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Regulatory Enforcement and Sanctions Bill [HL]


Regulatory Enforcement and Sanctions Bill [HL]
Part 1 — The Local Better Regulation Office

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14      

Ancillary powers

(1)   

LBRO may do anything which it thinks necessary or expedient for the purpose

of, or in connection with, the exercise of any of its functions.

(2)   

In particular, LBRO may—

(a)   

enter into agreements;

5

(b)   

acquire or dispose of property;

(c)   

borrow money;

(d)   

invest money.

Ministerial powers in relation to LBRO

15      

Guidance or directions by the Secretary of State

10

(1)   

The Secretary of State may give LBRO—

(a)   

guidance, or

(b)   

general or specific directions,

   

as to the exercise of any of its functions.

(2)   

The Secretary of State must publish (in such manner as the Secretary of State

15

considers appropriate) any guidance or directions given under this section.

(3)   

LBRO must have regard to any guidance, and comply with any directions,

given under this section.

(4)   

The Secretary of State may vary or revoke any guidance or directions given

under this section by further guidance or directions under this section.

20

(5)   

The Secretary of State may not under subsection (1)(b) give LBRO directions

relating to the exercise of its functions under section 7 in relation to two or

more local authorities in England and Wales.

(6)   

The Secretary of State may by order require LBRO to exercise its functions

under section 7 in relation to two or more local authorities in England and

25

Wales in such manner as may be specified in the order.

16      

Guidance or directions by Welsh Ministers

(1)   

The Welsh Ministers may give LBRO—

(a)   

guidance, or

(b)   

general or specific directions,

30

   

as to the exercise in relation to Wales of any of its functions relating to a Welsh

ministerial matter.

(2)   

The Welsh Ministers must publish (in such manner as they consider

appropriate) any guidance or directions given under this section.

(3)   

LBRO must have regard to any guidance, and comply with any directions,

35

given under this section.

(4)   

The Welsh Ministers may vary or revoke any guidance or directions given

under this section by further guidance or directions under this section.

 
 

Regulatory Enforcement and Sanctions Bill [HL]
Part 1 — The Local Better Regulation Office

8

 

(5)   

The Welsh Ministers may not under subsection (1)(b) give LBRO directions

relating to the exercise of its functions under section 7 in relation to two or

more local authorities in Wales.

(6)   

The Welsh Ministers may by order require LBRO to exercise its functions

under section 7 in relation to two or more local authorities in Wales, so far as

5

relating to a Welsh ministerial matter, in such manner as may be specified in

the order.

Supplementary and general

17      

Power to dissolve LBRO

(1)   

The Secretary of State may by order—

10

(a)   

provide for LBRO to be dissolved, and

(b)   

make consequential, supplementary, incidental and transitional

provision in relation to its dissolution.

(2)   

An order under subsection (1) may in particular—

(a)   

provide for the transfer of the property, rights and liabilities of LBRO

15

to another person;

(b)   

provide for the transfer of the functions of LBRO to another person;

(c)   

provide that anything done by or in relation to LBRO is, so far as is

necessary for continuing its effect, to have effect as if done by or in

relation to another person;

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(d)   

provide for anything (which may include legal proceedings) which is

in the process of being done by or in relation to LBRO when a transfer

under the order takes effect to be continued by or in relation to another

person;

(e)   

provide for a reference to LBRO in an enactment, instrument or other

25

document to be treated as a reference to another person.

(3)   

Provision under subsection (2)(a) may include provision for property, rights or

liabilities to be transferred—

(a)   

whether or not they would otherwise be capable of being transferred,

(b)   

without any instrument or other formality being required, and

30

(c)   

despite any provision (of whatever nature) which would otherwise

prevent, penalise or restrict their transfer.

(4)   

Provision under subsection (2)(a) for the transfer of rights and liabilities

relating to employees of LBRO must include provision for the Transfer of

Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) to

35

apply in relation to the transfer.

(5)   

Provision under subsection (2)(a) or (b) may include provision establishing a

body corporate to which property, rights and liabilities, or functions, are

transferred.

(6)   

Before making an order under this section the Secretary of State must consult—

40

(a)   

the Welsh Ministers, and

(b)   

such persons (or persons representative of such persons) as appear to

the Secretary of State to be substantially affected by the dissolution of

LBRO.

 
 

Regulatory Enforcement and Sanctions Bill [HL]
Part 1 — The Local Better Regulation Office

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(7)   

The provision which may be made by an order under this section may be made

by repealing, revoking or amending an enactment (whenever passed or made).

18      

Dissolution of LBRO: tax

(1)   

Where an order under section 17 makes provision under subsection (2)(a) of

that section, the Treasury may by regulations make provision for varying the

5

way in which a relevant tax has effect in relation to—

(a)   

the property, rights or liabilities transferred, or

(b)   

anything done for the purposes of, or in relation to, the transfer.

(2)   

The provision which may be made under subsection (1)(a) includes in

particular provision for—

10

(a)   

a tax provision not to apply, or to apply with modifications, in relation

to the property, rights or liabilities transferred;

(b)   

the property, rights or liabilities transferred to be treated in a specified

way for the purposes of a tax provision;

(c)   

the Secretary of State to be required or permitted, with the consent of

15

the Treasury, to determine, or specify the method for determining,

anything which needs to be determined for the purposes of any tax

provision so far as relating to the property, rights or liabilities

transferred.

(3)   

The provision which may be made under subsection (1)(b) includes in

20

particular provision for—

(a)   

a tax provision not to apply, or to apply with modifications, in relation

to anything done for the purposes of, or in relation to, the transfer;

(b)   

anything done for the purposes of, or in relation to, the transfer to have

or not have a specified consequence or be treated in a specified way;

25

(c)   

the Secretary of State to be required or permitted, with the consent of

the Treasury, to determine, or specify the method for determining,

anything which needs to be determined for the purposes of any tax

provision so far as relating to anything done for the purposes of, or in

relation to, the transfer.

30

(4)   

In this section—

“relevant tax” means income tax, corporation tax, capital gains tax, stamp

duty or stamp duty reserve tax;

“tax provision” means a provision of an enactment about a relevant tax.

19      

Orders under Part 1

35

(1)   

An order or regulations under this Part must be made by statutory instrument.

(2)   

A statutory instrument containing an order made by the Secretary of State

under section 7(4) or 15(6) is subject to annulment in pursuance of a resolution

of either House of Parliament.

(3)   

A statutory instrument containing an order made by the Secretary of State

40

under section 4(4) or 17 may not be made unless a draft of the instrument has

been laid before, and approved by resolution of, each House of Parliament.

(4)   

A statutory instrument containing an order made by the Welsh Ministers

under section 7(4) or 16(6) is subject to annulment in pursuance of a resolution

of the National Assembly for Wales.

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

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(5)   

A statutory instrument containing regulations made by the Treasury under

section 18 is subject to annulment in pursuance of a resolution of the House of

Commons.

20      

Interpretation of Part 1

In this Part—

5

“LBRO” has the meaning given in section 1;

“the LBRO company” has the meaning given in section 2;

“local authority” has the meaning given in section 3;

“relevant function” has the meaning given in section 4.

Part 2

10

Co-ordination of regulatory enforcement

Introductory

21      

Scope of Part 2

(1)   

This Part applies where—

(a)   

a person carries on an activity in the area of two or more local

15

authorities, and

(b)   

each of those authorities has the same relevant function in relation to

that activity.

(2)   

In this Part “the regulated person” means the person referred to in subsection

(1)(a).

20

22      

“Local authority”

(1)   

In this Part “local authority” means a local authority in England, Wales,

Scotland or Northern Ireland.

(2)   

In this Part references to a local authority in England or Wales have the same

meaning as in Part 1.

25

(3)   

In this Part references to a local authority in Scotland are to a council

constituted under section 2 of the Local Government etc. (Scotland) Act 1994

(c. 39).

(4)   

In this Part references to a local authority in Northern Ireland are to a district

council constituted under section 1 of the Local Government Act (Northern

30

Ireland) 1972 (c. 9).

23      

“Relevant function”

(1)   

In this Part “relevant function”—

(a)   

in relation to a local authority in England or Wales, has the same

meaning as in Part 1;

35

(b)   

in relation to a local authority in Scotland, means a regulatory function

exercised by that authority and specified for the purposes of this Part

by order made by the Secretary of State;

 
 

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

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(c)   

in relation to a local authority in Northern Ireland, means a regulatory

function exercised by that authority and specified for the purposes of

this Part by order made by the Secretary of State.

(2)   

An order under subsection (1)(b) or (c) may only specify a regulatory

function—

5

(a)   

which is a relevant function for the purposes of Part 1 in relation to local

authorities in England or Wales or both, or

(b)   

which for the purposes of local authorities in Scotland or Northern

Ireland is equivalent to such a function.

(3)   

An order under subsection (1)(b) may not specify a regulatory function so far

10

as exercisable in Scotland, if or to the extent that the function relates to matters

which are not reserved matters.

(4)   

An order under subsection (1)(c) may not specify a regulatory function so far

as exercisable in Northern Ireland, if or to the extent that the function relates to

matters which are transferred matters.

15

(5)   

In subsection (3) “reserved matter” and “Scotland” have the same meanings as

in the Scotland Act 1998 (c. 46).

(6)   

In subsection (4) “transferred matter” and “Northern Ireland” have the same

meanings as in the Northern Ireland Act 1998 (c. 47).

Primary authorities

20

24      

Primary authorities

(1)   

For the purposes of this Part LBRO may nominate a local authority to be the

“primary authority” for the exercise of the relevant function in relation to the

regulated person.

(2)   

Sections 26 to 31 apply in any case where a primary authority is nominated

25

under this section in relation to the regulated person.

25      

Nomination of primary authorities

(1)   

LBRO may only nominate a local authority under section 24(1) in relation to the

regulated person if—

(a)   

the authority and the regulated person have agreed to the nomination,

30

or

(b)   

the regulated person has requested LBRO to make a nomination under

section 24(1) for the exercise of the relevant function in relation to the

regulated person,

   

and LBRO considers the authority suitable for nomination.

35

(2)   

LBRO may in particular consider as suitable for nomination under subsection

(1)—

(a)   

the local authority in whose area the regulated person principally

carries out the activity in relation to which the relevant function is

exercised;

40

(b)   

the local authority in whose area the regulated person administers the

carrying out of that activity.

 
 

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

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(3)   

Before nominating a local authority under section 24(1) in the case referred to

in subsection (1)(b) LBRO must consult—

(a)   

that authority, and

(b)   

the regulated person.

(4)   

LBRO must have particular regard to any representations made by a local

5

authority pursuant to subsection (3) as to the resources available to it.

(5)   

LBRO may at any time revoke a nomination under section 24(1) if—

(a)   

it considers that the authority is no longer suitable for nomination, or

(b)   

it considers it appropriate to do so for any other reason,

   

and subsections (2) to (4) apply in relation to a revocation of a nomination as in

10

relation to a nomination.

(6)   

LBRO must maintain, or cause to be maintained, a register of nominations

under section 24(1).

Functions of primary authorities

26      

Advice and guidance

15

(1)   

The primary authority has the function of—

(a)   

giving advice and guidance to the regulated person in relation to the

relevant function;

(b)   

giving advice and guidance to other local authorities with the relevant

function as to how they should exercise it in relation to the regulated

20

person.

(2)   

The primary authority may make arrangements with the regulated person as

to how it will discharge its function under subsection (1).

27      

Enforcement action

(1)   

Subject as follows, a local authority other than the primary authority (“the

25

enforcing authority”) must notify the primary authority before taking any

enforcement action against the regulated person.

(2)   

If the primary authority determines within the relevant period that the

proposed enforcement action is inconsistent with advice or guidance

previously given by the primary authority (generally or specifically), it may

30

within that period direct the enforcing authority not to take the enforcement

action.

(3)   

If the enforcing authority is not directed as specified in subsection (2) and

continues to propose to take the enforcement action, it must inform the

regulated person.

35

(4)   

The enforcing authority may not take the proposed enforcement action—

(a)   

at any time during the relevant period;

(b)   

at any time after the end of that period, if it is directed as specified in

subsection (2).

(5)   

In this Part “enforcement action” means, subject to subsection (6)—

40

 
 

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

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(a)   

any action which relates to securing compliance with any restriction,

requirement or condition in the event of breach (or putative breach) of

a restriction, requirement or condition;

(b)   

any action taken with a view to or in connection with the imposition of

any sanction (criminal or otherwise) in respect of an act or omission;

5

(c)   

any action taken with a view to or in connection with the pursuit of any

remedy conferred by an enactment in respect of an act or omission.

(6)   

The Secretary of State may by order with the consent of the Welsh Ministers

specify action which is or is not to be regarded as enforcement action for the

purposes of this Part.

10

(7)   

Schedule 4 (which makes provision for questions arising under this section to

be referred to LBRO) has effect.

(8)   

Where an enactment limits the period within which the enforcing authority

may take the proposed enforcement action, any time during which the

authority is prohibited under this section or Schedule 4 from taking the action

15

is to be disregarded in calculating that period.

(9)   

For the purposes of this section “relevant period” means—

(a)   

the period of five working days beginning with the day after that on

which the primary authority is notified under subsection (1), or

(b)   

such longer period beginning with that day as LBRO may direct.

20

(10)   

In subsection (9)(b) “working day” means a day other than—

(a)   

a Saturday or Sunday,

(b)   

Christmas Day or Good Friday, or

(c)   

a day which is a bank holiday under the Banking and Financial

Dealings Act 1971 (c. 80) in—

25

(i)   

the part of the United Kingdom where the primary authority is,

or

(ii)   

(if different) the part of the United Kingdom where the

enforcing authority is.

28      

Enforcement action: exclusions

30

(1)   

The Secretary of State may by order with the consent of the Welsh Ministers

prescribe circumstances in which section 27(1) to (4) shall not apply.

(2)   

Where a local authority other than the primary authority takes enforcement

action against the regulated person in circumstances prescribed under

subsection (1), the authority must inform the primary authority of the

35

enforcement action it has taken as soon as it reasonably can.

29      

Inspection plans

(1)   

Where a relevant function consists of or includes a function of inspection, the

primary authority may in accordance with this section make an inspection

plan.

40

(2)   

An “inspection plan” is a plan containing recommendations as to how a local

authority with the function of inspection should exercise it in relation to the

regulated person.

(3)   

An inspection plan may in particular set out—

 
 

 
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