Enterprise Bill (HC Bill 112)

(4) The Secretary of State must—

(a) maintain, or cause to be maintained, a register of nominations
under section 23A(1), and

(b) make the register available for inspection free of charge.

23C 5“Co-ordinator” of a regulated group

(1) For the purposes of this Part, there is a “co-ordinator” of a regulated
group if there is a person nominated by the Secretary of State to be the
co-ordinator of the group.

(2) The Secretary of State may only nominate a person under subsection (1)
10if the person has agreed in writing to the nomination.

(3) The Secretary of State may at any time revoke a nomination under
subsection (1).

(4) If at any time the co-ordinator of a regulated group is unable to act, the
Secretary of State may nominate another person to exercise the
15functions of the co-ordinator of the group under this Part.

(5) Subsections (2) and (3) apply to a nomination under subsection (4) as
they apply to a nomination under subsection (1).

(6) The Secretary of State must secure that the register of nominations
maintained and made available under section 23B(4) includes, in
20relation to each co-ordinated primary authority, the name of—

(a) the co-ordinator of the regulated group concerned, and

(b) any person nominated under subsection (4) to exercise the co-
ordinator’s functions.

23D Membership of a regulated group

(1) 25This section applies where a qualifying regulator is nominated as a co-
ordinated primary authority.

(2) The co-ordinator of the regulated group concerned must—

(a) maintain, or cause to be maintained, a list of members of the
group, and

(b) 30secure, as far as is reasonably practicable, that the list is accurate
and kept up-to-date.

(3) The list must include in relation to each member—

(a) the member’s name and address,

(b) when the person became a member, and

(c) 35if applicable, when the person ceased to be a member.

(4) The co-ordinator of the regulated group must make a copy of the list
available free of charge, on request, to—

(a) the Secretary of State,

(b) the primary authority, and

(c) 40a qualifying regulator who has a function which is both a
relevant function of the regulator and a partnership function.

(5) The copy must be made available as soon as is reasonably practicable
and in any event not later than the end of the third working day after
the day on which the request is received by the co-ordinator.

(6) For the purposes of this Part, the list is conclusive as to whether a
person is a member of the group at a particular time.

23E Application of sections 24A to 28B

(1) The following provisions apply in each case where a qualifying
5regulator has been nominated under section 23A(1) as a primary
authority—

(a) section 24A (primary authority advice and guidance);

(b) sections 25A to 25D and Schedule 4A (enforcement action);

(c) sections 26A to 26C (inspection plans);

(d) 10section 27A (power for primary authority to recover costs);

(e) section 28A (support of primary authority by other regulators);

(f) section 28B (other regulators to act consistently with primary
authority advice etc).

(2) References in those provisions to “the primary authority”, “a
15partnership function” and other terms defined in or for the purposes of
this Part are to be read accordingly.

(3) But see sections 29A to 29D in relation to cases where more than one
qualifying regulator has been nominated as the primary authority for
the exercise of the same function in relation to the same person.

20Advice and guidance

24A Primary authority advice and guidance

(1) The primary authority, if it is a direct primary authority, has the
function of—

(a) giving advice and guidance to the regulated person in relation
25to each partnership function;

(b) giving advice and guidance, in relation to each partnership
function, to other qualifying regulators as to how they should
exercise it in relation to the regulated person.

(2) The primary authority, if it is a co-ordinated primary authority, has the
30function of—

(a) giving advice and guidance to the co-ordinator of the regulated
group in relation to each partnership function;

(b) giving advice and guidance, in relation to each partnership
function, to other qualifying regulators as to how they should
35exercise it in relation to a member of the group.

(3) The primary authority may make arrangements with the regulated
person or the co-ordinator of the regulated group as to how the
authority will discharge its functions under subsection (1) or (2).

(4) In the case of a co-ordinated primary authority, the co-ordinator of the
40regulated group must notify any advice or guidance given to the co-
ordinator under subsection (2)(a) to those members of the group to
whom the co-ordinator considers it may be relevant.

(5) Advice or guidance may be given under subsection (1)(b) or (2)(b) only
with the consent of the Secretary of State.

(6) Subsections (1)(b) and (2)(b) do not require advice and guidance to be
given to a qualifying regulator in relation to a partnership function if it
is not a relevant function of that regulator.

Enforcement action

25A 5“Enforcement action”

(1) In this Part, “enforcement action” means—

(a) action which relates to securing compliance with a restriction,
requirement or condition in the event of breach (or putative
breach) of a restriction, requirement or condition;

(b) 10action taken with a view to, or in connection with, the
imposition of a sanction (criminal or otherwise) in respect of an
act or omission;

(c) action taken in connection with the pursuit of a remedy
conferred by an enactment in respect of an act or omission.

(2) 15But the Secretary of State may by regulations, with the consent of the
Welsh Ministers, specify—

(a) action which is to be regarded as enforcement action for the
purposes of this Part or any provision of this Part specified in
the regulations;

(b) 20action which is not to be regarded as enforcement action for the
purposes of this Part or any provision of this Part specified in
the regulations.

(3) Regulations under subsection (2) may make different provision for
different purposes.

25B 25Enforcement action by primary authority

(1) This section applies if—

(a) the primary authority proposes to take enforcement action
against the regulated person or a member of the regulated
group pursuant to a relevant function of the primary authority
30which is a partnership function, and

(b) in the case of proposed enforcement action against a member of
the regulated group, the primary authority is aware that the
member belongs to the group.

But see section 25D (which imposes a duty to prescribe circumstances
35in which this section does not apply).

(2) The primary authority—

(a) must notify the regulated person or the member in writing
before taking the proposed enforcement action, and

(b) may not take the action during the referral period mentioned in
40paragraph 5(2) of Schedule 4A (period in which the regulated
person or the member may refer the action to the Secretary of
State) unless notified in writing by the regulated person or the
member that no such reference is to be made.

(3) Parts 1 and 3 of Schedule 4A contain provision for questions arising
45under this section to be referred to the Secretary of State.

(4) Where another enactment limits the period within which the primary
authority may take the proposed enforcement action, any time during
which it is prohibited under this section or paragraph 5(7) of Schedule
4A from taking the action is to be disregarded in calculating that
5period.

25C Enforcement action other than by primary authority

(1) This section applies if—

(a) a qualifying regulator other than the primary authority
proposes to take enforcement action against the regulated
10person or a member of the regulated group pursuant to a
relevant function of the regulator which is a partnership
function, and

(b) in the case of proposed enforcement action against a member of
the regulated group, the regulator is aware that the member
15belongs to the group.

But see section 25D (which imposes a duty to prescribe circumstances
in which this section does not apply).

(2) The qualifying regulator (the “enforcing authority”)—

(a) must notify the primary authority in writing before taking the
20proposed enforcement action, and

(b) may not take the action during the relevant period.

(3) If—

(a) the enforcing authority fails to notify the primary authority
under subsection (2)(a) of the proposed enforcement action, but

(b) 25the primary authority is notified of it by the regulated person or
the member or the co-ordinator of the regulated group,

the primary authority must notify the enforcing authority in writing
that the enforcing authority is prohibited by subsection (2)(b) from
taking the action during the relevant period.

(4) 30If the primary authority determines, within the relevant period, that the
proposed enforcement action is inconsistent with advice or guidance
previously given by it (generally or specifically), it may direct the
enforcing authority in writing not to take the action.

(5) Any such direction must be given as soon as is reasonably practicable,
35and in any event within the relevant period.

(6) If the enforcing authority is not directed under subsection (4) not to
take the proposed enforcement action, and continues to propose to take
the action—

(a) it must inform the regulated person or the member, and

(b) 40it may not take the action during the referral period mentioned
in paragraph 5(4) of Schedule 4A (period in which the regulated
person or the member may refer the action to the Secretary of
State) unless notified in writing by the regulated person or the
member that no such reference is to be made.

(7) 45Parts 2 and 3 of Schedule 4A contain provision for questions arising
under this section to be referred to the Secretary of State.

(8) Where another enactment limits the period within which the enforcing
authority may take the proposed enforcement action, any time during
which it is prohibited under this section or paragraph 5(7) of Schedule
4A from taking the action is to be disregarded in calculating the period.

(9) 5For the purposes of this section, the “relevant period” means the period
which—

(a) begins when the primary authority is notified under subsection
(2)(a) of the proposed enforcement action or the enforcing
authority is notified under subsection (3) that it is prohibited
10from taking the action during the relevant period, and

(b) ends—

(i) at the end of the fifth working day after the day on
which the period begins, or at such later time as the
Secretary of State may direct, or

(ii) 15if earlier, when the enforcing authority is notified in
writing by the primary authority that no direction is to
be given under subsection (4) (unless the notification
states that the primary authority has referred the action
to the Secretary of State under paragraph 4(1) of
20Schedule 4A or that it intends to do so).

25D Enforcement action: exceptions

(1) The Secretary of State must by regulations, with the consent of the
Welsh Ministers, prescribe—

(a) circumstances in which section 25B, and Schedule 4A so far as
25relating to cases within section 25B, do not apply, and

(b) circumstances in which section 25C, and Schedule 4A so far as
relating to cases within section 25C, do not apply.

(2) In particular, the Secretary of State must exercise the power under
subsection (1) to secure that those provisions do not apply—

(a) 30where the enforcement action is required urgently to avoid a
significant risk of serious harm to—

(i) human health,

(ii) the environment (including the health of animals or
plants), or

(iii) 35the financial interests of consumers;

(b) where the application of those provisions would be wholly
disproportionate.

(3) Where a qualifying regulator other than the primary authority takes
enforcement action against the regulated person or a member of the
40regulated group in circumstances prescribed under subsection (1)(b),
the qualifying regulator must inform the primary authority of the
action as soon as it reasonably can.

Inspection plans

26A Inspection plans

(1) 45Where a partnership function consists of or includes a function of
inspection (an “inspection function”), the primary authority may make
an inspection plan in accordance with this section.

(2) An “inspection plan” is a plan containing recommendations as to how
the inspection function should be exercised by an inspecting regulator
in relation to the regulated person or a member of the regulated group.

(3) A person is an “inspecting regulator” if—

(a) 5the person is a qualifying regulator, and

(b) the inspection function is a relevant function of the person.

(4) An inspection plan may, in particular—

(a) set out what an inspection should consist of;

(b) set out the frequency with which inspections should be carried
10out;

(c) set out the circumstances in which they should be carried out;

(d) require the inspecting regulator to provide the primary
authority with a report on the inspecting regulator’s exercise of
the inspection function.

(5) 15Before making an inspection plan the primary authority must consult
the regulated person or the co-ordinator of the regulated group.

(6) When making an inspection plan the primary authority must take into
account any relevant recommendations relating to inspections which
are published pursuant to a regulatory function by a person other than
20an inspecting regulator.

(7) When it has made an inspection plan, the primary authority may apply
to the Secretary of State for consent to the plan.

(8) If the Secretary of State consents to a plan under subsection (7), the
primary authority must notify the plan to—

(a) 25the regulated person or the co-ordinator of the regulated group,
and

(b) inspecting regulators.

(9) If, in the case of a regulated group, an inspection plan is notified to the
co-ordinator under subsection (8)(a), the co-ordinator must—

(a) 30notify the plan to those members of the group to whom the co-
ordinator considers it may be relevant,

(b) prepare a list of the names and addresses of those members,

(c) secure, as far as is reasonably practicable, that the list is accurate
and kept up-to-date,

(d) 35provide the primary authority with the list, including any
updates to it, and

(e) notify any member whose name is included in the list or
removed from it of the inclusion or removal.

(10) If a list or update is provided to the primary authority under subsection
40(9)(d), the primary authority must notify the list or update to inspecting
regulators.

26B Effect of inspection plans

(1) If the Secretary of State consents under section 26A(7) to an inspection
plan in respect of an inspection function, the primary authority must
45have regard to the plan when it exercises the inspection function in
relation to—

(a) the regulated person, or

(b) a member of the regulated group whose name is included in the
list provided to the primary authority (and, where applicable,
updated) under section 26A(9)(d).

(2) 5If an inspection plan of the primary authority is notified to an
inspecting regulator under section 26A(8)(b), the inspecting regulator
may not exercise the inspection function in relation to the regulated
person or a member of the regulated group otherwise than in
accordance with the plan, unless—

(a) 10the inspecting regulator has notified the primary authority in
writing of the way in which it proposes to exercise the function,
and the primary authority has notified the regulator in writing
that the primary authority consents to that proposed exercise,
or

(b) 15in the case of a regulated group, the member’s name is not
included in the list notified to the inspecting regulator (and,
where applicable, updated) under section 26A(10).

(3) A notification by an inspecting regulator under subsection (2)(a) must
include reasons for exercising the function otherwise than in
20accordance with the plan.

(4) A primary authority is to be treated as having given the notification of
consent described in subsection (2)(a) if—

(a) it is notified by the inspecting regulator as described in that
subsection, and

(b) 25it fails to notify the inspecting regulator in writing, before the
end of the fifth working day after the day on which it received
the notification, whether it consents as described in that
subsection.

26C Revocation and revision of inspection plans

(1) 30A primary authority may, with the consent of the Secretary of State,
revoke an inspection plan made by it under section 26A.

(2) If a primary authority revokes an inspection plan, it must notify the
following that the plan is no longer in effect—

(a) the regulated person or the co-ordinator of the regulated group;

(b) 35inspecting regulators.

(3) Where the revocation of an inspection plan is notified to the co-
ordinator of a regulated group under subsection (2)(a), the co-ordinator
must notify the revocation to those members of the group to whom the
co-ordinator considers it may be relevant.

(4) 40A primary authority may from time to time revise an inspection plan
made by it under section 26A.

(5) Sections 26A and 26B and this section apply to a revised plan as they
apply to a plan made under section 26A; and references in this Part to
an inspection plan include the revised plan.

Primary authority’s costs

27A Power to charge

(1) The primary authority—

(a) may, in the case of a regulated person, charge the person such
5fees as the authority considers to represent the costs reasonably
incurred by it in the exercise of its functions under this Part in
relation to the person;

(b) may, in the case of a regulated group, charge the co-ordinator
such fees as the authority considers to represent the costs
10reasonably incurred by it in the exercise of its functions under
this Part in relation to the regulated group.

(2) The reference in subsection (1)(b) to functions in relation to the
regulated group includes functions in relation to the co-ordinator or a
member of the group.

15Other regulators

28A Support of primary authority by other regulators

(1) This section applies to a person who has regulatory functions and
who—

(a) is specified as a “supporting regulator” by the Secretary of State
20by regulations, and

(b) has a function which is not a relevant function of the person but
which—

(i) is a designated function of the person, and

(ii) is, or is relevant to the exercise of, a partnership
25function.

(2) The supporting regulator may do anything which it considers
appropriate for the purpose of supporting the primary authority in the
preparation of—

(a) advice or guidance under section 24A in relation to the
30partnership function, or

(b) an inspection plan in relation to the partnership function.

(3) If the supporting regulator provides support under subsection (2), it
must, in the exercise of the designated function in relation to the
regulated person or a member of the regulated group, act consistently
35with any advice or guidance under section 24A, or any inspection
plan—

(a) which is subsequently given or made in relation to the
partnership function, and

(b) to which the supporting regulator has consented.

(4) 40But, in the case of a regulated group, the duty under subsection (3)
applies to the exercise of the designated function in relation to a
member of the group only if the supporting regulator is aware that the
member belongs to the group.

(5) The duty under subsection (3) is a duty to act consistently so far as it is
45possible for the supporting regulator to do so in accordance with its
other functions.

(6) If—

(a) the supporting regulator provides support under subsection
(2), and

(b) the regulated person or the co-ordinator of the regulated group
5has agreed in writing to the provision of that support,

the supporting regulator may charge the regulated person or the co-
ordinator such fees as it considers to represent the costs reasonably
incurred by it in providing that support.

(7) In the case of a regulated group, the co-ordinator of the group must
10make the following available free of charge, on request, to the
supporting regulator—

(a) a copy of the group membership list maintained under section
23D(2);

(b) a copy of a list under section 26A(9) of group members to whom
15an inspection plan may be relevant.

(8) The copy must be made available as soon as is reasonably practicable
and in any event not later than the end of the third working day after
the day on which the request is received by the co-ordinator.

(9) Regulations under subsection (1)(a) require the consent of the Welsh
20Ministers to specify a person whose functions relate only to Welsh
ministerial matters.

(10) In this section, “designated function”, in relation to a supporting
regulator, means a regulatory function exercised by that regulator and
specified by the Secretary of State by regulations.

(11) 25Regulations under subsection (10)—

(a) may not specify a regulatory function so far as exercisable in
Scotland, if or to the extent that the function relates to matters
which are not reserved matters;

(b) may not specify a regulatory function so far as exercisable in
30Northern Ireland, if or to the extent that the function relates to
matters which are transferred matters;

(c) require the consent of the Welsh Ministers to specify a
regulatory function, so far as exercisable in Wales, which relates
to a Welsh ministerial matter.

(12) 35Regulations under subsection (10) may make different provision for—

(a) different purposes;

(b) different areas.

(13) A supporting regulator who, apart from subsection (2), has power to
provide the support described in that subsection, is not prevented by
40that power from exercising the power conferred by subsection (2).

28B Other regulators to act consistently with primary authority advice etc

(1) This section applies to a person who has regulatory functions and
who—

(a) is specified as a “complementary regulator” by the Secretary of
45State by regulations, and

(b) has a function which is not a relevant function of the person, but
which—

(i) is a designated function of the person,

(ii) is, or is equivalent to, a partnership function, and

(iii) is exercisable by the person in relation to the regulated
person or a member of the regulated group.

(2) 5The complementary regulator must act consistently with primary
authority advice and guidance in the exercise of the designated
function in relation to the regulated person or a member of the
regulated group.

(3) But, in the case of a regulated group, the duty under subsection (2)
10applies to the exercise of the designated function in relation to a
member of the group only if the complementary regulator is aware that
the member belongs to the group.

(4) The duty under subsection (2) is a duty to act consistently so far as it is
possible for the complementary regulator to do so in accordance with
15its other functions.

(5) In subsection (2), “primary authority advice and guidance” means—

(a) advice and guidance given by the primary authority under
section 24A to the regulated person or the co-ordinator of the
regulated group in relation to the partnership function,

(b) 20advice and guidance given by the primary authority under that
section to qualifying regulators as to how they should exercise
the partnership function in relation to the regulated person or a
member of the regulated group, and

(c) an inspection plan made by the primary authority in respect of
25the exercise of the partnership function in relation to the
regulated person or a member of the regulated group.

(6) In the case of a regulated group, the co-ordinator of the group must
make the following available free of charge, on request, to the
complementary regulator—

(a) 30a copy of the group membership list maintained under section
23D(2);

(b) a copy of a list under section 26A(9) of group members to whom
an inspection plan may be relevant.

(7) The copy must be made available as soon as is reasonably practicable
35and in any event not later than the end of the third working day after
the day on which the request is received by the co-ordinator.

(8) Regulations under subsection (1)(a) require the consent of the Welsh
Ministers to specify a person whose functions relate only to Welsh
ministerial matters.

(9) 40In this section, “designated function”, in relation to a complementary
regulator, means a regulatory function exercised by that regulator and
specified for the purposes of this section by the Secretary of State by
regulations.

(10) Regulations under subsection (9) specifying a function other than a
45partnership function must identify the partnership function to which
the designated function is equivalent.

(11) Regulations under subsection (9)—