Gas (Applications for Licences and Extensions and Restrictions of Licences) Regulations 2007 (S.I. 2007/1971)

2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two respects.

2.2 Regulation 3(3)(a) of this instrument provides that, unless the context otherwise requires, any reference to a numbered regulation or Schedule is a reference to the regulation or Schedule bearing that number in these Regulations.

2.3 In a memorandum printed at Appendix 2, the Office of the Gas and Electricity Markets Authority ("Ofgem") acknowledges that there is no reference to a numbered regulation in the text of the instrument and that the inclusion of "any reference to a numbered regulation" is superfluous, and undertakes to amend regulation 3(3)(a) at the next opportunity. It points out that there is a reference in a footnote to the instrument to Schedule 6 of the Utilities Act 2000, but the Committee notes that there is no reference to a numbered Schedule in the text of the instrument. Regulation 3(3)(a) as a whole is therefore otiose and ought not to have been included, and the Committee accordingly reports regulation 3(3)(a) for defective drafting, acknowledged in part by Ofgem.

2.4 The Committee would also observe that both sub-paragraphs (a) and (b) (which provides that, unless the context otherwise requires, any reference to a numbered paragraph is a reference to the paragraph bearing that number in the regulation in which the reference appears) of regulation 3(3) merely restate what is a generally accepted principle of statutory interpretation. Although such provisions used to be common, it is now proper drafting practice to avoid them except where otherwise ambiguity would be manifest. Thus, even if there had been a reference to a numbered regulation or Schedule in this instrument, it would not have been necessary to include regulation 3(3).

2.5 Schedule 1 prescribes the form of an application for a licence, an application for an extension of a licence, or an application for a restriction of a licence under the Gas Act 1986. Schedule 2 contains instructions to an applicant to provide certain information and documents. In both Schedules various footnotes appear. Some of these are substantive notes directed to the applicant (for example, explaining the meaning of expressions used, or stating the circumstances in which an application may not be made) and others are the usual referential footnotes (citing year and chapter number of an Act referred to) of the kind used in statutory instruments to assist the reader of the instrument.

2.6 The substantive notes should be included in the text of the Schedules, as they are either instructions to the applicant or guidance to him. It is unhelpful to an applicant for these to be treated as mere footnotes as if they have no legislative effect. Ofgem accepts that the presentation of the footnotes does not make the necessary distinction and undertakes to correct this when the instrument is next amended. The Committee accordingly reports Schedules 1 and 2 for defective drafting, acknowledged by Ofgem.