Regulatory Enforcement and Sanctions Act 2008

Regulatory Enforcement and Sanctions Act 2008

2008 CHAPTER 13

Commentary on Sections

Part 2: Co-Ordination of Regulatory Enforcement

Functions of primary authorities

Schedule 4

73. This section requires any local authority other than the primary authority to notify the relevant primary authority before taking enforcement action against a regulated person that has a primary authority partnership.

74. Under subsection (2), where an enforcing authority notifies the primary authority of a proposed enforcement action, the primary authority must determine within the relevant period (that being five working days or a longer period as directed by LBRO under the provisions of subsection (9)) whether the proposed enforcement action is inconsistent with advice or guidance it has previously given. If the primary authority determines that the proposed enforcement action is inconsistent with its advice or guidance, it may direct the enforcing authority not to take the proposed enforcement action.

75. Under subsection (3), where a primary authority does not direct an enforcing authority not to take the proposed enforcement action and the enforcing authority chooses to proceed with the proposed enforcement action, the enforcing authority must notify the regulated person of this.

76. Under subsection (4), an enforcing authority cannot proceed with a proposed enforcement action:

a)

at any time during the relevant period; or,

b)

if directed not to do so by the primary authority.

77. “Enforcement action” is defined at subsection (5). Under subsection (6) the Secretary of State may specify by order action which is or is not to be regarded as enforcement action. This is intended to allow for development of detailed guidance specifying the types of action that should not count as enforcement action for the purposes of this Part. An order under subsection (6) may, for example, specify that informal advice given to a business by a local authority should not be considered to be enforcement action.

78. Subsection (7) gives effect to Schedule 4, which makes provision for:

a)

an enforcing authority to refer a proposed enforcement action to LBRO if the primary authority has directed it not to take the proposed enforcement action (paragraph 1 of Schedule 4);

b)

a regulated person to refer a proposed enforcement action to LBRO if the primary authority does not direct the enforcing authority not to take the proposed enforcement action (paragraph 2 of Schedule 4); and

c)

the primary authority to refer a proposed enforcement action to LBRO instead of determining itself whether or not a proposed enforcing action is inconsistent with advice or guidance that it has previously given (paragraph 3 of Schedule 4).

79. Where a proposed enforcement action is referred to LBRO, LBRO must satisfy itself as to whether:

a)

the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority;

b)

the advice or guidance given by the primary authority was correct; and

c)

the advice or guidance was properly given by the primary authority (paragraphs 1(3), 2(3) and 3(3)).

80. If the proposed enforcement action has been referred to LBRO by an enforcing authority, LBRO must confirm the direction given by the primary authority to the enforcing authority not to take the proposed enforcement action if it is satisfied as to all the points at paragraph 80 above. In any other case, LBRO must revoke the direction given by the primary authority.

81. If the proposed enforcement action has been referred to LBRO by the regulated person, LBRO must direct the enforcing authority not to take the proposed enforcement action if it is satisfied as to all the points at paragraph 80 above. In any other case it must consent to the proposed enforcement action.

82. If the proposed enforcement action has been referred to LBRO by the primary authority, LBRO must direct the enforcing authority not to take the proposed enforcement action if it is satisfied as to all the points at paragraph 80 above. In any other case it must consent to the action.

83. Where LBRO confirms the direction of the primary authority under paragraph 1(2)(a) of Schedule 4, or directs an enforcing authority not to take the proposed enforcement action under paragraph 2(2)(a) or 3(2)(a) of Schedule 4, it may direct the enforcing authority to take some other enforcement action under the provisions in paragraphs 1(4), 2(5) and 3(5) of Schedule 4.

84. Under paragraph 5 of Schedule 4, LBRO must, before determining any matter referred to it, consult any relevant regulator, and may consult such other persons as it thinks fit.

85. Paragraph 6(1) of Schedule 4 requires LBRO to make a determination within 28 days of the date on which the reference is made. Paragraph 6(2) allows the Secretary of State to make further provision regarding the procedure to be followed under Schedule 4. This might include, for instance, time limits within which referrals may be made.

86. Paragraph 7 of Schedule 4 enables LBRO to give guidance or directions to any one or more local authorities about any enforcement actions referred to it under Schedule 4.

87. Paragraph 8 of Schedule 4 allows LBRO to require the primary authority, the enforcing authority, or the regulated person, to provide it with information that it may specify.

88. Subsection (8) of section 28 provides that where an enactment specifies a time limit within which enforcement action can be taken, any time during which the authority is prohibited from proceeding with the enforcement action under this section of Schedule 4 does not count when calculating that time period.