House of Lords Amendments

House of Lords

Session 2007 - 08
Internet Publications
Other Bills before Parliament

(  17  )

Fixed monetary penalties: procedure

11  (1)
Provision under paragraph 10 must secure that—

(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

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 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,

(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.

      (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,

(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, 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 circumstances in which the administrator may not decide to impose

a fixed 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 penalty,

(b)
how payment may be made,

(c)
the period within which payment must be made,

(d)
any early payment discounts or late payment penalties,

(e)
rights of appeal, and

(f)
the consequences of non-payment.

(  18  )

      (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;

(b)
that the decision was wrong in law;

(c)
that the decision was unreasonable.

Discretionary requirements

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 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,

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);

“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 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 omission.

Discretionary requirements: procedure

13  (1)
Provision under paragraph 12 must secure that—

(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 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—

(  19  )

(i)
impose the discretionary requirement, with or without

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 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—

(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,

(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 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

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

(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;

(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;

(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 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—

(  20  )

(a)
specify the amount of the non-compliance penalty or provide for

that 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 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.

      (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 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

(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 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 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—

(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

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;

(  21  )

(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.

      (2)
Provision under sub-paragraph (1)(c) may include—

(a)
provision for the administrator 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 under a court order.

Costs recovery

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—

(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—

(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;

(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.

      (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.

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.

(  22  )

      (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

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—

(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, 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 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.

      (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.

      (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

20
The regulations may make provision about the persons liable to civil

sanctions under regulations under this Schedule and may (in particular)

provide for—

(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.

(  23  )

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 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

(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,

(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.

      (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

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

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

(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 overturned on appeal.