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Regulatory Enforcement and Sanctions Bill [HL]


Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions

31

 

(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

non-compliance), and

(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

(c)   

rights of appeal.

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

action.

(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

specifying—

(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),

and

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

person.

(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

overturned on appeal.

(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

to do so.

 
 

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions

32

 

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.

67      

Review

(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

Crown), or

20

(b)   

before the National Assembly for Wales (where the relevant authority

is the Welsh Ministers).

68      

Suspension

(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

one occasion—

(a)   

to comply with any duty imposed on it under or by virtue of this Part

40

in relation to that offence,

 
 

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions

33

 

(b)   

to act in accordance with the guidance it has published in relation to

that offence (in particular, the guidance published under sections 63

and 64), or

(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

that offence.

(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

consult—

(a)   

the regulator, and

(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

must—

(a)   

publish the direction in such manner as the relevant authority thinks fit,

20

and

(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

regulator receives—

(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

penalty, or

(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

Welsh Consolidated Fund,

(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.

 
 

Regulatory Enforcement and Sanctions Bill [HL]
Part 3 — Civil sanctions

34

 

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

this Part where—

(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

of—

(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

section.

71      

Interpretation of Part 3

(1)   

In this Part—

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

undertaking);

“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

section 42(5);

“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;

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“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

 
 

Regulatory Enforcement and Sanctions Bill [HL]
Part 4 — Regulatory burdens

35

 

circumstances capable of exercising an enforcement function in relation to the

offence.

Part 4

Regulatory burdens

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

person does not—

(a)   

impose burdens which that person considers to be unnecessary, or

(b)   

maintain burdens which that person considers to have become

10

unnecessary.

(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,

and

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(b)   

is to be a statement for the period of twelve months beginning with the

day of its publication.

(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

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(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.

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(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.

 
 

 
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