Regulatory Enforcement and Sanctions Act 2008

[F1 Enforcement action U.K.

Textual Amendments

F1 Pt. 2 substituted (4.5.2016 for specified purposes, 1.10.2017 in so far as not already in force) by Enterprise Act 2016 (c. 12), ss. 20(1), 44(1)(c); S.I. 2017/473, reg. 3(b)

25A “Enforcement action” U.K.

(1) In this Part, “enforcement action” means—

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

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

(c) action taken in connection with the pursuit of a remedy conferred by an enactment in respect of an act or omission.

(2) But the Secretary of State may by regulations, with the consent of the Welsh Ministers, specify—

(a) action which is to be regarded as enforcement action for the purposes of this Part or any provision of this Part specified in the regulations;

(b) action which is not to be regarded as enforcement action for the purposes of this Part or any provision of this Part specified in the regulations.

(3) Regulations under subsection (2) may make different provision for different purposes.

25B Enforcement action by primary authority U.K.

(1) This section applies if—

(a) the primary authority proposes to take enforcement action against the regulated person or a member of the regulated group pursuant to a relevant function of the primary authority which is a partnership function, and

(b) in the case of proposed enforcement action against a member of the regulated group, the primary authority is aware that the member belongs to the group.

But see section 25D (which imposes a duty to prescribe circumstances in which this section does not apply).

(2) The primary authority—

(a) must notify the regulated person or the member in writing before taking the proposed enforcement action, and

(b) may not take the action during the referral period mentioned in paragraph 5(2) of Schedule 4A (period in which the regulated person or the member may refer the action to the Secretary of State) unless notified in writing by the regulated person or the member that no such reference is to be made.

(3) Parts 1 and 3 of Schedule 4A contain provision for questions arising under this section to be referred to the Secretary of State.

(4) Where another enactment limits the period within which the primary authority may take the proposed enforcement action, any time during which it is prohibited under this section or paragraph 5(7) of Schedule 4A from taking the action is to be disregarded in calculating that period.

25C Enforcement action other than by primary authority U.K.

(1) This section applies if—

(a) a qualifying regulator other than the primary authority proposes to take enforcement action against the regulated person or a member of the regulated group pursuant to a relevant function of the regulator which is a partnership function, and

(b) in the case of proposed enforcement action against a member of the regulated group, the regulator is aware that the member belongs to the group.

But see section 25D (which imposes a duty to prescribe circumstances in which this section does not apply).

(2) The qualifying regulator (the “enforcing authority”)—

(a) must notify the primary authority in writing before taking the proposed enforcement action, and

(b) may not take the action during the relevant period.

(3) If—

(a) the enforcing authority fails to notify the primary authority under subsection (2)(a) of the proposed enforcement action, but

(b) the primary authority is notified of it by the regulated person or the member or the co-ordinator of the regulated group,

the primary authority must notify the enforcing authority in writing that the enforcing authority is prohibited by subsection (2)(b) from taking the action during the relevant period.

(4) If the primary authority determines, within the relevant period, that the proposed enforcement action is inconsistent with advice or guidance previously given by it (generally or specifically), it may direct the enforcing authority in writing not to take the action.

(5) Any such direction must be given as soon as is reasonably practicable, and in any event within the relevant period.

(6) If the enforcing authority is not directed under subsection (4) not to take the proposed enforcement action, and continues to propose to take the action—

(a) it must inform the regulated person or the member, and

(b) it may not take the action during the referral period mentioned in paragraph 5(4) of Schedule 4A (period in which the regulated person or the member may refer the action to the Secretary of State) unless notified in writing by the regulated person or the member that no such reference is to be made.

(7) Parts 2 and 3 of Schedule 4A contain provision for questions arising under this section to be referred to the Secretary of State.

(8) Where another enactment limits the period within which the enforcing authority may take the proposed enforcement action, any time during which it is prohibited under this section or paragraph 5(7) of Schedule 4A from taking the action is to be disregarded in calculating the period.

(9) For the purposes of this section, the “relevant period” means the period which—

(a) begins when the primary authority is notified under subsection (2)(a) of the proposed enforcement action or the enforcing authority is notified under subsection (3) that it is prohibited from taking the action during the relevant period, and

(b) ends—

(i) at the end of the fifth working day after the day on which the period begins, or at such later time as the Secretary of State may direct, or

(ii) if earlier, when the enforcing authority is notified in writing by the primary authority that no direction is to be given under subsection (4) (unless the notification states that the primary authority has referred the action to the Secretary of State under paragraph 4(1) of Schedule 4A or that it intends to do so).

25D Enforcement action: exceptions U.K.

(1) The Secretary of State must by regulations, with the consent of the Welsh Ministers, prescribe—

(a) circumstances in which section 25B, and Schedule 4A so far as relating to cases within section 25B, do not apply, and

(b) circumstances in which section 25C, and Schedule 4A so far as relating to cases within section 25C, do not apply.

(2) In particular, the Secretary of State must exercise the power under subsection (1) to secure that those provisions do not apply—

(a) where the enforcement action is required urgently to avoid a significant risk of serious harm to—

(i) human health,

(ii) the environment (including the health of animals or plants), or

(iii) the financial interests of consumers;

(b) where the application of those provisions would be wholly disproportionate.

(3) Where a qualifying regulator other than the primary authority takes enforcement action against the regulated person or a member of the regulated group in circumstances prescribed under subsection (1)(b), the qualifying regulator must inform the primary authority of the action as soon as it reasonably can.]