|
|
| |
| |
|
| | (3) | Provision pursuant to sub-paragraph (1)(c)(ii) must include provision for |
|
| | circumstances in which the administrator may not decide to impose a fixed |
|
| | |
| | (4) | To comply with this sub-paragraph the final notice referred to in sub-paragraph |
|
| | (1)(d) must include information as to— |
|
| | (a) | the grounds for imposing the penalty, |
|
| | (b) | how payment may be made, |
|
| | (c) | the period within which payment must be made, |
|
| | (d) | any early payment discounts or late payment penalties, |
|
| | (e) | rights of appeal, and |
|
| | (f) | the consequences of non-payment. |
|
| | (5) | Provision pursuant to sub-paragraph (1)(e) must secure that the grounds on |
|
| | which a person may appeal against a decision of the administrator include the |
|
| | |
| | (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. |
|
| | Discretionary requirements |
|
| | 12 (1) | The regulations may make provision conferring on an administrator the power |
|
| | by notice to impose one or more discretionary requirements on a person who |
|
| | breaches regulations under this Schedule. |
|
| | (2) | The regulations may only confer such a power in relation to a case where the |
|
| | administrator is satisfied on the balance of probabilities that the breach has |
|
| | |
| | (3) | For the purposes of this Schedule a “discretionary requirement” means— |
|
| | (a) | a requirement to pay a monetary penalty to an administrator of such |
|
| | amount as the administrator may determine, or |
|
| | (b) | a requirement to take such steps as an administrator may specify, |
|
| | within such period as the administrator may specify, to secure that the |
|
| | breach does not continue or recur. |
|
| | |
| | “variable monetary penalty” means a requirement referred to in sub- |
|
| | |
| | “non-monetary discretionary requirement” means a requirement referred to |
|
| | |
| | (5) | The regulations must, in relation to each kind of breach of regulations under |
|
| | this Schedule for which a variable monetary penalty may be imposed— |
|
| | (a) | specify the maximum penalty that may be imposed for a breach of that |
|
| | |
| | (b) | provide for that maximum to be determined in accordance with the |
|
| | |
| | (6) | The regulations may not permit discretionary requirements to be imposed on a |
|
| | person on more than one occasion in relation to the same act or omission. |
|
| | Discretionary requirements: procedure |
|
| | 13 (1) | Provision under paragraph 12 must secure that— |
|
| | (a) | where an administrator proposes to impose a discretionary |
|
| | requirement on a person, the administrator must serve on that person |
|
|
|
| |
| |
|
| | a notice of what is proposed (a “notice of intent”) that complies with |
|
| | |
| | (b) | that person may make written representations and objections to the |
|
| | administrator in relation to the proposed imposition of the |
|
| | discretionary requirement, |
|
| | (c) | after the end of the period for making such representations and |
|
| | objections, the administrator must decide whether to— |
|
| | (i) | impose the discretionary requirement, with or without |
|
| | |
| | (ii) | impose any other discretionary requirement that the |
|
| | administrator has power to impose under paragraph 12, |
|
| | (d) | where the administrator decides to impose a discretionary |
|
| | requirement, the notice imposing it (the “final notice”) complies with |
|
| | |
| | (e) | the person on whom a discretionary requirement is imposed may |
|
| | appeal against the decision to impose it. |
|
| | (2) | To comply with this sub-paragraph the notice of intent must include |
|
| | |
| | (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 administrator may not impose the |
|
| | discretionary requirement, |
|
| | (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. |
|
| | (3) | Provision pursuant to sub-paragraph (1)(c) must include provision for |
|
| | circumstances in which the administrator may not decide to impose a fixed |
|
| | |
| | (4) | To comply with this sub-paragraph the final notice referred to in sub-paragraph |
|
| | (1)(d) 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 |
|
| | (iii) | any early payment discounts or late payment penalties, |
|
| | (c) | rights of appeal, and |
|
| | (d) | the consequences of non-compliance. |
|
| | (5) | Provision pursuant to sub-paragraph (1)(e) must secure that the grounds on |
|
| | which a person may appeal against a decision of the administrator include the |
|
| | |
| | (a) | that the decision was based on an error of fact; |
|
| | (b) | that the decision was wrong in law; |
|
| | (c) | in the case of a variable monetary penalty, that the amount of the |
|
| | |
| | (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. |
|
| | Discretionary requirements: enforcement |
|
| | 14 (1) | Provision under paragraph 12 may include provision for a person to pay a |
|
| | monetary penalty (a “non-compliance penalty”) to an administrator if the |
|
|
|
| |
| |
|
| | person fails to comply with a non-monetary discretionary requirement |
|
| | |
| | (2) | Provision under sub-paragraph (1) may— |
|
| | (a) | specify the amount of the non-compliance penalty or provide for that |
|
| | amount to be determined in accordance with the regulations, or |
|
| | (b) | provide for the amount to be determined by the administrator or in |
|
| | |
| | (3) | If the regulations make provision within sub-paragraph (2)(b), they must, in |
|
| | relation to each kind of failure for which a non-compliance penalty may be |
|
| | |
| | (a) | specify the maximum penalty that may be imposed for a failure of that |
|
| | |
| | (b) | provide for that maximum to be determined in accordance with the |
|
| | |
| | (4) | Provision under sub-paragraph (1) must secure that— |
|
| | (a) | the non-compliance penalty is imposed by notice served by the |
|
| | |
| | (b) | the person on whom it is imposed may appeal against that notice. |
|
| | (5) | Provision pursuant to paragraph (b) of sub-paragraph (4) must secure that the |
|
| | grounds on which a person may appeal against a notice referred to in that sub- |
|
| | paragraph include the following— |
|
| | (a) | that the decision to serve the notice was based on an error of fact; |
|
| | (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 administrator, that the amount is unreasonable). |
|
| | |
| | 15 (1) | Provision may not be made under paragraphs 10 and 12 conferring powers on |
|
| | an administrator in relation to the same kind of breach of regulations under this |
|
| | Schedule unless it complies with the following requirements. |
|
| | (2) | The provision must secure that the administrator may not serve a notice of |
|
| | intent referred to in paragraph 11(1)(a) on a person in relation to a breach |
|
| | where a discretionary requirement has been imposed on that person in relation |
|
| | |
| | (3) | Such provision must secure that the administrator may not serve a notice of |
|
| | intent referred to in paragraph 13(1)(a) on a person in relation to a breach |
|
| | |
| | (a) | a fixed monetary penalty has been imposed on that person in relation |
|
| | |
| | (b) | the person has discharged liability to a fixed monetary penalty in |
|
| | relation to that breach pursuant to paragraph 11(1)(b). |
|
| | |
| | 16 (1) | If the regulations confer power on an administrator to require a person to pay |
|
| | a fixed monetary penalty, a variable monetary penalty or a non-compliance |
|
| | penalty under paragraph 14(1), they may include provision— |
|
| | (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. |
|
| | (2) | Provision under sub-paragraph (1)(c) may include— |
|
| | (a) | provision for the administrator 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 |
|
| | |
| | |
| | 17 (1) | Provision under paragraph 12 may include provision for an administrator, by |
|
| | notice, to require a person on whom a discretionary requirement is imposed to |
|
| | pay the costs incurred by the administrator in relation to the imposition of the |
|
| | discretionary requirement up to the time of its imposition. |
|
| | (2) | In sub-paragraph (1), the reference to costs includes in particular— |
|
| | |
| | (b) | administration costs; |
|
| | (c) | costs of obtaining expert advice (including legal advice). |
|
| | (3) | Provision under this paragraph 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 administrator may be required to provide a detailed breakdown of |
|
| | |
| | (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 administrator to impose the requirement to |
|
| | |
| | (ii) | the decision of the administrator as to the amount of those |
|
| | |
| | (4) | Provision under this paragraph may include the provision referred to in |
|
| | paragraph 16(1)(b) and (c) and (2). |
|
| | (5) | Provision under this paragraph must secure that the administrator is required |
|
| | to publish guidance about how the administrator will exercise the power |
|
| | conferred by the provision. |
|
| | |
| | 18 (1) | The regulations may not provide for the making of an appeal other than to— |
|
| | (a) | the First-tier Tribunal, or |
|
| | (b) | another tribunal created under an enactment. |
|
| | (2) | In sub-paragraph (1)(b) “tribunal” does not include an ordinary court of law. |
|
| | (3) | If the regulations make provision for an appeal in relation to the imposition of |
|
| | any requirement or service of any notice, they may include— |
|
| | (a) | provision suspending the requirement or notice pending determination |
|
| | |
| | (b) | provision as to the powers of the tribunal to which the appeal is made; |
|
| | (c) | provision as to how any sum payable in pursuance of a decision of that |
|
| | tribunal is to be recoverable. |
|
| | (4) | The provision referred to in sub-paragraph (3)(b) includes provision conferring |
|
| | on the tribunal to which 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 administrator could take in relation to the act |
|
| | or 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 administrator; |
|
| | |
| | Publicity for imposition of civil sanctions |
|
| | 19 (1) | The regulations may make provision enabling an administrator to give a |
|
| | publicity notice to a person on whom a civil sanction has been imposed in |
|
| | accordance with regulations under this Schedule. |
|
| | (2) | A “publicity notice” is a notice requiring the person to publicise— |
|
| | (a) | the fact that the civil sanction has been imposed, and |
|
| | (b) | such other information as may be specified in the regulations, |
|
| | | in such manner as may be specified in the notice. |
|
| | (3) | The regulations may provide for a publicity notice to— |
|
| | (a) | specify the time for compliance with the notice, and |
|
| | (b) | require the person to whom it is given to supply an administrator with |
|
| | evidence of compliance within such time as may be specified in the |
|
| | |
| | (4) | The regulations may provide that, if a person fails to comply with a publicity |
|
| | notice, an administrator may— |
|
| | (a) | publicise the information required to be publicised by the notice, and |
|
| | (b) | recover the costs of doing so from that person. |
|
| | Persons liable to civil sanctions |
|
| | 20 | The regulations may make provision about the persons liable to civil sanctions |
|
| | under regulations under this Schedule and may (in particular) provide for— |
|
| | (a) | the officers of a body corporate to be so liable as well the body |
|
| | |
| | (b) | for the partners of a partnership to be liable as well as the partnership |
|
| | |
| | | in such circumstances as may be specified. |
|
| | Guidance as to use of civil sanctions |
|
| | 21 (1) | Where power is conferred on an administrator by the regulations to impose a |
|
| | civil sanction in relation to a breach of regulations under this Schedule, the |
|
| | provision conferring the power must secure that— |
|
| | (a) | the administrator must publish guidance about the administrator’s use |
|
| | |
| | (b) | the guidance must contain the relevant information, |
|
| | (c) | the administrator must revise the guidance where appropriate, |
|
| | (d) | the administrator must consult such persons as the provision may |
|
| | specify before publishing any guidance or revised guidance, and |
|
| | (e) | the administrator must have regard to the guidance or revised guidance |
|
| | in exercising the administrator’s functions. |
|
| | (2) | In the case of guidance relating to a fixed monetary penalty, the relevant |
|
| | information referred to in sub-paragraph (1)(b) is information as to— |
|
| | (a) | the circumstances in which the penalty is likely to be imposed, |
|
|
|
| |
| |
|
| | (b) | the circumstances in which it may not be imposed, |
|
| | (c) | the amount of the penalty, |
|
| | (d) | how liability for the penalty may be discharged and the effect of |
|
| | |
| | (e) | rights to make representations and objections and rights of appeal. |
|
| | (3) | In the case of guidance relating to a discretionary requirement, the relevant |
|
| | information referred to in sub-paragraph (1)(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 administrator in determining the amount of |
|
| | the penalty (including, where relevant, any discounts for voluntary |
|
| | reporting of non-compliance), and |
|
| | (d) | rights to make representations and objections and rights of appeal. |
|
| | Publication of enforcement action |
|
| | 22 (1) | Where power is conferred on an administrator by the regulations to impose a |
|
| | civil sanction in relation to a breach of regulations under this Schedule, the |
|
| | provision conferring the power must, subject to this paragraph, secure that the |
|
| | administrator must from time to time publish reports specifying— |
|
| | (a) | the cases in which the civil sanction has been imposed, and |
|
| | (b) | where the civil sanction is a fixed monetary penalty, the cases in which |
|
| | liability to the penalty has been discharged pursuant to paragraph |
|
| | |
| | (2) | In sub-paragraph (1)(a), the reference to cases in which the civil sanction has |
|
| | been imposed do not include cases where the sanction has been imposed but |
|
| | |
| | (3) | The provision conferring the power need not secure the result in sub-paragraph |
|
| | (1) in cases where the relevant authority considers that it would be |
|
| | |
| | Compliance with regulatory principles |
|
| | 23 | A relevant national authority may not make any provision conferring power on |
|
| | an administrator to impose a civil sanction in relation to a breach of regulations |
|
| | under this Schedule unless the authority is satisfied that the administrator will |
|
| | act in accordance with the principles that— |
|
| | (a) | regulatory activities should be carried out in a way that is transparent, |
|
| | accountable, proportionate and consistent; |
|
| | (b) | regulatory activities should be targeted only at cases in which action is |
|
| | |
| | |
| | 24 (1) | A relevant national authority must in accordance with this paragraph review |
|
| | the operation of any provision made by the authority conferring power on an |
|
| | administrator to impose a civil sanction in relation to a breach of regulations |
|
| | |
| | (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 paragraph the relevant national authority |
|
| | must consult such persons as the authority considers appropriate. |
|
| | (5) | The relevant national authority must publish the results of a review under this |
|
| | |
| | (6) | The relevant national authority must lay a copy of a review under this |
|
| | |
| | (a) | Parliament (where the relevant national authority is the Secretary of |
|
| | |
| | (b) | the National Assembly for Wales (where the relevant national |
|
| | authority is the Welsh Ministers); |
|
| | (c) | the Northern Ireland Assembly (where the relevant national authority |
|
| | is the Department of the Environment in Northern Ireland). |
|
| | |
| | 25 (1) | Where provision has been made by a relevant national authority conferring |
|
| | power on an administrator to impose a civil sanction in relation to a breach of |
|
| | regulations under this Schedule, the authority may direct the administrator— |
|
| | (a) | where the power is power to impose a fixed monetary penalty, not to |
|
| | serve any further notice of intent referred to in paragraph 11(1)(a) in |
|
| | relation to a breach of that kind, and |
|
| | (b) | where the power is power to impose a discretionary requirement, not |
|
| | to serve any further notice of intent referred to in paragraph 13(1)(a) |
|
| | in relation to a breach of that kind. |
|
| | (2) | The relevant national authority may only give a direction under sub-paragraph |
|
| | (1) in relation to a breach of regulations under this Schedule if it is satisfied |
|
| | that the administrator has failed on more than one occasion— |
|
| | (a) | to comply with any duty imposed on it under or by virtue of this |
|
| | Schedule in relation to a breach of that kind, |
|
| | (b) | to act in accordance with the guidance it has published in relation to a |
|
| | breach of that kind (in particular, the guidance published under |
|
| | |
| | (c) | to act in accordance with the principles referred to in paragraph 23 or |
|
| | with other principles of best practice in relation to the enforcement of |
|
| | |
| | (3) | The relevant national authority may by direction revoke a direction given by it |
|
| | under sub-paragraph (1) if satisfied that the administrator has taken the |
|
| | appropriate steps to remedy the failure to which that direction related. |
|
| | (4) | Before giving a direction under sub-paragraph (1) or (3) the relevant national |
|
| | |
| | (a) | the administrator, and |
|
| | (b) | such other persons as the authority considers appropriate. |
|
| | (5) | Where the relevant national authority gives a direction under this section, the |
|
| | authority must lay a copy before— |
|
| | (a) | Parliament (where the relevant national authority is the Secretary of |
|
| | |
| | (b) | the National Assembly for Wales (where the relevant national |
|
| | authority is the Welsh Ministers); |
|
| | (c) | the Northern Ireland Assembly (where the relevant national authority |
|
| | is the Department of the Environment in Northern Ireland). |
|
| | (6) | Where the relevant national authority gives a direction under this section, the |
|
| | |
| | (a) | publish the direction in such manner as the authority thinks fit, and |
|
|