1.In its letter to the Department of 14 November 2018, the Joint Committee requested a memorandum on the following point in relation to the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) (Amendment) (EU Exit) Regulations 2018 (“the Regulations”):
Explain what “body or person” in paragraph 2(2)(b) of each Schedule achieves that would not be achieved by “person” alone
2.Paragraph 2(2)(b) of Schedule 1 to the Regulations substitutes the following definition in regulation 2(1) of the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) Regulations 2003:
“non-Great Britain authority” means—
(a) a member State; or
(b) a body or person in Northern Ireland or in a member State corresponding to a competent authority
3.“Competent authority” is defined in regulation 2(1) to mean “(a) the Authority; and (b) any Minister, government department, public body of any description or person holding a public office”.
4.Whilst the Department acknowledges there is an overlap between “body” and “person” as those terms are used in the definition of “non-Great Britain authority”, “body” is not a complete subset of “person”. There are numerous instances in the statute book of “person” and “body” being used as alternatives. For example, section 81(2)(d) of the Localism Act 2011 provides that “relevant authority” means inter alia “such other person or body carrying on functions of a public nature as the Secretary of State may specify by regulations”. Section 81(3) of that Act makes it clear that a government department may be specified by such regulations; and the Department considers that a government department is a “body” but not a “person”.
5.Further, section 2(1) of the Civil Contingencies Act 2004 imposes obligations on “a person or body listed in Part 1, 2 or 2A of Schedule 1” to that Act. Those Parts include references to organisations (to use a neutral term) such as “authority”, “council”, “board”, “trust” and “service”. It would not have been necessary to include both “person” and “body” in section 2(1) unless at least one organisation referred to in those Parts were a “body” but not a “person”.
6.The use of “person” and “body” as alternatives recognises that there are organisations in the United Kingdom that are “bodies” but not “persons”. Given the many different legal systems of member States of the European Union, continuing to refer to both “person” and “body” in the definition of “non-Great Britain authority” ensures that any organisation in Northern Ireland or in EU member States corresponding to a competent authority in Great Britain now or in the future that is a “body” but not a “person” will remain a “non-Great Britain authority”. Use of “person” alone would mean that such an organisation would not be a “non-Great Britain authority” (unless it could be said to fall within paragraph (a) of the definition). This would not maintain the current position pre-Exit day.
7.The same considerations arise in relation to the use of “body or person” in the definition of “non-Northern Ireland authority” substituted by paragraph 2(2)(b) of Schedule 2 to the Regulations in regulation 2(1) of the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) Regulations (Northern Ireland) 2003.
Department for Business, Energy and Industrial Strategy
20 November 2018
8 The Gas and Electricity Markets Authority: see regulation 2(1).
9 See also the definition of “appropriate person” in section 9(5) of the Human Rights Act 1998.
Published: 30 November 2018