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 3 — Civil sanctions
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Orders under Part 3: procedure
57
Consultation and consent: Scotland
(1)
A Minister of the Crown must obtain the consent of the Lord Advocate before
making an order under this Part in relation to an offence in Scotland.
(2)
A Minister of the Crown must consult the Scottish Ministers before making an
5
order under this Part in relation to a regulator which is a local authority in
Scotland.
(3)
In subsection (2), “local authority in Scotland” means a council constituted
under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39).
58
Consultation and consent: Wales
10
(1)
A Minister of the Crown must consult the Welsh Ministers before making an
order under this Part in relation to an offence which applies in or in relation to
Wales.
(2)
A Minister of the Crown must obtain the consent of the Welsh Ministers before
making an order under this Part containing provision which relates to a Welsh
15
ministerial matter.
(3)
The Welsh Ministers must consult the Secretary of State before making an
order under this Part.
59
Consultation: general
(1)
Before making an order under this Part the relevant authority must consult the
20
following (in addition to any persons who must be consulted under sections 57
and 58)—
(a)
the regulator to which the order relates,
(b)
such organisations as appear to the relevant authority to be
representative of persons substantially affected by the proposals, and
25
(c)
such other persons as the relevant authority considers appropriate.
(2)
If, as a result of any consultation required by subsection (1), it appears to the
relevant authority that it is appropriate substantially to change the whole or
any part of the proposals, the relevant authority must undertake such further
consultation with respect to the changes as it considers appropriate.
30
(3)
If, before the day on which this Part comes into force, any consultation was
undertaken which, had it been undertaken after that day, would to any extent
have satisfied the requirements of this section, those requirements may to that
extent be taken to have been satisfied.
(4)
In this section, “relevant authority” means—
35
(a)
in a case of an order made by a Minister of the Crown, that Minister,
and
(b)
in a case of an order made by the Welsh Ministers, the Welsh Ministers.

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
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Parliamentary and Assembly procedure
(1)
A statutory instrument containing an order under this Part made by a Minister
of the Crown may not be made unless a draft of the instrument has been laid
before, and approved by resolution of, each House of Parliament.
(2)
A statutory instrument containing an order under this Part made by the Welsh
5
Ministers may not be made unless a draft of the instrument has been laid
before, and approved by resolution of, the National Assembly for Wales.
Extension of powers to make subordinate legislation
61
Offences under subordinate legislation
(1)
This section applies where, by virtue of a specified enactment—
10
(a)
a Minister of the Crown has, or the Welsh Ministers have, power by
statutory instrument to make provision creating a criminal offence, and
(b)
the power has been or is being exercised so as to create the offence.
(2)
The power includes power to make, in relation to a relevant enforcement
authority, any provision which could be made by an order under this Part if,
15
for the purposes of this Part—
(a)
the relevant enforcement authority were a regulator, and
(b)
the offence were a relevant offence in relation to that regulator.
(3)
Where a statutory instrument containing provision made under the power
referred to in subsection (1) pursuant to subsection (2) would, apart from this
20
subsection, be subject to annulment in pursuance of a resolution of either
House of Parliament or of the National Assembly for Wales—
(a)
the instrument is not subject to such annulment; but
(b)
the instrument may not be made unless a draft has been laid before, and
approved by resolution of, each House of Parliament or (as the case
25
may be) the National Assembly for Wales.
(4)
In subsection (1) “specified enactment” means any enactment specified in
Schedule 7.
(5)
In subsection (2) “relevant enforcement authority” means a person, other than
a person referred to in section 36(3), who has an enforcement function in
30
relation to the offence.
Guidance
62
Guidance as to use of civil sanctions
(1)
Where power is conferred on a regulator under or by virtue of this Part—
(a)
to impose a fixed monetary penalty,
35
(b)
to impose a discretionary requirement,
(c)
to serve a stop notice, or
(d)
to accept an enforcement undertaking,

the provision conferring the power must secure the results in subsection (2).
(2)
Those results are that—
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(a)
the regulator must publish guidance about its use of the sanction,

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
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(b)
in the case of guidance relating to a fixed monetary penalty,
discretionary requirement or stop notice, the guidance must contain the
relevant information,
(c)
the regulator must revise the guidance where appropriate,
(d)
the regulator must consult such persons as the provision may specify
5
before publishing any guidance or revised guidance, and
(e)
the regulator must have regard to the guidance or revised guidance in
exercising its functions.
(3)
In the case of guidance relating to a fixed monetary penalty, the relevant
information referred to in subsection (2)(b) is information as to—
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(a)
the circumstances in which the penalty is likely to be imposed,
(b)
the circumstances in which it may not be imposed,
(c)
what the penalty is or how it is calculated, and
(d)
rights to require review and rights of appeal.
(4)
In the case of guidance relating to a discretionary requirement, the relevant
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information referred to in subsection (2)(b) is information as to—
(a)
the circumstances in which the requirement is likely to be imposed,
(b)
the circumstances in which it may not be imposed,
(c)
in the case of a variable monetary penalty, the matters likely to be taken
into account by the regulator in determining the amount of the penalty
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(including, where relevant, any discounts for voluntary reporting of
non-compliance), and
(d)
rights to make representations and objections and rights of appeal.
(5)
In the case of guidance relating to a stop notice, the relevant information
referred to in subsection (2)(b) is information as to—
25
(a)
the circumstances in which the regulator is likely to serve the notice,
(b)
the circumstances in which it may not be imposed, and
(c)
rights of appeal.
63
Guidance as to enforcement of relevant offences
(1)
Where power is conferred on a regulator under or by virtue of this Part—
30
(a)
to impose a fixed monetary penalty in relation to an offence,
(b)
to impose a discretionary requirement in relation to an offence,
(c)
to serve a stop notice in relation to an offence, or
(d)
to accept an enforcement undertaking in relation to an offence,

the regulator must prepare and publish guidance about how the offence is
35
enforced.
(2)
The guidance must include guidance as to—
(a)
the sanctions (including criminal sanctions) to which a person who
commits the offence may be liable,
(b)
the action which the regulator may take to enforce the offence, whether
40
by virtue of this Part or otherwise, and
(c)
the circumstances in which the regulator is likely to take any such
action.
(3)
A regulator may from time to time revise guidance published by it under this
section and publish the revised guidance.
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Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
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(4)
The regulator must consult such persons as it considers appropriate before
publishing any guidance or revised guidance under this section.
Exercise of powers: general
64
Compliance with regulatory principles
(1)
The relevant authority may not make any provision under or by virtue of this
5
Part conferring power on a regulator—
(a)
to impose a fixed monetary penalty in relation to an offence,
(b)
to impose a discretionary requirement in relation to an offence,
(c)
to serve a stop notice in relation to an offence, or
(d)
to accept an enforcement undertaking in relation to an offence,
10

unless the authority is satisfied that the regulator will act in accordance with
the principles referred to in section 5(2) in exercising that power.
(2)
In this section “relevant authority” means—
(a)
in relation to provision made under or by virtue of this Part by a
Minister of the Crown, the Minister;
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(b)
in relation to provision made under or by virtue of this Part by the
Welsh Ministers, the Welsh Ministers.
65
Review
(1)
The relevant authority must in accordance with this section review the
operation of any provision made under or by virtue of this Part conferring
20
power on a regulator—
(a)
to impose a fixed monetary penalty,
(b)
to impose a discretionary requirement,
(c)
to serve a stop notice, or
(d)
to accept an enforcement undertaking.
25
(2)
The review must take place as soon as practicable after the end of the period of
three years beginning with the day on which the provision comes into force.
(3)
The review must in particular consider whether the provision has
implemented its objectives efficiently and effectively.
(4)
In conducting a review under this section the relevant authority must consult
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such persons as the authority considers appropriate.
(5)
The relevant authority must publish the results of a review under this section.
(6)
In this section “relevant authority” means—
(a)
in relation to provision made under or by virtue of this Part by a
Minister of the Crown, that Minister, and
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(b)
in relation to provision made under or by virtue of this Part by the
Welsh Ministers, the Welsh Ministers.
66
Suspension
(1)
Where provision has been made under or by virtue of this Part conferring
power on a regulator in relation to an offence, the relevant authority may direct
40
the regulator—

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions
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(a)
where the power is power to impose a fixed monetary penalty, not to
serve any further notice of the kind referred to in section 39(2)(a) in
relation to that offence,
(b)
where the power is power to impose a discretionary requirement, not
to serve any further notice of the kind referred to in section 42(2)(a) in
5
relation to that offence,
(c)
where the power is power to serve a stop notice, not to serve any
further stop notice in relation to that offence, and
(d)
where the power is power to accept an enforcement undertaking, not to
accept any further enforcement undertaking in relation to that offence.
10
(2)
The relevant authority may only give a direction under subsection (1) in
relation to an offence if it is satisfied that the regulator has failed on more than
one occasion—
(a)
to comply with any duty imposed on it under or by virtue of this Part
in relation to that offence,
15
(b)
to act in accordance with the guidance it has published in relation to
that offence (in particular, the guidance published under sections 62
and 63), or
(c)
to act in accordance with the principles referred to in section 5(2) or
with other principles of best practice in relation to the enforcement of
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that offence.
(3)
The relevant authority may by direction revoke a direction given by it under
subsection (1) if satisfied that the regulator has taken the appropriate steps to
remedy the failure to which that direction related.
(4)
Before giving a direction under subsection (1) or (3) the relevant authority must
25
consult—
(a)
the regulator, and
(b)
such other persons as the authority considers appropriate.
(5)
Where the relevant authority gives a direction under this section, the authority
must lay a copy before Parliament (where the relevant authority is a Minister
30
of the Crown) or the National Assembly for Wales (where the relevant
authority is the Welsh Ministers).
(6)
Where the relevant authority gives a direction under this section, the regulator
must—
(a)
publish the direction in such manner as the relevant authority thinks fit,
35
and
(b)
take such other steps as the regulator thinks fit or the relevant authority
may require to bring the direction to the attention of other persons
likely to be affected by it.
(7)
In this section “relevant authority” means—
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(a)
in relation to provision made under or by virtue of this Part by a
Minister of the Crown, that Minister, and
(b)
in relation to provision made under or by virtue of this Part by the
Welsh Ministers, the Welsh Ministers.