Enforcement
and Sanctions
Enforcement
You need to consider from the outset whether your proposals are
enforceable. Then you should consider compliance. Obtain a clear
view of how those affected will comply with the proposal. Establish
what the current levels of compliance are.
It can be tempting to try to resolve current compliance problems
by proposing more regulation. Before you do this, look carefully
at the reasons for current non-compliance, and try to think of
ways of improving it – for example, by targeting those businesses
or individuals who are not complying.
You also need to consider whether any of the risks you have identified
as being associated with the options might affect the level of
compliance. Where this is the case, you may need to consider the
enforcement regime proposed in the light of this.
Assess the likely impact of different enforcement regimes. Achieving
full compliance is not always possible, at least at a reasonable
cost, and you may have to expect a level of non-compliance.
There is no general answer to what is an acceptable level of non-compliance
but the nature of the risks involved should give you some indication.
For example, safety in the nuclear industry is clearly of more
concern than whether farmers keep names and addresses of casual
seasonal workers.
You need to consider alternative methods of enforcement and examine
the likely costs and compliance rates in the light of your policy
objective and the risks.
You may want to use a light touch – one option is to check
compliance on a small proportion of companies, especially if risks
are low. Levels of scrutiny can be varied according to risks of
non-compliance and according to the characteristics of the firm,
by size etc.
Another option is self-assessment. Instead of requiring enforcement
officers to check whether businesses are complying with a regulation,
individuals are given the right to challenge a business if they
believe it is not complying with a regulation.
You may decide that active enforcement is required. If so, you
must involve the potential enforcement authorities at an early
stage to agree procedures and estimate resource implications. Where
enforcement responsibilities overlap, make sure there is co-ordination
between authorities to ensure consistency.
If you propose creating a new enforcement body, make sure that
its activities are integrated properly with those of any existing
agencies. Also ensure that you have HMT approval and that you allow
sufficient time for the recruitment and training of personnel.
Further information
Sanctions
Do you need any sanctions?
If you do need sanctions for non-compliance, you should choose
a fair and effective regime which is proportionate to the non-compliance.
Non-criminal sanctions aimed at actively securing compliance should
be your first choice. Criminal sanctions should not normally be
considered across the board where there is no intention of risk
or harm, though they may be necessary when creating certain legally
enforceable rights.
The Home Office has policy responsibility
for criminal law and you should consult them about any proposed
new criminal offence. You should also consult the Department
for Constitutional Affairs (DCA), as proposed new criminal offences
are likely to result in increased work for the courts.
You should always consider:
- administrative methods of preventative control. Examples include
licensing, registration and enforcement approaches including improvement
notices, suspension notices and prohibition notices. Do bear in
mind the cost of administrative methods, and aim to minimise any
bureaucracy;
- using civil penalties or statutory fines as a means of providing
redress or as a deterrent; and
- if these are not sufficient on their own, using criminal
sanctions (but only for serious breaches, eg criminal intent,
negligence,
persistent offenders and those who may cause serious harm).
Seek advice from DCA before considering criminal sanctions.
Your proposals must comply with the
Human
Rights Act.
Where the sanctions are
administrative rather than criminal, you should provide business
with a fair, independent, speedy and inexpensive appeals process
for resolving disputes. If new rights of appeal are being considered
you should consult DCA at an early stage to consider the form of
appeal mechanism to be used, and whether there is an existing vehicle
which might be accessed. You should also take account of the cost
of establishing an appeal mechanism.
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Alternative
to Regulation