Office of Public Sector Information
PART 3 continued
(1) Provision under section 42 may include provision for a regulator, by notice, to require a person on whom a discretionary requirement is imposed to pay the costs incurred by the regulator in relation to the imposition of the discretionary requirement up to the time of its imposition.
(2) Provision under section 46 may include provision for a regulator, by notice, to require a person on whom a stop notice is served to pay the costs incurred by the regulator in relation to the service of the notice up to the time of service.
(3) In subsections (1) and (2), the references to costs include in particular—
(a) investigation costs;
(b) administration costs;
(c) costs of obtaining expert advice (including legal advice).
(4) Provision under this section 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 regulator 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 regulator to impose the requirement to pay costs;
(ii) the decision of the regulator as to the amount of those costs.
(5) Provision under this section may include the provision referred to in section 52(1)(b) and (c) and (2).
(6) Provision under this section must secure that regulator is required to publish guidance about how it will exercise the power conferred by the provision.
(1) An order under this Part 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 subsection (1)(b) “tribunal” does not include an ordinary court of law.
(3) An order under this Part which makes provision for an appeal in relation to the imposition of any requirement or service of any notice 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 subsection (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 regulator 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 regulator;
(e) to award costs.
(1) An order under this Part may include consequential, supplementary, incidental or transitional provision.
(2) The consequential provision referred to in subsection (1) includes—
(a) provision as to how any enactment passed or made before the day on which this Act is passed applies or operates in relation to the imposition of a fixed monetary penalty or discretionary requirement or service of a stop notice, and
(b) in particular, where such an enactment applies in relation to a person convicted of a criminal offence, provision to make the enactment apply in relation to a person on whom a fixed monetary penalty or discretionary requirement is imposed or a stop notice is served in relation to that offence.
(3) The supplementary provision referred to in subsection (1) includes provision for the purpose of facilitating the use of powers conferred by an order under this Part, and in particular provision which for that purpose—
(a) confers or extends powers to require information;
(b) confers or extends powers of entry, search or seizure;
(c) where information is authorised to be used in evidence in criminal proceedings, authorises its use in relation to the use of any power to impose a civil sanction conferred under or by virtue of this Part.
(4) The provision which may be made by an order under this Part may be made by repealing, revoking or amending an enactment (whenever passed or made).
An order under this Part may not, except for consequential purposes, make any provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.
An order under this Part may not, except for consequential purposes, make any provision which would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of that Assembly.
(1) A Minister of the Crown must obtain the consent of the Lord Advocate before making an order under this Part in relation to an offence in Scotland.
(2) A Minister of the Crown must consult the Scottish Ministers before making an order under this Part in relation to a regulator which is a local authority in Scotland.
(3) In subsection (2), “local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39).
(1) A Minister of the Crown must consult the Welsh Ministers before making an order under this Part in relation to an offence which applies in or in relation to Wales.
(2) A Minister of the Crown must obtain the consent of the Welsh Ministers before making an order under this Part containing provision which relates to a Welsh ministerial matter.
(3) The Welsh Ministers must consult the Secretary of State before making an order under this Part.
(1) Before making an order under this Part the relevant authority must consult the following (in addition to any persons who must be consulted under sections 58 and 59)—
(a) the regulator to which the order relates,
(b) such organisations as appear to the relevant authority to be representative of persons substantially affected by the proposals, and
(c) such other persons as the relevant authority considers appropriate.
(2) If, as a result of any consultation required by subsection (1), it appears to the relevant authority that it is appropriate substantially to change the whole or any part of the proposals, the relevant authority must undertake such further consultation with respect to the changes as it considers appropriate.
(3) If, before the day on which this Part comes into force, any consultation was undertaken which, had it been undertaken after that day, would to any extent have satisfied the requirements of this section, those requirements may to that extent be taken to have been satisfied.
(1) A statutory instrument containing an order under this Part 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.
(2) A statutory instrument containing an order under this Part 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.
(1) This section applies where, by virtue of a specified enactment—
(a) a Minister of the Crown has, or the Welsh Ministers have, power by statutory instrument to make provision creating a criminal offence, and
(b) the power has been or is being exercised so as to create the offence.
(2) The power includes power to make, in relation to a relevant enforcement authority, any provision which could be made by an order under this Part if, for the purposes of this Part—
(a) the relevant enforcement authority were a regulator, and
(b) the offence were a relevant offence in relation to that regulator.
(3) Where a statutory instrument containing provision made under the power referred to in subsection (1) pursuant to subsection (2) would, apart from this subsection, be subject to annulment in pursuance of a resolution of either House of Parliament or of the National Assembly for Wales—
(a) the instrument is not subject to such annulment; but
(b) the instrument may not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament or (as the case may be) the National Assembly for Wales.
(4) In subsection (1) “specified enactment” means any enactment specified in Schedule 7.
(5) In subsection (2) “relevant enforcement authority” means a person, other than a person referred to in section 37(3), who has an enforcement function in relation to the offence.
(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 secure the results in subsection (2).
(2) Those results are that—
(a) the regulator must publish guidance about its use of the sanction,
(b) in the case of guidance relating to a fixed monetary penalty, discretionary requirement or stop notice, the guidance must contain the relevant information,
(c) the regulator must revise the guidance where appropriate,
(d) the regulator must consult such persons as the provision may specify before publishing any guidance or revised guidance, and
(e) the regulator must have regard to the guidance or revised guidance in exercising its functions.
(3) In the case of guidance relating to a fixed monetary penalty, the relevant information referred to in subsection (2)(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.
(4) In the case of guidance relating to a discretionary requirement, the relevant information referred to in subsection (2)(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 regulator in determining the amount of the penalty (including, where relevant, any discounts for voluntary reporting of non-compliance), and
(d) rights to make representations and objections and rights of appeal.
(5) In the case of guidance relating to a stop notice, the relevant information referred to in subsection (2)(b) is information as to—
(a) the circumstances in which the regulator is likely to serve the notice,
(b) the circumstances in which it may not be imposed, and
(c) rights of appeal.
(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.
(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.
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.
(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).
(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.
(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.
(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) Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).
(5) This section does not affect a power to disclose which exists apart from this section.
(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, and
in 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.
Regulatory Enforcement and Sanctions Act 2008