(b)    

requires the respondent to do anything set out in the order.

See section (Measures in LME orders).

(3)    

In this section “the appropriate court”—

(a)    

where the conduct constituting the trigger offence took or is taking

place primarily in England and Wales, means a magistrates’ court;

(b)    

where that conduct took or is taking place primarily in Scotland,

means the sheriff;

(c)    

where that conduct took or is taking place primarily in Northern

Ireland, means a court of summary jurisdiction.

(4)    

An application for an LME order under this section is—

(a)    

in England and Wales, to be made by complaint;

(b)    

in Northern Ireland, to be made by complaint under Part 8 of the

Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675

(N.I. 26)).”

Insert the following new Clause—

“Applications

(1)    

An enforcing authority may apply for an LME order to be made under

section (Power to make LME order on application) against a person (the

“proposed respondent”) if—

(a)    

the authority has served a notice on the proposed respondent under

section (Power to request LME undertaking), and

(b)    

the proposed respondent—

(i)    

refuses to give an LME undertaking, or

(ii)    

otherwise fails, before the end of the negotiation period, to

give an LME undertaking in the form attached to the notice

or in such other form as may be agreed with the enforcing

authority.

(2)    

An enforcing authority may also apply for an LME order if the proposed

respondent—

(a)    

has given an LME undertaking to the enforcing authority, and

(b)    

has failed to comply with the undertaking.

(3)    

In subsection (1) “the negotiation period” means—

(a)    

the period of 14 days beginning with the day after that on which the

notice mentioned in paragraph (a) of that subsection was given, or

(b)    

such longer period as may be agreed between the enforcing

authority and the proposed respondent.”

Insert the following new Clause—

“Power to make LME order on conviction

(1)    

This section applies where a court deals with a person in respect of a

conviction for a trigger offence.

(2)    

The court may make an LME order against the person if the court considers

it is just and reasonable to do so.

(3)    

An LME order must not be made under this section except—

(a)    

in addition to a sentence imposed in respect of the offence

concerned, or

(b)    

in addition to an order discharging the person conditionally or, in

Scotland, discharging the person absolutely.”

Insert the following new Clause—

“Measures in LME orders

(1)    

An LME order may include a prohibition, restriction or requirement (each

a “measure”) if, and only if, the measure falls within subsection (2) or (3) (or

both).

(2)    

A measure falls within this subsection if it is for the purpose of—

(a)    

preventing or reducing the risk of the respondent not complying

with any requirement imposed by or under the relevant enactment,

or

(b)    

bringing to the attention of persons likely to be interested in the

matter—

(i)    

the existence of the LME order,

(ii)    

the circumstances in which it was made, and

(iii)    

any action taken (or not taken) by the respondent in order to

comply with the order.

(3)    

A measure falls within this subsection if it is prescribed, or is of a

description prescribed, in regulations made by the Secretary of State.

(4)    

Where an LME order includes a measure for the purpose mentioned in

subsection (2)(a), the order must set out how the measure is expected to

achieve that purpose.

(5)    

In this section the “relevant enactment” means the enactment under which

the trigger offence concerned has been or is being committed.”

Insert the following new Clause—

“Further provision about LME orders

(1)    

An LME order has effect for the period specified in it but the maximum

period for which an order may have effect is 2 years.

(2)    

An LME order may not be made against an individual who is under 18.

(3)    

If a court makes an LME order, the court may also—

(a)    

release the respondent from any LME undertaking given in relation

to the trigger offence concerned;

(b)    

discharge any other LME order which is in force against the

respondent and which was made by the court or any other court in

the same part of the United Kingdom as the court.”

Insert the following new Clause—

“Variation and discharge

(1)    

The appropriate court may by order vary or discharge an LME order—

(a)    

on the application of the respondent;

(b)    

if the order was made under section (Power to make LME order on

application), on the application of the enforcing authority who

applied for the order;

(c)    

if the order was made under section (Power to make LME order on

conviction), on the application of the enforcing authority whose

officer conducted the investigation which resulted in the

prosecution of the respondent for the trigger offence.

(2)    

In this section “the appropriate court”—

(a)    

in relation to an LME order made in England and Wales (whether

made under section (Power to make LME order on application) or

(Power to make LME order on conviction), means a magistrates’ court;

(b)    

in relation to such an order made in Scotland, means the sheriff;

(c)    

in relation to such an order made in Northern Ireland, means a

court of summary jurisdiction.

(3)    

An application for an order under this section is—

(a)    

if made to a magistrates’ court in England and Wales, to be made

by complaint;

(b)    

if made to a court of summary jurisdiction in Northern Ireland, to

be made by complaint under Part 8 of the Magistrates’ Courts

(Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).”

Insert the following new Clause—

“Appeals

(1)    

A respondent may appeal against—

(a)    

the making of an LME order under section (Power to make LME order

on application);

(b)    

the making of, or refusal to make, an order under section (Variation

and discharge).

(2)    

An appeal under subsection (1) is to be made—

(a)    

where the order was made or refused by a magistrates’ court in

England and Wales, to the Crown Court;

(b)    

where the order was made or refused by the sheriff, to the Sheriff

Appeal Court;

(c)    

where the order was made or refused by a court of summary

jurisdiction in Northern Ireland, to a county court.

(3)    

On an appeal under subsection (1) the court hearing the appeal may make

such orders as may be necessary to give effect to its determination of the

appeal, and may also make such incidental or consequential orders as

appear to it to be just and reasonable.

(4)    

An LME order that has been varied by virtue of subsection (3) remains an

order of the court that first made it for the purposes of section (Variation and

discharge).

(5)    

A respondent may appeal against the making of an LME order under

section (Power to make LME order on conviction) as if the order were a

sentence passed on the respondent for the trigger offence.”

Insert the following new Clause—

“LME undertakings and orders: supplementary

Code of practice

(1)    

The Secretary of State must issue a code of practice giving guidance to

enforcing authorities about the exercise of their functions under sections

(Power to request LME undertaking) to (Variation and discharge).

(2)    

The Secretary of State may revise the code from time to time.

(3)    

The code and any revised code—

(a)    

must not be issued unless a draft has been laid before Parliament,

and

(b)    

comes into force on such day as the Secretary of State appoints by

regulations.

(4)    

The Secretary of State must publish the code and any revised code.

(5)    

An enforcing authority must have regard to the current version of the code

in exercising its functions under sections (Power to request LME undertaking)

to (Variation and discharge).”

Insert the following new Clause—

“Investigative functions

(1)    

An officer acting for the purposes of the Employment Agencies Act 1973—

(a)    

may also act for the purposes of taking action where it appears that

a person has failed to comply with an LME undertaking or an LME

order where the trigger offence to which the undertaking or order

relates is an offence under that Act, and

(b)    

in doing so, has the same powers and duties as he or she has when

acting for the purposes of that Act.

(2)    

An officer acting for the purposes of the National Minimum Wage Act

1998—

(a)    

may also act for the purposes of taking action where it appears that

a person has failed to comply with an LME undertaking or an LME

order where the trigger offence to which the undertaking or order

relates is an offence under that Act, and

(b)    

in doing so, has the same powers and duties as he or she has when

acting for the purposes of that Act.

(3)    

An officer acting as an enforcement officer for the purposes of the

Gangmasters (Licensing) Act 2004—

(a)    

may also act for the purposes of taking action where it appears that

a person has failed to comply with an LME undertaking or an LME

order where the trigger offence to which the undertaking or order

relates is an offence under that Act, and

(b)    

in doing so, has the same powers and duties as he or she has when

acting as an enforcement officer for the purposes of that Act.

(4)    

In this section references to the Gangmasters (Licensing) Act 2004 are

references to that Act only so far as it applies in relation to England and

Wales and Scotland.”

Insert the following new Clause—

“Offence

(1)    

A person against whom an LME order is made commits an offence if the

person, without reasonable excuse, fails to comply with the order.

(2)    

A person guilty of an offence under this section is liable—

(a)    

on conviction on indictment, to imprisonment for a term not

exceeding 2 years, to a fine or to both;

(b)    

on summary conviction in England and Wales, to imprisonment for

a term not exceeding 12 months, to a fine or to both;

(c)    

on summary conviction in Scotland, to imprisonment for a term not

exceeding 12 months, to a fine not exceeding the statutory

maximum or to both;

(d)    

on summary conviction in Northern Ireland, to imprisonment for a

term not exceeding 6 months, to a fine not exceeding the statutory

maximum or to both.

(3)    

In relation to an offence committed before the commencement of section

154(1) of the Criminal Justice Act 2003, the reference in subsection (2)(b) to

12 months is to be read as a reference to 6 months.”

Insert the following new Clause—

“Offences by bodies corporate

(1)    

If an offence under section (Offence) committed by a body corporate is

proved—

(a)    

to have been committed with the consent or connivance of an officer

of the body, or

(b)    

to be attributable to any neglect on the part of such an officer,

the officer, as well as the body corporate, is guilty of the offence and liable

to be proceeded against and punished accordingly.

(2)    

In subsection (1) “officer”, in relation to a body corporate, means—

(a)    

a director, manager, secretary or other similar officer of the body;

(b)    

a person purporting to act in any such capacity.

(3)    

If the affairs of a body corporate are managed by its members, subsection

(1) applies in relation to the acts and defaults of a member in connection

with the member’s functions of management as if the member were a

director of the body corporate.”

Insert the following new Clause—

“Application to unincorporated associations

(1)    

In a case falling within subsection (2), an unincorporated association is to

be treated as a legal person for the purposes of sections (Power to request

LME undertaking) to (Offence).

(2)    

A case falls within this subsection if it relates to a trigger offence for which

it is possible to bring proceedings against an unincorporated association in

the name of the association.

(3)    

Proceedings for an offence under section (Offence) alleged to have been

committed by an unincorporated association may be brought against the

association in the name of the association.

(4)    

For the purposes of such proceedings—

(a)    

rules of court relating to the service of documents have effect as if

the association were a body corporate, and

(b)    

the following provisions apply as they apply in relation to a body

corporate—

(i)    

section 33 of the Criminal Justice Act 1925 and Schedule 3 to

the Magistrates’ Courts Act 1980;

(ii)    

sections 70 and 143 of the Criminal Procedure (Scotland) Act

1995;

(iii)    

section 18 of the Criminal Justice Act (Northern Ireland)

1945 (c. 15 (N.I.)) and Schedule 4 to the Magistrates’ Courts

(Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I 26)).

(5)    

A fine imposed on the association on its conviction of an offence is to be

paid out of the funds of the association.

(6)    

If an offence under section (Offence) committed by an unincorporated

association is proved—

(a)    

to have been committed with the consent or connivance of an officer

of the association, or

(b)    

to be attributable to any neglect on the part of such an officer,

the officer, as well as the association, is guilty of the offence and liable to be

proceeded against and punished accordingly.

(7)    

In subsection (6) “officer”, in relation to any association, means—

(a)    

an officer of the association or a member of its governing body;

(b)    

a person purporting to act in such a capacity.”

Insert the following new Clause—

“Application to partnerships

(1)    

If an offence under section (Offence) committed by a partner of a

partnership which is not regarded as a legal person is shown—

(a)    

to have been committed with the consent or connivance of another

partner, or

(b)    

to be attributable to any neglect on the part of another partner,

that other partner, as well as the first-mentioned partner, is guilty of the

offence and liable to be proceeded against and punished accordingly.

(2)    

Proceedings for an offence under section (Offence) alleged to have been

committed by a partnership which is regarded as a legal person may be

brought against the partnership in the firm name.

(3)    

For the purposes of such proceedings—

(a)    

rules of court relating to the service of documents have effect as if

the partnership were a body corporate, and

(b)    

the following provisions apply as they apply in relation to a body

corporate—

(i)    

section 33 of the Criminal Justice Act 1925 and Schedule 3 to

the Magistrates’ Courts Act 1980;

(ii)    

sections 70 and 143 of the Criminal Procedure (Scotland) Act

1995;

(iii)    

section 18 of the Criminal Justice Act (Northern Ireland)

1945 (c. 15 (N.I.)) and Schedule 4 to the Magistrates’ Courts

(Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I 26)).

(4)    

A fine imposed on a partnership on its conviction of an offence is to be paid

out of the funds of the partnership.

(5)    

If an offence under section (Offence) committed by a partnership is

proved—

(a)    

to have been committed with the consent or connivance of a

partner, or

(b)    

to be attributable to any neglect on the part of a partner,

the partner, as well as the partnership, is guilty of the offence and liable to

be proceeded against and punished accordingly.

(6)    

In subsections (1) and (5) “partner” includes a person purporting to act as

a partner.

(7)    

For the purposes of this section a partnership is, or is not, “regarded as a

legal person” if it is, or is not, so regarded under the law of the country or

territory under which it was formed.”

Insert the following new Clause—

“Supplementary provision

Consequential and related amendments

Schedule (Consequential and related amendments) (consequential and related

amendments) has effect.”

Insert the following new Clause—

“Regulations under Chapter 1

(1)    

Regulations under section 3 or (Power to request LME undertaking) must not

prescribe a requirement, function or offence if provision imposing the

requirement, conferring the function or creating the offence falls within

subsection (3).

(2)    

Regulations under section (Functions in relation to labour market) must not

confer a function if provision doing so falls within subsection (3).