2009 No. 229

Ministers Of The Crown

The Secretary of State for Energy and Climate Change Order 2009

Made11th February 2009

Laid before Parliament12th February 2009

Coming into force5th March 2009

At the Court at Buckingham Palace, the 11th day of February 2009

Present,

The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred by sections 1 and 2 of the Ministers of the Crown Act 19751, is pleased, by and with the advice of Her Privy Council, to order as follows:

Citation and commencement1.

(1)

This Order may be cited as the Secretary of State for Energy and Climate Change Order 2009.

(2)

This Order comes into force on 5th March 2009.

Interpretation2.

(1)

In this Order “instrument” includes, in particular, Royal Charters, Royal Warrants, Orders in Council, Letters Patent, judgments, decrees, orders, rules, regulations, schemes, bye-laws, awards, licences, authorisations, consents, approvals, contracts and other agreements, memoranda and articles of association, certificates, deeds and other documents.

(2)

For the purposes of this Order a function is a “former BERR function” so far as—

(a)

it is transferred by article 4, or

(b)

it was entrusted to the Secretary of State for Business, Enterprise and Regulatory Reform immediately before 3rd October 2008 and has before the making of this Order been entrusted to the Secretary of State for Energy and Climate Change.

(3)

For the purposes of this Order a function is a “former DEFRA function” so far as—

(a)

it is transferred by article 5, or

(b)

it was entrusted to the Secretary of State for Environment, Food and Rural Affairs immediately before 3rd October 2008 and has before the making of this Order been entrusted to the Secretary of State for Energy and Climate Change.

Incorporation of the Secretary of State for Energy and Climate Change3.

(1)

The person who at the coming into force of this Order is the Secretary of State for Energy and Climate Change and any successor to that person is by that name a corporation sole.

(2)

The corporate seal of the Secretary of State for Energy and Climate Change—

(a)

is to be authenticated by the signature of a Secretary of State or a person authorised by a Secretary of State to act in that behalf, and

(b)

is to be officially and judicially noticed.

(3)

Every document purporting to be an instrument made or issued by the Secretary of State for Energy and Climate Change and to be—

(a)

sealed with the corporate seal of that Secretary of State authenticated in the manner provided for by paragraph (2), or

(b)

signed or executed by a person authorised by a Secretary of State to act in that behalf,

is to be received in evidence and to be deemed to be so made or issued without further proof, unless the contrary is shown.

(4)

A certificate signed by the Secretary of State for Energy and Climate Change that an instrument purporting to be made or issued by—

(a)

the Secretary of State for Energy and Climate Change,

(b)

the Secretary of State for Environment, Food and Rural Affairs, or

(c)

the Secretary of State for Business, Enterprise and Regulatory Reform,

was so made or issued is conclusive evidence of that fact.

(5)

The Documentary Evidence Act 18682 applies in relation to the Secretary of State for Energy and Climate Change—

(a)

as if references to regulations and orders included references to any document, and

(b)

as if the officers mentioned in column 2 of the Schedule included any officer authorised to act on behalf of the Secretary of State.

Transfer of functions from the Secretary of State for Business, Enterprise and Regulatory Reform4.

The functions of the Secretary of State for Business, Enterprise and Regulatory Reform under or by virtue of the provisions mentioned in Schedule 1 are transferred to the Secretary of State for Energy and Climate Change.

Transfer of functions from the Secretary of State for Environment, Food and Rural Affairs5.

The following functions of the Secretary of State for Environment, Food and Rural Affairs are transferred to the Secretary of State for Energy and Climate Change—

(a)

functions by virtue of the definition of “the competent authority” in regulation 2(1) of the Guarantees of Origin of Electricity Produced from High-efficiency Cogeneration Regulations 20073, and

(b)

functions by virtue of regulation 3(2) of those Regulations.

Transfer of property, rights and liabilities6.

(1)

There are transferred to the Secretary of State for Energy and Climate Change all property, rights and liabilities to which the Secretary of State for Business, Enterprise and Regulatory Reform is entitled or subject at the coming into force of this Order in connection with any former BERR function.

(2)

There are transferred to the Secretary of State for Energy and Climate Change all property, rights and liabilities to which the Secretary of State for Environment, Food and Rural Affairs is entitled or subject at the coming into force of this Order in connection with any former DEFRA function.

Other supplemental provision7.

(1)

In this article “transferor” means—

(a)

in relation to a former BERR function or anything transferred by article 6(1), the Secretary of State for Business, Enterprise and Regulatory Reform,

(b)

in relation to a former DEFRA function or anything transferred by article 6(2), the Secretary of State for Environment, Food and Rural Affairs.

(2)

Anything (including legal proceedings) which, at the coming into force of this Order, is in the process of being done by or in relation to the transferor may, so far as it relates to a former BERR function, a former DEFRA function or anything transferred by article 6, be continued by or in relation to the Secretary of State for Energy and Climate Change.

(3)

Anything done (or having effect as if done) by or in relation to the transferor in connection with a former BERR function, a former DEFRA function or anything transferred by article 6 has effect, so far as necessary for continuing its effect after the coming into force of this Order, as if done by or in relation to the Secretary of State for Energy and Climate Change.

(4)

Documents or forms printed for use in connection with a former BERR function or a former DEFRA function may be used in connection with that function even though they contain, or are to be read as containing, references to the transferor; and for the purposes of the use of any such documents or forms after the coming into force of this Order, those references are to be read as references to the Secretary of State for Energy and Climate Change.

(5)

Any enactment or instrument passed or made before the coming into force of this Order has effect, so far as is necessary for the purposes of or in consequence of—

(a)

the transfer or entrusting to the Secretary of State for Energy and Climate Change of any former BERR function or former DEFRA function, or

(b)

the transfer of anything by article 6,

as if references to (and references which are to be read as references to) the transferor were or included references to the Secretary of State for Energy and Climate Change.

(6)

In paragraphs (2) to (5) references to the transferor include references to the department or an officer of the transferor; and references to the Secretary of State for Energy and Climate Change are to be read accordingly.

Supplemental: validity of things done before coming into force of Order8.

(1)

This Order does not affect the validity of anything done (or having effect as if done) by or in relation to the Secretary of State for Business, Enterprise and Regulatory Reform or the Secretary of State for Environment, Food and Rural Affairs before the coming into force of this Order.

(2)

In paragraph (1) a reference to a Secretary of State includes a reference to the department or an officer of that Secretary of State.

Consequential amendments9.

The primary and secondary legislation referred to in the headings in Parts 1 and 2 of Schedule 2 is amended as set out under the headings.

Judith Simpson

Clerk of the Privy Council

SCHEDULES

SCHEDULE 1PROVISIONS REFERRED TO IN ARTICLE 4

Article 4

The provisions referred to in article 4 are—

(a)

Opencast Coal Act 1958, in sections 51(1) and 52(2), paragraph (b) of the definition of “appropriate Minister”4,

(b)

New Towns Act 1981, section 78(1)(b)5,

(c)

Electricity Act 1989, paragraph 3(1) of Schedule 166,

(d)

Town and Country Planning Act 1990, section 265(1)(b) and (2)7,

(e)

Gas Act 1995, paragraph 2(10) of Schedule 48,

(f)

Channel Tunnel Rail Link Act 1996, section 50(5)(b)9,

(g)

paragraph 1310 of Schedule 14 to that Act,

(h)

paragraph 2(4)11 of Part 2 of Schedule 15 to that Act,

(i)

Crossrail Act 200812, section 4(5)(b),

(j)

paragraph 12 of Schedule 4 to that Act,

(k)

paragraphs 2(4) and 13(3) of Part 2 of Schedule 17 to that Act,

(l)

Public Bodies’ Land (Appropriate Ministers) Order 1981, article 2, in the Table, column 2 of the entry relating to the Coal Authority13,

(m)

Oil Taxation (Gas Banking Schemes) Regulations 1982, regulation 5(5)(a)14,

(n)

British Coal Staff Superannuation Scheme (Modification) Regulations 199415,

(o)

Mineworkers’ Pension Scheme (Modification) Regulations 199416,

(p)

Town and Country Planning (General Development Procedure) Order 1995, article 16(1)(b)17,

(q)

Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 1998, regulation 4(7)18,

(r)

Nuclear Industries Security Regulations 2003, regulations 23(3)(a) and 24(3)(a)19.

SCHEDULE 2CONSEQUENTIAL AMENDMENTS

Article 9

PART 1PRIMARY LEGISLATION

Transport and Works Act 1992 (c. 42)

1.

In section 23(10)20, in both places where it appears, for “the Department for Business, Enterprise and Regulatory Reform” substitute “the Department of Energy and Climate Change”.

Channel Tunnel Rail Link Act 1996 (c. 61)

2.

In the following provisions for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”—

(a)

section 50(5)(b)21,

(b)

paragraph 1322 of Schedule 14, and

(c)

paragraph 2(4)23 of Part 2 of Schedule 15.

Regulation of Investigatory Powers Act 2000 (c. 23)

3.

In Schedule 124, before the entry for the Department for Environment, Food and Rural Affairs insert—

“The Department of Energy and Climate Change.”

Natural Environment and Rural Communities Act 2006 (c. 16)

4. (1)

In sections 78(1), 79(1), 80(3), 82(a) and (b) and 98(1), in each place after “DEFRA” insert “or DECC”.

(2)

For section 86(2) substitute—

“(2)
In this Chapter “DEFRA or DECC function” means—
(a)
a function which at the material time falls to be performed by or through the Department for Environment, Food and Rural Affairs, or
(b)
a former DEFRA function which at the material time falls to be performed by or through the Department of Energy and Climate Change.
(2A)
In subsection (2) “former DEFRA function” has the meaning given by article 2(3) of the Secretary of State for Energy and Climate Change Order 2009.”

(3)

For section 98(5) substitute—

“(5)
“DEFRA or DECC function” means—
(a)
a function which falls to be performed by or through the Department for Environment, Food and Rural Affairs, or
(b)
a former DEFRA function which falls to be performed by or through the Department of Energy and Climate Change.
(5A)
In subsection (5) “former DEFRA function” has the meaning given by article 2(3) of the Secretary of State for Energy and Climate Change Order 2009.”

Corporate Manslaughter and Corporate Homicide Act 2007 (c. 19)

5.

In Schedule 125 in the appropriate place insert “Department of Energy and Climate Change”.

Crossrail Act 2008 (c. 18)

6.

In the following provisions for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”—

(a)

section 4(5)(b),

(b)

paragraph 12 of Schedule 4, and

(c)

paragraphs 2(4) and 13(3) of Part 2 of Schedule 17.

PART 2SECONDARY LEGISLATION

Petroleum (Production) (Seaward Areas) Regulations 1988 (S.I. 1988/1213)

7. (1)

In regulation 5(1)26 for “Licensing Branch, Oil and Gas Division, Department of Trade and Industry” substitute “Oil and Gas Licensing Administration, Energy Development Unit, Department of Energy and Climate Change”.

(2)

In regulation 7(2)27 for “Department of Trade and Industry” substitute “Department of Energy and Climate Change”.

(3)

In Schedule 328—

(a)

in Part 5, for “Department of Trade and Industry” substitute “Department of Energy and Climate Change”, and

(b)

in Part 6, for the words from “To Oil and Gas Directorate” to “SW1H 0ET” substitute—

“To Oil and Gas Licensing Administration
Energy Development Unit
Department of Energy and Climate Change
London SW1”.

Gas Transit (EEC Requirements) Regulations 1992 (S.I. 1992/1190)

8.

In regulation 4(a), (c) and (d)29 for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”.

Petroleum (Production) (Landward Areas) Regulations 1995 (S.I. 1995/1436)

9. (1)

In regulation 5(1)(a)30 for “Oil and Gas Division, Department of Trade and Industry” substitute “Energy Development Unit, Department of Energy and Climate Change”.

(2)

In regulation 7(2)31 for “Department of Trade and Industry” substitute “Department of Energy and Climate Change”.

(3)

In the definition of “the Minister” in clause 1(1) of the model clauses in each of Schedules 4 and 532 for “the Secretary of State for Trade and Industry” substitute “the Secretary of State for Energy and Climate Change”.

Chemical Weapons (Notification) Regulations 1996 (S.I. 1996/2503)

10.

In regulation 3(3)33 for the words from “Department for” to the end substitute “Department of Energy and Climate Change, NCLU, 3 Whitehall Place, London, SW1A 2HH, or sent by means of an electronic communications network to cwcna@decc.gsi.gov.uk”.

Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 1998 (S.I. 1998/1056)

11.

In regulation 4(7)34 for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”.

Nuclear Industries Security Regulations 2003 (S.I. 2003/403)

12.

In regulations 23(3)(a) and 24(3)(a)35 for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”.

Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003 (S.I. 2003/3171)

13. (1)

Part 1 of the Schedule36 is amended as follows.

(2)

After the entry for the Ministry of Defence insert—

“Department of Energy and Climate Change
Section 28 authorisation
Range 10 Officer in Coal Liabilities Unit
Section 28 authorisation
Range 9 Officer in Coal Liabilities Unit
(b)”

(3)

In the entry for the Department of Trade and Industry37, omit the entry (in columns (2), (3) and (4)) relating to officers in the Coal Health Claims Unit.

Petroleum Licensing (Exploration and Production) (Seaward and Landward Areas) Regulations 2004 (S.I. 2004/352)

14. (1)

In clause 1(1) of the model clauses in Schedule 138, in the definition of “the Minister”, for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”.

(2)

In clause 1(1) of the model clauses in Schedule 639—

(a)

in the definition of “Block”, for “the Department for Business, Enterprise and Regulatory Reform” substitute “the Department of Energy and Climate Change”, and

(b)

in the definition of “the Minister”, for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”.

Electricity (Fuel Mix Disclosure) Regulations 2005 (S.I. 2005/391)

15.

In paragraph 140 of the condition set out in the Schedule, in the definition of “fuel mix disclosure data table” for “the Department for Business, Enterprise and Regulatory Reform” substitute “the Department of Energy and Climate Change”.

Damages (Government and Health Service Bodies) Order 2005 (S.I. 2005/474)

16.

In Part 1 of the Schedule41 at the end insert “Department of Energy and Climate Change”.

Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (S.I. 2005/2966)

17.

In Schedule 242 at the appropriate place insert “The Secretary of State for Energy and Climate Change”.

Offshore Installations (Safety Case) Regulations 2005 (S.I. 2005/3117)

18. (1)

In regulation 2(1)43, in the definition of “field development programme”—

(a)

for “the Department for Business, Enterprise and Regulatory Reform” substitute “the Department of Energy and Climate Change”, and

(b)

for “the Department for Business, Enterprise and Regulatory Reform’s” substitute “the Department of Energy and Climate Change’s”.

(2)

In regulation 6(1) and (2)44 for “the Department for Business, Enterprise and Regulatory Reform” substitute “the Department of Energy and Climate Change”.

Guarantees of Origin of Electricity Produced from High-efficiency Cogeneration Regulations 2007 (S.I. 2007/292)

19. (1)

In regulation 2(1) in the definition of “the competent authority” for “Secretary of State for Environment, Food and Rural Affairs” substitute “Secretary of State for Energy and Climate Change”.

(2)

In regulation 3(2) for “Secretary of State for Environment, Food and Rural Affairs” substitute “Secretary of State for Energy and Climate Change”.

Petroleum Licensing (Production) (Seaward Areas) Regulations 2008 (S.I. 2008/225)

20.

In clause 1(1) of the model clauses in the Schedule—

(a)

in the definition of “Block”, for “the Department for Business, Enterprise and Regulatory Reform” substitute “the Department of Energy and Climate Change”, and

(b)

in the definition of “the Minister”, for “the Secretary of State for Business, Enterprise and Regulatory Reform” substitute “the Secretary of State for Energy and Climate Change”.

EXPLANATORY NOTE

(This note is not part of the Order)

This Order in Council is made under sections 1 and 2 of the Ministers of the Crown Act 1975. It makes provision in connection with the establishment of the Department of Energy and Climate Change.

The responsibilities entrusted to the Secretary of State for Energy and Climate Change were described in the Cabinet Office paper “Machinery of Government: economy, business, climate change, energy and environment”, which was placed in the Libraries of both Houses of Parliament and was referred to in the Prime Minister’s written statement to Parliament dated 13th October 2008: see Hansard (House of Commons) 13th October 2008 at column 32WS, available at www.parliament.uk. Further details of these changes were given in the supplementary Cabinet Office paper which was placed in the Libraries of both Houses of Parliament on 10th February 2009, and referred to in the Prime Minister’s written statement to Parliament of the same date: see Hansard (House of Commons) 10th February 2009 at column 58WS, also available at www.parliament.uk.

Article 3 provides for the incorporation of the Secretary of State for Energy and Climate Change as a corporation sole, and for the authentication of the corporate seal and the execution and certification of documents.

Article 4 and Schedule 1 transfer certain functions of the Secretary of State for Business, Enterprise and Regulatory Reform to the Secretary of State for Energy and Climate Change.

Article 5 transfers certain functions of the Secretary of State for Environment, Food and Rural Affairs to the Secretary of State for Energy and Climate Change.

Article 6 makes provision for the transfer of property, rights and liabilities consequential on transfers effected by the Order and the entrusting of functions to the Secretary of State for Energy and Climate Change, and articles 7 and 8 make other supplemental provision.

Article 9 and Schedule 2 make consequential amendments to Acts of Parliament and subordinate legislation.

Nothing in this Order alters the functions of the Welsh Ministers, the Scottish Ministers or the devolved authorities in Northern Ireland.

A full impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.