House of Commons Amendments

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Public Bill Committee: 3rd July 2008
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Climate Change Bill [Lords], continued

      (4)
References in this Schedule to an administrator include a person appointed by

an administrator.

Record-keeping and publication of records

7    (1)
The regulations may require records to be kept relating to charges made for

single use carrier bags.

      (2)
The regulations may require—

(a)
the records, or such other information as may be specified, to be

published at such times and in such manner as may be specified;

(b)
the records, or such other information as may be specified, to be

supplied on request and in such manner as may be specified to—

(i)
the relevant national authority,

(ii)
an administrator, or

(iii)
members of the public.

      (3)
The regulations may (in particular) require the publication or supply of records

or information relating to any of the following—

(a)
the amount received by a seller by way of charges for single use carrier

bags;

(b)
the seller’s gross or net proceeds of the charge;

(c)
the uses to which the net proceeds of the charge have been put.

      (4)
In this paragraph—

“gross proceeds of the charge” means the amount received by the seller by

way of charges for single use carrier bags;

“net proceeds of the charge” means the seller’s gross proceeds of the charge

reduced by such amounts as may be specified.

Enforcement

8    (1)
The regulations may confer or impose powers or duties on an administrator to

enforce provision made by regulations under this Schedule.

      (2)
The regulations may (in particular) confer powers on an administrator to—

(a)
require the production of documents or the provision of information,

or

(b)
question a seller or officers or employees of a seller.

      (3)
Regulations under sub-paragraph (2) must contain provision for ensuring that

the power in question is exercised by a person only where the person

reasonably believes there has been a failure to comply with a requirement of

regulations under this Schedule.

Part 2

Civil sanctions

Civil sanctions

9    (1)
The relevant national authority may make provision by regulations about civil

sanctions for breaches of regulations under this Schedule.

      (2)
For the purposes of this Schedule a person breaches regulations under this

Schedule if, in such circumstances as may be specified, the person—

(a)
fails to comply with a requirement made by or under the regulations,

or

(b)
obstructs or fails to assist an administrator.

Public Bill Committee: 3rd July 2008
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Climate Change Bill [Lords], continued

      (3)
In this Schedule “civil sanction” means—

(a)
a fixed monetary penalty (see paragraph 10), or

(b)
a discretionary requirement (see paragraph 12).

Fixed monetary penalties

10  (1)
The regulations may make provision conferring on an administrator the power

by notice to impose a fixed monetary penalty 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 “fixed monetary penalty” is a requirement

to pay to an administrator a penalty of an amount specified in or determined in

accordance with the regulations.

      (4)
The regulations may not provide for the imposition of a fixed monetary penalty

in excess of £5,000.

Fixed monetary penalties: procedure

11  (1)
Provision under paragraph 10 must secure that—

(a)
where an administrator proposes to impose a fixed monetary penalty

on a person, the administrator must serve on that person a notice of

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

paragraph (2),

(b)
the notice of intent also offers the person the opportunity to discharge

the person’s liability for the fixed monetary penalty by payment of a

specified sum (which must be less than or equal to the amount of the

penalty),

(c)
if the person does not so discharge liability—

(i)
the person may make written representations and objections to

the administrator in relation to the proposed imposition of the

fixed monetary penalty, and

(ii)
the administrator must at the end of the period for making

representations and objections decide whether to impose the

fixed monetary penalty,

(d)
where the administrator decides to impose the fixed monetary penalty,

the notice imposing it (“the final notice”) complies with sub-paragraph

(4), and

(e)
the person on whom a fixed monetary penalty 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 fixed monetary penalty.

(b)
the effect of payment of the sum referred to in sub-paragraph (1)(b),

(c)
the right to make representations and objections,

(d)
the circumstances in which the administrator may not impose the fixed

monetary penalty,

(e)
the period within which liability to the fixed monetary penalty may be

discharged, which may not exceed the period of 28 days beginning

with the day on which the notice of intent was received, and

Public Bill Committee: 3rd July 2008
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Climate Change Bill [Lords], continued

(f)
the period within which representations and objections may be made,

which may not exceed the period of 28 days beginning with the day on

which the notice of intent was received.

      (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—

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Climate Change Bill [Lords], continued

(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

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.

Public Bill Committee: 3rd July 2008
182

Climate Change Bill [Lords], continued

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

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;

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Climate Change Bill [Lords], continued

(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

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.

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Climate Change Bill [Lords], continued

      (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;

(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.