communities and Local Government acknowledges that the preamble should have referred to the designation of the Secretary of State in relation to “the environment” (that designation was made by S.I. 2008/301), rather than the designation made by S.I. 2004/3328 in relation to matters relating to the energy performance of buildings. That earlier designation was expressly revoked by S.I. 2008/301. The Committee is satisfied that the efficacy of the preamble is not in doubt as the earlier designation is both wide enough to cover the relevant subject matter of the instrument and narrow enough to be contained within the later designation, but the preamble is not expressed as it should have been. The Committee accordingly reports the preamble for failure to accord with proper legislative practice, acknowledged by the Department.

Instruments not reported

The Committee considered the Instruments set out in the Annex to this Report, none of which were required to be reported to the respective Houses.

Annex

Instruments to which the Committee does not draw the special attention of both Houses

● denotes that the written evidence submitted in connection with the instrument is printed with this Report ○ denotes written evidence has been submitted but not printed

Instruments subject to annulment

S.I. 2008/2767 Social Security (Miscellaneous Amendments) (No. 6) Regulations 2008 S.I. 2008/2771 Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 S.I. 2008/2773 Eccles College and Salford College (Dissolution) Order 2008 S.I. 2008/2775 Protection of Wrecks (Designation) (England) Order 2008 S.I. 2008/2784 South Devon Healthcare NHS Foundation Trust (Transfer of Trust Property) Order 2008 S.I. 2008/2787 Local Authorities (Functions and Responsibilities) (England) (Amendment No. 3) Regulations 2008 S.I. 2008/2790 Immigration and Nationality (Cost Recovery Fees) (Amendment No. 3) Regulations 2008 S.I. 2008/2791 Contracting Out (Administrative and Other Court Staff) (Amendment) Order 2008 S.I. 2008/2794 3400–3800 MHz Frequency Band (Management) Regulations 2008

Instruments not subject to Parliamentary proceedings not laid before Parliament

S.I. 2008/1862 Road Safety Act 2006 (Commencement No. 3) (England and Wales) Order 2008 S.I. 2008/1864 Road Safety Act 2006 (Commencement No. 3) Order 2008 S.I. 2008/1914 European Parliamentary Elections (Returning Officers) Order 2008 S.I. 2008/1918 Road Safety Act 2006 (Commencement No. 4) Order 2008 S.I. 2008/1943 Air Navigation (Dangerous Goods) (Amendment) Regulations 2008 S.I. 2008/2769 NHS Direct National Health Service Trust (Establishment) Amendment Order 2008 S.I. 2008/2772 Welfare Reform Act 2007 (Commencement No. 8) Order 2008 S.I. 2008/2779 Forced Marriage (Civil Protection) Act 2007 (Commencement No.1) Order 2008 S.I. 2008/2785 Police and Justice Act 2006 (Commencement No. 10) Order 2008 S.I. 2008/2788 Mental Health Act 2007 (Commencement No. 9) Order 2008 S.I. 2008/2822 UK Borders Act 2007 (Commencement No. 4) Order 2008

Appendix 1

S.I. 2008/2169: memorandum from Her Majesty’s Revenue and Customs

Tax Credits (Miscellaneous Amendments) (No. 2) Regulations 2008 (S.I. 2008/2169)

The Committee has requested a memorandum on the following points:

1. What factors, if any, apart from discussions within Government, contributed to the failure to observe the 21-day convention?

2. Explain the significance of the words “registered or approved” in new paragraph (2B) of regulation 14 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (inserted by regulation 2(3) of these Regulations and perhaps inadvertently referred to as “subsection 2(B)” in regulation 2(2)(c) of these Regulations).

1. Strictly the answer is “none” but some further background may be helpful, particularly given the fact that the S.I. was laid during the Parliamentary recess. The draft S.I. was agreed with the Department for Children, Schools and Families (“DCSF”) before mid-July, and was then submitted to Treasury Ministers for approval, and SSAC, on 14th July 2008. An accompanying S.I. (2008/2170) also needed to be approved by Parliamentary Counsel. SSAC were to consider the draft at their meeting on 6th August 2008. It had been anticipated when submitting the draft to Ministers that a breach of the 21 day rule might occur, and special permission was sought and obtained to lay the S.I. during recess. DCSF raised late points on the draft (which entailed redrafting the provision referred to in question 2). As a result of this, it was not possible to complete the drafting and make the S.I. before 13th August.

2. The original drafter of the S.I. is on leave, but it appears that the words “”registered or approved” in new paragraph (2B) of regulation 14 are not appropriate. The same wording appears in S.I. 2008/2170, in an amendment to section 318C of the Income Tax (Earnings and Pensions) Act 2003, where the drafting context relates to various categories of registered or approved child care. In S.I. 2008/2169, the reference is to a single category of child care in schools, falling within new regulation 14(2)(a)(iii). Such provision only needs to be registered under Part 3 of the Childcare Act 2006 if children are under the age of 3. “Approval” is not appropriate to that category of childcare. Although the extra words “registered or approved” could be argued not to alter the effect of the provision, their inclusion is regretted and will be omitted by an amending instrument.

HM Revenue and Customs (4th November 2008)

Relevant Extract from the Explanatory Memorandum 3. Matters of special interest to the Joint Committee on Statutory Instruments

These regulations must come into force on 1 September 2008 to coincide with the implementation of Part 3 of the Childcare Act 2006. The late implementation of these regulations is due to lengthy consultation with the Department for Children, Schools and Families (DCSF) policy and legal advisers on a number of issues including the status of childcare provided by local authorities. This means that HMRC has, regrettably on this occasion, breached the 21 day rule.

Appendix 2

S.I. 2008/2260: memorandum from the Department for Communities and Local Government

Town and Country Planning (Trees) (Amendment) (England) Regulations 2008 (S.I. 2008/2260)

1. The Committee has requested a memorandum on the following point—

“In newly inserted regulation 11(1) of the Town and Country Planning (Trees) Regulations 1999 (inserted by regulation 5), what date is intended to be covered by the phrase “the date on which these Regulations come into force”.

2. The intention was that the phrase refer to the date that the Town and Country Planning (Trees) (Amendment) (England) Regulations 2008 came into force, that is, the 1st October 2008. We accept though that as drafted the effect is that the new Part 4 procedures will apply to any appeal made on or after 2nd August 1999 (being the date that the 1999 Regulations came into force) which has not yet been determined.

3. Appeals which were made before 1st October 2008 and which have not yet been determined are being dealt with under the old Part 4 procedures. We will amend the Regulations at the earliest opportunity to clarify that only appeals made on or after the 1st October 2008 will be subject to the new fast track procedure.

Department for Communities and Local Government 4 November 2008

Appendix 3

S.I. 2008/2268: memorandum from the Department For Business, Enterprise and Regulatory Reform

Gas and Electricity Regulated Providers (Redress Scheme) Order 2008 (S.I. 2008/2268)

1. The Joint Committee has requested the Department to submit a memorandum on points 1 and 2 set out below in relation to this Order. The Department’s response is as follows:

“1. Given that consumption of electricity and gas, staff size, turnover and balance sheet total can vary, what dates are to be taken into account in relation to these factors in paragraph (b) of the definition of “relevant consumer” in article 2(1), and why are they not specified further?”

2. Except to the extent that section 469 of the Companies Act 2006 applies, how is the limit of 2 million euros referred to in that definition to be calculated?”

2. The policy objective of this Order is to require certain regulated providers who provide gas or electricity supplies and services to join a qualifying redress scheme. In delivering this objective, it was considered necessary to identify the regulated providers to which the obligation attaches by reference to a class of relevant consumers of such services.

3. The intention was that relevant consumers within the scope of paragraph (b) of the definition should be identified in relation to their annual energy consumption, as determined under the date of their contract with the regulated provider (paragraph (b)(i)) or the basis of their annual accounts and employee numbers at the date of those accounts (paragraph (b) (ii)). It was not considered necessary to specify these dates further because it was assumed that the terms “annual consumption” and “annual turnover or annual balance sheet” would imply that consumption would be determined in accordance with the relevant contract for energy supply and services and the employee numbers, annual turnover or balance sheet would be on the basis of the individual relevant consumer’s latest accounts. It is considered implicit that redress can only be sought in relation to complaints arising within a year in which a consumer is a relevant consumer.

4. It is envisaged that the limit of 2 million euros on annual turnover or annual balance sheet would be determined on the basis set by the relevant consumer within paragraph (b) of the definition in relation to their annual accounts. In the absence of specific provision in the accounts, it is assumed a similar basis would apply as that set out in section 469 of the Companies Act 2006 in respect of such relevant consumers that are not companies: that the annual turnover or annual balance sheet would be translated at the official exchange rate for euros on the date given in the balance sheet for annual accounts as this is the simplest and most obvious basis for application in the case of such small enterprises.

Appendix 4

S.I. 2008/2270: memorandum from the Department for Environment, Food and Rural Affairs

Zoonoses and Animal By-Products (Fees) (England) Regulations 2008 (S.I. 2008/2270)

1. The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point:

Given the reference to official control samples being taken and to the other activities in the definition of “the relevant person” in regulation 2, explain how that definition reflects the apparent policy intention in paragraph 4.1 of the Explanatory Memorandum that the fee in respect of examination of official control samples should be paid by the person in charge of the holding rather than the operator of the laboratory where examination takes place.

2. The Committee’s understanding of the intention in respect of payment of fees by persons in charge of holdings, as set out in the Explanatory Memorandum, is correct. The “relevant person”, as defined in regulation 2, is either the person in charge of the holding or the operator of the laboratory, depending on whether official control samples have been taken. Where official control samples have not been taken, the requirement in regulation 3(1) imposes a payment obligation on operators of laboratories. Official control samples will not have been taken in respect of activities three to six in the Schedule. Official control sampling activities are the first and second activities in the Schedule. Persons in charge of holdings are obliged to pay those fees under regulation 3(1).

3. Paragraph 4.1 of the Explanatory Memorandum did not set out the entire picture with respect to the persons who are required to pay fees; the remainder of section 4 set out the other circumstances in which fees are to be paid, and the persons liable to pay. The Department acknowledges that paragraph 4 could have been structured more clearly.

Department for Environment, Food and Rural Affairs 4 November 2008

Appendix 5

S.I. 2008/2363: memorandum from the Department for Communities and Local Government

Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment No.2) Regulations 2008 (S.I. 2008/2363)

1. The Joint Committee asked for a memorandum on the following point:

Given that the designation of the Secretary of State in relation to matters relating to the energy performance of buildings was revoked by S.I. 2008/301 with effect from 15 March 2008, explain why the preamble refers to that earlier designation rather than the designation in S.I. 2008/301 of the Secretary of State in relation to the environment..

2. The Department accepts that the designation of the Secretary of State in relation to the energy performance of buildings in the European Communities (Designation) (No.7) Order 2004 (S.I. 2004/3328) was revoked, and replaced by the designation of the Secretary of State in relation to the environment, by the European Communities (Designation) Order 2008 (S.I. 2008/301) with effect from 15 March 2008. Accordingly, the preamble should have cited the latter designation, and not the former.

3. This mistake was caused by oversight and the Department accepts that it is very regrettable. The Department is however of the view that it does not affect the efficacy of the preamble. This is because the earlier designation cited is sufficiently wide to cover the subject matter of the instrument, and narrow enough to be contained within the later designation. Nonetheless, the preamble is not expressed as it should have been, and the Department accepts that this is not in accordance with proper legislative practice and apologises for the error.

Department for Communities and Local Government 4 November 2008