Climate Change Bill [HL]

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Climate Change Bill [HL]

Climate Change Bill [HL]
Schedule 2 — Trading schemes
Part 3 — Administration and enforcement
58

limitations as may be specified in or determined in accordance with
the regulations.
Part 3
Administration and enforcement
The administrator
5
21    (1)
The regulations may appoint a person as the administrator of a trading
scheme.
      (2)
The regulations may confer or impose functions on the administrator for the
purposes of the scheme.
      (3)
Only the following may be appointed as the administrator of a trading
10
scheme—
(a)
the Secretary of State,
(b)
the Scottish Ministers,
(c)
the Welsh Ministers,
(d)
the relevant Northern Ireland department,
15
(e)
a body established by an enactment, or
(f)
any combination of the above.
      (4)
The same person may be appointed as the administrator of more than one
trading scheme.
      (5)
More than one person may be appointed as the administrator of the same
20
trading scheme.
Information
22    (1)
The regulations may require such information as may be specified in or
determined in accordance with the regulations to be provided to—
(a)
the administrator of a trading scheme,
25
(b)
a national authority, or
(c)
participants or potential participants in the scheme,

for purposes connected with the scheme.
      (2)
The regulations may confer power on the administrator of a trading scheme
to require information to be provided to any of those persons for those
30
purposes.
      (3)
The regulations must provide for a requirement by the administrator to
provide information to be notified in writing to the person to whom it is
made.
      (4)
If the regulations confer functions on the administrator for the purposes of
35
this paragraph, they may provide for the administrator to delegate the
performance of any of those functions.
      (5)
The regulations may provide for information held by or on behalf of the
administrator of a trading scheme in connection with the administrator’s
functions to be disclosed to—
40
(a)
any other administrator of the scheme,
(b)
the administrator of another trading scheme, or

Climate Change Bill [HL]
Schedule 2 — Trading schemes
Part 3 — Administration and enforcement
59

(c)
a national authority.
Registers
23    (1)
The regulations may provide for the creation and maintenance of a register
or registers of information relating to a trading scheme and, in particular, for
the register or registers to keep track of any of the following—
5
(a)
the participants in a trading scheme;
(b)
any limits on or obligations applying to the participants’ activities
under the scheme;
(c)
any allocation of allowances among the participants;
(d)
the allowances, credits, certificates or other units held by the
10
participants or others;
(e)
trading in allowances, credits, certificates or other units;
(f)
the use by the participants or others of allowances, credits,
certificates or other units for the purposes of the scheme;
(g)
the cancellation of allowances, credits, certificates or other units;
15
(h)
permits held by the participants, and any conditions attached to
those permits.
      (2)
The regulations may, in particular, provide for the establishment and
maintenance of accounts in which allowances, credits, certificates or other
units may be held by the participants, the administrator or others and
20
between which they may be transferred.
      (3)
The regulations may provide for the same register to operate in relation to
more than one trading scheme.
      (4)
The regulations may make provision for the disclosure of information held
in or derived from a register relating to a trading scheme—
25
(a)
for the purposes of the administration of another trading scheme for
which provision is made by regulations under this Part of this Act, or
(b)
for the purposes of the administration of any other trading scheme
(at United Kingdom, European or international level) relating to
greenhouse gas emissions.
30
Publication of information
24
The regulations may confer or impose functions on the administrator of a
trading scheme in relation to the publication of information relating to the
scheme or its participants (including, in particular, information supplied to
the administrator by the participants and others).
35
Acquisition of units by the administrator
25
The regulations may confer powers on the administrator of a trading scheme
to acquire—
(a)
allowances, credits or certificates under another trading scheme for
which provision is made by regulations under this Part of this Act, or
40
(b)
units under any other trading scheme (at United Kingdom,
European or international level) relating to greenhouse gas
emissions.

Climate Change Bill [HL]
Schedule 2 — Trading schemes
Part 3 — Administration and enforcement
60

Charges
26    (1)
The regulations may—
(a)
require the payment by participants of charges of an amount
determined by or under the regulations by reference to the costs of
operating the scheme, and
5
(b)
provide for such charges to be imposed by—
(i)
a national authority,
(ii)
the administrator of the scheme, or
(iii)
such other person as may be specified in or determined in
accordance with the regulations.
10
      (2)
If the regulations provide for charges to be payable to a person other than a
national authority, they must provide for that person to pay the sums
received to the national authority or authorities specified in or determined
in accordance with the regulations.
Monitoring compliance
15
27    (1)
The regulations may make provision for monitoring compliance with the
requirements of a trading scheme.
      (2)
The regulations may, in particular, make provision about—
(a)
the keeping of records by the participants,
(b)
the provision of information by the participants and others,
20
(c)
the audit and verification of that information, and
(d)
the inspection of premises.
      (3)
If the regulations confer functions on the administrator of the scheme for the
purposes of this paragraph, they may provide for the administrator to
delegate the performance of any of those functions.
25
Enforcement
28    (1)
The regulations may confer powers on a person to whom this paragraph
applies to—
(a)
require the production of documents or the provision of information,
(b)
question the officers of a company,
30
(c)
enter premises with a warrant, or
(d)
seize documents or records.
      (2)
The regulations must provide that the power in question may only be
exercised where the person on whom it is conferred reasonably believes
there has been a failure to comply with the requirements of a trading
35
scheme.
      (3)
This paragraph applies to—
(a)
a national authority,
(b)
the administrator of the scheme, and
(c)
such other person as may be specified in or determined in
40
accordance with the regulations.

Climate Change Bill [HL]
Schedule 2 — Trading schemes
Part 3 — Administration and enforcement
61

Penalties
29    (1)
The regulations may provide that a person is liable to a financial or other
penalty if the person fails to comply with the requirements of a trading
scheme.
      (2)
The regulations may—
5
(a)
specify the amount of any financial penalty, or
(b)
provide for the amount of any financial penalty to be determined in
accordance with the regulations.
      (3)
If the regulations provide for financial penalties to be payable to a person
other than a national authority, they must provide for that person to pay the
10
sums received to the national authority or authorities specified in or
determined in accordance with the regulations.
Offences
30    (1)
The regulations may create offences relating to trading schemes.
      (2)
The regulations may provide for such an offence to be triable—
15
(a)
only summarily, or
(b)
either summarily or on indictment.
      (3)
The regulations may provide for such an offence to be punishable on
summary conviction—
(a)
with imprisonment for a term not exceeding such period as is
20
specified in the regulations (which may not exceed the normal
maximum term),
(b)
with a fine not exceeding such amount as is so specified (which may
not exceed £50,000), or
(c)
with both.
25
      (4)
The “normal maximum term” means—
(a)
in relation to England and Wales—
(i)
in the case of an offence triable only summarily, 51 weeks,
and
(ii)
in the case of an offence triable either summarily or on
30
indictment, twelve months;
(b)
in relation to Scotland—
(i)
in the case of an offence triable only summarily, 6 months,
and
(ii)
in the case of an offence triable either summarily or on
35
indictment, twelve months;
(c)
in relation to Northern Ireland, six months.
      (5)
Regulations that—
(a)
are made before the date on which section 281(5) of the Criminal
Justice Act 2003 (c. 44) comes into force, and
40
(b)
in relation to England and Wales, make provision for a summary
offence to be punishable with a term of imprisonment exceeding six
months,

must provide that, where the offence is committed before that date, it is
punishable with imprisonment for a term not exceeding six months.
45

Climate Change Bill [HL]
Schedule 3 — Trading schemes regulations: further provisions
Part 1 — Regulations made by a single national authority
62

      (6)
Regulations that—
(a)
are made before the date on which section 154(1) of the Criminal
Justice Act 2003 (c. 44) comes into force, and
(b)
in relation to England and Wales, make provision for an offence
triable either summarily or on indictment to be punishable on
5
summary conviction with a term of imprisonment exceeding six
months,

must provide that, where the offence is committed before that date, it is
punishable on summary conviction with imprisonment for a term not
exceeding six months.
10
      (7)
The regulations may provide for an offence to be punishable on
indictment—
(a)
with imprisonment for a term not exceeding such period as is
specified in the regulations (which may not exceed five years),
(b)
with a fine, or
15
(c)
with both.
      (8)
The regulations may—
(a)
provide for defences against offences, and
(b)
make provision about matters of procedure and evidence in
proceedings relating to offences.
20
Appeals
31    (1)
The regulations may confer rights of appeal against—
(a)
decisions made in relation to a trading scheme, and
(b)
civil penalties imposed or enforcement action taken for failure to
comply with the requirements of a trading scheme.
25
      (2)
The regulations must specify the court, tribunal or person who is to hear and
determine appeals in relation to a trading scheme.
      (3)
The regulations may, in particular, provide for appeals in relation to a
trading scheme to be heard by—
(a)
a national authority, if not the administrator of the trading scheme,
30
or
(b)
a person appointed by a national authority for that purpose.
      (4)
They may provide for an appeal to be determined by a person other than the
person by whom the appeal was heard.
Schedule 3
35
Section 48

Trading schemes regulations: further provisions
Part 1
Regulations made by a single national authority
1
This Part of this Schedule applies in relation to an instrument containing
regulations under this Part of this Act made by a single national authority.
40

Climate Change Bill [HL]
Schedule 3 — Trading schemes regulations: further provisions
Part 2 — Regulations made by two or more national authorities
63

2     (1)
Where the instrument contains regulations that—
(a)
are to be made by the Secretary of State, and
(b)
are subject to affirmative resolution procedure,

the regulations must not be made unless a draft of the statutory instrument
containing them has been laid before and approved by a resolution of each
5
House of Parliament.
      (2)
Where the instrument contains regulations that—
(a)
are to be made by a national authority other than the Secretary of
State, and
(b)
are subject to affirmative resolution procedure,
10

the regulations must not be made unless a draft of the statutory instrument
containing them has been laid before and approved by a resolution of the
relevant devolved legislature.
3     (1)
An instrument containing regulations made by the Secretary of State that are
subject to negative resolution procedure is subject to annulment in
15
pursuance of a resolution of either House of Parliament.
      (2)
An instrument containing regulations made by the Scottish Ministers that
are subject to negative resolution procedure is subject to annulment in
pursuance of a resolution of the Scottish Parliament.
      (3)
An instrument containing regulations made by the Welsh Ministers that are
20
subject to negative resolution procedure is subject to annulment in
pursuance of a resolution of the National Assembly for Wales.
      (4)
An instrument containing regulations made by a Northern Ireland
department that are subject to negative resolution procedure is subject to
negative resolution within the meaning of section 41(6) of the Interpretation
25
Act (Northern Ireland) 1954 (c. 33 (N.I.)) as if it were a statutory instrument
within the meaning of that Act.
4
Any provision that may be made by regulations subject to negative
resolution procedure may be made by regulations subject to affirmative
resolution procedure.
30
Part 2
Regulations made by two or more national authorities
5
This Part of this Schedule applies in relation to an instrument containing
regulations under this Part of this Act made or to be made by any two or
more of—
35
(a)
the Secretary of State,
(b)
the Welsh Ministers, and
(c)
a Northern Ireland department.
6
If any of the regulations are subject to affirmative resolution procedure, all
of them are subject to that procedure.
40
7
Paragraphs 2 and 3 (affirmative and negative resolution procedure) apply to
the instrument as they apply to an instrument containing regulations made
by a single national authority.
8     (1)
If in accordance with paragraph 3 (negative resolution procedure)—

Climate Change Bill [HL]
Schedule 3 — Trading schemes regulations: further provisions
Part 3 — Power to make provision by Order in Council
64

(a)
either House of Parliament resolves that an address be presented to
Her Majesty praying that an instrument containing regulations made
by the Secretary of State be annulled, or
(b)
a devolved legislature resolves that an instrument containing
regulations made by a national authority be annulled,
5

nothing further is to be done under the instrument after the date of the
resolution and Her Majesty may by Order in Council revoke the instrument.
      (2)
This is without prejudice to the validity of anything previously done under
the instrument or to the making of a new instrument.
      (3)
This paragraph applies in place of provision made by any other enactment
10
about the effect of such a resolution.
Part 3
Power to make provision by Order in Council
9     (1)
Her Majesty may by Order in Council make provision for trading schemes.
      (2)
That power may only be exercised to make an Order in Council—
15
(a)
that extends or applies both to Scotland and to one or more of
England, Wales and Northern Ireland, or
(b)
that extends to Scotland only and contains both provision within the
legislative competence of the Scottish Parliament and provision
outside that competence.
20
      (3)
The provision that may be made by an Order in Council under this
paragraph includes any provision that may be made by a national authority
by regulations under this Part of this Act.
10
No recommendation is to be made to Her Majesty in Council to make an
Order in Council under paragraph 9 unless the requirements of section 47(1)
25
and (2) as to advice and consultation have been complied with.
11    (1)
This paragraph applies to an Order in Council under paragraph 9 containing
any provision that, were it to be made by regulations under this Part of this
Act, would be subject to affirmative resolution procedure.
      (2)
No recommendation is to be made to Her Majesty in Council to make an
30
Order in Council to which this paragraph applies unless—
(a)
in the case of an Order in Council containing provision that may be
made by the Secretary of State by regulations under this Part of this
Act, a draft of the statutory instrument containing the Order in
Council has been laid before, and approved by a resolution of, each
35
House of Parliament, and
(b)
in the case of an Order in Council containing provision that may be
made by a national authority other than the Secretary of State by
regulations under this Part of this Act, a draft of the statutory
instrument containing the Order in Council has been laid before, and
40
approved by a resolution of, the relevant devolved legislature.
12    (1)
This paragraph applies to an Order in Council under paragraph 9 other than
one to which paragraph 11 applies.
      (2)
An Order in Council to which this paragraph applies containing provision
that may be made by the Secretary of State by regulations under this Part of
45