Regulatory Enforcement and Sanctions Act 2008

64

• (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—

• (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 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.

Publication of enforcement action

65

• (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 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

• (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 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.

Exercise of powers: general

Compliance with regulatory principles

66

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 with the principles referred to in section 5(2) in exercising that power.

Review

67

• (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.

• (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 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

• (b) before the National Assembly for Wales (where the relevant authority is the Welsh Ministers).

Suspension

68

• (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 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 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 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 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 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 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 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 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, 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

Payment of penalties into Consolidated Fund etc

69

• (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),

• (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.

• (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,

• (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.

Disclosure of information

70

• (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

• (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.

• (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

• (b) any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

• (5) This section does not affect a power to disclose which exists apart from this section.

Interpretation of Part 3

71

• (1) In this Part—

• “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);

• “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);

• “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;

• “relevant authority” means—in relation to provision made under or by virtue of this Part by a Minister of the Crown, that Minister, andin relation to provision made under or by virtue of this Part by the Welsh Ministers, the Welsh Ministers;

• “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 circumstances capable of exercising an enforcement function in relation to the offence.

Part 4 — Regulatory burdens

Duty not to impose or maintain unnecessary burdens

72

• (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 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 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 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 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

• (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

• (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.

• (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.

Functions to which section 72 applies

73

• (1) Section 72 applies to the following regulatory functions—

• (a) the regulatory functions specified in subsection (2),

• (aa) the regulatory functions specified in subsection (2A),

• (b) any regulatory function specified by a Minister of the Crown by order in accordance with this section, and

• (c) any regulatory function specified by the Welsh Ministers by order in accordance with this section.

• (2) The regulatory functions referred to in subsection (1)(a) are the regulatory functions exercised by—

• (a) the Gas and Electricity Markets Authority,

• (b) the Competition and Markets Authority ,

• (c) the Office of Rail and Road

• (d) the Office of Communications in relation to postal services, and

• (e) the Water Services Regulation Authority,

other than any function exercised under competition law or any function exercisable by a CMA group (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013) or a member of the CMA panel (within the meaning of that Schedule) .

• (2A) The regulatory functions referred to in subsection (1)(aa) are the regulatory functions exercised by the Civil Aviation Authority under—

• (a) Chapter 1 of Part 1 of the Transport Act 2000 (air traffic services);

• (b) Chapter 1 of Part 1 of the Civil Aviation Act 2012 (regulation of operators of dominant airports).

• (3) Any reference in subsection (2) or (2A) to a regulatory function—

• (a) where the function is exercisable in Scotland, does not include the function if or to the extent that it relates to matters which are not reserved matters,

• (b) where the function is exercisable in Northern Ireland, does not include the function if or to the extent that it relates to matters which are transferred matters, and

• (c) where the function is exercisable in relation to Wales , does not include the function if or to the extent that it relates to a devolved Welsh matter.

• (4) A Minister of the Crown may not under this section specify—

• (a) a regulatory function so far as exercisable in Scotland, if or to the extent that the function relates to matters which are not reserved matters,

• (b) a regulatory function so far as exercisable in Northern Ireland, if or to the extent that the function relates to matters which are transferred matters, or

• (c) a regulatory function so far as exercisable in relation to Wales , if or to the extent that the function relates to a devolved Welsh matter.

• (5) The Welsh Ministers may only specify under this section a regulatory function if or to the extent that it relates to a devolved Welsh matter.

• (6) Before making an order under this section the authority making the order must consult—

• (a) any person whose regulatory functions are to be specified in the order, and

• (b) such other persons as the authority considers appropriate.

• (7) An order under this section may make such consequential, supplementary, incidental or transitional provision (including provision amending any enactment) as the authority making it considers appropriate.

• (8) An order under this section is to be made by statutory instrument.

• (9) A statutory instrument containing an order under this section made by a Minister of the Crown may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

• (10) A statutory instrument containing an order under this section made by the Welsh Ministers may not be made unless a draft of the instrument has been laid before, and approved by resolution of, the National Assembly for Wales.

• (10A) In subsection (2)(d) “postal services” has the same meaning as in Part 3 of the Postal Services Act 2011.

• (11) In subsections (3) and (4)—

• “reserved matter” and “Scotland” have the same meanings as in the Scotland Act 1998 (c. 46);

• “transferred matter” and “Northern Ireland” have the same meanings as in the Northern Ireland Act 1998 (c. 47);

• “Wales” has the same meaning as in the Government of Wales Act 2006 (c. 32).

Part 5 — General

General interpretation

74

In this Act—

• devolved Welsh matter” means — a matter within the legislative competence of the National Assembly for Wales (see section 108A of the Government of Wales Act 2006), ora matter in relation to Wales in respect of which functions are exercisable by the Welsh Ministers,and in this definition “Wales” has the same meaning as in the Government of Wales Act 2006;

• “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 (c. 26);

• “regulatory function” has the same meaning as in the Legislative and Regulatory Reform Act 2006 (c. 51);

• ...

Extent

75

This Act extends to England and Wales, Scotland and Northern Ireland.

Commencement

76

• (1) Parts 1 to 4 come into force in accordance with provision made by order made by statutory instrument by the Secretary of State.

• (2) This Part comes into force on the day on which this Act is passed.

Short title

77

This Act may be cited as the Regulatory Enforcement and Sanctions Act 2008.

SCHEDULE 1

Status

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Membership

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Tenure

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employees

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Committees

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Proceedings

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Delegation

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Funding

11

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) The Welsh Ministers may make grants to the Secretary of State in respect of the Secretary of State’s functions under Parts 1 and 2 of such amounts as they think fit.

• (4) A grant under sub-paragraph (3) may be subject to such conditions as the Welsh Ministers think fit.

Annual report

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Accounts

13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Financial year

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Instruments and authentication

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Records

16

In the Public Records Act 1958 (c. 51), in Schedule 1 (definition of public records), in Part 2 of the Table at the end of paragraph 3, at the appropriate place insert— “ Local Better Regulation Office. ”

Parliamentary disqualification

17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Investigation

18

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Freedom of information

19

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transitional provisions

20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 2

Transfer of staff

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transfer of property, rights and liabilities

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Tax

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Continuity between the LBRO company and LBRO

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 3

SCHEDULE 4

Reference by enforcing authority

1

• (1) If the primary authority directs the enforcing authority as specified in section 28(2), the enforcing authority may with the consent of the Secretary of State refer the proposed enforcement action to the Secretary of State .

• (2) On a reference under this paragraph—

• (a) if the Secretary of State is satisfied as to the matters in sub-paragraph (3), the Secretary of State must confirm the direction;

• (b) in any other case, the Secretary of State must revoke the direction (and section 28(4)(b) shall accordingly cease to apply in relation to the direction).

• (3) The matters referred to in sub-paragraph (2) are that—

• (a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

• (b) the advice or guidance was correct, and

• (c) the advice or guidance was properly given by the primary authority.

• (4) Where under sub-paragraph (2) the Secretary of State confirms a direction of the primary authority, the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

• (5) The enforcing authority must comply with any direction under sub-paragraph (4).

Reference by regulated person

2

• (1) If the primary authority does not direct the enforcing authority as specified in section 28(2), the regulated person may with the consent of the Secretary of State refer the action to the Secretary of State .

• (2) On a reference under this paragraph—

• (a) if the Secretary of State is satisfied as to the matters in sub-paragraph (3), the Secretary of State must direct the enforcing authority not to take the proposed enforcement action;

• (b) in any other case, the Secretary of State must consent to the action.

• (3) The matters referred to in sub-paragraph (2) are that—

• (a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

• (b) the advice or guidance was correct, and

• (c) the advice or guidance was properly given by the primary authority.

• (4) The enforcing authority may not take the proposed enforcement action if it is directed as specified in sub-paragraph (2)(a).

• (5) Where the Secretary of State gives a direction under sub-paragraph (2)(a), the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

• (6) The enforcing authority must comply with any direction under sub-paragraph (5).

• (7) The Secretary of State may require a regulated person who makes a reference under this paragraph to pay such reasonable costs incurred by the Secretary of State as a result of the reference as the Secretary of State may specify.

Reference by primary authority

3

• (1) The primary authority may with the consent of the Secretary of State , instead of making a determination under section 28(2) in relation to a proposed enforcement action, refer the action to the Secretary of State .

• (2) On a reference under this paragraph—

• (a) if the Secretary of State is satisfied as to the matters in sub-paragraph (3), the Secretary of State must direct the enforcing authority not to take the proposed enforcement action;

• (b) in any other case, the Secretary of State must consent to the action.

• (3) The matters referred to in sub-paragraph (2) are that—

• (a) the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

• (b) the advice or guidance was correct, and

• (c) the advice or guidance was properly given by the primary authority.

• (4) The enforcing authority may not take the proposed enforcement action if it is directed as specified in sub-paragraph (2)(a).

• (5) Where the Secretary of State gives a direction under sub-paragraph (2)(a), the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

• (6) The enforcing authority must comply with any direction under sub-paragraph (5).

Effect of reference

4

The enforcing authority may not take the proposed enforcement action—

• (a) in any period during which the regulated person may make a reference under paragraph 2;

• (b) at any time after the making of a reference under this Schedule and before its determination.

Consultation

5

• (1) Before making a determination for the purposes of this Schedule the Secretary of State —

• (a) must consult any relevant regulator, where appropriate, and

• (b) may consult such other persons as Secretary of State thinks fit.

• (2) In sub-paragraph (1)(a) “relevant regulator” means a person (other than a local authority) with regulatory functions which relate to the matter to which the determination relates.

Procedure: general

6

• (1) The Secretary of State must determine any reference under this Schedule within the period of 28 days beginning with the day on which the reference is made.

• (2) The Secretary of State may by order make further provision as to the procedure to be followed, for the purposes of this Schedule, by the primary authority, the enforcing authority, the regulated person and the Secretary of State .

Guidance and directions

7

• (1) The Secretary of State may give guidance or directions to any one or more local authorities about any enforcement action referred to the Secretary of State .

• (2) A local authority must have regard to any guidance, and comply with any direction, given to it under sub-paragraph (1).

• (3) The Secretary of State must publish any guidance or directions given under this paragraph in such manner as the Secretary of State considers appropriate.

Information

8

For the purposes of this Schedule the Secretary of State may require the primary authority, the enforcing authority or the regulated person to provide the Secretary of State with such information as the Secretary of State may specify, being information which the authority may lawfully provide to the Secretary of State .

SCHEDULE 5

SCHEDULE 6

SCHEDULE 7

“Local authority”

Guidance to local authorities

Advice and guidance

Power to charge

Enforcement action: exceptions

Guidance and directions

Extent

Extent

Extent

Status

Membership

Tenure

Employees

Committees

Proceedings

Delegation

Funding

Annual report

Accounts

Financial year

Instruments and authentication

Records

Parliamentary disqualification

Investigation

Freedom of information

Transitional provisions

Transfer of staff

Transfer of property, rights and liabilities

Tax

Continuity between the LBRO company and LBRO

Reference by enforcing authority

Reference by regulated person

Reference by primary authority

Effect of reference

Consultation

Procedure: general

Guidance and directions

Information

Editorial notes