|
| |
| |
(e) | that the person has not committed the relevant offence and would not |
| |
have committed it had the stop notice not been served; |
| |
(f) | that the person would not, by reason of any defence, have been liable |
| |
to be convicted of the relevant offence had the stop notice not been |
| |
| 5 |
(5) | Provision pursuant to subsection (2)(g) must secure that the grounds on which |
| |
a person may appeal against a decision of the regulator not to issue a |
| |
completion certificate include the following— |
| |
(a) | that the decision was based on an error of fact; |
| |
(b) | that the decision was wrong in law; |
| 10 |
(c) | that the decision was unfair or unreasonable. |
| |
48 | Stop notices: compensation |
| |
(1) | Provision under section 46 conferring power on a regulator to serve a stop |
| |
notice on a person must include provision for the regulator to compensate the |
| |
person for loss suffered as the result of the service of the notice. |
| 15 |
(2) | Provision under subsection (1) may provide for compensation— |
| |
(a) | only in prescribed cases; |
| |
(b) | only in relation to prescribed descriptions of loss. |
| |
(3) | Provision under subsection (1) must secure that the person on whom the stop |
| |
notice is served is able to appeal against— |
| 20 |
(a) | a decision by the regulator not to award compensation, or |
| |
(b) | a decision of the regulator as to the amount of the compensation. |
| |
49 | Stop notices: enforcement |
| |
(1) | Provision under section 46 conferring power on a regulator to serve a stop |
| |
notice must provide that, where a person on whom a notice is served does not |
| 25 |
comply with it, the person is guilty of an offence and liable— |
| |
(a) | on summary conviction, to a fine not exceeding £20,000, or |
| |
imprisonment for term not exceeding twelve months, or both, or |
| |
(b) | on conviction on indictment, to imprisonment for a term not exceeding |
| |
two years, or a fine, or both. |
| 30 |
(2) | In the application of this section— |
| |
(a) | in England and Wales, in relation to an offence committed before the |
| |
commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), |
| |
| |
| 35 |
| the reference in subsection (1)(a) to twelve months is to be read as a reference |
| |
| |
| |
50 | Enforcement undertakings |
| |
(1) | The provision which may be made under this section is provision— |
| 40 |
| |
| |
|
| |
| |
(a) | to enable a regulator to accept an enforcement undertaking from a |
| |
person in a case where the regulator has reasonable grounds to suspect |
| |
that the person has committed a relevant offence, and |
| |
(b) | for the acceptance of the undertaking to have the consequences in |
| |
| 5 |
(2) | For the purposes of this Part, an “enforcement undertaking” is an undertaking |
| |
to take such action as may be specified in the undertaking within such period |
| |
| |
(3) | The action specified in an enforcement undertaking must be— |
| |
(a) | action to secure that the offence does not continue or recur, |
| 10 |
(b) | action to secure that the position is, so far as possible, restored to what |
| |
it would have been if the offence had not been committed, |
| |
(c) | action (including the payment of a sum of money) to benefit any person |
| |
affected by the offence, or |
| |
(d) | action of a prescribed description. |
| 15 |
(4) | The consequences in this subsection are that, unless the person from whom the |
| |
undertaking is accepted has failed to comply with the undertaking or any part |
| |
| |
(a) | that person may not at any time be convicted of the relevant offence in |
| |
respect of the act or omission to which the undertaking relates, |
| 20 |
(b) | the regulator may not impose on that person any fixed monetary |
| |
penalty which it would otherwise have power to impose by virtue of |
| |
section 39 in respect of that act or omission, and |
| |
(c) | the regulator may not impose on that person any discretionary |
| |
requirement which it would otherwise have power to impose by virtue |
| 25 |
of section 42 in respect of that act or omission. |
| |
(5) | Provision under this section may in particular include provision— |
| |
(a) | as to the procedure for entering into an undertaking; |
| |
(b) | as to the terms of an undertaking; |
| |
(c) | as to publication of an undertaking by a regulator; |
| 30 |
(d) | as to variation of an undertaking; |
| |
(e) | as to circumstances in which a person may be regarded as having |
| |
complied with an undertaking; |
| |
(f) | as to monitoring by a regulator of compliance with an undertaking; |
| |
(g) | as to certification by a regulator that an undertaking has been complied |
| 35 |
| |
(h) | for appeals against refusal to give such certification; |
| |
(i) | in a case where a person has given inaccurate, misleading or |
| |
incomplete information in relation to the undertaking, for that person |
| |
to be regarded as not having complied with it; |
| 40 |
(j) | in a case where a person has complied partly but not fully with an |
| |
undertaking, for that part-compliance to be taken into account in the |
| |
imposition of any criminal or other sanction on the person; |
| |
(k) | for the purpose of enabling criminal proceedings to be instituted |
| |
against a person in respect of the relevant offence in the event of breach |
| 45 |
of an undertaking or any part of it, to extend any period within which |
| |
those proceedings may be instituted. |
| |
| |
| |
|
| |
| |
Orders under Part 3: supplementary provision |
| |
51 | Combination of sanctions |
| |
(1) | Provision may not be made under section 39 and section 42 conferring powers |
| |
on a regulator in relation to the same offence unless it secures that— |
| |
(a) | the regulator may not serve a notice of intent referred to in section |
| 5 |
40(2)(a) on a person in relation to any act or omission where a |
| |
discretionary requirement has been imposed on that person in relation |
| |
to that act or omission, and |
| |
(b) | the regulator may not serve a notice of intent referred to in section |
| |
43(2)(a) on a person in relation to any act or omission where— |
| 10 |
(i) | a fixed monetary penalty has been imposed on that person in |
| |
relation to that act or omission, or |
| |
(ii) | the person has discharged liability to a fixed monetary penalty |
| |
in relation to that act or omission pursuant to section 40(2)(b). |
| |
(2) | Provision may not be made under section 39 and section 46 conferring powers |
| 15 |
on a regulator in relation to the same offence unless it secures that— |
| |
(a) | the regulator may not serve a notice of intent referred to in section |
| |
40(2)(a) on a person in relation to any act or omission where a stop |
| |
notice has been served on that person in relation to that act or omission, |
| |
| 20 |
(b) | the regulator may not serve a stop notice on a person in relation to any |
| |
| |
(i) | a fixed monetary penalty has been imposed on that person in |
| |
relation to that act or omission, or |
| |
(ii) | the person has discharged liability to a fixed monetary penalty |
| 25 |
in relation to that act or omission pursuant to section 40(2)(b). |
| |
| |
(1) | An order under this Part which confers power on a regulator to require a |
| |
person to pay a fixed monetary penalty, a variable monetary penalty or a non- |
| |
compliance penalty under section 45(1) may include provision— |
| 30 |
(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. |
| 35 |
(2) | Provision under subsection (1)(c) may include— |
| |
(a) | provision for the regulator 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 |
| 40 |
| |
| |
(1) | Provision under section 42 may include provision for a regulator, by notice, to |
| |
require a person on whom a discretionary requirement is imposed to pay the |
| |
| |
| |
|
| |
| |
costs incurred by the regulator in relation to the imposition of the discretionary |
| |
requirement up to the time of its imposition. |
| |
(2) | Provision under section 46 may include provision for a regulator, by notice, to |
| |
require a person on whom a stop notice is served to pay the costs incurred by |
| |
the regulator in relation to the service of the notice up to the time of service. |
| 5 |
(3) | In subsections (1) and (2), the references to costs include in particular— |
| |
| |
(b) | administration costs; |
| |
(c) | costs of obtaining expert advice (including legal advice). |
| |
(4) | Provision under this section must secure that, in any case where a notice |
| 10 |
requiring payment of costs is served— |
| |
(a) | the notice specifies the amount required to be paid; |
| |
(b) | the regulator may be required to provide a detailed breakdown of that |
| |
| |
(c) | the person required to pay costs is not liable to pay any costs shown by |
| 15 |
the person to have been unnecessarily incurred; |
| |
(d) | the person required to pay costs may appeal against— |
| |
(i) | the decision of the regulator to impose the requirement to pay |
| |
| |
(ii) | the decision of the regulator as to the amount of those costs. |
| 20 |
(5) | Provision under this section may include the provision referred to in section |
| |
52(1)(b) and (c) and (2). |
| |
(6) | Provision under this section must secure that regulator is required to publish |
| |
guidance about how it will exercise the power conferred by the provision. |
| |
| 25 |
(1) | An order under this Part may not provide for the making of an appeal other |
| |
| |
(a) | the First-tier Tribunal, or |
| |
(b) | another tribunal created under an enactment. |
| |
(2) | In subsection (1)(b) “tribunal” does not include an ordinary court of law. |
| 30 |
(3) | An order under this Part which makes provision for an appeal in relation to the |
| |
imposition of any requirement or service of any notice 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; |
| 35 |
(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 subsection (3)(b) includes provision conferring on |
| |
the tribunal to which the appeal is made power— |
| |
(a) | to withdraw the requirement or notice; |
| 40 |
(b) | to confirm the requirement or notice; |
| |
(c) | to take such steps as the regulator 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 regulator; |
| 45 |
| |
| |
|
| |
| |
| |
| |
(1) | An order under this Part may include consequential, supplementary, |
| |
incidental or transitional provision. |
| |
(2) | The consequential provision referred to in subsection (1) includes— |
| 5 |
(a) | provision as to how any enactment passed or made before the day on |
| |
which this Act is passed applies or operates in relation to the imposition |
| |
of a fixed monetary penalty or discretionary requirement or service of |
| |
| |
(b) | in particular, where such an enactment applies in relation to a person |
| 10 |
convicted of a criminal offence, provision to make the enactment apply |
| |
in relation to a person on whom a fixed monetary penalty or |
| |
discretionary requirement is imposed or a stop notice is served in |
| |
relation to that offence. |
| |
(3) | The supplementary provision referred to in subsection (1) includes provision |
| 15 |
for the purpose of facilitating the use of powers conferred by an order under |
| |
this Part, and in particular provision which for that purpose— |
| |
(a) | confers or extends powers to require information; |
| |
(b) | confers or extends powers of entry, search or seizure; |
| |
(c) | where information is authorised to be used in evidence in criminal |
| 20 |
proceedings, authorises its use in relation to the use of any power to |
| |
impose a civil sanction conferred under or by virtue of this Part. |
| |
(4) | The provision which may be made by an order under this Part may be made |
| |
by repealing, revoking or amending an enactment (whenever passed or made). |
| |
Orders under Part 3: exclusions |
| 25 |
56 | Excluded provision: Scotland |
| |
An order under this Part may not, except for consequential purposes, make any |
| |
provision which would be within the legislative competence of the Scottish |
| |
Parliament if it were contained in an Act of that Parliament. |
| |
57 | Excluded provision: Northern Ireland |
| 30 |
An order under this Part may not, except for consequential purposes, make any |
| |
provision which would be within the legislative competence of the Northern |
| |
Ireland Assembly if it were contained in an Act of that Assembly. |
| |
Orders under Part 3: procedure |
| |
58 | Consultation and consent: Scotland |
| 35 |
(1) | A Minister of the Crown must obtain the consent of the Lord Advocate before |
| |
making an order under this Part in relation to an offence in Scotland. |
| |
(2) | A Minister of the Crown must consult the Scottish Ministers before making an |
| |
order under this Part in relation to a regulator which is a local authority in |
| |
| 40 |
| |
| |
|
| |
| |
(3) | In subsection (2), “local authority in Scotland” means a council constituted |
| |
under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39). |
| |
59 | Consultation and consent: Wales |
| |
(1) | A Minister of the Crown must consult the Welsh Ministers before making an |
| |
order under this Part in relation to an offence which applies in or in relation to |
| 5 |
| |
(2) | A Minister of the Crown must obtain the consent of the Welsh Ministers before |
| |
making an order under this Part containing provision which relates to a Welsh |
| |
| |
(3) | The Welsh Ministers must consult the Secretary of State before making an |
| 10 |
| |
| |
(1) | Before making an order under this Part the relevant authority must consult the |
| |
following (in addition to any persons who must be consulted under sections 58 |
| |
| 15 |
(a) | the regulator to which the order relates, |
| |
(b) | such organisations as appear to the relevant authority to be |
| |
representative of persons substantially affected by the proposals, and |
| |
(c) | such other persons as the relevant authority considers appropriate. |
| |
(2) | If, as a result of any consultation required by subsection (1), it appears to the |
| 20 |
relevant authority that it is appropriate substantially to change the whole or |
| |
any part of the proposals, the relevant authority must undertake such further |
| |
consultation with respect to the changes as it considers appropriate. |
| |
(3) | If, before the day on which this Part comes into force, any consultation was |
| |
undertaken which, had it been undertaken after that day, would to any extent |
| 25 |
have satisfied the requirements of this section, those requirements may to that |
| |
extent be taken to have been satisfied. |
| |
61 | Parliamentary and Assembly procedure |
| |
(1) | A statutory instrument containing an order under this Part made by a Minister |
| |
of the Crown may not be made unless a draft of the instrument has been laid |
| 30 |
before, and approved by resolution of, each House of Parliament. |
| |
(2) | A statutory instrument containing an order under this Part made by the Welsh |
| |
Ministers may not be made unless a draft of the instrument has been laid |
| |
before, and approved by resolution of, the National Assembly for Wales. |
| |
Extension of powers to make subordinate legislation |
| 35 |
62 | Offences under subordinate legislation |
| |
(1) | This section applies where, by virtue of a specified enactment— |
| |
(a) | a Minister of the Crown has, or the Welsh Ministers have, power by |
| |
statutory instrument to make provision creating a criminal offence, and |
| |
(b) | the power has been or is being exercised so as to create the offence. |
| 40 |
| |
| |
|
| |
| |
(2) | The power includes power to make, in relation to a relevant enforcement |
| |
authority, any provision which could be made by an order under this Part if, |
| |
for the purposes of this Part— |
| |
(a) | the relevant enforcement authority were a regulator, and |
| |
(b) | the offence were a relevant offence in relation to that regulator. |
| 5 |
(3) | Where a statutory instrument containing provision made under the power |
| |
referred to in subsection (1) pursuant to subsection (2) would, apart from this |
| |
subsection, be subject to annulment in pursuance of a resolution of either |
| |
House of Parliament or of the National Assembly for Wales— |
| |
(a) | the instrument is not subject to such annulment; but |
| 10 |
(b) | the instrument may not be made unless a draft has been laid before, and |
| |
approved by resolution of, each House of Parliament or (as the case |
| |
may be) the National Assembly for Wales. |
| |
(4) | In subsection (1) “specified enactment” means any enactment specified in |
| |
| 15 |
(5) | In subsection (2) “relevant enforcement authority” means a person, other than |
| |
a person referred to in section 37(3), who has an enforcement function in |
| |
| |
| |
63 | Guidance as to use of civil sanctions |
| 20 |
(1) | Where power is conferred on a regulator under or by virtue of this Part to |
| |
impose a civil sanction in relation to an offence, the provision conferring the |
| |
power must secure the results in subsection (2). |
| |
(2) | Those results are that— |
| |
(a) | the regulator must publish guidance about its use of the sanction, |
| 25 |
(b) | in the case of guidance relating to a fixed monetary penalty, |
| |
discretionary requirement or stop notice, the guidance must contain the |
| |
| |
(c) | the regulator must revise the guidance where appropriate, |
| |
(d) | the regulator must consult such persons as the provision may specify |
| 30 |
before publishing any guidance or revised guidance, and |
| |
(e) | the regulator must have regard to the guidance or revised guidance in |
| |
exercising its functions. |
| |
(3) | In the case of guidance relating to a fixed monetary penalty, the relevant |
| |
information referred to in subsection (2)(b) is information as to— |
| 35 |
(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 |
| |
| 40 |
(e) | rights to make representations and objections and rights of appeal. |
| |
(4) | In the case of guidance relating to a discretionary requirement, the relevant |
| |
information referred to in subsection (2)(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, |
| 45 |
| |
| |
|
