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      (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

 

monetary penalty.

 

      (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

 

following—

 

(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

 

occurred.

 

      (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.

 

      (4)  

In this Schedule—

 

“variable monetary penalty” means a requirement referred to in sub-

 

paragraph (3)(a);

 

“non-monetary discretionary requirement” means a requirement referred to

 

in sub-paragraph (3)(b).

 

      (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

 

kind, or

 

(b)    

provide for that maximum to be determined in accordance with the

 

regulations.

 

      (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


 
 

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a notice of what is proposed (a “notice of intent”) that complies with

 

sub-paragraph (2),

 

(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

 

modifications, or

 

(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

 

sub-paragraph (4), and

 

(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

 

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 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

 

monetary penalty.

 

      (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

 

following—

 

(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

 

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.

 

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


 
 

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person fails to comply with a non-monetary discretionary requirement

 

imposed on the person.

 

      (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

 

some other way.

 

      (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

 

imposed—

 

(a)    

specify the maximum penalty that may be imposed for a failure of that

 

kind, or

 

(b)    

provide for that maximum to be determined in accordance with the

 

regulations.

 

      (4)  

Provision under sub-paragraph (1) must secure that—

 

(a)    

the non-compliance penalty is imposed by notice served by the

 

administrator, and

 

(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).

 

Combination of sanctions

 

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

 

to the same breach.

 

      (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

 

where—

 

(a)    

a fixed monetary penalty has been imposed on that person in relation

 

to the same breach, or

 

(b)    

the person has discharged liability to a fixed monetary penalty in

 

relation to that breach pursuant to paragraph 11(1)(b).

 

Monetary penalties

 

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;


 
 

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(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

 

under a court order.

 

Costs recovery

 

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—

 

(a)    

investigation costs;

 

(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

 

that amount;

 

(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

 

pay costs;

 

(ii)    

the decision of the administrator as to the amount of those

 

costs.

 

      (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.

 

Appeals

 

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

 

of the appeal;

 

(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;


 
 

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(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;

 

(e)    

to award costs.

 

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

 

notice.

 

      (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

 

corporate itself, and

 

(b)    

for the partners of a partnership to be liable as well as the partnership

 

itself,

 

            

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

 

of the civil sanction,

 

(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,


 
 

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(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

 

discharge, and

 

(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

 

11(1)(b).

 

      (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

 

overturned on appeal.

 

      (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

 

inappropriate to do so.

 

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

 

needed.

 

Review

 

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

 

under this Schedule.

 

      (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.


 
 

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      (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

 

section.

 

      (6)  

The relevant national authority must lay a copy of a review under this

 

paragraph before—

 

(a)    

Parliament (where the relevant national authority is the Secretary of

 

State);

 

(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).

 

Suspension

 

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

 

paragraph 21), or

 

(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

 

a breach of that kind.

 

      (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

 

authority must consult—

 

(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

 

State);

 

(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

 

administrator must—

 

(a)    

publish the direction in such manner as the authority thinks fit, and


 
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