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HAVANT BOROUGH COUNCIL
POLICY FOR REGULATION AND ENFORCEMENT
1.0 INTRODUCTION
2.0 APPROACHES TO ENFORCEMENT
3.0 ENFORCEMENT IN PRACTICE
4.0 TARGETING AND RISK ASSESSMENT
5.0 INFORMATION AND DATA
6.0
INSPECTION AND OTHER VISITS
7.0 ADVICE
AND GUIDANCE
8.0 COMPLAINTS PROCEDURES
1.0
INTRODUCTION
1.1 This Policy
refers to regulatory and enforcement action that may be taken by
Havant Borough Council.
1.2 As a
regulator, the Council aims to adopt positive approaches towards
ensuring compliance by
- helping and encouraging those with legal
duties to understand and meet regulatory requirements more easily;
and
- responding proportionately to regulatory
breaches.
1.3 The Council
will follow this policy whenever a decision on enforcement action
is made. It will have regard to the principles of good regulation;
i.e. that regulatory activities should be carried out in a way
which is transparent, accountable, proportionate and consistent and
that regulatory activities should be targeted only at cases where
action is required..
1.4 Elected
members have approved this Policy. The Council will review and
publish this policy every 2 years or as required by changes to the
law or guidance.
2.0 APPROACHES TO
ENFORCEMENT
2.1
Council regulators should ensure that sanctions and penalties are
consistent with the following principles. This means that sanctions
and penalties policies should:
- aim to change the behaviour of the
offender;
- aim to eliminate any financial gain or
benefit from non-compliance;
- be responsive and consider what is
appropriate for the particular offender and regulatory issue, which
can include punishment and the public stigma that should be
associated with a criminal conviction
- be proportionate to the nature of the offence
and the harm caused;
- aim to restore the harm caused by regulatory
non-compliance, where appropriate; and
- aim to deter future non-compliance.
2.2 When
considering enforcement action, Council regulators should, where
appropriate, discuss the circumstances with those suspected of a
breach and take those discussions into account when deciding on the
best approach. This paragraph does not apply where immediate action
is required to prevent or respond to a serious breach or where to
do so is likely to defeat the purpose of the proposed enforcement
action.
2.3
Council regulators should ensure that clear reasons for enforcement
action are given to the person or entity against whom enforcement
action is being taken at the time the action is taken. These
reasons should be confirmed in writing at the earliest opportunity.
Complaints and relevant appeals procedures for redress should also
be explained at the same time. The complaints and appeals processes
should be simple, prompt, straightforward and transparent.
3.0 ENFORCEMENT IN
PRACTICE
3.1 Each
case involving enforcement action must be considered on its own
merits and enforcement must be proportionate to the nature of the
offence.
3.2
Following investigation and consideration of all relevant
information, the enforcement options that may be available include
the following according to the circumstances of the offence and the
legislation in question:
- No action
- Verbal warnings
- Written warnings
- Statutory notices
- Fixed penalty notices
- Interview under caution
- Administrative penalties
- Simple cautions
- Prosecutions
- Seizure of goods, remedial actions, and
recovery of costs
- Statutory orders
3.3 The
decision whether to prosecute or to issue a caution is delegated to
Council solicitors following referral by the relevant service
manager. The service manager will be required to provide details on
how the decision to recommend legal proceedings or caution was
reached.
3.4 The
Council solicitors and service manager will base their decisions to
prosecute or caution on the relevant legislation and case law, the
Council policy on regulation and enforcement, the Code for Crown
Prosecutors, official circulars and other relevant guidance and
codes of practice.
3.5 Where
the legislation permits, officers may administer enforcement
options other than prosecutions and cautions, where they have been
authorised to so.
3.6 The
Council is a signatory to the Enforcement Concordat that was
introduced in 1998. This Policy confirms that the Council is
committed to the Concordat principles in its roles as a
regulator.
3.7 In
drafting this policy, the Council has had regard to the Regulators
Compliance Code and the requirement to consider the following
factors when setting policy and providing guidance on the operation
of its regulatory services.
- economic progress
- risk assessment
- advice and guidance
- inspections and other visits
- information requirements
- compliance and enforcement actions
- accountability
3.8 The
decision to take enforcement action will depend on the severity of
the non-compliance with the law. Factors that will be taken into
consideration include:
- risk that the non-compliance poses to the
safety, health or economic welfare of the public at large or to
individuals;
- evidence that suggests that there was
pre-meditation in the commission of an offence;
- whether the alleged offence involves a
failure to comply in full or in part with the requirements of a
statutory notice or order;
- whether there is a history of previous
warnings or the commission of similar offences;
- any aggravating circumstances such as
obstruction of an officer or aggressive and / or violent
behaviour.
3.9
Enforcement decisions and actions will be taken with due regard to
the provisions of the Human Rights Act 1998. Investigation of
offences and the gathering of evidence will pay due regard to the
provisions of relevant legislation, codes and guidance including
the Police and Criminal Evidence Act 1984 and the Criminal
Procedure and Investigations Act 1996
3.10 In the public
interest, matters concerning non-compliance may be shared with
other external and enforcement agencies and within the Council.
Where this takes place, due regard will be paid to the provisions
of the Data Protection Act 1998.
4.0 TARGETING AND RISK
ASSESSMENT
4.1
Council regulators should ensure that resources for regulation are
targeted where they would be most effective. Risk assessment should
inform their approaches to enforcement activities including:
- data collection and other information
requirements;
- inspection programmes;
- advice and support programmes; and
- enforcement and sanctions.
4.2 Risk
assessment should be based on the available data and should include
consideration of:
- the effects of non-compliance and
- the likelihood of non-compliance.
4.3 When
evaluating the likelihood of non-compliance, regulators should
consider relevant factors including:
- past compliance records
- future risks;
- systems for managing risks
- evidence of recognised external
accreditation;
- management competence
- willingness to comply.
4.4
Regulators should keep their risk assessment methods and systems
under review
5.0 INFORMATION AND
DATA
5.1 When
determining which data they may require, Council regulators should
consider the costs to regulated entities through:
- reducing the frequency of data
collection;
- obtaining data from other sources;
- allowing electronic submission
- requesting only data which is justified by
risk assessment.
5.2 If two
or more Council regulators require the same information from the
same regulated entity, then they should share data to avoid
duplication of collection where this is practicable, beneficial and
cost effective. Regulators should avoid unnecessarily restricting
the sharing of data.
5.3
Council regulators must ensure that they comply with the current
legislation on data protection.
6.0 INSPECTION AND OTHER
VISITS
6.1
Regulators should ensure that inspections and other visits, such as
compliance or advice visits, to regulated entities take account of
the principles of good regulation embodied in this policy. In this
way, regulators should focus their inspection efforts on regulated
entities where there
- is greatest risk
- is likelihood of non-compliance
6.2 Where
Council regulators visit or carry out inspections of regulated
entities, they should, as appropriate, give positive as well as
negative feedback to the regulated entities to encourage and
reinforce good practice.
6.3
Regulators should make arrangements to share information about good
practice with other regulators,
.
6.4 Where
two or more inspectors, whether from the same or different
regulators, plan to undertake inspections of the same regulated
entity, regulators should consider arrangements for collaboration
to minimise burdens on the regulated entity, for example, through
joint or coordinated inspections and data sharing.
6.5 Where
Council regulators share or exchange information or work in
partnership with external agencies, they should create and maintain
information-exchange protocols for the guidance and protection of
the Council and its staff.
6.6
Regulators should remain aware of the impact that their regulatory
interventions may have on economic progress and should keep their
activities and interventions under review especially where it is
possible to remove or reduce regulatory burdens.
7.0 ADVICE AND
GUIDANCE
7.1
Council regulators should provide information, advice and guidance
to make it easier for regulated entities to understand and meet
their legal duties and obligations. This should be provided in
accessible language, using a range of appropriate formats and
media.
7.2 When
offering compliance advice, regulators should distinguish between
statutory requirements and advice or guidance aimed at improvements
above minimum standards. Advice should be confirmed in writing, if
requested.
7.3
Regulators should provide appropriate means to ensure that
regulated entities can reasonably seek and access advice from the
regulator without directly triggering enforcement action.
7.4 Advice
services should generally be provided free of charge, but it may be
appropriate for regulators to charge a reasonable fee for services
beyond basic advice and guidance.
8.0 COMPLAINTS
PROCEDURES
8.1 The
Council wishes regulators to provide courteous and efficient
services to those with duties to comply with the law. Regulators
should take account of comments from regulated entities and other
interested parties regarding the behaviour and activity of
inspectors and other enforcement staff.
8.2
Regulators should provide effective and timely complaints
procedures that are easily accessible to regulated entities and
other interested parties. They should publicise their complaints
procedures, with details of the process and timescales for
resolution. The complaints and appeals processes should be simple,
prompt, straightforward and transparent.
8.3
Complaints and relevant appeals procedures for redress should also
be explained at the time of any enforcement action.
8.4
Complaints procedures should include a final stage to an
independent or external person, such as a relevant Ombudsman,
Tribunal or designated partner authority officer, with authority to
mediate on enforcement matters.
October 2008