|
| |
|
(b) | that the decision was wrong in law; |
| |
(c) | that the decision was unfair or unreasonable for any reason (including, |
| |
in a case where the amount of the non-compliance penalty was |
| |
determined by the regulator, that the amount is unreasonable). |
| |
| 5 |
| |
(1) | The provision which may be made under this section is provision conferring |
| |
on a regulator the power to serve a stop notice on a person. |
| |
(2) | For the purposes of this Part a “stop notice” is a notice prohibiting a person |
| |
from carrying on an activity specified in the notice until the person has taken |
| 10 |
the steps specified in the notice. |
| |
(3) | Provision under this section may only confer such a power in relation to a case |
| |
falling within subsection (4) or (5). |
| |
(4) | A case falling within this subsection is a case where— |
| |
(a) | the person is carrying on the activity, |
| 15 |
(b) | the regulator reasonably believes that the activity as carried on by that |
| |
person is causing, or presents a significant risk of causing, serious harm |
| |
to any of the matters referred to in subsection (6), and |
| |
(c) | the regulator reasonably believes that the activity as carried on by that |
| |
person involves or is likely to involve the commission of a relevant |
| 20 |
| |
(5) | A case falling within this subsection is a case where the regulator reasonably |
| |
| |
(a) | the person is likely to carry on the activity, |
| |
(b) | the activity as likely to be carried on by that person will cause, or will |
| 25 |
present a significant risk of causing, serious harm to any of the matters |
| |
referred to in subsection (6), and |
| |
(c) | the activity as likely to be carried on by that person will involve or will |
| |
be likely to involve the commission of a relevant offence by that person. |
| |
(6) | The matters referred to in subsections (4)(b) and (5)(b) are— |
| 30 |
| |
(b) | the environment (including the health of animals and plants), and |
| |
(c) | the financial interests of consumers. |
| |
(7) | The steps referred to in subsection (2) must be steps to remove or reduce the |
| |
harm or risk of harm referred to in subsection (4)(b) or (5)(b). |
| 35 |
46 | Stop notices: procedure |
| |
(1) | Provision under section 45 must secure the results in subsection (2) in a case |
| |
where a stop notice is served. |
| |
(2) | Those results are that— |
| |
(a) | the stop notice must comply with subsection (3), |
| 40 |
(b) | the person on whom it is served may appeal against the decision to |
| |
| |
|
| |
|
| |
|
(c) | where, after service of the notice, the regulator is satisfied that the |
| |
person has taken the steps specified in the notice, the regulator must |
| |
issue a certificate to that effect (a “completion certificate”), |
| |
(d) | the notice ceases to have effect on the issue of a completion certificate, |
| |
(e) | the person on whom the notice is served may at any time apply for a |
| 5 |
| |
(f) | the regulator must make a decision as to whether to issue a completion |
| |
certificate within 14 days of such an application, and |
| |
(g) | the person on whom the notice is served may appeal against a decision |
| |
not to issue a completion certificate. |
| 10 |
(3) | To comply with this subsection a stop notice must include information as to— |
| |
(a) | the grounds for serving the notice, |
| |
(b) | rights of appeal, and |
| |
(c) | the consequences of non-compliance. |
| |
(4) | Provision pursuant to subsection (2)(b) must secure that the grounds on which |
| 15 |
a person may appeal against a decision of the regulator to serve a stop notice |
| |
| |
(a) | that the decision was based on an error of fact; |
| |
(b) | that the decision was wrong in law; |
| |
(c) | that the decision was unreasonable; |
| 20 |
(d) | that any step specified in the notice is unreasonable; |
| |
(e) | that the person has not committed the relevant offence and would not |
| |
have committed it had the stop notice not been served; |
| |
(f) | that the person would not, by reason of any defence, have been liable |
| |
to be convicted of the relevant offence had the stop notice not been |
| 25 |
| |
(5) | Provision pursuant to subsection (2)(g) must secure that the grounds on which |
| |
a person may appeal against a decision of the regulator not to issue a |
| |
completion certificate include the following— |
| |
(a) | that the decision was based on an error of fact; |
| 30 |
(b) | that the decision was wrong in law; |
| |
(c) | that the decision was unfair or unreasonable. |
| |
47 | Stop notices: compensation |
| |
(1) | Provision under section 45 conferring power on a regulator to serve a stop |
| |
notice on a person must include provision for the regulator to compensate the |
| 35 |
person for loss suffered as the result of the service of the notice. |
| |
(2) | Provision under subsection (1) may provide for compensation— |
| |
(a) | only in prescribed cases; |
| |
(b) | only in relation to prescribed descriptions of loss. |
| |
(3) | Provision under subsection (1) must secure that the person on whom the stop |
| 40 |
notice is served is able to appeal against— |
| |
(a) | a decision by the regulator not to award compensation, or |
| |
(b) | a decision of the regulator as to the amount of the compensation. |
| |
|
| |
|
| |
|
48 | Stop notices: enforcement |
| |
(1) | Provision under section 45 conferring power on a regulator to serve a stop |
| |
notice must provide that, where a person on whom a notice is served does not |
| |
comply with it, the person is guilty of an offence and liable— |
| |
(a) | on summary conviction, to a fine not exceeding £20,000, or |
| 5 |
imprisonment for term not exceeding twelve months, or both, or |
| |
(b) | on conviction on indictment, to imprisonment for a term not exceeding |
| |
two years, or a fine, or both. |
| |
(2) | In the application of this section— |
| |
(a) | in England and Wales, in relation to an offence committed before the |
| 10 |
commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), |
| |
| |
| |
| the reference in subsection (1)(a) to twelve months is to be read as a reference |
| |
| 15 |
| |
49 | Enforcement undertakings |
| |
(1) | The provision which may be made under this section is provision— |
| |
(a) | to enable a regulator to accept an enforcement undertaking from a |
| |
person in a case where the regulator has reasonable grounds to suspect |
| 20 |
that the person has committed a relevant offence, and |
| |
(b) | for the acceptance of the undertaking to have the consequences in |
| |
| |
(2) | For the purposes of this Part, an “enforcement undertaking” is an undertaking |
| |
to take such action as may be specified in the undertaking within such period |
| 25 |
| |
(3) | The action specified in an enforcement undertaking must be— |
| |
(a) | action to secure that the offence does not continue or recur, |
| |
(b) | action to secure that the position is, so far as possible, restored to what |
| |
it would have been if the offence had not been committed, |
| 30 |
(c) | action (including the payment of a sum of money) to benefit any person |
| |
affected by the offence, or |
| |
(d) | action of a prescribed description. |
| |
(4) | The consequences in this subsection are that, unless the person from whom the |
| |
undertaking is accepted has failed to comply with the undertaking or any part |
| 35 |
| |
(a) | that person may not at any time be convicted of the relevant offence in |
| |
respect of the act or omission to which the undertaking relates, |
| |
(b) | the regulator may not impose on that person any fixed monetary |
| |
penalty which it would otherwise have power to impose by virtue of |
| 40 |
section 38 in respect of that act or omission, and |
| |
(c) | the regulator may not impose on that person any discretionary |
| |
requirement which it would otherwise have power to impose by virtue |
| |
of section 41 in respect of that act or omission. |
| |
(5) | Provision under this section may in particular include provision— |
| 45 |
|
| |
|
| |
|
(a) | as to the procedure for entering into an undertaking; |
| |
(b) | as to the terms of an undertaking; |
| |
(c) | as to publication of an undertaking by a regulator; |
| |
(d) | as to variation of an undertaking; |
| |
(e) | as to circumstances in which a person may be regarded as having |
| 5 |
complied with an undertaking; |
| |
(f) | as to monitoring by a regulator of compliance with an undertaking; |
| |
(g) | as to certification by a regulator that an undertaking has been complied |
| |
| |
(h) | for appeals against refusal to give such certification; |
| 10 |
(i) | in a case where a person has given inaccurate, misleading or |
| |
incomplete information in relation to the undertaking, for that person |
| |
to be regarded as not having complied with it; |
| |
(j) | in a case where a person has complied partly but not fully with an |
| |
undertaking, for that part-compliance to be taken into account in the |
| 15 |
imposition of any criminal or other sanction on the person; |
| |
(k) | for the purpose of enabling criminal proceedings to be instituted |
| |
against a person in respect of the relevant offence in the event of breach |
| |
of an undertaking or any part of it, to extend any period within which |
| |
those proceedings may be instituted. |
| 20 |
Orders under Part 3: supplementary provision |
| |
50 | Combination of sanctions |
| |
(1) | Any provision under this Part which results in a regulator having power to |
| |
impose a fixed monetary penalty or a discretionary requirement in relation to |
| |
an offence must secure that the regulator may not impose both a fixed |
| 25 |
monetary penalty and a discretionary requirement on the same person in |
| |
relation to the same case. |
| |
(2) | Any provision under this Part which results in a regulator having power to |
| |
impose a fixed monetary penalty or to serve a stop notice in relation to an |
| |
offence must secure that the regulator may not both impose a fixed monetary |
| 30 |
penalty and serve a stop notice on the same person in relation to the same case. |
| |
| |
(1) | An order under this Part which confers power on a regulator to require a |
| |
person to pay a fixed monetary penalty, a variable monetary penalty or a non- |
| |
compliance penalty under section 44(1) may include provision— |
| 35 |
(a) | for early payment discounts; |
| |
(b) | for the payment of interest or other financial penalties for late payment |
| |
of the penalty, such interest or other financial penalties not in total to |
| |
exceed the amount of that penalty; |
| |
(c) | for enforcement of the penalty. |
| 40 |
(2) | Provision under subsection (1)(c) may include— |
| |
(a) | provision for the regulator to recover the penalty, and any interest or |
| |
other financial penalty for late payment, as a civil debt; |
| |
|
| |
|
| |
|
(b) | provision for the penalty, and any interest or other financial penalty for |
| |
late payment to be recoverable, on the order of a court, as if payable |
| |
| |
| |
(1) | Provision under section 41 may include provision for a regulator, by notice, to |
| 5 |
require a person on whom a discretionary requirement is imposed to pay the |
| |
costs incurred by the regulator in relation to the imposition of the discretionary |
| |
requirement up to the time of its imposition. |
| |
(2) | Provision under section 45 may include provision for a regulator, by notice, to |
| |
require a person on whom a stop notice is served to pay the costs incurred by |
| 10 |
the regulator in relation to the service of the notice up to the time of service. |
| |
(3) | In subsections (1) and (2), the references to costs include in particular— |
| |
| |
(b) | administration costs; |
| |
(c) | costs of obtaining expert advice (including legal advice). |
| 15 |
(4) | Provision under this section must secure that, in any case where a notice |
| |
requiring payment of costs is served— |
| |
(a) | the notice specifies the amount required to be paid; |
| |
(b) | the regulator may be required to provide a detailed breakdown of that |
| |
| 20 |
(c) | the person required to pay costs is not liable to pay any costs shown by |
| |
the person to have been unnecessarily incurred; |
| |
(d) | the person required to pay costs may appeal against— |
| |
(i) | the decision of the regulator to impose the requirement to pay |
| |
| 25 |
(ii) | the decision of the regulator as to the amount of those costs. |
| |
(5) | Provision under this section may include the provision referred to in section |
| |
51(1)(b) and (c) and (2). |
| |
(6) | Provision under this section must secure that regulator is required to publish |
| |
guidance about how it will exercise the power conferred by the provision. |
| 30 |
| |
(1) | An order under this Part may not provide for the making of an appeal other |
| |
| |
(a) | the First-tier Tribunal, or |
| |
(b) | another tribunal created under an enactment. |
| 35 |
(2) | In subsection (1)(b) “tribunal” does not include an ordinary court of law. |
| |
(3) | An order under this Part which makes provision for an appeal in relation to the |
| |
imposition of any requirement or service of any notice may include— |
| |
(a) | provision suspending the requirement or notice pending |
| |
determination of the appeal; |
| 40 |
(b) | provision as to the powers of any person to whom the appeal is made; |
| |
(c) | provision as to how any sum payable in pursuance of a decision of that |
| |
person is to be recoverable. |
| |
|
| |
|
| |
|
(4) | The provision referred to in subsection (3)(b) includes provision conferring on |
| |
the person to whom the appeal is made power— |
| |
(a) | to withdraw the requirement or notice; |
| |
(b) | to confirm the requirement or notice; |
| |
(c) | to take such steps as the regulator could take in relation to the act or |
| 5 |
omission giving rise to the requirement or notice; |
| |
(d) | to remit the decision whether to confirm the requirement or notice, or |
| |
any matter relating to that decision, to the regulator; |
| |
| |
| 10 |
(1) | An order under this Part may include consequential, supplementary, |
| |
incidental or transitional provision. |
| |
(2) | The consequential provision referred to in subsection (1) includes— |
| |
(a) | provision as to how any enactment passed or made before the day on |
| |
which this Act is passed applies or operates in relation to the imposition |
| 15 |
of a fixed monetary penalty or discretionary requirement or service of |
| |
| |
(b) | in particular, where such an enactment applies in relation to a person |
| |
convicted of a criminal offence, provision to make the enactment apply |
| |
in relation to a person on whom a fixed monetary penalty or |
| 20 |
discretionary requirement is imposed or a stop notice is served in |
| |
relation to that offence. |
| |
(3) | The supplementary provision referred to in subsection (1) includes provision |
| |
for the purpose of facilitating the use of powers conferred by an order under |
| |
this Part, and in particular provision which for that purpose— |
| 25 |
(a) | confers or extends powers to require information; |
| |
(b) | authorises the use of information in evidence which could not |
| |
otherwise lawfully so be used; |
| |
(c) | confers or extends powers of entry, search or seizure. |
| |
(4) | The provision which may be made by an order under this Part may be made |
| 30 |
by repealing, revoking or amending an enactment (whenever passed or made). |
| |
Orders under Part 3: exclusions |
| |
55 | Excluded provision: Scotland |
| |
An order under this Part may not, except for consequential purposes, make any |
| |
provision which would be within the legislative competence of the Scottish |
| 35 |
Parliament if it were contained in an Act of that Parliament. |
| |
56 | Excluded provision: Northern Ireland |
| |
An order under this Part may not, except for consequential purposes, make any |
| |
provision which would be within the legislative competence of the Northern |
| |
Ireland Assembly if it were contained in an Act of that Assembly. |
| 40 |
|
| |
|