Regulatory Enforcement and Sanctions Act 2008

Part 1 The Local Better Regulation Office

Establishment of LBRO

1 LBRO

(1) The Local Better Regulation Office is established as a body corporate.

(2) In Parts 1 and 2 it is referred to as “LBRO”.

(3) Schedule 1 (which makes further provision about LBRO) has effect.

2 Dissolution of the LBRO company

(1) The company limited by guarantee with registered number 6237580 and the company name Local Better Regulation Office (in this Part called “the LBRO company”) is dissolved.

(2) The registrar of companies for England and Wales must strike the name of the LBRO company off the register of companies before the end of the period of seven days beginning with the day on which this section comes into force.

(3) Schedule 2 (which makes provision relating to the replacement of the LBRO company by LBRO) has effect.

Definitions

3 “Local authority”

(1) In this Part references to a local authority in England are to any of the following—

(a) a county or district council in England;

(b) a London borough council;

(c) the Common Council of the City of London;

(d) the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple;

(e) the Council of the Isles of Scilly;

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

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

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

(2) In this Part references to a local authority in Wales are to any of the following—

(a) a county or county borough council in Wales;

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

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

4 “Relevant function”

(1) In this Part “relevant function”, in relation to a local authority in England or Wales, means—

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

(b) 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.

(2) In subsection (1) “relevant enactment” means—

(a) an enactment specified in Schedule 3 or an enactment made under such an enactment;

(b) an enactment to which subsection (3) applies.

(3) This subsection applies to any enactment made under section 2(2) of the European Communities Act 1972 (c. 68) with respect to any of the following matters—

(a) agricultural produce (quality standards and labelling);

(b) animal health and welfare;

(c) animal feed;

(d) consumer protection;

(e) environmental protection;

(f) food hygiene and standards;

(g) public health and safety;

(h) weights and measures (including measuring instruments).

(4) The Secretary of State may by order—

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

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

(5) An order under subsection (4) may make different provision for different purposes (including different provision in relation to local authorities in England and Wales respectively).

(6) An order under subsection (4) requires the consent of the Welsh Ministers to make provision, in relation to local authorities in Wales, in respect of a Welsh ministerial matter.

(7) The Secretary of State may by order determine whether, for the purposes of subsection (3), an enactment made under section 2(2) of the European Communities Act 1972 is made with respect to any of the matters specified in that subsection.

(8) An order under subsection (7) requires the consent of the Welsh Ministers where—

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

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

(9) In subsection (1)—

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

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

General functions of LBRO

5 Objective relating to general functions

(1) In exercising its functions under sections 6 to 10 LBRO has the objective of securing that local authorities in England and Wales exercise their relevant functions—

(a) effectively,

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

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

(2) Those principles are that—

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

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

6 Guidance to local authorities

(1) LBRO has the function of giving guidance to local authorities in England and Wales as to how to exercise their relevant functions.

(2) Guidance under subsection (1)—

(a) may be given to any one or more local authorities in England or Wales;

(b) may relate to any one or more relevant functions;

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

(3) A local authority in England or Wales must have regard to any guidance given to it under this section.

(4) Before giving guidance under this section in relation to any relevant function LBRO must consult—

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

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

(c) such other persons as LBRO considers appropriate.

(5) LBRO must publish (in such manner as it considers appropriate) any guidance given by it under this section.

(6) LBRO may vary or revoke any guidance given by it under this section by further guidance under this section.

7 Guidance to local authorities: enforcement

(1) LBRO may at any time, if it thinks it appropriate to do so, direct one or more local authorities in England or Wales to comply with—

(a) any guidance given under section 6 which relates to the exercise of a relevant function, or

(b) any guidance given under an enactment by another person which relates to the exercise of a relevant function.

(2) LBRO may not give a direction under this section without the consent of the Secretary of State, except in a case to which subsection (3) applies.

(3) LBRO may not give a direction under this section to one or more local authorities in Wales in relation to a Welsh ministerial matter without the consent of the Welsh Ministers.

(4) Where a direction under this section relates to two or more local authorities in England and Wales, consent under subsection (2) or (3) must be given by order.

(5) Before giving a direction under this section LBRO must consult—

(a) the local authorities in England or Wales to whom the direction is to be given,

(b) any relevant regulator, and

(c) such other persons as LBRO considers appropriate.

(6) In subsection (5)(b) “relevant regulator” means a person (other than a local authority in England or Wales) with regulatory functions which relate to the matter to which the direction relates.

(7) LBRO must publish (in such manner as it considers appropriate) any direction given by it under this section.

(8) A direction under this section may be revoked or varied by a further direction under this section.

8 Financial support and assistance to local authorities

LBRO may provide financial support and assistance—

(a) to a local authority in England or Wales in relation to its exercise of its relevant functions;

(b) to any other person for the purpose of assisting local authorities in England or Wales in the exercise of their relevant functions.

9 Advice to Ministers of the Crown

(1) LBRO may at any time give advice or make proposals to a Minister of the Crown on—

(a) the way in which any one or more local authorities in England or Wales exercise any of their relevant functions;

(b) the effectiveness of legislation (or proposed legislation) relating to the exercise by local authorities in England or Wales of their relevant functions;

(c) whether any other regulatory functions could appropriately be exercised by local authorities in England or Wales;

(d) any other matter relating to the exercise by local authorities in England or Wales of their relevant functions.

(2) LBRO must give advice or make proposals to a Minister of the Crown on the matters referred to in subsection (1) if requested to do so by that Minister.

10 Advice to Welsh Ministers

(1) LBRO may at any time give advice or make proposals to the Welsh Ministers on—

(a) 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;

(b) 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;

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

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

(2) LBRO must give advice or make proposals to the Welsh Ministers on the matters referred to in subsection (1) if requested to do so by the Welsh Ministers.

Function relating to enforcement priorities

11 Enforcement priorities

(1) LBRO must prepare and publish—

(a) a list specifying those matters to which a local authority in England should give priority when allocating resources to its relevant functions, and

(b) a list specifying those matters to which a local authority in Wales should give priority when allocating resources to its relevant functions.

(2) A local authority in England or Wales must have regard to the appropriate list under subsection (1) when allocating resources to its relevant functions.

(3) Before publishing a list under subsection (1) LBRO must consult such persons as it considers appropriate.

(4) LBRO must publish details of any representations made to it pursuant to subsection (3).

(5) LBRO may not publish a list under subsection (1)(a) without the consent of the Secretary of State.

(6) LBRO may not publish a list under subsection (1)(b)—

(a) without consulting the Secretary of State;

(b) without the consent of the Welsh Ministers.

(7) LBRO must review a list under this section—

(a) from time to time on its own initiative;

(b) if requested to do so by the Secretary of State;

(c) in the case of a list under subsection (1)(b), if requested to do so by the Welsh Ministers.

(8) If following a review LBRO decides to revise a list under this section it must publish the revised list (and subsections (2) to (7) have effect in relation to any revised list).

Matters relating to exercise of LBRO’s functions

12 Relationship with other regulators

(1) LBRO and a regulator to which this section applies must enter into a memorandum of understanding with each other as to how they will work together in the exercise of their respective functions.

(2) This section applies to the following regulators—

(a) the Environment Agency;

(b) the Food Standards Agency;

(c) the Gambling Commission;

(d) the Health and Safety Executive;

(e) the Office of Fair Trading.

13 Duty not to impose burdens etc

(1) LBRO must secure that in exercising any of its functions it does not—

(a) impose burdens which are unnecessary, or

(b) maintain burdens which have become unnecessary.

(2) Subsection (1) does not require the removal of a burden which has become unnecessary where its removal would, having regard to all the circumstances, be impracticable or disproportionate.

(3) LBRO must secure that—

(a) it exercises its functions in a way which is transparent, accountable, proportionate and consistent;

(b) it targets its activities only at cases in which action is needed.

14 Ancillary powers

(1) LBRO may do anything which it thinks necessary or expedient for the purpose of, or in connection with, the exercise of any of its functions.

(2) In particular, LBRO may—

(a) enter into agreements;

(b) acquire or dispose of property;

(c) borrow money;

(d) invest money.

Ministerial powers in relation to LBRO

15 Guidance or directions by the Secretary of State

(1) The Secretary of State may give LBRO—

(a) guidance, or

(b) directions,

as to the exercise of any of its functions.

(2) Before giving any guidance or directions under this section the Secretary of State must consult—

(a) LBRO, and

(b) such other persons as the Secretary of State considers likely to be affected by the guidance or directions, or persons representative of such persons.

(3) The Secretary of State must—

(a) publish (in such manner as the Secretary of State considers appropriate) any guidance or directions given under this section, and

(b) lay a copy of any such guidance or directions before Parliament.

(4) LBRO must have regard to any guidance, and comply with any directions, given under this section.

(5) The Secretary of State may vary or revoke any guidance or directions given under this section by further guidance or directions under this section.

(6) The Secretary of State may not under subsection (1)(b) give LBRO directions relating to the exercise of its functions under section 7 in relation to two or more local authorities in England and Wales.

(7) The Secretary of State may by order require LBRO to exercise its functions under section 7 in relation to two or more local authorities in England and Wales in such manner as may be specified in the order.

16 Guidance or directions by Welsh Ministers

(1) The Welsh Ministers may give LBRO—

(a) guidance, or

(b) directions,

as to the exercise in relation to Wales of any of its functions relating to a Welsh ministerial matter.

(2) Before giving any guidance or directions under this section the Welsh Ministers must consult—

(a) LBRO, and

(b) such other persons as the Welsh Ministers consider likely to be affected by the guidance or directions, or persons representative of such persons.

(3) The Welsh Ministers must—

(a) publish (in such manner as they consider appropriate) any guidance or directions given under this section, and

(b) lay a copy of any such guidance or directions before the National Assembly for Wales.

(4) LBRO must have regard to any guidance, and comply with any directions, given under this section.

(5) The Welsh Ministers may vary or revoke any guidance or directions given under this section by further guidance or directions under this section.

(6) The Welsh Ministers may not under subsection (1)(b) give LBRO directions relating to the exercise of its functions under section 7 in relation to two or more local authorities in Wales.

(7) The Welsh Ministers may by order require LBRO to exercise its functions under section 7 in relation to two or more local authorities in Wales, so far as relating to a Welsh ministerial matter, in such manner as may be specified in the order.

Supplementary and general

17 Review of LBRO

(1) The Secretary of State must in accordance with this section review LBRO’s discharge of its functions.

(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 this section comes into force.

(3) The review must in particular consider—

(a) whether LBRO is discharging its functions effectively and efficiently, and

(b) the extent to which LBRO, in discharging its functions under sections 6 to 10, has attained the objective in section 5.

(4) In conducting a review under this section the Secretary of State must consult—

(a) the Welsh Ministers, and

(b) such other persons as the Secretary of State considers appropriate.

(5) The Secretary of State must publish the results of a review under this section.

(6) The Secretary of State must lay a copy of a review under this section before Parliament and the National Assembly for Wales.

18 Power to dissolve LBRO

(1) The Secretary of State may by order—

(a) provide for LBRO to be dissolved, and

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

(2) An order under subsection (1) may in particular—

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

(b) provide for the transfer of the functions of LBRO to another person;

(c) 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;

(d) 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;

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

(3) Provision under subsection (2)(a) may include provision for property, rights or liabilities to be transferred—

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

(b) without any instrument or other formality being required, and

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

(4) Provision under subsection (2)(a) for the transfer of rights and liabilities relating to employees of LBRO must include provision for the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) to apply in relation to the transfer.

(5) Provision under subsection (2)(a) or (b) may include provision establishing a body corporate to which property, rights and liabilities, or functions, are transferred.

(6) Before making an order under this section the Secretary of State must consult—

(a) the Welsh Ministers, and

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

(7) The provision which may be made by an order under this section may be made by repealing, revoking or amending an enactment (whenever passed or made).

19 Dissolution of LBRO: tax

(1) Where an order under section 18 makes provision under subsection (2)(a) of that section, the Treasury may by regulations make provision for varying the way in which a relevant tax has effect in relation to—

(a) the property, rights or liabilities transferred, or

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

(2) The provision which may be made under subsection (1)(a) includes in particular provision for—

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

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

(c) 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.

(3) The provision which may be made under subsection (1)(b) includes in particular provision for—

(a) 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;

(b) 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;

(c) 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.

(4) In this section—

• “relevant tax” means income tax, corporation tax, capital gains tax, stamp duty or stamp duty reserve tax;

• “tax provision” means a provision of an enactment about a relevant tax.

20 Orders under Part 1

(1) An order or regulations under this Part must be made by statutory instrument.

(2) A statutory instrument containing an order made by the Secretary of State under section 4(7), 7(4) or 15(7) is subject to annulment in pursuance of a resolution of either House of Parliament.

(3) A statutory instrument containing an order made by the Secretary of State under section 4(4) or 18 may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(4) A statutory instrument containing an order made by the Welsh Ministers under section 7(4) or 16(7) is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(5) A statutory instrument containing regulations made by the Treasury under section 19 is subject to annulment in pursuance of a resolution of the House of Commons.

21 Interpretation of Part 1

In this Part—

• “LBRO” has the meaning given in section 1;

• “the LBRO company” has the meaning given in section 2;

• “local authority” has the meaning given in section 3;

• “relevant function” has the meaning given in section 4.