Regulatory Enforcement and Sanctions Bill [HL]

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Regulatory Enforcement and Sanctions Bill [HL]

Regulatory Enforcement and Sanctions Bill [HL]
Part 2 — Co-ordination of regulatory enforcement
14

(a)
the frequency at which, or circumstances in which, inspections should
be carried out;
(b)
what an inspection should consist of.
(4)
Before making an inspection plan the primary authority must consult the
regulated person.
5
(5)
When making an inspection plan the primary authority must take into account
any relevant recommendations relating to inspections which are published by
any person (other than a local authority) pursuant to a regulatory function.
(6)
Where a primary authority has made an inspection plan, it must, if LBRO
consents to the plan, bring the plan to the notice of the other local authorities
10
with the function of inspection.
(7)
A local authority (including the primary authority) exercising the function of
inspection in relation to the regulated person must have regard to a plan to
which consent has been given under subsection (6).
(8)
Where a local authority other than the primary authority exercises the function
15
of inspection in relation to the regulated person otherwise than in accordance
with a plan to which consent has been given under subsection (6), it must
notify the primary authority.
(9)
A notification under subsection (8) must include reasons for exercising the
function otherwise than in accordance with the plan.
20
(10)
A primary authority may from time to time revise a plan made by it under this
section (and subsections (3) to (9) apply in relation to any revision of the plan).
Primary authorities: supplementary
30
Power to charge
The primary authority may charge the regulated person such fees as it
25
considers to represent the costs reasonably incurred by it in the exercise of its
functions under this Part in relation to the regulated person.
31
LBRO support
(1)
LBRO may do anything it considers appropriate for the purpose of supporting
the primary authority in the exercise of the authority’s functions under this
30
Part.
(2)
That includes making grants to the authority.
General
32
LBRO guidance
(1)
LBRO may give guidance to any one or more local authorities about the
35
operation of this Part.
(2)
The guidance may include, in particular, guidance to local authorities about—
(a)
arrangements under section 26(2);
(b)
notification of inspection plans under section 29(6);

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
15

(c)
the charging of fees under section 30.
(3)
A local authority must have regard to any guidance given to it under this
section.
(4)
Before giving guidance under this section LBRO must consult such persons as
it considers appropriate.
5
(5)
LBRO may not give guidance under subsection (2)(c)—
(a)
without the consent of the Secretary of State;
(b)
without having consulted the Welsh Ministers.
(6)
LBRO must publish (in such manner as it considers appropriate) any guidance
given by it under this section.
10
(7)
LBRO may at any time vary or revoke any guidance given under this section
by further guidance under this section.
33
Orders under Part 2
(1)
An order under this Part is to be made by statutory instrument.
(2)
An order under this Part is subject to annulment in pursuance of a resolution
15
of either House of Parliament.
34
Interpretation of Part 2
In this Part—
“enforcement action” has the meaning given in section 27;
“LBRO” has the meaning given in section 1;
20
“local authority” has the meaning given in section 22;
“the regulated person” has the meaning given in section 21(2);
“relevant function” has the meaning given in section 23.
Part 3
Civil sanctions
25
Orders under Part 3: introductory
35
Power to make orders providing for civil sanctions
(1)
A Minister of the Crown may by order in accordance with this Part make—
(a)
the provision specified in section 38 (fixed monetary penalties);
(b)
the provision specified in section 41 (discretionary requirements);
30
(c)
the provision specified in section 45 (stop notices);
(d)
the provision specified in section 49 (enforcement undertakings).
(2)
The Welsh Ministers may by order in accordance with this Part make any such
provision, where the provision relates to a Welsh ministerial matter.
(3)
An order under this Part is to be made by statutory instrument.
35

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
16

36
“Regulator”
(1)
In this Part, “regulator” means—
(a)
a person specified in Schedule 5 (in this Part called a “designated
regulator”), or
(b)
a person, other than a designated regulator, who has an enforcement
5
function in relation to an offence to which subsection (2) applies.
(2)
This subsection applies to an offence contained, immediately before the day on
which this Act is passed, in an enactment specified in Schedule 6.
(3)
Subsection (1)(b) does not include—
(a)
the Crown Prosecution Service,
10
(b)
a member of a police force in England or Wales,
(c)
a Procurator Fiscal,
(d)
a constable of a police force in Scotland,
(e)
the Public Prosecution Service for Northern Ireland, or
(f)
a member of the Police Service of Northern Ireland.
15
37
“Relevant offence”
(1)
In this Part, “relevant offence”, in relation to a designated regulator, means an
offence—
(a)
in relation to which the designated regulator has an enforcement
function, and
20
(b)
which is contained in an Act immediately before the day on which this
Act is passed.
(2)
In this Part “relevant offence”, in relation to a regulator other than a designated
regulator, means an offence—
(a)
which is contained, immediately before the day on which this Act is
25
passed, in an enactment specified in Schedule 6, and
(b)
in relation to which that regulator has an enforcement function.
Fixed monetary penalties
38
Fixed monetary penalties
(1)
The provision which may be made under this section is provision to confer on
30
a regulator the power by notice to impose a fixed monetary penalty on a person
in relation to a relevant offence.
(2)
Provision under this section may only confer such a power in relation to a case
where the regulator is satisfied beyond reasonable doubt that the person has
committed the relevant offence.
35
(3)
For the purposes of this Part a “fixed monetary penalty” is a requirement to pay
to a regulator a penalty of—
(a)
a prescribed amount, or
(b)
an amount calculable solely by reference to prescribed criteria.
(4)
Where the relevant offence is—
40
(a)
triable summarily (whether or not it is also triable on indictment), and

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
17

(b)
punishable on summary conviction by a fine (whether or not it is also
punishable by a term of imprisonment),

the amount of the fixed monetary penalty may not exceed the maximum
amount of that fine.
39
Fixed monetary penalties: procedure
5
(1)
Provision under section 38 must secure the results in subsection (2) in a case
where a fixed monetary penalty is imposed.
(2)
Those results are that—
(a)
the notice requiring payment (the “fixed penalty notice”) complies with
subsection (3),
10
(b)
the person on whom the requirement is imposed may by notice (a
“review notice”) require the regulator to review the imposition of the
penalty,
(c)
the regulator must, on such a review (an “internal review”), decide
whether to withdraw or confirm the penalty,
15
(d)
the regulator must give reasons for its decision on an internal review,
and
(e)
if the regulator decides on an internal review to confirm the penalty, the
person on whom it is imposed may appeal against that decision.
(3)
To comply with this subsection the fixed penalty notice must include
20
information as to—
(a)
the grounds for imposing the penalty,
(b)
the amount of the penalty and (if appropriate) how it was calculated,
(c)
how payment may be made,
(d)
the period within which payment must be made,
25
(e)
any early payment discounts or late payment penalties,
(f)
the right to require an internal review,
(g)
the circumstances in which, on a internal review, the regulator must
withdraw the penalty,
(h)
rights of appeal, and
30
(i)
the consequences of non-payment.
(4)
Provision pursuant to subsection (2)(b) must secure that any internal review
takes place within a prescribed period, such period not to exceed the period of
28 days beginning with the day on which the review notice is received by the
regulator.
35
(5)
Provision pursuant to subsection (2)(c)—
(a)
must secure that the regulator must withdraw the penalty if satisfied
that the person on whom it is imposed would not, by reason of any
defence raised by that person, be liable to be convicted of the relevant
offence;
40
(b)
may include provision for other circumstances in which the regulator
must withdraw the penalty.
(6)
Provision pursuant to subsection (2)(e) must secure that the grounds on which
a person may appeal against a decision of the regulator include the following—
(a)
that the decision was based on an error of fact;
45
(b)
that the decision was wrong in law;

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
18

(c)
that the decision was unreasonable.
40
Fixed monetary penalties: criminal conviction
Provision under section 38 must secure that, in a case where a fixed monetary
penalty is imposed on a person, that person may not at any time be convicted
of the relevant offence in respect of the act or omission giving rise to the
5
penalty.
Discretionary requirements
41
Discretionary requirements
(1)
The provision which may be made under this section is provision to confer on
a regulator the power by notice to impose one or more discretionary
10
requirements on a person in relation to a relevant offence.
(2)
Provision under this section may only confer such a power in relation to a case
where the regulator is satisfied beyond reasonable doubt that the person has
committed a relevant offence.
(3)
For the purposes of this Part a “discretionary requirement” means—
15
(a)
a requirement to pay a monetary penalty to a regulator of such amount
as the regulator may determine,
(b)
a requirement to take such steps as a regulator may specify, within such
period as it may specify, to secure that the offence does not continue or
recur, or
20
(c)
a requirement to take such steps as a regulator may specify, within such
period as it may specify, to secure that the position is, so far as possible,
restored to what it would have been if the offence had not been
committed.
(4)
Provision under this section may not permit discretionary requirements to be
25
imposed on a person on more than one occasion in relation to the same act or
omission.
(5)
In this Part—
“variable monetary penalty” means a requirement referred to in
subsection (3)(a);
30
“non-monetary discretionary requirement” means a requirement referred
to in subsection (3)(b) or (c).
42
Discretionary requirements: procedure
(1)
Provision under section 41 must secure the results in subsection (2).
(2)
Those results are that—
35
(a)
where a regulator proposes to impose a discretionary requirement on a
person, the regulator must serve on that person a notice of what is
proposed (a “notice of intent”) which complies with subsection (3),
(b)
that person may make written representations and objections to the
regulator in relation to the proposed imposition of the discretionary
40
requirement,

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
19

(c)
after the end of the period for making such representations and
objections, the regulator must decide whether to—
(i)
impose the discretionary requirement, with or without
modifications, or
(ii)
impose any other discretionary requirement which the
5
regulator has power to impose under section 41,
(d)
where the regulator decides to impose a discretionary requirement, the
notice imposing it (the “final notice”) complies with subsection (6), and
(e)
the person on whom a discretionary requirement is imposed may
appeal against the decision to impose it.
10
(3)
To comply with this subsection the notice of intent must include information
as to—
(a)
the grounds for the proposal to impose the discretionary requirement,
(b)
the right to make representations and objections,
(c)
the circumstances in which the regulator may not impose the
15
discretionary requirement, and
(d)
the period within which representations and objections may be made,
which may not be less than the period of 28 days beginning with the
day on which the notice of intent is received.
(4)
Provision pursuant to subsection (2)(c)—
20
(a)
must secure that the regulator may not decide to impose a discretionary
requirement on a person where the regulator is satisfied that the person
would not, by reason of any defence raised by that person, be liable to
be convicted of the relevant offence, and
(b)
may include provision for other circumstances in which the regulator
25
may not decide to impose a discretionary requirement.
(5)
Provision under subsection (2)(c) may also include provision for—
(a)
the person on whom the notice of intent is served to be able to offer an
undertaking as to action to be taken by that person (including the
payment of a sum of money) to benefit any person affected by the
30
offence,
(b)
the regulator to be able to accept such an undertaking, and
(c)
the regulator to take any undertaking so accepted into account in its
decision.
(6)
To comply with this subsection the final notice referred to in subsection (2)(d)
35
must include information as to—
(a)
the grounds for imposing the discretionary requirement,
(b)
where the discretionary requirement is a variable monetary penalty—
(i)
how payment may be made,
(ii)
the period within which payment must be made, and
40
(iii)
any early payment discounts or late payment penalties,
(c)
rights of appeal, and
(d)
the consequences of non-compliance.
(7)
Provision pursuant to subsection (2)(e) must secure that the grounds on which
a person may appeal against a decision of the regulator include the following—
45
(a)
that the decision was based on an error of fact;
(b)
that the decision was wrong in law;

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
20

(c)
in the case of a variable monetary penalty, that the amount of the
penalty is unreasonable;
(d)
in the case of a non-monetary discretionary requirement, that the
nature of the requirement is unreasonable;
(e)
that the decision was unreasonable for any other reason.
5
43
Discretionary requirements: criminal conviction
(1)
Provision under section 41 must secure the result in subsection (2) in a case
where—
(a)
a discretionary requirement is imposed on a person, or
(b)
an undertaking referred to in section 42(5) is accepted from a person.
10
(2)
The result in this subsection is that the person may not at any time be convicted
of the relevant offence in respect of the act or omission giving rise to the
discretionary requirement or undertaking except in a case referred to in
subsection (3).
(3)
The case referred to in subsection (2) is a case where—
15
(a)
a non-monetary discretionary requirement is imposed on the person or
an undertaking referred to in section 42(5) is accepted from a person,
(b)
no variable monetary penalty is imposed on the person, and
(c)
the person fails to comply with the non-monetary discretionary
requirement or undertaking.
20
(4)
Provision under section 41 may for the purposes of the case referred to in
subsection (3) extend any period within which criminal proceedings may be
instituted against the person.
44
Discretionary requirements: enforcement
(1)
Provision under section 41 may include provision for a person to pay a
25
monetary penalty (a “non-compliance penalty”) to a regulator if the person
fails to comply with—
(a)
a non-monetary discretionary requirement imposed on the person, or
(b)
an undertaking referred to in section 42(5) which is accepted from the
person.
30
(2)
Provision under subsection (1) may—
(a)
specify the amount of the non-compliance penalty,
(b)
provide for the amount to be calculated by reference to prescribed
criteria,
(c)
provide for the amount to be determined by the regulator, or
35
(d)
provide for the amount to be determined in any other way.
(3)
Provision under subsection (1) must secure that—
(a)
the non-compliance penalty is imposed by notice served by the
regulator, and
(b)
the person on whom it is imposed may appeal against that notice.
40
(4)
Provision pursuant to paragraph (b) of subsection (3) must secure that the
grounds on which a person may appeal against a notice referred to in that
subsection include the following—
(a)
that the decision to serve the notice was based on an error of fact;