Regulatory Enforcement and Sanctions Bill [HL]

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Regulatory Enforcement and Sanctions Bill [HL]

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37
“Regulator”
(1)
In this Part, “regulator” means—
(a)
a person specified in Schedule 5 (in this Part called a “designated
regulator”), or
(b)
a person, other than a designated regulator, who has an enforcement
5
function in relation to an offence to which subsection (2) applies.
(2)
This subsection applies to an offence contained, immediately before the day on
which this Act is passed, in an enactment specified in Schedule 6.
(3)
Subsection (1)(b) does not include—
(a)
the Crown Prosecution Service,
10
(b)
a member of a police force in England or Wales,
(c)
a Procurator Fiscal,
(d)
a constable of a police force in Scotland,
(e)
the Public Prosecution Service for Northern Ireland, or
(f)
a member of the Police Service of Northern Ireland.
15
38
“Relevant offence”
(1)
In this Part, “relevant offence”, in relation to a designated regulator, means an
offence—
(a)
in relation to which the designated regulator has an enforcement
function, and
20
(b)
which is contained in an Act immediately before the day on which this
Act is passed.
(2)
In this Part “relevant offence”, in relation to a regulator other than a designated
regulator, means an offence—
(a)
which is contained, immediately before the day on which this Act is
25
passed, in an enactment specified in Schedule 6, and
(b)
in relation to which that regulator has an enforcement function.
Fixed monetary penalties
39
Fixed monetary penalties
(1)
The provision which may be made under this section is provision to confer on
30
a regulator the power by notice to impose a fixed monetary penalty on a person
in relation to a relevant offence.
(2)
Provision under this section may only confer such a power in relation to a case
where the regulator is satisfied beyond reasonable doubt that the person has
committed the relevant offence.
35
(3)
For the purposes of this Part a “fixed monetary penalty” is a requirement to pay
to a regulator a penalty of a prescribed amount.
(4)
Where the relevant offence is—
(a)
triable summarily (whether or not it is also triable on indictment), and
(b)
punishable on summary conviction by a fine (whether or not it is also
40
punishable by a term of imprisonment),

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the amount of the fixed monetary penalty may not exceed the maximum
amount of that fine.
40
Fixed monetary penalties: procedure
(1)
Provision under section 39 must secure the results in subsection (2).
(2)
Those results are that—
5
(a)
where a regulator proposes to impose a fixed monetary penalty on a
person, the regulator must serve on that person a notice of what is
proposed (a “notice of intent”) which complies with subsection (3),
(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
10
prescribed 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 regulator in relation to the proposed imposition of the fixed
15
monetary penalty, and
(ii)
the regulator must at the end of the period for making
representations and objections decide whether to impose the
fixed monetary penalty,
(d)
where the regulator decides to impose the fixed monetary penalty, the
20
notice imposing it (“the final notice”) complies with subsection (5), and
(e)
the person on whom a fixed monetary penalty is imposed may appeal
against the decision to impose it.
(3)
To comply with this subsection the notice of intent must include information
as to—
25
(a)
the grounds for the proposal to impose the fixed monetary penalty,
(b)
the effect of payment of the sum referred to in subsection (2)(b),
(c)
the right to make representations and objections,
(d)
the circumstances in which the regulator may not impose the fixed
monetary penalty,
30
(e)
the period within which liability to the fixed monetary penalty may be
discharged, which shall not exceed the period of 28 days beginning
with the day on which the notice of intent was received, and
(f)
the period within which representations and objections may be made,
which shall not exceed the period of 28 days beginning with the day on
35
which the notice of intent was received.
(4)
Provision pursuant to subsection (2)(c)(ii)—
(a)
must secure that the regulator may not decide to impose a fixed
monetary penalty on a person where the regulator is satisfied that the
person would not, by reason of any defence, be liable to be convicted of
40
the relevant offence, and
(b)
may include provision for other circumstances in which the regulator
may not decide to impose a fixed monetary penalty.
(5)
To comply with this subsection the final notice referred to in subsection (2)(d)
must include information as to—
45
(a)
the grounds for imposing the penalty,
(b)
how payment may be made,

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(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.
(6)
Provision pursuant to subsection (2)(e) must secure that the grounds on which
5
a person may appeal against a decision of the regulator 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.
41
Fixed monetary penalties: criminal proceedings and conviction
10
Provision under section 39 must secure that—
(a)
in a case where a notice of intent referred to in section 40(2)(a) is served
on a person—
(i)
no criminal proceedings for the relevant offence may be
instituted against the person in respect of the act or omission to
15
which the notice relates before the end of the period in which
the person may discharge liability to the fixed monetary penalty
pursuant to section 40(2)(b), and
(ii)
if the person so discharges liability, the person may not at any
time be convicted of the relevant offence in relation to that act
20
or omission;
(b)
in a case where a fixed monetary penalty is imposed on a person, that
person may not at any time be convicted of the relevant offence in
respect of the act or omission giving rise to the penalty.
Discretionary requirements
25
42
Discretionary requirements
(1)
The provision which may be made under this section is provision to confer on
a regulator the power by notice to impose one or more discretionary
requirements on a person in relation to a relevant offence.
(2)
Provision under this section may only confer such a power in relation to a case
30
where the regulator is satisfied beyond reasonable doubt that the person has
committed a relevant offence.
(3)
For the purposes of this Part a “discretionary requirement” means—
(a)
a requirement to pay a monetary penalty to a regulator of such amount
as the regulator may determine,
35
(b)
a requirement to take such steps as a regulator may specify, within such
period as it may specify, to secure that the offence does not continue or
recur, or
(c)
a requirement to take such steps as a regulator may specify, within such
period as it may specify, to secure that the position is, so far as possible,
40
restored to what it would have been if the offence had not been
committed.

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(4)
Provision under this section may not permit discretionary requirements to be
imposed on a person on more than one occasion in relation to the same act or
omission.
(5)
In this Part—
“variable monetary penalty” means a requirement referred to in
5
subsection (3)(a);
“non-monetary discretionary requirement” means a requirement referred
to in subsection (3)(b) or (c).
(6)
Where a variable monetary penalty is imposed in relation to a relevant offence
which is—
10
(a)
triable summarily only, and
(b)
punishable on summary conviction by a fine (whether or not it is also
punishable by a term of imprisonment),

the amount of the variable monetary penalty may not exceed the maximum
amount of that fine.
15
43
Discretionary requirements: procedure
(1)
Provision under section 42 must secure the results in subsection (2).
(2)
Those results are that—
(a)
where a regulator proposes to impose a discretionary requirement on a
person, the regulator must serve on that person a notice of what is
20
proposed (a “notice of intent”) which complies with subsection (3),
(b)
that person may make written representations and objections to the
regulator in relation to the proposed imposition of the discretionary
requirement,
(c)
after the end of the period for making such representations and
25
objections, the regulator must decide whether to—
(i)
impose the discretionary requirement, with or without
modifications, or
(ii)
impose any other discretionary requirement which the
regulator has power to impose under section 42,
30
(d)
where the regulator decides to impose a discretionary requirement, the
notice imposing it (the “final notice”) complies with subsection (6), and
(e)
the person on whom a discretionary requirement is imposed may
appeal against the decision to impose it.
(3)
To comply with this subsection the notice of intent must include information
35
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 regulator may not impose the
discretionary requirement, and
40
(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.
(4)
Provision pursuant to subsection (2)(c)—
(a)
must secure that the regulator may not decide to impose a discretionary
45
requirement on a person where the regulator is satisfied that the person

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would not, by reason of any defence raised by that person, be liable to
be convicted of the relevant offence, and
(b)
may include provision for other circumstances in which the regulator
may not decide to impose a discretionary requirement.
(5)
Provision under subsection (2)(c) must also include provision for—
5
(a)
the person on whom the notice of intent is served to be able to offer an
undertaking as to action to be taken by that person (including the
payment of a sum of money) to benefit any person affected by the
offence,
(b)
the regulator to be able to accept or reject such an undertaking, and
10
(c)
the regulator to take any undertaking so accepted into account in its
decision.
(6)
To comply with this subsection the final notice referred to in subsection (2)(d)
must include information as to—
(a)
the grounds for imposing the discretionary requirement,
15
(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
20
(d)
the consequences of non-compliance.
(7)
Provision pursuant to subsection (2)(e) must secure that the grounds on which
a person may appeal against a decision of the regulator include the following—
(a)
that the decision was based on an error of fact;
(b)
that the decision was wrong in law;
25
(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.
30
44
Discretionary requirements: criminal proceedings and conviction
(1)
Provision under section 42 must secure the result in subsection (2) in a case
where—
(a)
a discretionary requirement is imposed on a person, or
(b)
an undertaking referred to in section 43(5) is accepted from a person.
35
(2)
The result in this subsection is that the person may not at any time be convicted
of the relevant offence in respect of the act or omission giving rise to the
discretionary requirement or undertaking except in a case referred to in
subsection (3).
(3)
The case referred to in subsection (2) is a case where—
40
(a)
a non-monetary discretionary requirement is imposed on the person or
an undertaking referred to in section 43(5) is accepted from a person,
(b)
no variable monetary penalty is imposed on the person, and
(c)
the person fails to comply with the non-monetary discretionary
requirement or undertaking.
45

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(4)
Provision under section 42 may for the purposes of the case referred to in
subsection (3) extend any period within which criminal proceedings may be
instituted against the person.
45
Discretionary requirements: enforcement
(1)
Provision under section 42 may include provision for a person to pay a
5
monetary penalty (a “non-compliance penalty”) to a regulator if the person
fails to comply with—
(a)
a non-monetary discretionary requirement imposed on the person, or
(b)
an undertaking referred to in section 43(5) which is accepted from the
person.
10
(2)
Provision under subsection (1) may—
(a)
specify the amount of the non-compliance penalty,
(b)
provide for the amount to be calculated by reference to prescribed
criteria,
(c)
provide for the amount to be determined by the regulator, or
15
(d)
provide for the amount to be determined in any other way.
(3)
Provision under subsection (1) must secure that—
(a)
the non-compliance penalty is imposed by notice served by the
regulator, and
(b)
the person on whom it is imposed may appeal against that notice.
20
(4)
Provision pursuant to paragraph (b) of subsection (3) must secure that the
grounds on which a person may appeal against a notice referred to in that
subsection 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;
25
(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 regulator, that the amount is unreasonable).
Stop notices
46
Stop notices
30
(1)
The provision which may be made under this section is provision conferring
on a regulator the power to serve a stop notice on a person.
(2)
For the purposes of this Part a “stop notice” is a notice prohibiting a person
from carrying on an activity specified in the notice until the person has taken
the steps specified in the notice.
35
(3)
Provision under this section may only confer such a power in relation to a case
falling within subsection (4) or (5).
(4)
A case falling within this subsection is a case where—
(a)
the person is carrying on the activity,
(b)
the regulator reasonably believes that the activity as carried on by that
40
person is causing, or presents a significant risk of causing, serious harm
to any of the matters referred to in subsection (6), and

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(c)
the regulator reasonably believes that the activity as carried on by that
person involves or is likely to involve the commission of a relevant
offence by that person.
(5)
A case falling within this subsection is a case where the regulator reasonably
believes that—
5
(a)
the person is likely to carry on the activity,
(b)
the activity as likely to be carried on by that person will cause, or will
present a significant risk of causing, serious harm to any of the matters
referred to in subsection (6), and
(c)
the activity as likely to be carried on by that person will involve or will
10
be likely to involve the commission of a relevant offence by that person.
(6)
The matters referred to in subsections (4)(b) and (5)(b) are—
(a)
human health,
(b)
the environment (including the health of animals and plants), and
(c)
the financial interests of consumers.
15
(7)
The steps referred to in subsection (2) must be steps to remove or reduce the
harm or risk of harm referred to in subsection (4)(b) or (5)(b).
47
Stop notices: procedure
(1)
Provision under section 46 must secure the results in subsection (2) in a case
where a stop notice is served.
20
(2)
Those results are that—
(a)
the stop notice must comply with subsection (3),
(b)
the person on whom it is served may appeal against the decision to
serve it,
(c)
where, after service of the notice, the regulator is satisfied that the
25
person has taken the steps specified in the notice, the regulator must
issue a certificate to that effect (a “completion certificate”),
(d)
the notice ceases to have effect on the issue of a completion certificate,
(e)
the person on whom the notice is served may at any time apply for a
completion certificate,
30
(f)
the regulator must make a decision as to whether to issue a completion
certificate within 14 days of such an application, and
(g)
the person on whom the notice is served may appeal against a decision
not to issue a completion certificate.
(3)
To comply with this subsection a stop notice must include information as to—
35
(a)
the grounds for serving the notice,
(b)
rights of appeal, and
(c)
the consequences of non-compliance.
(4)
Provision pursuant to subsection (2)(b) must secure that the grounds on which
a person may appeal against a decision of the regulator to serve a stop notice
40
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;
(d)
that any step specified in the notice is unreasonable;
45