Regulatory Enforcement and Sanctions Act 2008

Discretionary requirements U.K.

42 Discretionary requirements U.K.

(1) The provision which may be made under this section is provision to confer on a regulator the power by notice to impose one or more discretionary requirements on a person in relation to a relevant offence.

(2) Provision under this section may only confer such a power in relation to a case where the regulator is satisfied beyond reasonable doubt that the person has committed a relevant offence.

(3) For the purposes of this Part a “discretionary requirement” means—

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

(b) 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

(c) 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.

(4) Provision under this section may not permit discretionary requirements to be imposed on a person on more than one occasion in relation to the same act or omission.

(5) In this Part—

• “variable monetary penalty” means a requirement referred to in subsection (3)(a);

• “non-monetary discretionary requirement” means a requirement referred to in subsection (3)(b) or (c).

(6) Where a variable monetary penalty is imposed in relation to a relevant offence which is—

(a) triable summarily only, and

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

the amount of the variable monetary penalty may not exceed the maximum amount [F1 (if any)] of that fine.

Textual Amendments

F1 Words in s. 42(6) inserted (E.W.) (12.3.2015) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 5 para. 12(3) (with reg. 5(1))

Modifications etc. (not altering text)

C1 S. 42(6) excluded (15.2.2011) by Waste (Wales) Measure 2010 (nawm 8), ss. 10(3)(a), 21(2)

C2 S. 42(6) excluded by 2010 nawm 8, s. 10(3) (as substituted (E.W.) (18.10.2023) by Environment (Wales) Act 2016 (anaw 3), ss. 68(6), 88(3)(b); S.I. 2023/1096, art. 2(c))

43 Discretionary requirements: procedure U.K.

(1) Provision under section 42 must secure the results in subsection (2).

(2) Those results are that—

(a) 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),

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

(c) after the end of the period for making such representations and objections, the regulator must decide whether to—

(i) impose the discretionary requirement, with or without modifications, or

(ii) impose any other discretionary requirement which the regulator has power to impose under section 42,

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

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

(3) To comply with this subsection the notice of intent must include information as to—

(a) the grounds for the proposal to impose the discretionary requirement,

(b) the right to make representations and objections,

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

(d) the period within which representations and objections may be made, which may not be less than the period of 28 days beginning with the day on which the notice of intent is received.

(4) Provision pursuant to subsection (2)(c)—

(a) 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

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

(5) Provision pursuant to subsection (2)(c) must also include provision for—

(a) 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,

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

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

(6) To comply with this subsection the final notice referred to in subsection (2)(d) must include information as to—

(a) the grounds for imposing the discretionary requirement,

(b) where the discretionary requirement is a variable monetary penalty—

(i) how payment may be made,

(ii) the period within which payment must be made, and

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

(c) rights of appeal, and

(d) the consequences of non-compliance.

(7) Provision pursuant to subsection (2)(e) must secure that the grounds on which a person may appeal against a decision of the regulator include the following—

(a) that the decision was based on an error of fact;

(b) that the decision was wrong in law;

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

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

(e) that the decision was unreasonable for any other reason.

Modifications etc. (not altering text)

C3 Pt. 3 modified (18.10.2023) by Environment (Wales) Act 2016 (anaw 3), ss. 68(1), 88(3)(b); S.I. 2023/1096, art. 2(c)

44 Discretionary requirements: criminal proceedings and conviction U.K.

(1) Provision under section 42 must secure the result in subsection (2) in a case where—

(a) a discretionary requirement is imposed on a person, or

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

(2) The result in this subsection is that the person may not at any time be convicted of the relevant offence in respect of the act or omission giving rise to the discretionary requirement or undertaking except in a case referred to in subsection (3).

(3) The case referred to in subsection (2) is a case where—

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

(b) no variable monetary penalty is imposed on the person, and

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

(4) Provision under section 42 may for the purposes of the case referred to in subsection (3) extend any period within which criminal proceedings may be instituted against the person.

45 Discretionary requirements: enforcement U.K.

(1) Provision under section 42 may include provision for a person to pay a monetary penalty (a “non-compliance penalty”) to a regulator if the person fails to comply with—

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

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

(2) Provision under subsection (1) may—

(a) specify the amount of the non-compliance penalty,

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

(c) provide for the amount to be determined by the regulator, or

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

(3) Provision under subsection (1) must secure that—

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

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

(4) Provision pursuant to paragraph (b) of subsection (3) must secure that the grounds on which a person may appeal against a notice referred to in that subsection include the following—

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

(b) that the decision was wrong in law;

(c) that the decision was unfair or unreasonable for any reason (including, in a case where the amount of the non-compliance penalty was determined by the regulator, that the amount is unreasonable).