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(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

7    (1)

Provision may not be made under paragraphs 2 and 4 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 3(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 5(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 3(1)(b).

Monetary penalties

8    (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 6(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

under a court order.

Costs recovery

9    (1)

Provision under paragraph 4 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).

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(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 8(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

10  (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;

(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

11  (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

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(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

12	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

13  (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,

(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

14  (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

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Climate Change Bill [Lords], continued

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

3(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

15	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

16  (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.

(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

17  (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—

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(a)	where the power is power to impose a fixed monetary penalty, not to

serve any further notice of intent referred to in paragraph 3(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 5(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 13), or

(c)	to act in accordance with the principles referred to in paragraph 15 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

(b)	take such other steps as the administrator thinks fit or the authority

may require to bring the direction to the attention of other persons

likely to be affected by it.

Payment of penalties into Consolidated Fund

18  (1)

Where pursuant to any provision made under this Schedule an administrator

receives—

(a)	a fixed monetary penalty, a variable monetary penalty or a non-

compliance penalty under paragraph 6,

(b)	any interest or other financial penalty for late payment of such a

penalty, or

(c)	a sum paid in discharge of liability to a fixed monetary penalty

pursuant to paragraph 3(1)(b),

the administrator must pay it into the relevant Fund.

(2)	In sub-paragraph (1) “relevant Fund” means—

(a)	in a case where the administrator has functions only in relation to

Wales, the Welsh Consolidated Fund,

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Climate Change Bill [Lords], continued

(b)	in a case where the administrator has functions only in relation to

Northern Ireland, the Northern Ireland Consolidated Fund, and

(c)	in any other case, the Consolidated Fund.

Part 3

Procedures applying to regulations

Regulations made by a single authority

1    (1)

This paragraph applies in relation to an instrument containing regulations

under this Schedule made by a single national authority.

(2)	Where the instrument contains regulations that—

(a)	are to be made by the Secretary of State, and

(b)	are subject to affirmative resolution procedure,

the regulations must not be made unless a draft of the statutory instrument

containing them has been laid before and approved by a resolution of each

House of Parliament.

(3)	Where the instrument contains regulations that—

(a)	are to be made by a national authority other than the Secretary of State,

and

(b)	are subject to affirmative resolution procedure,

the regulations must not be made unless a draft of the statutory instrument

containing them has been laid before and approved by a resolution of the

relevant devolved legislature.

(4)	An instrument containing regulations made by the Secretary of State that are

subject to negative resolution procedure is subject to annulment in pursuance

of a resolution of either House of Parliament.

(5)	An instrument containing regulations made by the Welsh Ministers that are

subject to negative resolution procedure is subject to annulment in pursuance

of a resolution of the National Assembly for Wales.

(6)	An instrument containing regulations made by the Department of the

Environment in Northern Ireland that are subject to negative resolution

procedure is subject to negative resolution within the meaning of section 41(6)

of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) as if it were a

statutory instrument within the meaning of that Act.

(7)	Any provision that may be made by regulations subject to negative resolution

procedure may be made by regulations subject to affirmative resolution

procedure.

Regulations made by two or more national authorities

2    (1)

This paragraph applies in relation to an instrument containing regulations

under this Schedule made or to be made by any two or more of—

(a)	the Secretary of State,

(b)	the Welsh Ministers, and

(c)	the Department of the Environment in Northern Ireland.

(2)	If any of the regulations are subject to affirmative resolution procedure, all of

them are subject to that procedure.

(3)	Sub-paragraphs (2) to (6) of paragraph 1 apply to the instrument as they apply

to an instrument containing regulations made by a single national authority.

(4)	If in accordance with that paragraph—

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(a)	either House of Parliament resolves that an address be presented to

Her Majesty praying that an instrument containing regulations made

by the Secretary of State be annulled, or

(b)	a devolved legislature resolves that an instrument containing

regulations made by a national authority be annulled,

nothing further is to be done under the instrument after the date of the

resolution and Her Majesty may by Order in Council revoke the instrument.

(5)	This is without prejudice to the validity of anything previously done under the

instrument or to the making of a new instrument.

(6)	This paragraph applies in place of provision made by any other enactment

about the effect of such a resolution.

Hybrid instruments

3	If a draft of an instrument containing regulations under this Schedule would,

apart from this paragraph, be treated for the purposes of the standing orders of

either House of Parliament as a hybrid instrument, it is to proceed in that House

as if it were not such an instrument.’.

Mr Phil Woolas

86

Clause  82,  page  38,  line  24,  after ‘schemes)’, insert ‘or Schedule [Charges for

single use carrier bags] (charges for single use carrier bags)’.

Mr Phil Woolas

87

Clause  82,  page  38,  line  26,  after ‘Part’, insert ‘or Schedule’.

Mr Phil Woolas

88

Clause  83,  page  39,  line  14,  at end insert ‘, or

( )	regulations under Schedule [Charges for single use carrier bags] (but see

Part 3 of that Schedule).’

Mr Phil Woolas

89

Clause  89,  page  40,  line  43,  at end insert—

‘“modifications”, in relation to an enactment, includes additions or

amendments to, or omissions from, the enactment;’.

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Revised 26 June 2008