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Regulatory Enforcement and Sanctions Act 2008

Type Public General Act

Publication 2008-07-21

Last updated 2025-02-24

State In force

Department Statute Law Database

Source legislation.gov.uk

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(4) In the case of a co-ordinated primary authority, the co-ordinator of the regulated group must notify any advice or guidance given to the co-ordinator under subsection (2)(a) to those members of the group to whom the co-ordinator considers it may be relevant.

(5) Advice or guidance may be given under subsection (1)(b) or (2)(b) only with the consent of the Secretary of State.

(6) Subsections (1)(b) and (2)(b) do not require advice and guidance to be given to a qualifying regulator in relation to a partnership function if it is not a relevant function of that regulator.

Enforcement action

25A

(1) In this Part, “enforcement action” means—

(a) action which relates to securing compliance with a restriction, requirement or condition in the event of breach (or putative breach) of a restriction, requirement or condition;

(b) action taken with a view to, or in connection with, the imposition of a sanction (criminal or otherwise) in respect of an act or omission;

(2) But the Secretary of State may by regulations, with the consent of the Welsh Ministers, specify—

(a) action which is to be regarded as enforcement action for the purposes of this Part or any provision of this Part specified in the regulations;

(b) action which is not to be regarded as enforcement action for the purposes of this Part or any provision of this Part specified in the regulations.

(3) Regulations under subsection (2) may make different provision for different purposes.

25B

(1) This section applies if—

(a) the primary authority proposes to take enforcement action against the regulated person or a member of the regulated group pursuant to a relevant function of the primary authority which is a partnership function, and

(b) in the case of proposed enforcement action against a member of the regulated group, the primary authority is aware that the member belongs to the group.

But see section 25D (which imposes a duty to prescribe circumstances in which this section does not apply).

(2) The primary authority—

(a) must notify the regulated person or the member in writing before taking the proposed enforcement action, and

(b) may not take the action during the referral period mentioned in paragraph 5(2) of Schedule 4A (period in which the regulated person or the member may refer the action to the Secretary of State) unless notified in writing by the regulated person or the member that no such reference is to be made.

(3) Parts 1 and 3 of Schedule 4A contain provision for questions arising under this section to be referred to the Secretary of State.

(4) Where another enactment limits the period within which the primary authority may take the proposed enforcement action, any time during which it is prohibited under this section or paragraph 5(7) of Schedule 4A from taking the action is to be disregarded in calculating that period.

25C

(1) This section applies if—

(a) a qualifying regulator other than the primary authority proposes to take enforcement action against the regulated person or a member of the regulated group pursuant to a relevant function of the regulator which is a partnership function, and

(b) in the case of proposed enforcement action against a member of the regulated group, the regulator is aware that the member belongs to the group.

But see section 25D (which imposes a duty to prescribe circumstances in which this section does not apply).

(2) The qualifying regulator (the “enforcing authority”)—

(a) must notify the primary authority in writing before taking the proposed enforcement action, and

(b) may not take the action during the relevant period.

(3) If—

(a) the enforcing authority fails to notify the primary authority under subsection (2)(a) of the proposed enforcement action, but

(b) the primary authority is notified of it by the regulated person or the member or the co-ordinator of the regulated group,

the primary authority must notify the enforcing authority in writing that the enforcing authority is prohibited by subsection (2)(b) from taking the action during the relevant period.

(4) If the primary authority determines, within the relevant period, that the proposed enforcement action is inconsistent with advice or guidance previously given by it (generally or specifically), it may direct the enforcing authority in writing not to take the action.

(5) Any such direction must be given as soon as is reasonably practicable, and in any event within the relevant period.

(6) If the enforcing authority is not directed under subsection (4) not to take the proposed enforcement action, and continues to propose to take the action—

(a) it must inform the regulated person or the member, and

(b) it may not take the action during the referral period mentioned in paragraph 5(4) of Schedule 4A (period in which the regulated person or the member may refer the action to the Secretary of State) unless notified in writing by the regulated person or the member that no such reference is to be made.

(7) Parts 2 and 3 of Schedule 4A contain provision for questions arising under this section to be referred to the Secretary of State.

(8) Where another enactment limits the period within which the enforcing authority may take the proposed enforcement action, any time during which it is prohibited under this section or paragraph 5(7) of Schedule 4A from taking the action is to be disregarded in calculating the period.

(9) For the purposes of this section, the “relevant period” means the period which—

(a) begins when the primary authority is notified under subsection (2)(a) of the proposed enforcement action or the enforcing authority is notified under subsection (3) that it is prohibited from taking the action during the relevant period, and

(b) ends—

(i) at the end of the fifth working day after the day on which the period begins, or at such later time as the Secretary of State may direct, or

(ii) if earlier, when the enforcing authority is notified in writing by the primary authority that no direction is to be given under subsection (4) (unless the notification states that the primary authority has referred the action to the Secretary of State under paragraph 4(1) of Schedule 4A or that it intends to do so).

25D

(1) The Secretary of State must by regulations, with the consent of the Welsh Ministers, prescribe—

(a) circumstances in which section 25B, and Schedule 4A so far as relating to cases within section 25B, do not apply, and

(b) circumstances in which section 25C, and Schedule 4A so far as relating to cases within section 25C, do not apply.

(2) In particular, the Secretary of State must exercise the power under subsection (1) to secure that those provisions do not apply—

(a) where the enforcement action is required urgently to avoid a significant risk of serious harm to—

(i) human health,

(ii) the environment (including the health of animals or plants), or

(iii) the financial interests of consumers;

(b) where the application of those provisions would be wholly disproportionate.

(3) Where a qualifying regulator other than the primary authority takes enforcement action against the regulated person or a member of the regulated group in circumstances prescribed under subsection (1)(b), the qualifying regulator must inform the primary authority of the action as soon as it reasonably can.

Inspection plans

26A

(1) Where a partnership function consists of or includes a function of inspection (an “inspection function”), the primary authority may make an inspection plan in accordance with this section.

(2) An “inspection plan” is a plan containing recommendations as to how the inspection function should be exercised by an inspecting regulator in relation to the regulated person or a member of the regulated group.

(3) A person is an “inspecting regulator” if—

(a) the person is a qualifying regulator, and

(b) the inspection function is a relevant function of the person.

(4) An inspection plan may, in particular—

(a) set out what an inspection should consist of;

(b) set out the frequency with which inspections should be carried out;

(d) require the inspecting regulator to provide the primary authority with a report on the inspecting regulator's exercise of the inspection function.

(5) Before making an inspection plan the primary authority must consult the regulated person or the co-ordinator of the regulated group.

(6) When making an inspection plan the primary authority must take into account any relevant recommendations relating to inspections which are published pursuant to a regulatory function by a person other than an inspecting regulator.

(7) When it has made an inspection plan, the primary authority may apply to the Secretary of State for consent to the plan.

(8) If the Secretary of State consents to a plan under subsection (7), the primary authority must notify the plan to—

(a) the regulated person or the co-ordinator of the regulated group, and

(b) inspecting regulators.

(9) If, in the case of a regulated group, an inspection plan is notified to the co-ordinator under subsection (8)(a), the co-ordinator must—

(a) notify the plan to those members of the group to whom the co-ordinator considers it may be relevant,

(b) prepare a list of the names and addresses of those members,

(d) provide the primary authority with the list, including any updates to it, and

(e) notify any member whose name is included in the list or removed from it of the inclusion or removal.

(10) If a list or update is provided to the primary authority under subsection (9)(d), the primary authority must notify the list or update to inspecting regulators.

26B

(1) If the Secretary of State consents under section 26A(7) to an inspection plan in respect of an inspection function, the primary authority must have regard to the plan when it exercises the inspection function in relation to—

(a) the regulated person, or

(b) a member of the regulated group whose name is included in the list provided to the primary authority (and, where applicable, updated) under section 26A(9)(d).

(2) If an inspection plan of the primary authority is notified to an inspecting regulator under section 26A(8)(b), the inspecting regulator may not exercise the inspection function in relation to the regulated person or a member of the regulated group otherwise than in accordance with the plan, unless—

(a) the inspecting regulator has notified the primary authority in writing of the way in which it proposes to exercise the function, and the primary authority has notified the regulator in writing that the primary authority consents to that proposed exercise, or

(b) in the case of a regulated group, the member's name is not included in the list notified to the inspecting regulator (and, where applicable, updated) under section 26A(10).

(3) A notification by an inspecting regulator under subsection (2)(a) must include reasons for exercising the function otherwise than in accordance with the plan.

(4) A primary authority is to be treated as having given the notification of consent described in subsection (2)(a) if—

(a) it is notified by the inspecting regulator as described in that subsection, and

(b) it fails to notify the inspecting regulator in writing, before the end of the fifth working day after the day on which it received the notification, whether it consents as described in that subsection.

26C

(1) A primary authority may, with the consent of the Secretary of State, revoke an inspection plan made by it under section 26A.

(2) If a primary authority revokes an inspection plan, it must notify the following that the plan is no longer in effect—

(a) the regulated person or the co-ordinator of the regulated group;

(b) inspecting regulators.

(3) Where the revocation of an inspection plan is notified to the co-ordinator of a regulated group under subsection (2)(a), the co-ordinator must notify the revocation to those members of the group to whom the co-ordinator considers it may be relevant.

(4) A primary authority may from time to time revise an inspection plan made by it under section 26A.

(5) Sections 26A and 26B and this section apply to a revised plan as they apply to a plan made under section 26A; and references in this Part to an inspection plan include the revised plan.

Primary authority's costs

27A

(1) The primary authority—

(a) may, in the case of a regulated person, charge the person such fees as the authority considers to represent the costs reasonably incurred by it in the exercise of its functions under this Part in relation to the person;

(b) may, in the case of a regulated group, charge the co-ordinator such fees as the authority considers to represent the costs reasonably incurred by it in the exercise of its functions under this Part in relation to the regulated group.

(2) The reference in subsection (1)(b) to functions in relation to the regulated group includes functions in relation to the co-ordinator or a member of the group.

Other regulators

28A

(1) This section applies to a person who has regulatory functions and who—

(a) is specified as a “supporting regulator” by the Secretary of State by regulations, and

(b) has a function which is not a relevant function of the person but which—

(i) is a designated function of the person, and

(ii) is, or is relevant to the exercise of, a partnership function.

(2) The supporting regulator may do anything which it considers appropriate for the purpose of supporting the primary authority in the preparation of—

(a) advice or guidance under section 24A in relation to the partnership function, or

(b) an inspection plan in relation to the partnership function.

(3) If the supporting regulator provides support under subsection (2), it must, in the exercise of the designated function in relation to the regulated person or a member of the regulated group, act consistently with any advice or guidance under section 24A, or any inspection plan—

(a) which is subsequently given or made in relation to the partnership function, and

(b) to which the supporting regulator has consented.

(4) But, in the case of a regulated group, the duty under subsection (3) applies to the exercise of the designated function in relation to a member of the group only if the supporting regulator is aware that the member belongs to the group.

(5) The duty under subsection (3) is a duty to act consistently so far as it is possible for the supporting regulator to do so in accordance with its other functions.

(6) If—

(a) the supporting regulator provides support under subsection (2), and

(b) the regulated person or the co-ordinator of the regulated group has agreed in writing to the provision of that support,

the supporting regulator may charge the regulated person or the co-ordinator such fees as it considers to represent the costs reasonably incurred by it in providing that support.

(7) In the case of a regulated group, the co-ordinator of the group must make the following available free of charge, on request, to the supporting regulator—

(a) a copy of the group membership list maintained under section 23D(2);

(b) a copy of a list under section 26A(9) of group members to whom an inspection plan may be relevant.

(8) The copy must be made available as soon as is reasonably practicable and in any event not later than the end of the third working day after the day on which the request is received by the co-ordinator.

(9) Regulations under subsection (1)(a) require the consent of the Welsh Ministers to specify a person whose functions relate only to devolved Welsh matters.

(10) In this section, “designated function”, in relation to a supporting regulator, means a regulatory function exercised by that regulator and specified by the Secretary of State by regulations.

(11) Regulations under subsection (10)—

(a) may not specify 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) may not specify 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;

(c) require the consent of the Welsh Ministers to specify a regulatory function, so far as exercisable in relation to Wales, which relates to a devolved Welsh matter.

(12) Regulations under subsection (10) may make different provision for—

(a) different purposes;

(b) different areas.

(13) A supporting regulator who, apart from subsection (2), has power to provide the support described in that subsection, is not prevented by that power from exercising the power conferred by subsection (2).

28B

(1) This section applies to a person who has regulatory functions and who—

(a) is specified as a “complementary regulator” by the Secretary of State by regulations, and

(b) has a function which is not a relevant function of the person, but which—

(i) is a designated function of the person,

(ii) is, or is equivalent to, a partnership function, and

(iii) is exercisable by the person in relation to the regulated person or a member of the regulated group.

(2) The complementary regulator must act consistently with primary authority advice and guidance in the exercise of the designated function in relation to the regulated person or a member of the regulated group.

(3) But, in the case of a regulated group, the duty under subsection (2) applies to the exercise of the designated function in relation to a member of the group only if the complementary regulator is aware that the member belongs to the group.

(4) The duty under subsection (2) is a duty to act consistently so far as it is possible for the complementary regulator to do so in accordance with its other functions.

(5) In subsection (2), “primary authority advice and guidance” means—

(a) advice and guidance given by the primary authority under section 24A to the regulated person or the co-ordinator of the regulated group in relation to the partnership function,

(b) advice and guidance given by the primary authority under that section to qualifying regulators as to how they should exercise the partnership function in relation to the regulated person or a member of the regulated group, and

(c) an inspection plan made by the primary authority in respect of the exercise of the partnership function in relation to the regulated person or a member of the regulated group.

(6) In the case of a regulated group, the co-ordinator of the group must make the following available free of charge, on request, to the complementary regulator—

(a) a copy of the group membership list maintained under section 23D(2);

(b) a copy of a list under section 26A(9) of group members to whom an inspection plan may be relevant.

(7) The copy must be made available as soon as is reasonably practicable and in any event not later than the end of the third working day after the day on which the request is received by the co-ordinator.

(8) Regulations under subsection (1)(a) require the consent of the Welsh Ministers to specify a person whose functions relate only to devolved Welsh matters.

(9) In this section, “designated function”, in relation to a complementary regulator, means a regulatory function exercised by that regulator and specified for the purposes of this section by the Secretary of State by regulations.

(10) Regulations under subsection (9) specifying a function other than a partnership function must identify the partnership function to which the designated function is equivalent.

(11) Regulations under subsection (9)—

(a) may not specify 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) may not specify 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;

(c) require the consent of the Welsh Ministers to specify a regulatory function, so far as exercisable in relation to Wales, which relates to a devolved Welsh matter.

(12) Regulations under subsection (9) may make different provision for—

(a) different purposes;

(b) different areas.

Cases with more than one primary authority

29A

(1) This section applies if—

(a) a qualifying regulator nominated as a direct primary authority or a co-ordinated primary authority for the exercise of a function in relation to a person notifies the person, under section 25B(2)(a), of enforcement action that it proposes to take against the person pursuant to the function, and

(b) within the referral period, the person notifies the primary authority that the person considers the action to be inconsistent with advice or guidance previously given (generally or specifically) by another qualifying regulator nominated as the primary authority for the exercise of the function in relation to the person.

(2) Section 25C (but not section 29C) applies in relation to the proposed enforcement action as if the primary authority which gave the notification under section 25B(2)(a) were an enforcing authority under section 25C; and section 25B no longer applies in relation to the action.

(3) “Referral period” in this section means the referral period mentioned in paragraph 5(2) of Schedule 4A (period in which the regulated person or the member may refer the proposed enforcement action to the Secretary of State).

29B

(1) This section applies if—

(a) a qualifying regulator is nominated as a co-ordinated primary authority for the exercise of a function in relation to a person,

(b) an enforcing authority proposes to take enforcement action against the person pursuant to the function, and

(c) because of the nomination mentioned in paragraph (a), the enforcing authority is (ignoring this section) required under section 25C(2)(a) to notify the co-ordinated primary authority of the proposed enforcement action.

(2) That requirement to notify the co-ordinated primary authority does not apply if condition A or B is met.

(3) Condition A is that under section 25C(2)(a) the enforcing authority is required to notify another qualifying regulator of the proposed enforcement action because of that other qualifying regulator's nomination as a direct primary authority for the exercise of the function in relation to the person.

(4) Condition B is that—

(a) condition A is not met,

(b) the enforcing authority is (ignoring this section) required under section 25C(2)(a) to notify at least one other qualifying regulator of the proposed enforcement action because of that other regulator's nomination as a co-ordinated primary authority for the exercise of the function in relation to the person, and

(c) the enforcing authority has so notified that other regulator or (if there is more than one) it has so notified at least one of them.

29C

(1) This section applies if—

(a) a qualifying regulator is nominated as a direct primary authority or a co-ordinated primary authority for the exercise of a function in relation to a person,

(b) that primary authority (“PA1”) is notified under section 25C(2)(a) of enforcement action that an enforcing authority proposes to take against the person pursuant to the function, and

(c) PA1 decides not to give a direction under section 25C(4) directing the enforcing authority not to take the enforcement action, and does not refer the action to the Secretary of State under paragraph 4(1) of Schedule 4A.

(2) PA1 must, within the relevant period, take reasonable steps to find out if—

(a) another qualifying regulator nominated as the primary authority (“PA2”) for the exercise of the function in relation to the person has previously given advice or guidance (generally or specifically), and

(b) the person considers the proposed enforcement action to be inconsistent with that advice or guidance.

(3) If PA1 is of the view that such advice or guidance has previously been given and that the person considers the proposed enforcement action to be inconsistent with it, PA1 must—

(a) refer the action to PA2, and

(b) notify the enforcing authority and the person that it has done so.

(4) If subsection (3) applies—

(a) the reference of the proposed enforcement action by PA1 to PA2 under subsection (3)(a) is to be treated as a notification given by the enforcing authority to PA2 under section 25C(2)(a), and

(b) accordingly, section 25C (but not this section) applies in relation to PA2 as the primary authority and ceases to apply in relation to PA1 as the primary authority.

(5) “Relevant period” in this section has the same meaning as in section 25C (see subsection (9) of that section).

29D

(1) This section applies if, in relation to an inspecting regulator, there is more than one relevant inspection plan in respect of the exercise of the same inspection function in relation to the same person.

(2) An inspection plan is “relevant” in relation to an inspecting regulator if—

(a) it is a plan made by it (as a primary authority) to which the Secretary of State has consented under section 26A(7), or

(b) it is a plan notified to it (as an inspecting regulator) under section 26A(8)(b).

(3) If—

(a) the inspecting regulator is a direct primary authority for the exercise of the inspection function in relation to the person, and

(b) there is a relevant inspection plan made by the regulator in relation to the exercise of the function in relation to the person,

section 26B(2) (duty of inspecting regulator to act in accordance with plans notified by the primary authority) does not apply in relation to the inspecting regulator by reason of it being notified of any other relevant inspection plan under section 26A(8)(b) in relation to the exercise of the function in relation to the person.

(4) Subsection (5) applies if—

(a) the inspecting regulator is a co-ordinated primary authority for the exercise of the inspection function in relation to the person, and

(b) there is a relevant inspection plan which is made by a direct primary authority for the exercise of the function in relation to the person and notified to the inspecting regulator under section 26A(8)(b).

(5) Where this subsection applies—

(a) section 26B(1) (duty of primary authority to have regard to its own inspection plan) does not apply to the inspecting regulator (as primary authority) in relation to any relevant inspection plan made by it in respect of the exercise of the function in relation to the person;

(b) in the application of section 26B(2) to the exercise of the function in relation to the person by the inspecting regulator, the reference to the inspection plan in that provision is to the plan mentioned in subsection (4)(b) only.

(6) If—

(a) the inspecting regulator is a co-ordinated primary authority for the exercise of the inspection function in relation to the person,

(b) there is a relevant inspection plan made by the regulator in respect of the exercise of the function in relation to the person, and

section 26B(2) does not apply in relation to the exercise of the function by the inspecting regulator in relation to the person.

(7) If none of subsections (3) to (6) apply, but more than one relevant inspection plan is notified to the inspecting regulator under section 26A(8)(b) in relation to the exercise of the inspection function in relation to the person, in section 26B(2) the reference to the plan is to be read—

(a) if one of those plans is made by a direct primary authority for the exercise of the function in relation to the person, as a reference to that plan, and

(b) otherwise, as a reference to any one of the plans notified to the regulator.

General

30A

(1) The Secretary of State may give guidance to any one or more qualifying regulators, supporting regulators, complementary regulators or co-ordinators about the operation of this Part.

(2) The guidance may include, in particular, guidance to qualifying regulators about—

(a) arrangements under section 24A(3) for the giving of advice or guidance by primary authorities;

(b) enforcement action referred to the Secretary of State under paragraph 1(1), 2(1), 3(1) or 4(1) of Schedule 4A;

(d) the charging of fees under section 27A.

(3) The guidance may include, in particular, guidance to supporting regulators about—

(a) the circumstances in which a function is relevant to the exercise of a partnership function for the purposes of section 28A;

(b) the charging of fees under section 28A(6).

(4) A qualifying regulator, supporting regulator, complementary regulator or co-ordinator must have regard to any guidance given to it under this section.

(5) Before giving guidance under this section the Secretary of State must consult such persons as the Secretary of State considers appropriate.

(6) The Secretary of State may not give guidance under subsection (2)(d) or (3) without consulting the Welsh Ministers.

(7) The Secretary of State may at any time vary or revoke guidance given under this section.

(8) The Secretary of State must publish guidance given under this section and any variation or revocation of the guidance.

(9) A qualifying regulator must comply with a direction given to it under this Part.

30B

The Secretary of State may by regulations amend any provision of this Part which specifies a period within which, or a time before which, anything must, must not or may be done.

30C

(1) Regulations under this Part must be made by statutory instrument.

(2) A statutory instrument containing regulations under section 22B, 28B(1)(a) or 30B (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(3) Any other statutory instrument containing regulations under this Part is subject to annulment in pursuance of a resolution of either House of Parliament.

30D

(1) In this Part—

“complementary regulator” means a complementary regulator under section 28B;

“co-ordinated primary authority” has the meaning given in section 23A(1)(b);

“co-ordinator” has the meaning given in section 23C(1);

“direct primary authority” has the meaning given in section 23A(1)(a);

“enforcement action” has the meaning given in section 25A;

“enforcing authority” has the meaning given in section 25C(2);

“inspecting regulator” has the meaning given in section 26A(3);

“inspection function” has the meaning given in section 26A(1);

“inspection plan” has the meaning given in sections 26A(2) and 26C(5);

“local authority” has the meaning given in section 22B(2) and (3);

“Northern Ireland” has the same meaning as in the Northern Ireland Act 1998;

“partnership function” has the meaning given in section 23A(2) and (7);

“primary authority” means a qualifying regulator nominated as a primary authority under section 23A(1);

“qualifying regulator” has the meaning given in section 22B(1);

“regulated group” has the meaning given in section 22A(2);

“regulated person” has the meaning given in section 22A(1);

“relevant function” has the meaning given in section 22C(1);

“reserved matter” has the same meaning as in the Scotland Act 1998;

“Scotland” has the same meaning as in the Scotland Act 1998;

“specified regulator” has the meaning given in section 22B(4);

“supporting regulator” means a supporting regulator under section 28A;

“transferred matter” has the same meaning as in the Northern Ireland Act 1998;

“Wales” has the same meaning as in the Government of Wales Act 2006;

“working day” has the meaning given in subsection (2).

(2) In this Part, “working day” means a day other than—

(a) a Saturday or Sunday,

(b) Christmas Day or Good Friday, or

(c) a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the relevant part of the United Kingdom.

(3) For the purposes of subsection (2)(c), the “relevant part” of the United Kingdom is—

(a) in relation to section 23D(5), 28A(8) or 28B(7) (period in which co-ordinator must make available a list of group members or of group members to whom an inspection plan may be relevant), the part where the co-ordinator of the group is;

(b) in any other case, the part where the primary authority is.

SCHEDULE 4A

PART 1 — Enforcement action by primary authority

1

(1) If the primary authority notifies the regulated person, or a member of the regulated group, under section 25B(2)(a) that it proposes to take enforcement action against the regulated person or the member, the regulated person or the member may, with the consent of the Secretary of State, refer the proposed enforcement action to the Secretary of State.

(2) On a reference under sub-paragraph (1) the Secretary of State must—

(a) if satisfied as to the matters in sub-paragraph (3), direct the primary authority not to take the proposed enforcement action;

(b) otherwise, 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), and

(b) the advice or guidance was correct and properly given.

(4) If the Secretary of State directs the primary authority not to take the proposed enforcement action, the Secretary of State may direct the primary authority to take some other enforcement action (and section 25B does not apply in relation to that other action).

PART 2 — Enforcement action other than by primary authority

Reference by an enforcing authority

2

(1) If the primary authority directs an enforcing authority under section 25C(4) not to take the proposed enforcement action, the enforcing authority may, with the consent of the Secretary of State, refer the proposed action to the Secretary of State.

(2) On a reference under sub-paragraph (1) the Secretary of State must—

(a) if satisfied as to the matters in sub-paragraph (3), confirm the direction;

(b) otherwise, revoke 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), and

(b) the advice or guidance was correct and properly given.

(4) If the Secretary of State confirms the direction, the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 25C does not apply in relation to that other action).

Reference by regulated person or member of the regulated group

3

(1) If section 25C applies and the primary authority does not direct the enforcing authority (under subsection (4) of that section) not to take the proposed enforcement action, the regulated person or the member of the regulated group may, with the consent of the Secretary of State, refer the action to the Secretary of State.

(2) On a reference under sub-paragraph (1) the Secretary of State must—

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

(b) otherwise, 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), and

(b) the advice or guidance was correct and properly given.

(4) If the Secretary of State directs the enforcing authority not to take the proposed enforcement action, the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 25C does not apply in relation to that other action).

Reference by primary authority

4

(1) The primary authority may, with the consent of the Secretary of State, instead of making a determination under section 25C(4) as to whether to direct an enforcing authority not to take proposed enforcement action, refer the action to the Secretary of State.

(2) On a reference under this paragraph the Secretary of State must—

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

(b) otherwise, 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), and

(b) the advice or guidance was correct and properly given.

(4) If the Secretary of State directs the enforcing authority not to take the proposed enforcement action, the Secretary of State may direct the enforcing authority to take some other enforcement action (and section 25C does not apply in relation to that other action).

PART 3 — General

Timing

5

(1) Any reference under this Schedule must be made as soon as is reasonably practicable, and in any event within the referral period.

(2) The “referral period” for the purposes of a reference under paragraph 1(1) is the period which—

(a) begins when the regulated person or the member is notified under section 25B(2)(a) of the proposed enforcement action, and

(b) ends at the end of the tenth working day after the day on which the period begins, or at such later time as the Secretary of State may direct.

(3) The “referral period” for the purposes of a reference under paragraph 2(1) is the period which—

(a) begins when the enforcing authority is directed under section 25C(4) not to take the proposed enforcement action, and

(b) ends at the end of the tenth working day after the day on which the period begins, or at such later time as the Secretary of State may direct.

(4) The “referral period” for the purposes of a reference under paragraph 3(1) is the period which—

(a) begins when the regulated person or the member is informed under section 25C(6)(a) that the enforcing authority continues to propose to take the enforcement action, and

(b) ends at the end of the tenth working day after the day on which the period begins, or at such later time as the Secretary of State may direct.

(5) The “referral period” for the purposes of a reference under paragraph 4(1) is the relevant period under section 25C(9).

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

(7) The primary authority (in the case of a reference under paragraph 1(1)) or the enforcing authority (in the case of a reference under paragraph 2(1), 3(1) or 4(1)) may not take the proposed enforcement action at any time after the making of the reference and before its determination.

Consultation

6

(1) Before determining a reference under this Schedule, the Secretary of State—

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

(b) may consult other persons.

(2) In sub-paragraph (1)(a), “relevant regulator” means a person who has regulatory functions which relate to the matter to which the determination relates.

(3) But a person is not a “relevant regulator” within the meaning of sub-paragraph (1)(a) if—

(a) the person is a qualifying regulator, and

(b) the partnership function pursuant to which the proposed enforcement action would be taken is a relevant function of the person.

Information

7

(1) For the purposes of determining whether to consent to a reference under this Schedule, or of determining such a reference, the Secretary of State may require any of the following to provide the Secretary of State with information—

(a) the primary authority;

(b) in the case of a reference under paragraph 2(1), 3(1) or 4(1), the enforcing authority;

(2) The information must be information which the authority, person or member may lawfully provide to the Secretary of State.

Secretary of State's costs

8

The Secretary of State may require the regulated person or a member of the regulated group to pay reasonable costs incurred by the Secretary of State as a result of—

(a) a reference by the regulated person or the member under paragraph 1(1) or 3(1), or

(b) an application by the regulated person or the member for consent to make such a reference.

Procedure

9

The Secretary of State may by regulations make further provision as to the procedure to be followed for the purposes of this Schedule.

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