Regulatory Enforcement and Sanctions Bill [HL]

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

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;
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

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
30
(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
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.