1 S.I.
2012/3118: Reported for defective drafting and for requiring elucidation
Energy Performance of Buildings (England and
Wales) Regulations 2012 (S.I. 2012/3118)
1.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they are
defectively drafted in two respects and require elucidation in
a third.
1.2 The Regulations consolidate previous provisions
about the energy performance of buildings with amendments to give
effect to new requirements of European law.
1.3 Paragraph (1) of regulation 19 requires an
energy assessor who inspects an air-conditioning system to provide
a report of the inspection and give it to the client. Paragraphs
(2) and (3) of that regulation provide that the report is to include
a specified assessment, specified advice and specified information.
Regulation 23 requires an energy assessor to include in an energy
performance certificate or inspection report a declaration about
any personal or business relationship the inspector may have with
certain specified persons. The Regulations do not include any
sanction for a failure to comply with either regulation 19 or
regulation 23. An energy assessor is required by paragraph (1)
of regulation 22 to be a member of an accreditation scheme approved
by the Secretary of State. The Committee wondered whether compliance
with regulations 19 and 23 might be intended to be a matter for
accreditation schemes but noted that paragraph (3) of regulation
22, which specifies various matters about which the Secretary
of State must be satisfied before approving an accreditation scheme,
does not mention a requirement that adequate provision is made
by the scheme for ensuring that members comply with regulations
19 and 23. The Committee accordingly asked the Department for
Communities and Local Government to explain the intended sanction
for failure to comply with regulations 19 and 23 and how that
intention was given effect; and to explain the absence from regulation
22(3) of any provision for ensuring that members comply with those
regulations.
1.4 In a memorandum printed at Appendix
1 the Department states that the reason why there is no need to
provide a sanction for the duty imposed by regulation 19(1) is
that its enforcement is a contractual matter between the energy
assessor and the client. The Department indicates that the propositions
in regulation 19(2) and (3) are matters for the accreditation
scheme of which the energy assessor is a member. It also states
that ensuring compliance with the disclosure requirements in regulation
23 is similarly a matter for accreditation schemes, and refers
the Committee to two sets of requirements for accreditation (referred
to in but not printed with the memorandum). The two sets of requirements
respectively contain 87 and 91 pages and the memorandum provides
no indication as to where (if at all) they cover obligations imposed
by the Regulations.
1.5 The Committee considers that, if
the intention is that enforcing the making and giving of a report
under regulation 19(1) should be a matter of contract between
an energy assessor and client, there appears to be no reason why
regulation 19(1) was included in the Regulations at all. The Committee
notes that the intended method of securing compliance with regulations
19(2) and (3) and 23 is through accreditation schemes, but would
have expected regulation 22(3) to have contained some indication
of that: otherwise the source of the sanctions for failure to
comply with those obligations is simply uncertain. While it accepts
that the Secretary of State, in considering the exercise of the
power to approve accreditation schemes under regulation 22(1),
is not necessarily limited to considering the factors in regulation
22(3), it is disappointed by the absence of specificity in the
Department's response in indicating exactly how (if at all) obligations
imposed by the Regulations are covered in the current sets of
requirements for accreditation. In addition the Committee notes
that the published requirements for accreditation, in so far as
based on discretion, cannot under normal judicial review principles
be absolute. The Committee accordingly
reports regulation 19(1) for defective drafting and the combination
of regulations 19(2) and (3), 22 and 23 for requiring elucidation
incompletely provided in the Department's memorandum.
1.6 Regulation 25 provides that a person may,
for the purpose of complying with a duty imposed by the Regulations,
copy or issue a copy of any document produced by an energy assessor.
The Committee asked the Department to identify the prohibition
or restriction to which regulation 25 is an exception and how
that was made clear. In its memorandum the Department states that
there is a prohibition on disclosure in regulation 30 to which
regulation 25 is relevant. It appears to the Committee that regulation
30 provides an exception to the prohibition on disclosure contained
in regulation 29 (which specifies that regulations 30 to 32 contain
exceptions to that prohibition) and is not itself a prohibition.
Regulation 30 does, however, include conditions that must be satisfied
before it grants exemption from the regulation 29 prohibition.
One of these is that the owner or occupier of the building to
which the data relates must not have opted out of the exception
in question. The Department's memorandum indicates that regulation
25 allows for disclosure even where there has been such an opt-out.
1.7 The Committee finds it difficult to see how
regulation 25, which is referred to in neither regulation 29 nor
regulation 30, is intended to provide simply a gloss on regulation
30. In addition, while regulations 29 and 30 refer to disclosure
by a person keeping a register on the Secretary of State's behalf,
regulation 25 refers in general terms to "any person".
If regulation 25 is intended to have the meaning which the Department
says it has, it should have been both narrowed and expressly linked
to regulation 30 so as to match its purpose exactly. The Committee
accordingly reports Regulation 25 for defective drafting.
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