|
| |
|
(c) | in the case of a variable monetary penalty, the matters likely to be taken |
| |
into account by the regulator in determining the amount of the penalty |
| |
(including, where relevant, any discounts for voluntary reporting of |
| |
| |
(d) | rights to make representations and objections and rights of appeal. |
| 5 |
(5) | In the case of guidance relating to a stop notice, the relevant information |
| |
referred to in subsection (2)(b) is information as to— |
| |
(a) | the circumstances in which the regulator is likely to serve the notice, |
| |
(b) | the circumstances in which it may not be imposed, and |
| |
| 10 |
64 | Guidance as to enforcement of relevant offences |
| |
(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 regulator must prepare and |
| |
publish guidance about how the offence is enforced. |
| |
(2) | The guidance must include guidance as to— |
| 15 |
(a) | the sanctions (including criminal sanctions) to which a person who |
| |
commits the offence may be liable, |
| |
(b) | the action which the regulator may take to enforce the offence, whether |
| |
by virtue of this Part or otherwise, and |
| |
(c) | the circumstances in which the regulator is likely to take any such |
| 20 |
| |
(3) | A regulator may from time to time revise guidance published by it under this |
| |
section and publish the revised guidance. |
| |
(4) | The regulator must consult such persons as it considers appropriate before |
| |
publishing any guidance or revised guidance under this section. |
| 25 |
65 | Publication of enforcement action |
| |
(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, subject to this section, secure the result in subsection (2). |
| |
(2) | That result is that the regulator must from time to time publish reports |
| 30 |
| |
(a) | the cases in which the civil sanction has been imposed, |
| |
(b) | where the civil sanction is a fixed monetary penalty, the cases in which |
| |
liability to the penalty has been discharged pursuant to section 40(2)(b), |
| |
| 35 |
(c) | where the civil sanction is a discretionary requirement, the cases in |
| |
which an undertaking referred to in section 43(5) is accepted from a |
| |
| |
(3) | In subsection (2)(a), the reference to cases in which the civil sanction has been |
| |
imposed do not include cases where the sanction has been imposed but |
| 40 |
| |
(4) | The provision conferring the power need not secure the result in subsection (2) |
| |
in cases where the relevant authority considers that it would be inappropriate |
| |
| |
|
| |
|
| |
|
Exercise of powers: general |
| |
66 | Compliance with regulatory principles |
| |
The relevant authority may not make any provision under or by virtue of this |
| |
Part conferring power on a regulator to impose a civil sanction in relation to an |
| |
offence unless the authority is satisfied that the regulator will act in accordance |
| 5 |
with the principles referred to in section 5(2) in exercising that power. |
| |
| |
(1) | The relevant authority must in accordance with this section review the |
| |
operation of any provision made under or by virtue of this Part conferring |
| |
power on a regulator to impose a civil sanction in relation to an offence. |
| 10 |
(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 section the relevant authority must consult |
| 15 |
such persons as the authority considers appropriate. |
| |
(5) | The relevant authority must publish the results of a review under this section. |
| |
(6) | The relevant authority must lay a copy of a review under this section— |
| |
(a) | before Parliament (where the relevant authority is a Minister of the |
| |
| 20 |
(b) | before the National Assembly for Wales (where the relevant authority |
| |
| |
| |
(1) | Where provision has been made under or by virtue of this Part conferring |
| |
power on a regulator to impose a civil sanction in relation to an offence, the |
| 25 |
relevant authority may direct the regulator— |
| |
(a) | where the power is power to impose a fixed monetary penalty, not to |
| |
serve any further notice of intent referred to in section 40(2)(a) in |
| |
relation to that offence, |
| |
(b) | where the power is power to impose a discretionary requirement, not |
| 30 |
to serve any further notice of intent referred to in section 43(2)(a) in |
| |
relation to that offence, |
| |
(c) | where the power is power to serve a stop notice, not to serve any |
| |
further stop notice in relation to that offence, and |
| |
(d) | where the power is power to accept an enforcement undertaking, not to |
| 35 |
accept any further enforcement undertaking in relation to that offence. |
| |
(2) | The relevant authority may only give a direction under subsection (1) in |
| |
relation to an offence if it is satisfied that the regulator has failed on more than |
| |
| |
(a) | to comply with any duty imposed on it under or by virtue of this Part |
| 40 |
in relation to that offence, |
| |
|
| |
|
| |
|
(b) | to act in accordance with the guidance it has published in relation to |
| |
that offence (in particular, the guidance published under sections 63 |
| |
| |
(c) | to act in accordance with the principles referred to in section 5(2) or |
| |
with other principles of best practice in relation to the enforcement of |
| 5 |
| |
(3) | The relevant authority may by direction revoke a direction given by it under |
| |
subsection (1) if satisfied that the regulator has taken the appropriate steps to |
| |
remedy the failure to which that direction related. |
| |
(4) | Before giving a direction under subsection (1) or (3) the relevant authority must |
| 10 |
| |
| |
(b) | such other persons as the authority considers appropriate. |
| |
(5) | Where the relevant authority gives a direction under this section, the authority |
| |
must lay a copy before Parliament (where the relevant authority is a Minister |
| 15 |
of the Crown) or the National Assembly for Wales (where the relevant |
| |
authority is the Welsh Ministers). |
| |
(6) | Where the relevant authority gives a direction under this section, the regulator |
| |
| |
(a) | publish the direction in such manner as the relevant authority thinks fit, |
| 20 |
| |
(b) | take such other steps as the regulator thinks fit or the relevant authority |
| |
may require to bring the direction to the attention of other persons |
| |
likely to be affected by it. |
| |
Supplementary and general |
| 25 |
69 | Payment of penalties into Consolidated Fund etc |
| |
(1) | Where pursuant to any provision made under or by virtue of this Part a |
| |
| |
(a) | a fixed monetary penalty, a variable monetary penalty or a non- |
| |
compliance penalty under section 45(1), |
| 30 |
(b) | any interest or other financial penalty for late payment of such a |
| |
| |
(c) | a sum paid in discharge of liability to a fixed monetary penalty |
| |
pursuant to section 40(2)(b), |
| |
| the regulator must pay it into the relevant Fund. |
| 35 |
(2) | In subsection (1) “relevant Fund” means— |
| |
(a) | in a case where the regulator has functions only in relation to Wales, the |
| |
| |
(b) | in a case where the regulator has functions only in relation to Scotland, |
| |
the Scottish Consolidated Fund, |
| 40 |
(c) | in a case where the regulator has functions only in relation to Northern |
| |
Ireland, the Consolidated Fund of Northern Ireland, and |
| |
(d) | in any other case, the Consolidated Fund. |
| |
|
| |
|
| |
|
70 | Disclosure of information |
| |
(1) | Information held by or on behalf of a person referred to in section 37(3) may be |
| |
disclosed to a regulator on whom powers are conferred under or by virtue of |
| |
| |
(a) | the person has an enforcement function in relation to an offence, and |
| 5 |
(b) | the information is disclosed for the purpose of the exercise by the |
| |
regulator of any powers conferred on it under or by virtue of this Part |
| |
in relation to that offence. |
| |
(2) | It is immaterial for the purposes of subsection (1) whether the information was |
| |
obtained before or after the coming into force of this section. |
| 10 |
(3) | A disclosure under this section is not to be taken to breach any restriction on |
| |
the disclosure of information (however imposed). |
| |
(4) | Nothing in this section authorises the making of a disclosure in contravention |
| |
| |
(a) | the Data Protection Act 1998 (c. 29), or |
| 15 |
(b) | Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23). |
| |
(5) | This section does not affect a power to disclose which exists apart from this |
| |
| |
71 | Interpretation of Part 3 |
| |
| 20 |
“civil sanction” means a fixed monetary penalty, discretionary |
| |
requirement, stop notice or enforcement undertaking (and references to |
| |
imposition of a civil sanction include acceptance of an enforcement |
| |
| |
“discretionary requirement” has the meaning given in section 42(3); |
| 25 |
“enforcement function”, in relation to an offence, means a function |
| |
(whether or not statutory) of taking any action with a view to or in |
| |
connection with the imposition of any sanction, criminal or otherwise, |
| |
in a case where the offence is committed; |
| |
“enforcement undertaking” has the meaning given in section 50(2); |
| 30 |
“fixed monetary penalty” has the meaning given in section 39(3); |
| |
“non-monetary discretionary requirement” has the meaning given in |
| |
| |
“prescribed” means prescribed in an order under this Part; |
| |
“regulator” has the meaning given in section 37; |
| 35 |
“relevant authority” means— |
| |
(a) | in relation to provision made under or by virtue of this Part by |
| |
a Minister of the Crown, that Minister, and |
| |
(b) | in relation to provision made under or by virtue of this Part by |
| |
the Welsh Ministers, the Welsh Ministers; |
| 40 |
“relevant offence” has the meaning given in section 38; |
| |
“stop notice” has the meaning given in section 46(2); |
| |
“variable monetary penalty” has the meaning given in section 42(5). |
| |
(2) | For the purposes of this Part, any reference to a person who has an enforcement |
| |
function in relation to an offence includes a reference to a person who is in any |
| 45 |
|
| |
|
| |
|
circumstances capable of exercising an enforcement function in relation to the |
| |
| |
| |
| |
72 | Duty not to impose or maintain unnecessary burdens |
| 5 |
(1) | Any person exercising a regulatory function to which this section applies must |
| |
keep that function under review and secure that in exercising the function the |
| |
| |
(a) | impose burdens which that person considers to be unnecessary, or |
| |
(b) | maintain burdens which that person considers to have become |
| 10 |
| |
(2) | Subsection (1) does not require the removal of a burden which has become |
| |
unnecessary where its removal would, having regard to all the circumstances, |
| |
be impracticable or disproportionate. |
| |
(3) | Where this section applies to a regulatory function, the person exercising the |
| 15 |
function must from time to time publish a statement setting out— |
| |
(a) | what the person proposes to do pursuant to subsection (1) in relation to |
| |
the function in the period to which the statement relates, |
| |
(b) | (except in the case of the first statement published by the person under |
| |
this section) what the person has done pursuant to subsection (1) in |
| 20 |
relation to the function since the previous statement published by that |
| |
person under this section, and |
| |
(c) | where a burden relating to the exercise of the function which has |
| |
become unnecessary is maintained pursuant to subsection (2), the |
| |
reasons why removal of the burden would, having regard to all the |
| 25 |
circumstances, be impracticable or disproportionate. |
| |
(4) | The first statement published under this section by a person— |
| |
(a) | must be published as soon as reasonably practicable after the |
| |
commencement of the duty in subsection (1) in relation to the function, |
| |
| 30 |
(b) | is to be a statement for the period of twelve months beginning with the |
| |
| |
(5) | A subsequent statement published by a person under this section— |
| |
(a) | must be published during the period to which the previous statement |
| |
related or as soon as reasonably practicable thereafter, and |
| 35 |
(b) | must be a statement for the period of twelve months beginning with the |
| |
end of the period to which the previous statement related. |
| |
(6) | The publication of a statement under this section must be in such manner as the |
| |
person publishing it considers appropriate for bringing it to the attention of the |
| |
persons likely to be affected by it. |
| 40 |
(7) | A person exercising a function to which subsection (1) applies must, in |
| |
exercising the function during a period for which a statement is in force under |
| |
this section, have regard to that statement. |
| |
|
| |
|