Commentary on Sections Authorities and regulations Section 48: Procedure for making regulations
226.This section sets out the procedure which must be followed when regulations under Part 3 containing a trading scheme are made or amended. It includes a requirement to consult persons likely to be affected by the scheme, a requirement to seek advice from the Committee on Climate Change and rules on parliamentary procedure.
227.Subsection (1) provides that before making regulations about trading schemes, the relevant national authority must consult such persons as it considers are likely to be affected by the regulations, and also that it must seek, and take account of, advice from the Committee on Climate Change. In the case of schemes limiting activities, the authority must in particular obtain the Committee’s advice on the appropriate level of the limit (subsection (2)).
228.Subsection (3) sets out the circumstances in which the affirmative resolution procedure applies to the making of regulations (such as where a new scheme is established, the application of an existing scheme is extended, the burden on participants is increased, where enforcement powers are strengthened or where the regulations amend primary legislation). Subsection (4) requires that the affirmative resolution procedure also applies to the first set of regulations which contain provisions relating to appeals.
229.Subsection (5) provides that the negative resolution procedure applies at all other times.
230.Subsection (6) makes special provision in relation to “reserved matters” in Northern Ireland. The relevant Northern Ireland department is allowed to make provision in a trading scheme dealing with a reserved matter under the Northern Ireland Act 1998 (c.47) only if it has obtained the Secretary of State’s consent.