Schedule 7: Further Provision about Civil Sanctions under Part 4
915.Like the sections on civil sanctions, these provisions are based on those contained in the Regulatory and Enforcement Sanctions Act 2008.
Paragraph 1: Interpretation
916.This paragraph defines “civil sanction” as meaning, for the purposes of the Schedule, a fixed or variable monetary penalty.
Paragraph 2: Fixed monetary penalties: other sanctions
917.Imposition of a fixed monetary penalty removes the person's liability to criminal prosecution for the relevant offence in respect of the act of non-compliance in question. Liability to criminal prosecution is also removed if the person has discharged the liability to a fixed monetary penalty within a specified period under subsection (3)(e) of section 94.
918.The enforcement authority may not issue either a compliance or remediation notice as well as a fixed monetary penalty to a person for the same offence.
Paragraph 3: Variable monetary penalties: other sanctions
919.Imposition of a variable monetary penalty removes the person's liability to criminal prosecution for the relevant offence in respect of the act of non-compliance in question.
920.The enforcement authority may not issue a compliance notice and a variable monetary penalty for the same offence.
Paragraph 4: Combination of sanctions
921.The enforcement authority may only combine sanctions for the same offence in certain ways. In addition to the combinations prohibited in paragraphs 2 and 3, it may not take the following action in relation to the same offence:
impose a fixed monetary penalty where a variable monetary penalty has been imposed;
impose a variable monetary penalty where a fixed monetary penalty has been imposed;
impose a variable monetary penalty or stop notice where the person has discharged liability for a fixed monetary penalty under subsection (2)(b) of section 94;
impose a fixed monetary penalty where a stop notice has been issued;
issue a stop notice where a fixed monetary penalty has been imposed.
922.All other permutations are permitted.
Paragraph 5: Monetary penalties
923.This paragraph allows an order made under section 93 or 95 to make provision for discounts for early payment of a monetary penalty and for the payment of interest or other financial penalties for late payment of the original penalty. The total amount of any late payment penalty must not exceed the total amount of the penalty imposed.
924.This paragraph also provides for the enforcement of unpaid penalties (and any interest or late payment charges) through the civil courts. It also allows an order to create a process of recovery by treating the penalty as if it were payable under a court order.
Paragraph 6: Costs recovery
925.An order made under section 95 may require a person on whom a variable monetary penalty has been imposed to pay the costs the enforcement authority has incurred up to the point of imposing that penalty. Such costs may include investigation costs, administration costs, and costs of obtaining expert advice. A person receiving a notice for payment may appeal against its imposition and the amount required to be paid. Guidance must be published about how the enforcement authority will exercise the power conferred by this provision.
Paragraph 7: Appeals
926.This paragraph specifies the provisions that orders made under section 93 or 95 may and may not make in respects of appeals against fixed or variable monetary penalties. For example, an order may contain provision as to the powers granted to any person conducting an appeal and may require suspension of any requirement or notice until an appeal hearing has concluded.
927.Appropriate tribunals are limited in all cases, except in the case of an order made by Scottish Ministers, to the First-tier Tribunal established under the Tribunals, Courts and Enforcement Act 2007 or any other tribunal established under an enactment (including an enactment contained in, or in an instrument made under, Northern Ireland legislation).
Paragraph 8: Consultation
928.This paragraph requires a licensing authority proposing to make an order under section 93 or 95 to consult the enforcement authority that will be the recipient of the powers to be granted by the order and such other persons the authority considers appropriate. The authority will also be required to consult with relevant organisations that it considers represent the interests of persons substantially affected by the proposals.
929.If, as a result of the consultation, there are substantial changes to any part of the proposals, the authority must undertake such further consultation on the revised proposals as it considers appropriate.
Paragraph 9: Guidance as to use of civil sanctions
930.The licensing authority may not make an order enabling the imposition of fixed or variable monetary penalties, unless it secures that the enforcement authority will publish guidance in relation to the use of these powers ("Penalty Guidance"). The enforcement authority may be required to consult specified persons before publishing or revising the Penalty Guidance. The Penalty Guidance must also be revised by the enforcement authority when appropriate, for example, when there has been a change in the rules. The authority must publish the revised guidance. The order must also stipulate that the enforcement authority has regard to the Penalty Guidance when exercising its functions.
931.The Penalty Guidance must contain information about the circumstances in which a sanction is likely to be imposed or may not be imposed (for example, if undertakings or payment of a sum of money are accepted by the enforcement authority once a notice of intent for a monetary penalty has been issued) and information about the person's rights of appeal.
Paragraph 10: Guidance as to enforcement of offences
932.This paragraph requires that, where the licensing authority makes an order enabling the imposition of fixed or variable monetary penalties, the enforcement authority must prepare and publish guidance regarding the manner in which the offence to which the power relates is enforced.
933.An enforcement authority may revise and publish its guidance periodically. The enforcement authority must consult all persons it considers appropriate before publishing or revising its guidance.
Paragraph 11: Publication of enforcement action
934.Any order made under section 93 or 95 establishing a civil sanction regime must make provision for the publication of certain information relating to its enforcement actions. Those particulars are listed in sub-paragraphs (2) to (4).
Paragraph 12: Payment of penalties into Consolidated Fund etc
935.Any monies received by the enforcement authority in pursuant of its enforcement functions under sections 93 and 95 must be paid into the relevant consolidated fund as determined by sub-paragraph (2).
Paragraph 13: Disclosure of information
936.This paragraph permits the persons listed in sub-paragraph (2) to disclose information to an enforcement authority that has had conferred on it the new powers to impose civil sanctions. Information may only be disclosed where the person making the disclosure has an enforcement function in relation to a criminal offence and for the purposes of the enforcement authority exercising any of the new powers relating to the issue of fixed and variable monetary penalties.
