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Regulatory Enforcement and Sanctions Act 2008

Status:

This is the original version (as it was originally enacted).

SCHEDULES

Section 1

SCHEDULE 1LBRO: supplementary

Status

1(1)LBRO is not to be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.

(2)The property of LBRO is not to be regarded as the property of, or property held on behalf of, the Crown.

Membership

2LBRO is to consist of ordinary and ex officio members.

3(1)There are to be at least five and no more than ten ordinary members.

(2)One of the ordinary members is to be the chair of LBRO.

(3)The chair and other ordinary members are to be appointed by the Secretary of State after consulting the Welsh Ministers.

(4)The Secretary of State must consult the chair before appointing the other ordinary members.

(5)LBRO is to pay to or in respect of the ordinary members such sums as the Secretary of State may determine by way of or in respect of remuneration, allowances, expenses, pensions or gratuities.

(6)If the Secretary of State thinks that there are special circumstances that make it right for a person ceasing to be an ordinary member of LBRO to receive compensation, LBRO must pay to that person such compensation as the Secretary of State may determine.

4(1)The ex officio members are to be—

(a)the Chief Executive of LBRO (see paragraph 7), and

(b)such other employees of LBRO as may for the time being be appointed by the chair after consulting the Chief Executive.

(2)The number of ex officio members appointed under sub-paragraph (1)(b) may not at any time exceed—

(a)such number as may for the time being be specified by the Secretary of State, or

(b)half the number of ordinary members.

5Service as a member of LBRO is not service in the civil service of the State.

Tenure

6(1)Subject to the other provisions of this Schedule, a person holds and vacates office as a member of LBRO in accordance with the terms and conditions of his or her appointment.

(2)A person may not be appointed as an ordinary member of LBRO for a term of more than five years.

(3)A person may at any time resign as an ordinary member of LBRO by giving notice in writing to the Secretary of State.

(4)The Secretary of State may remove a person as an ordinary member of LBRO at any time if —

(a)the ordinary member has, at any time, been convicted of a criminal offence, or

(b)in the opinion of the Secretary of State—

(i)the ordinary member has failed to comply with the terms of his or her appointment, or

(ii)the ordinary member is otherwise unable, unfit or unwilling to perform his or her functions.

(5)A person who has ceased to be an ordinary member is eligible for reappointment for a further term or terms but the total period of appointment of an ordinary member (whether or not in consecutive terms) may not exceed ten years.

Employees

7(1)LBRO is to have a Chief Executive.

(2)The Chief Executive is to be an employee of LBRO.

(3)The first Chief Executive is to be appointed by the Secretary of State.

(4)A Chief Executive after the first is to be appointed by LBRO with the approval of the Secretary of State.

(5)LBRO may appoint other employees, subject to the approval of the Secretary of State as to numbers and terms and conditions of employment.

(6)Service as an employee of LBRO is not service in the civil service of the State.

(7)LBRO may pay to or in respect of an employee sums by way of or in respect of remuneration, allowances, expenses, pensions, gratuities or compensation for loss of employment, subject to any conditions imposed by the Secretary of State under sub-paragraph (5).

(8)The Chief Executive may not take part in the determination of the amount of any remuneration, allowance, pension, gratuity or compensation payable to him or her.

Committees

8(1)LBRO may establish one or more committees.

(2)A committee established under this paragraph may include persons who are neither members nor employees of LBRO.

(3)A committee established under this paragraph may establish one or more sub-committees.

(4)LBRO may pay sums by way of or in respect of expenses to or in respect of a person who is a member of a committee or a sub-committee established under this paragraph but who is not a member or employee of LBRO.

Proceedings

9(1)Subject to this Schedule, LBRO may regulate—

(a)its own proceedings (including quorum), and

(b)the proceedings (including quorum) of any of its committees.

(2)A committee of LBRO may regulate the proceedings (including quorum) of any of its sub-committees.

(3)The validity of proceedings of LBRO, or of any of its committees or sub-committees, is not affected by—

(a)a vacancy, or

(b)a defective appointment.

Delegation

10LBRO may delegate any of its functions to any of its members, employees, committees or sub-committees.

Funding

11(1)The Secretary of State may make grants to LBRO of such amounts as the Secretary of State thinks fit.

(2)A grant under sub-paragraph (1) may be subject to such conditions as the Secretary of State thinks fit.

(3)The Welsh Ministers may make grants to LBRO of such amounts as they think fit.

(4)A grant under sub-paragraph (3) may be subject to such conditions as the Welsh Ministers think fit.

Annual report

12(1)LBRO must, as soon as practicable after the end of each financial year, produce a report on the discharge of its functions during that year.

(2)LBRO must send a copy of the report to—

(a)the Secretary of State, and

(b)the Welsh Ministers.

(3)The report must be sent under sub-paragraph (2)(a) within such period beginning with the end of the financial year to which the report relates as the Secretary of State may direct.

(4)The report must be sent under sub-paragraph (2)(b) within such period beginning with the end of the financial year to which the report relates as the Welsh Ministers may direct.

(5)The Secretary of State must lay before Parliament a copy of each report received under sub-paragraph (2)(a).

(6)The Welsh Ministers must lay before the National Assembly for Wales a copy of each report received under sub-paragraph (2)(b).

Accounts

13(1)LBRO must keep proper accounts and proper records in relation to the accounts.

(2)LBRO must prepare a statement of accounts for each financial year.

(3)The statement of accounts must comply with any directions given by the Secretary of State with the consent of the Treasury as to—

(a)the information to be contained in the statement;

(b)the form which the statement is to take;

(c)the manner in which the information is to be presented;

(d)the methods and principles according to which the statement is to be prepared.

(4)LBRO must send copies of the statement of accounts to the Secretary of State and the Comptroller and Auditor General within such period as the Secretary of State directs.

(5)The Comptroller and Auditor General must—

(a)examine, certify and report on the statement of accounts received under sub-paragraph (4), and

(b)send a copy of the certified statement and report to the Secretary of State as soon as possible.

(6)The Secretary of State must lay before Parliament a copy of each certified statement and report received under sub-paragraph (5)(b).

(7)LBRO must send a copy of the statement of accounts to the Auditor General for Wales within such period as the Welsh Ministers direct.

Financial year

14(1)The financial year of LBRO is the period of twelve months ending on 31 March.

(2)But the first financial year of LBRO is the period—

(a)starting on the day on which section 1 comes into force, and

(b)ending on the following 31 March.

Instruments and authentication

15(1)The fixing of the seal of LBRO shall be authenticated by the signature of the chair or of another person authorised by LBRO to act for that purpose.

(2)A document purporting to be duly executed under the seal of LBRO, or to be signed on LBRO’s behalf, shall be received in evidence and, unless the contrary is proved, shall be treated as having been so executed or signed.

Records

16In the Public Records Act 1958 (c. 51), in Schedule 1 (definition of public records), in Part 2 of the Table at the end of paragraph 3, at the appropriate place insert—

Local Better Regulation Office.

Parliamentary disqualification

17In the House of Commons Disqualification Act 1975 (c. 24), in Schedule 1, in Part 2 (bodies of which all members are disqualified), at the appropriate place insert—

The Local Better Regulation Office.

Investigation

18In the Parliamentary Commissioner Act 1967 (c. 13), in Schedule 2 (departments etc. subject to investigation), at the appropriate place insert—

Local Better Regulation Office.

Freedom of information

19In the Freedom of Information Act 2000 (c. 36), in Schedule 1, in Part 6 (other public bodies and offices: general), at the appropriate place insert—

The Local Better Regulation Office.

Transitional provisions

20(1)A person who immediately before the day on which section 1 comes into force is the chair of the LBRO company is to be treated—

(a)as having been appointed as the chair of LBRO under paragraph 3(3), and

(b)as having been so appointed on the day on which, and for the term for which, that person was appointed as the chair of the LBRO company.

(2)A person who immediately before the day on which section 1 comes into force is a director of the LBRO company is to be treated—

(a)as having been appointed as an ordinary member of LBRO under paragraph 3(3), and

(b)as having been so appointed on the day on which, and for the term for which, that person was appointed as a director of the LBRO company.

(3)A person who is the Chief Executive of the LBRO company immediately before the day on which section 1 comes into force is to be treated as appointed as the first Chief Executive of LBRO under paragraph 7(3).

(4)A committee or sub-committee of the LBRO company which was in existence immediately before the day on which section 1 comes into force is to be treated as having been established as a committee or sub-committee of LBRO under paragraph 8(1) or (3).

Section 2

SCHEDULE 2Replacement of the LBRO company by LBRO

Transfer of staff

1(1)For the purposes of TUPE

(a)the functions conferred on LBRO by this Act are to be treated as transferred to LBRO from the LBRO company on the day on which section 2 comes into force;

(b)that transfer of functions is to be treated as a transfer of an undertaking to which TUPE applies;

(c)each person who was, immediately before the day on which section 2 comes into force, employed by the LBRO company under a contract of employment is to be treated as employed in the undertaking immediately before that day.

(2)In sub-paragraph (1) “TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

Transfer of property, rights and liabilities

2(1)All the property, rights and liabilities to which the LBRO company was entitled or subject immediately before the day on which section 2 comes into force become on that day property, rights and liabilities of LBRO.

(2)In sub-paragraph (1) the reference to rights and liabilities does not include rights and liabilities under or in connection with a contract of employment which are transferred pursuant to paragraph 1.

(3)Sub-paragraph (1) operates in relation to property, rights and liabilities—

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

(b)without any instrument or other formality being required;

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

Tax

3(1)For the purposes of any enactment about income tax or corporation tax, LBRO and the LBRO company are to be treated as the same person.

(2)In particular, the transfers effected by paragraphs 1 and 2 are to be disregarded for those purposes.

(3)Accordingly, those transfers are not to be regarded for the purposes of Schedule 29 to the Finance Act 2002 (c. 23) (gains and losses from intangible fixed assets) as involving any realisation of an asset by the LBRO company or acquisition of an asset by LBRO.

(4)No transfer effected by paragraph 2 is to give rise to any liability to stamp duty land tax.

Continuity between the LBRO company and LBRO

4(1)Anything done by or in relation to the LBRO company which has effect immediately before the day on which section 2 comes into force is, so far as is necessary for continuing its effect on or after that day, to have effect as if done by or in relation to LBRO.

(2)If before the day on which section 2 comes into force any consultation was undertaken by the LBRO company which, had it been undertaken by LBRO on or after that day, would to any extent have satisfied any consultation requirement to which LBRO is subject, that requirement may to that extent be taken to have been satisfied.

5Anything (including legal proceedings) which, immediately before the day on which section 2 comes into force, is in the process of being done by or in relation to the LBRO company may be continued by or in relation to LBRO.

6So far as is necessary or appropriate in consequence of paragraph 2, on and after the day on which section 2 comes into force, a reference to the LBRO company in an enactment, instrument or other document is to be treated as a reference to LBRO.

Section 4(2)

SCHEDULE 3Enactments specified for the purposes of Part 1

Section 28(7)

SCHEDULE 4Enforcement action: references to LBRO

Reference by enforcing authority

1(1)If the primary authority directs the enforcing authority as specified in section 28(2), the enforcing authority may with the consent of LBRO refer the proposed enforcement action to LBRO.

(2)On a reference under this paragraph—

(a)if LBRO is satisfied as to the matters in sub-paragraph (3), it must confirm the direction;

(b)in any other case, it must revoke the direction (and section 28(4)(b) shall accordingly cease to apply in relation to the direction).

(3)The matters referred to in sub-paragraph (2) are that—

(a)the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

(b)the advice or guidance was correct, and

(c)the advice or guidance was properly given by the primary authority.

(4)Where under sub-paragraph (2) LBRO confirms a direction of the primary authority, it may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

(5)The enforcing authority must comply with any direction under sub-paragraph (4).

Reference by regulated person

2(1)If the primary authority does not direct the enforcing authority as specified in section 28(2), the regulated person may with the consent of LBRO refer the action to LBRO.

(2)On a reference under this paragraph—

(a)if LBRO is satisfied as to the matters in sub-paragraph (3), it must direct the enforcing authority not to take the proposed enforcement action;

(b)in any other case, it must consent to the action.

(3)The matters referred to in sub-paragraph (2) are that—

(a)the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

(b)the advice or guidance was correct, and

(c)the advice or guidance was properly given by the primary authority.

(4)The enforcing authority may not take the proposed enforcement action if it is directed as specified in sub-paragraph (2)(a).

(5)Where LBRO gives a direction under sub-paragraph (2)(a), it may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

(6)The enforcing authority must comply with any direction under sub-paragraph (5).

(7)LBRO may require a regulated person who makes a reference under this paragraph to pay such reasonable costs incurred by LBRO as a result of the reference as LBRO may specify.

Reference by primary authority

3(1)The primary authority may with the consent of LBRO, instead of making a determination under section 28(2) in relation to a proposed enforcement action, refer the action to LBRO.

(2)On a reference under this paragraph—

(a)if LBRO is satisfied as to the matters in sub-paragraph (3), it must direct the enforcing authority not to take the proposed enforcement action;

(b)in any other case, it must consent to the action.

(3)The matters referred to in sub-paragraph (2) are that—

(a)the proposed enforcement action is inconsistent with advice or guidance previously given by the primary authority (generally or specifically),

(b)the advice or guidance was correct, and

(c)the advice or guidance was properly given by the primary authority.

(4)The enforcing authority may not take the proposed enforcement action if it is directed as specified in sub-paragraph (2)(a).

(5)Where LBRO gives a direction under sub-paragraph (2)(a), it may direct the enforcing authority to take some other enforcement action (and section 28(1) to (4) does not apply in relation to that action).

(6)The enforcing authority must comply with any direction under sub-paragraph (5).

Effect of reference

4The enforcing authority may not take the proposed enforcement action—

(a)in any period during which the regulated person may make a reference under paragraph 2;

(b)at any time after the making of a reference under this Schedule and before its determination.

Consultation

5(1)Before making a determination for the purposes of this Schedule LBRO—

(a)must consult any relevant regulator, where appropriate, and

(b)may consult such other persons as it thinks fit.

(2)In sub-paragraph (1)(a) “relevant regulator” means a person (other than a local authority) with regulatory functions which relate to the matter to which the determination relates.

Procedure: general

6(1)LBRO must determine any reference under this Schedule within the period of 28 days beginning with the day on which the reference is made.

(2)The Secretary of State may by order make further provision as to the procedure to be followed, for the purposes of this Schedule, by the primary authority, the enforcing authority, the regulated person and LBRO.

Guidance and directions

7(1)LBRO may give guidance or directions to any one or more local authorities about any enforcement action referred to it.

(2)A local authority must have regard to any guidance, and comply with any direction, given to it under sub-paragraph (1).

(3)LBRO must publish any guidance or directions given under this paragraph in such manner as it considers appropriate.

Information

8For the purposes of this Schedule LBRO may require the primary authority, the enforcing authority or the regulated person to provide it with such information as it may specify, being information which the authority may lawfully provide to LBRO.

Section 37(1)

SCHEDULE 5Designated regulators

  • British Hallmarking Council

  • Charity Commission for England and Wales

  • Coal Authority

  • Competition Commission

  • Countryside Council for Wales

  • Environment Agency

  • Financial Services Authority

  • Food Standards Agency

  • Football Licensing Authority

  • Forestry Commissioners

  • Gambling Commission

  • Gangmasters Licensing Authority

  • Health and Safety Executive

  • Hearing Aid Council

  • Historic Buildings and Monuments Commission for England (“English Heritage”)

  • Housing Corporation

  • Human Fertilisation and Embryology Authority

  • Human Tissue Authority

  • Information Commissioner

  • Local fisheries committees

  • Natural England

  • Office of Communications

  • Office of Fair Trading

  • Office of Rail Regulation

  • Pensions Regulator

  • Security Industry Authority

  • Statistics Board

Section 37(2)

SCHEDULE 6Enactments specified for the purposes of orders under Part 3

Section 62

SCHEDULE 7Enactments specified for the purposes of section 62

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