Regulatory Enforcement and Sanctions Act 2008

a county or district council in England;

a London borough council;

the Common Council of the City of London;

the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple;

the Council of the Isles of Scilly;

a fire and rescue authority in England (not being an authority referred to in paragraphs (a) to (e));

a port health authority in England (not being an authority referred to in paragraphs (a) to (e));

an authority established under section 10 of the Local Government Act 1985 (c. 51) (waste disposal authorities for Greater London and metropolitan counties).

a county or county borough council in Wales;

a fire and rescue authority in Wales (not being a county or county borough council);

a port health authority in Wales (not being a county or county borough council).

a function under a relevant enactment of imposing requirements, restrictions or conditions, or setting standards or giving guidance, in relation to any activity, or

a function which relates to the securing of compliance with, or the enforcement of, requirements, restrictions, conditions, standards or guidance which under or by virtue of a relevant enactment relate to any activity.

an enactment specified in Schedule 3 or an enactment made under such an enactment;

an enactment to which subsection (3) applies.

agricultural produce (quality standards and labelling);

animal health and welfare;

animal feed;

consumer protection;

environmental protection;

food hygiene and standards;

public health and safety;

weights and measures (including measuring instruments).

amend Schedule 3 so as to add any enactment to it or to remove any enactment from it;

amend subsection (3) so as to add any matter to it or remove any matter from it.

the determination affects the application of this Part in relation to local authorities in Wales, and

the enactment made under section 2(2) of the European Communities Act 1972 relates to a Welsh ministerial matter.

references to a function do not include a function of conducting criminal or civil proceedings;

references to an activity include providing goods and services and employing or offering employment to any person.

effectively,

in a way which does not give rise to unnecessary burdens, and

in a way which conforms with the principles in subsection (2).

regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent;

regulatory activities should be targeted only at cases in which action is needed.

one or more local authorities in England,

one or more local authorities in Wales, or

local authorities in England and Wales

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

may relate to any one or more relevant functions;

may relate to the exercise of one or more relevant functions in a particular case.

the persons whose activities are regulated by the exercise of the function, or persons representative of such persons,

such local authorities in England and Wales, or such persons representative of local authorities in England and Wales, as LBRO considers appropriate, and

such other persons as F25the person giving the guidance considers appropriate.

the way in which any one or more local authorities in Wales exercise any of their relevant functions in relation to any Welsh ministerial matter;

the effectiveness of legislation (or proposed legislation) relating to the exercise by local authorities in Wales of their relevant functions in relation to any such matter;

whether any other regulatory functions could appropriately be exercised by local authorities in Wales in relation to any such matter;

anything else relating to the exercise by local authorities in Wales of their relevant functions in relation to any such matter.

the Environment Agency;

the Food Standards Agency;

the Gambling Commission;

the Health and Safety Executive;

the F143Competition and Markets Authority .

revising an existing memorandum of understanding, or

entering into a new one,

guidance, or

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

F51the Secretary of State , and

such other persons as the Welsh Ministers consider likely to be affected by the guidance F54..., or persons representative of such persons.

publish (in such manner as they consider appropriate) any guidance F55... given under this section, and

lay a copy of any such guidance F55... before the National Assembly for Wales.

provide for LBRO to be dissolved, and

make consequential, supplementary, incidental and transitional provision in relation to its dissolution.

provide for the transfer of the property, rights and liabilities of LBRO to another person;

provide for the transfer of the functions of LBRO to another person;

provide that anything done by or in relation to LBRO is, so far as is necessary for continuing its effect, to have effect as if done by or in relation to another person;

provide for anything (which may include legal proceedings) which is in the process of being done by or in relation to LBRO when a transfer under the order takes effect to be continued by or in relation to another person;

provide for a reference to LBRO in an enactment, instrument or other document to be treated as a reference to another person.

whether or not they would otherwise be capable of being transferred,

without any instrument or other formality being required, and

despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict their transfer.

the Welsh Ministers, and

such persons (or persons representative of such persons) as appear to the Secretary of State to be substantially affected by the dissolution of LBRO.

the property, rights or liabilities transferred, or

anything done for the purposes of, or in relation to, the transfer.

a tax provision not to apply, or to apply with modifications, in relation to the property, rights or liabilities transferred;

the property, rights or liabilities transferred to be treated in a specified way for the purposes of a tax provision;

the Secretary of State to be required or permitted, with the consent of the Treasury, to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to the property, rights or liabilities transferred.

a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of, or in relation to, the transfer;

anything done for the purposes of, or in relation to, the transfer to have or not have a specified consequence or be treated in a specified way;

the Secretary of State to be required or permitted, with the consent of the Treasury, to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything done for the purposes of, or in relation to, the transfer.

the person carries on an activity in the area of two or more local authorities, and

each of those authorities has the same relevant function in relation to that activity.

that P carries on an activity in relation to which a local authority exercises a relevant function;

that the effect of arrangements made by P with any organisation or other person is that P's approach to compliance, in respect of the relevant function, is one that is shared with another person (Q) who carries on the activity;

in relation to a local authority in England or Wales, has the same meaning as in Part 1;

in relation to a local authority in Scotland, means a regulatory function exercised by that authority and specified for the purposes of this Part by order made by the Secretary of State;

in relation to a local authority in Northern Ireland, means a regulatory function exercised by that authority and specified for the purposes of this Part by order made by the Secretary of State.

which is a relevant function for the purposes of Part 1 in relation to local authorities in England or Wales or both, or

which for the purposes of local authorities in Scotland or Northern Ireland is equivalent to such a function.

the authority and the regulated person have agreed in writing to the nomination, or

the regulated person has requested F65the Secretary of State to make a nomination under section 25(1) for the exercise of the relevant function in relation to the regulated person,

the local authority in whose area the regulated person principally carries out the activity in relation to which the relevant function is exercised;

the local authority in whose area the regulated person administers the carrying out of that activity.

that authority, and

the regulated person.

F70the Secretary of State considers that the authority is no longer suitable for nomination, or

F70the Secretary of State considers it appropriate to do so for any other reason,

giving advice and guidance to the regulated person in relation to the relevant function;

giving advice and guidance to other local authorities with the relevant function as to how they should exercise it in relation to the regulated person.

at any time during the relevant period;

at any time after the end of that period, if it is directed as specified in subsection (2).

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

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

any action taken with a view to or in connection with the pursuit of any remedy conferred by an enactment in respect of an act or omission.

the period of five working days beginning with the day after that on which the primary authority is notified under subsection (1), or

such longer period beginning with that day as F71the Secretary of State may direct.

a Saturday or Sunday,

Christmas Day or Good Friday, or

where the enforcement action is required urgently to avoid a significant risk of serious harm to human health or the environment (including the health of animals or plants) or the financial interests of consumers;

where the application of section 28(1) to (4) would be wholly disproportionate.

the frequency at which, or circumstances in which, inspections should be carried out;

what an inspection should consist of.

it has notified the primary authority in writing of the way in which it proposes to exercise the function in relation to the regulated person, and

the primary authority has notified the local authority in writing that it consents to the authority's exercising the function in that way.

a Saturday or Sunday,

Christmas Day or Good Friday, or

arrangements under section 27(2);

notification of inspection plans under section 30(6);

the charging of fees under section 31.

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

without having consulted the Welsh Ministers.

the provision specified in section 39 (fixed monetary penalties);

the provision specified in section 42 (discretionary requirements);

the provision specified in section 46 (stop notices);

the provision specified in section 50 (enforcement undertakings).

a person specified in Schedule 5 (in this Part called a “designated regulator”), or

a person, other than a designated regulator, who has an enforcement function in relation to an offence to which subsection (2) applies.

the Crown Prosecution Service,

a member of a police force in England or Wales,

a Procurator Fiscal,

a constable of F113the Police Service of Scotland ,

the Public Prosecution Service for Northern Ireland, or

a member of the Police Service of Northern Ireland.

in relation to which the designated regulator has an enforcement function, and

which is contained in an Act immediately before the day on which this Act is passed.

which is contained, immediately before the day on which this Act is passed, in an enactment specified in Schedule 6, and

in relation to which that regulator has an enforcement function.

triable summarily (whether or not it is also triable on indictment), and

punishable on summary conviction by a fine (whether or not it is also punishable by a term of imprisonment),

where a regulator proposes to impose a fixed monetary penalty on a person, the regulator must serve on that person a notice of what is proposed (a “notice of intent”) which complies with subsection (3),

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 prescribed sum (which must be less than or equal to the amount of the penalty),

where the regulator decides to impose the fixed monetary penalty, the notice imposing it (“the final notice”) complies with subsection (5), and

the person on whom a fixed monetary penalty is imposed may appeal against the decision to impose it.

the grounds for the proposal to impose the fixed monetary penalty,

the effect of payment of the sum referred to in subsection (2)(b),

the right to make representations and objections,

the circumstances in which the regulator may not impose the fixed monetary penalty,

the period within which liability to the fixed monetary penalty may be discharged, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received, and

the period within which representations and objections may be made, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received.

must secure that the regulator may not decide to impose a fixed monetary penalty on a person where the regulator is satisfied that the person would not, by reason of any defence, be liable to be convicted of the relevant offence, and

may include provision for other circumstances in which the regulator may not decide to impose a fixed monetary penalty.

the grounds for imposing the penalty,

how payment may be made,

the period within which payment must be made,

any early payment discounts or late payment penalties,

rights of appeal, and

the consequences of non-payment.

that the decision was based on an error of fact;

that the decision was wrong in law;

that the decision was unreasonable.

a requirement to pay a monetary penalty to a regulator of such amount as the regulator may determine,

a requirement to take such steps as a regulator may specify, within such period as it may specify, to secure that the offence does not continue or recur, or

a requirement to take such steps as a regulator may specify, within such period as it may specify, to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed.

triable summarily only, and

punishable on summary conviction by a fine (whether or not it is also punishable by a term of imprisonment),

where a regulator proposes to impose a discretionary requirement on a person, the regulator must serve on that person a notice of what is proposed (a “notice of intent”) which complies with subsection (3),

that person may make written representations and objections to the regulator in relation to the proposed imposition of the discretionary requirement,

where the regulator decides to impose a discretionary requirement, the notice imposing it (the “final notice”) complies with subsection (6), and

the person on whom a discretionary requirement is imposed may appeal against the decision to impose it.

the grounds for the proposal to impose the discretionary requirement,

the right to make representations and objections,

the circumstances in which the regulator may not impose the discretionary requirement, and

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.

must secure that the regulator may not decide to impose a discretionary requirement on a person where the regulator is satisfied that the person would not, by reason of any defence raised by that person, be liable to be convicted of the relevant offence, and

may include provision for other circumstances in which the regulator may not decide to impose a discretionary requirement.

the person on whom the notice of intent is served to be able to offer an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any person affected by the offence,

the regulator to be able to accept or reject such an undertaking, and

the regulator to take any undertaking so accepted into account in its decision.

the grounds for imposing the discretionary requirement,

rights of appeal, and

the consequences of non-compliance.

that the decision was based on an error of fact;

that the decision was wrong in law;

in the case of a variable monetary penalty, that the amount of the penalty is unreasonable;

in the case of a non-monetary discretionary requirement, that the nature of the requirement is unreasonable;

that the decision was unreasonable for any other reason.

a discretionary requirement is imposed on a person, or

an undertaking referred to in section 43(5) is accepted from a person.

a non-monetary discretionary requirement is imposed on the person or an undertaking referred to in section 43(5) is accepted from a person,

no variable monetary penalty is imposed on the person, and

the person fails to comply with the non-monetary discretionary requirement or undertaking.

a non-monetary discretionary requirement imposed on the person, or

an undertaking referred to in section 43(5) which is accepted from the person.

specify the amount of the non-compliance penalty,

provide for the amount to be calculated by reference to prescribed criteria,

provide for the amount to be determined by the regulator, or

provide for the amount to be determined in any other way.

the non-compliance penalty is imposed by notice served by the regulator, and

the person on whom it is imposed may appeal against that notice.

that the decision to serve the notice was based on an error of fact;

that the decision was wrong in law;

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 regulator, that the amount is unreasonable).

the person is carrying on the activity,

the regulator reasonably believes that the activity as carried on by that person is causing, or presents a significant risk of causing, serious harm to any of the matters referred to in subsection (6), and

the regulator reasonably believes that the activity as carried on by that person involves or is likely to involve the commission of a relevant offence by that person.

the person is likely to carry on the activity,

the activity as likely to be carried on by that person will cause, or will present a significant risk of causing, serious harm to any of the matters referred to in subsection (6), and

the activity as likely to be carried on by that person will involve or will be likely to involve the commission of a relevant offence by that person.

human health,

the environment (including the health of animals and plants), and

the financial interests of consumers.

the stop notice must comply with subsection (3),

the person on whom it is served may appeal against the decision to serve it,

where, after service of the notice, the regulator is satisfied that the person has taken the steps specified in the notice, the regulator must issue a certificate to that effect (a “completion certificate”),

the notice ceases to have effect on the issue of a completion certificate,

the person on whom the notice is served may at any time apply for a completion certificate,

the regulator must make a decision as to whether to issue a completion certificate within 14 days of such an application, and

the person on whom the notice is served may appeal against a decision not to issue a completion certificate.

the grounds for serving the notice,

rights of appeal, and

the consequences of non-compliance.

that the decision was based on an error of fact;

that the decision was wrong in law;

that the decision was unreasonable;

that any step specified in the notice is unreasonable;

that the person has not committed the relevant offence and would not have committed it had the stop notice not been served;

that the person would not, by reason of any defence, have been liable to be convicted of the relevant offence had the stop notice not been served.

that the decision was based on an error of fact;

that the decision was wrong in law;

that the decision was unfair or unreasonable.

only in prescribed cases;

only in relation to prescribed descriptions of loss.

a decision by the regulator not to award compensation, or

a decision of the regulator as to the amount of the compensation.

on summary conviction, to F151a fine not exceeding £20,000F151a fine , or imprisonment for term not exceeding twelve months, or both, or

on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

in England and Wales, in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), or

in Northern Ireland,

to enable a regulator to accept an enforcement undertaking from a person in a case where the regulator has reasonable grounds to suspect that the person has committed a relevant offence, and

for the acceptance of the undertaking to have the consequences in subsection (4).

action to secure that the offence does not continue or recur,

action to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed,

action (including the payment of a sum of money) to benefit any person affected by the offence, or

action of a prescribed description.

that person may not at any time be convicted of the relevant offence in respect of the act or omission to which the undertaking relates,

the regulator may not impose on that person any fixed monetary penalty which it would otherwise have power to impose by virtue of section 39 in respect of that act or omission, and

the regulator may not impose on that person any discretionary requirement which it would otherwise have power to impose by virtue of section 42 in respect of that act or omission.

as to the procedure for entering into an undertaking;

as to the terms of an undertaking;

as to publication of an undertaking by a regulator;

as to variation of an undertaking;

as to circumstances in which a person may be regarded as having complied with an undertaking;

as to monitoring by a regulator of compliance with an undertaking;

as to certification by a regulator that an undertaking has been complied with;

for appeals against refusal to give such certification;

in a case where a person has given inaccurate, misleading or incomplete information in relation to the undertaking, for that person to be regarded as not having complied with it;

in a case where a person has complied partly but not fully with an undertaking, for that part-compliance to be taken into account in the imposition of any criminal or other sanction on the person;

for the purpose of enabling criminal proceedings to be instituted against a person in respect of the relevant offence in the event of breach of an undertaking or any part of it, to extend any period within which those proceedings may be instituted.

the regulator may not serve a notice of intent referred to in section 40(2)(a) on a person in relation to any act or omission where a discretionary requirement has been imposed on that person in relation to that act or omission, and

the regulator may not serve a notice of intent referred to in section 40(2)(a) on a person in relation to any act or omission where a stop notice has been served on that person in relation to that act or omission, and

for early payment discounts;

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;

for enforcement of the penalty.

provision for the regulator to recover the penalty, and any interest or other financial penalty for late payment, as a civil debt;

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.

investigation costs;

administration costs;

costs of obtaining expert advice (including legal advice).

the notice specifies the amount required to be paid;

the regulator may be required to provide a detailed breakdown of that amount;

the person required to pay costs is not liable to pay any costs shown by the person to have been unnecessarily incurred;

the First-tier Tribunal, or

another tribunal created under an enactment.

provision suspending the requirement or notice pending determination of the appeal;

provision as to the powers of the tribunal to which the appeal is made;

provision as to how any sum payable in pursuance of a decision of that tribunal is to be recoverable.

to withdraw the requirement or notice;

to confirm the requirement or notice;

to take such steps as the regulator could take in relation to the act or omission giving rise to the requirement or notice;

to remit the decision whether to confirm the requirement or notice, or any matter relating to that decision, to the regulator;

to award costs.

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

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.

confers or extends powers to require information;

confers or extends powers of entry, search or seizure;

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.

the regulator to which the order relates,

such organisations as appear to the relevant authority to be representative of persons substantially affected by the proposals, and

such other persons as the relevant authority considers appropriate.

a Minister of the Crown has, or the Welsh Ministers have, power by statutory instrument to make provision creating a criminal offence, and

the power has been or is being exercised so as to create the offence.

the relevant enforcement authority were a regulator, and

the offence were a relevant offence in relation to that regulator.

the instrument is not subject to such annulment; but

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.

the regulator must publish guidance about its use of the sanction,

in the case of guidance relating to a fixed monetary penalty, discretionary requirement or stop notice, the guidance must contain the relevant information,

the regulator must revise the guidance where appropriate,

the regulator must consult such persons as the provision may specify before publishing any guidance or revised guidance, and

the regulator must have regard to the guidance or revised guidance in exercising its functions.

the circumstances in which the penalty is likely to be imposed,

the circumstances in which it may not be imposed,

the amount of the penalty,

how liability for the penalty may be discharged and the effect of discharge, and

rights to make representations and objections and rights of appeal.

the circumstances in which the requirement is likely to be imposed,

the circumstances in which it may not be imposed,

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

rights to make representations and objections and rights of appeal.

the circumstances in which the regulator is likely to serve the notice,

the circumstances in which it may not be imposed, and

rights of appeal.

the sanctions (including criminal sanctions) to which a person who commits the offence may be liable,

the action which the regulator may take to enforce the offence, whether by virtue of this Part or otherwise, and

the circumstances in which the regulator is likely to take any such action.

the cases in which the civil sanction has been imposed,

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

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.

before Parliament (where the relevant authority is a Minister of the Crown), or

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

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,

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,

where the power is power to serve a stop notice, not to serve any further stop notice in relation to that offence, and

where the power is power to accept an enforcement undertaking, not to accept any further enforcement undertaking in relation to that offence.

to comply with any duty imposed on it under or by virtue of this Part in relation to that offence,

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

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.

the regulator, and

such other persons as the authority considers appropriate.

publish the direction in such manner as the relevant authority thinks fit, and

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.

a fixed monetary penalty, a variable monetary penalty or a non-compliance penalty under section 45(1),

any interest or other financial penalty for late payment of such a penalty, or

a sum paid in discharge of liability to a fixed monetary penalty pursuant to section 40(2)(b),

in a case where the regulator has functions only in relation to Wales, the Welsh Consolidated Fund,

in a case where the regulator has functions only in relation to Scotland, the Scottish Consolidated Fund,

in a case where the regulator has functions only in relation to Northern Ireland, the Consolidated Fund of Northern Ireland, and

in any other case, the Consolidated Fund.

the person has an enforcement function in relation to an offence, and

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.

the Data Protection Act 1998 (c. 29), or

Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).