Climate Change Bill [HL]

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Climate Change Bill [HL]

Climate Change Bill [HL]
Schedule 6 — Charges for single use carrier bags
Part 2 — Civil sanctions
80

      (2)
The regulations may only confer such a power in relation to a case where the
administrator is satisfied on the balance of probabilities that the breach has
occurred.
      (3)
For the purposes of this Schedule a “fixed monetary penalty” is a
requirement to pay to an administrator a penalty of an amount specified in
5
or determined in accordance with the regulations.
      (4)
The regulations may not provide for the imposition of a fixed monetary
penalty in excess of £5,000.
Fixed monetary penalties: procedure
11    (1)
Provision under paragraph 10 must secure that—
10
(a)
where an administrator proposes to impose a fixed monetary
penalty on a person, the administrator must serve on that person a
notice of what is proposed (a “notice of intent”) that complies with
sub-paragraph (2),
(b)
the notice of intent also offers the person the opportunity to
15
discharge the person’s liability for the fixed monetary penalty by
payment of a specified 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
20
to the administrator in relation to the proposed imposition of
the fixed monetary penalty, and
(ii)
the administrator must at the end of the period for making
representations and objections decide whether to impose the
fixed monetary penalty,
25
(d)
where the administrator decides to impose the fixed monetary
penalty, the notice imposing it (“the final notice”) complies with sub-
paragraph (4), and
(e)
the person on whom a fixed monetary penalty is imposed may
appeal against the decision to impose it.
30
      (2)
To comply with this sub-paragraph the notice of intent must include
information as to—
(a)
the grounds for the proposal to impose the fixed monetary penalty.
(b)
the effect of payment of the sum referred to in sub-paragraph (1)(b),
(c)
the right to make representations and objections,
35
(d)
the circumstances in which the administrator may not impose the
fixed monetary penalty,
(e)
the period within which liability to the fixed monetary penalty may
be discharged, which may not exceed the period of 28 days
beginning with the day on which the notice of intent was received,
40
and
(f)
the period within which representations and objections may be
made, which may not exceed the period of 28 days beginning with
the day on which the notice of intent was received.
      (3)
Provision pursuant to sub-paragraph (1)(c)(ii) must include provision for
45
circumstances in which the administrator may not decide to impose a fixed
monetary penalty.

Climate Change Bill [HL]
Schedule 6 — Charges for single use carrier bags
Part 2 — Civil sanctions
81

      (4)
To comply with this sub-paragraph the final notice referred to in sub-
paragraph (1)(d) must include information as to—
(a)
the grounds for imposing the penalty,
(b)
how payment may be made,
(c)
the period within which payment must be made,
5
(d)
any early payment discounts or late payment penalties,
(e)
rights of appeal, and
(f)
the consequences of non-payment.
      (5)
Provision pursuant to sub-paragraph (1)(e) must secure that the grounds on
which a person may appeal against a decision of the administrator include
10
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.
Discretionary requirements
15
12    (1)
The regulations may make provision conferring on an administrator the
power by notice to impose one or more discretionary requirements on a
person who breaches regulations under this Schedule.
      (2)
The regulations may only confer such a power in relation to a case where the
administrator is satisfied on the balance of probabilities that the breach has
20
occurred.
      (3)
For the purposes of this Schedule a “discretionary requirement” means—
(a)
a requirement to pay a monetary penalty to an administrator of such
amount as the administrator may determine, or
(b)
a requirement to take such steps as an administrator may specify,
25
within such period as the administrator may specify, to secure that
the breach does not continue or recur.
      (4)
In this Schedule—
“variable monetary penalty” means a requirement referred to in sub-
paragraph (3)(a);
30
“non-monetary discretionary requirement” means a requirement
referred to in sub-paragraph (3)(b).
      (5)
The regulations must, in relation to each kind of breach of regulations under
this Schedule for which a variable monetary penalty may be imposed—
(a)
specify the maximum penalty that may be imposed for a breach of
35
that kind, or
(b)
provide for that maximum to be determined in accordance with the
regulations.
      (6)
The regulations may not permit discretionary requirements to be imposed
on a person on more than one occasion in relation to the same act or
40
omission.
Discretionary requirements: procedure
13    (1)
Provision under paragraph 12 must secure that—

Climate Change Bill [HL]
Schedule 6 — Charges for single use carrier bags
Part 2 — Civil sanctions
82

(a)
where an administrator proposes to impose a discretionary
requirement on a person, the administrator must serve on that
person a notice of what is proposed (a “notice of intent”) that
complies with sub-paragraph (2),
(b)
that person may make written representations and objections to the
5
administrator in relation to the proposed imposition of the
discretionary requirement,
(c)
after the end of the period for making such representations and
objections, the administrator must decide whether to—
(i)
impose the discretionary requirement, with or without
10
modifications, or
(ii)
impose any other discretionary requirement that the
administrator has power to impose under paragraph 12,
(d)
where the administrator decides to impose a discretionary
requirement, the notice imposing it (the “final notice”) complies with
15
sub-paragraph (4), and
(e)
the person on whom a discretionary requirement is imposed may
appeal against the decision to impose it.
      (2)
To comply with this sub-paragraph the notice of intent must include
information as to—
20
(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 administrator may not impose the
discretionary requirement,
25
(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.
      (3)
Provision pursuant to sub-paragraph (1)(c) must include provision for
circumstances in which the administrator may not decide to impose a fixed
30
monetary penalty.
      (4)
To comply with this sub-paragraph the final notice referred to in sub-
paragraph (1)(d) must include information as to—
(a)
the grounds for imposing the discretionary requirement,
(b)
where the discretionary requirement is a variable monetary
35
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
40
(d)
the consequences of non-compliance.
      (5)
Provision pursuant to sub-paragraph (1)(e) must secure that the grounds on
which a person may appeal against a decision of the administrator include
the following—
(a)
that the decision was based on an error of fact;
45
(b)
that the decision was wrong in law;
(c)
in the case of a variable monetary penalty, that the amount of the
penalty is unreasonable;

Climate Change Bill [HL]
Schedule 6 — Charges for single use carrier bags
Part 2 — Civil sanctions
83

(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.
Discretionary requirements: enforcement
14    (1)
Provision under paragraph 12 may include provision for a person to pay a
5
monetary penalty (a “non-compliance penalty”) to an administrator if the
person fails to comply with a non-monetary discretionary requirement
imposed on the person.
      (2)
Provision under sub-paragraph (1) may—
(a)
specify the amount of the non-compliance penalty or provide for that
10
amount to be determined in accordance with the regulations, or
(b)
provide for the amount to be determined by the administrator or in
some other way.
      (3)
If the regulations make provision within sub-paragraph (2)(b), they must, in
relation to each kind of failure for which a non-compliance penalty may be
15
imposed—
(a)
specify the maximum penalty that may be imposed for a failure of
that kind, or
(b)
provide for that maximum to be determined in accordance with the
regulations.
20
      (4)
Provision under sub-paragraph (1) must secure that—
(a)
the non-compliance penalty is imposed by notice served by the
administrator, and
(b)
the person on whom it is imposed may appeal against that notice.
      (5)
Provision pursuant to paragraph (b) of sub-paragraph (4) must secure that
25
the grounds on which a person may appeal against a notice referred to in
that sub-paragraph 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;
(c)
that the decision was unfair or unreasonable for any reason
30
(including, in a case where the amount of the non-compliance
penalty was determined by the administrator, that the amount is
unreasonable).
Combination of sanctions
15    (1)
Provision may not be made under paragraphs 10 and 12 conferring powers
35
on an administrator in relation to the same kind of breach of regulations
under this Schedule unless it complies with the following requirements.
      (2)
The provision must secure that the administrator may not serve a notice of
intent referred to in paragraph 11(1)(a) on a person in relation to a breach
where a discretionary requirement has been imposed on that person in
40
relation to the same breach.
      (3)
Such provision must secure that the administrator may not serve a notice of
intent referred to in paragraph 13(1)(a) on a person in relation to a breach
where—

Climate Change Bill [HL]
Schedule 6 — Charges for single use carrier bags
Part 2 — Civil sanctions
84

(a)
a fixed monetary penalty has been imposed on that person in relation
to the same breach, or
(b)
the person has discharged liability to a fixed monetary penalty in
relation to that breach pursuant to paragraph 11(1)(b).
Monetary penalties
5
16    (1)
If the regulations confer power on an administrator to require a person to
pay a fixed monetary penalty, a variable monetary penalty or a non-
compliance penalty under paragraph 14(1), they may include provision—
(a)
for early payment discounts;
(b)
for the payment of interest or other financial penalties for late
10
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.
      (2)
Provision under sub-paragraph (1)(c) may include—
(a)
provision for the administrator to recover the penalty, and any
15
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 under a court order.
Costs recovery
20
17    (1)
Provision under paragraph 12 may include provision for an administrator,
by notice, to require a person on whom a discretionary requirement is
imposed to pay the costs incurred by the administrator in relation to the
imposition of the discretionary requirement up to the time of its imposition.
      (2)
In sub-paragraph (1), the reference to costs includes in particular—
25
(a)
investigation costs;
(b)
administration costs;
(c)
costs of obtaining expert advice (including legal advice).
      (3)
Provision under this paragraph must secure that, in any case where a notice
requiring payment of costs is served—
30
(a)
the notice specifies the amount required to be paid;
(b)
the administrator may be required to provide a detailed breakdown
of that amount;
(c)
the person required to pay costs is not liable to pay any costs shown
by the person to have been unnecessarily incurred;
35
(d)
the person required to pay costs may appeal against—
(i)
the decision of the administrator to impose the requirement
to pay costs;
(ii)
the decision of the administrator as to the amount of those
costs.
40
      (4)
Provision under this paragraph may include the provision referred to in
paragraph 16(1)(b) and (c) and (2).
      (5)
Provision under this paragraph must secure that the administrator is
required to publish guidance about how the administrator will exercise the
power conferred by the provision.
45

Climate Change Bill [HL]
Schedule 6 — Charges for single use carrier bags
Part 2 — Civil sanctions
85

Appeals
18    (1)
The regulations may not provide for the making of an appeal other than to—
(a)
the First-tier Tribunal, or
(b)
another tribunal created under an enactment.
      (2)
In sub-paragraph (1)(b) “tribunal” does not include an ordinary court of law.
5
      (3)
If the regulations make provision for an appeal in relation to the imposition
of any requirement or service of any notice, they 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
10
made;
(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 sub-paragraph (3)(b) includes provision
conferring on the tribunal to which the appeal is made power—
15
(a)
to withdraw the requirement or notice;
(b)
to confirm the requirement or notice;
(c)
to take such steps as the administrator 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,
20
or any matter relating to that decision, to the administrator;
(e)
to award costs.
Publicity for imposition of civil sanctions
19    (1)
The regulations may make provision enabling an administrator to give a
publicity notice to a person on whom a civil sanction has been imposed in
25
accordance with regulations under this Schedule.
      (2)
A “publicity notice” is a notice requiring the person to publicise—
(a)
the fact that the civil sanction has been imposed, and
(b)
such other information as may be specified in the regulations,

in such manner as may be specified in the notice.
30
      (3)
The regulations may provide for a publicity notice to—
(a)
specify the time for compliance with the notice, and
(b)
require the person to whom it is given to supply an administrator
with evidence of compliance within such time as may be specified in
the notice.
35
      (4)
The regulations may provide that, if a person fails to comply with a publicity
notice, an administrator may—
(a)
publicise the information required to be publicised by the notice, and
(b)
recover the costs of doing so from that person.
Persons liable to civil sanctions
40
20
The regulations may make provision about the persons liable to civil
sanctions under regulations under this Schedule and may (in particular)
provide for—

Climate Change Bill [HL]
Schedule 6 — Charges for single use carrier bags
Part 2 — Civil sanctions
86

(a)
the officers of a body corporate to be so liable as well the body
corporate itself, and
(b)
for the partners of a partnership to be liable as well as the partnership
itself,

in such circumstances as may be specified.
5
Guidance as to use of civil sanctions
21    (1)
Where power is conferred on an administrator by the regulations to impose
a civil sanction in relation to a breach of regulations under this Schedule, the
provision conferring the power must secure that—
(a)
the administrator must publish guidance about the administrator’s
10
use of the civil sanction,
(b)
the guidance must contain the relevant information,
(c)
the administrator must revise the guidance where appropriate,
(d)
the administrator must consult such persons as the provision may
specify before publishing any guidance or revised guidance, and
15
(e)
the administrator must have regard to the guidance or revised
guidance in exercising the administrator’s functions.
      (2)
In the case of guidance relating to a fixed monetary penalty, the relevant
information referred to in sub-paragraph (1)(b) is information as to—
(a)
the circumstances in which the penalty is likely to be imposed,
20
(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
discharge, and
(e)
rights to make representations and objections and rights of appeal.
25
      (3)
In the case of guidance relating to a discretionary requirement, the relevant
information referred to in sub-paragraph (1)(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,
(c)
in the case of a variable monetary penalty, the matters likely to be
30
taken into account by the administrator 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.
Publication of enforcement action
35
22    (1)
Where power is conferred on an administrator by the regulations to impose
a civil sanction in relation to a breach of regulations under this Schedule, the
provision conferring the power must, subject to this paragraph, secure that
the administrator must from time to time publish reports specifying—
(a)
the cases in which the civil sanction has been imposed, and
40
(b)
where the civil sanction is a fixed monetary penalty, the cases in
which liability to the penalty has been discharged pursuant to
paragraph 11(1)(b).
      (2)
In sub-paragraph (1)(a), the reference to cases in which the civil sanction has
been imposed do not include cases where the sanction has been imposed but
45
overturned on appeal.