Common legislative solutions: a guide to tackling recurring policy issues in legislation

Question 1

Foreword by Elizabeth Gardiner, First Parliamentary Counsel

Accepted Answer

As the legislative drafting office for the UK Government, the Office of the Parliamentary Counsel is committed to producing clear and effective legislation to the highest possible standards in the public interest. We lead the legislative drafting profession within Government and work to promote greater awareness of the principles underpinning good law.

Producing new law requires analysis and understanding of complex issues: policy, legal and practical. At the Office of the Parliamentary Counsel, we are always looking to share our experience and expertise and to collaborate with others who are interested in improving the quality of the law. So we were delighted to support the UK-wide initiative to develop this guidance.

The guidance was born out of work undertaken by The National Archives to research patterns which occur in legislation. This research disclosed common legislative solutions which are frequently deployed in response to a policy problem.

So where legislation is being developed which proposes using one of these legislative solutions, we hope that this guidance will be a useful tool for those preparing Bill instructions for parliamentary counsel – allowing us, in turn, to deliver legislative drafting more efficiently and effectively and to help the users of legislation by making it more consistent.

The guidance has been produced by drafters from the Office of the Parliamentary Counsel working in collaboration with members of the other three legislative drafting offices in the United Kingdom, and refined after consultation with officials across all four administrations: government lawyers, policy officials and drafters. It represents an excellent example of civil service collaboration, exemplifying principles of mutual respect and cooperation in the carrying out of one of our most essential public functions, the creation of good law. We would welcome suggestions and feedback on this guidance from all those who take an interest in legislation as we work to improve the quality of law in the United Kingdom.

Elizabeth Gardiner

Question 2

Introduction

Accepted Answer

1. This Chapter contains a brief overview of the process of making policy for legislation, and explains how the detailed guidance in the following Chapters fits in with that process.

Developing policy for legislation

2. A traditional model for developing policy for legislation is as follows:

identify what the issue or “problem” is,
think of possible solutions and the advantages and disadvantages of each solution,
analyse the possible solutions and their advantages and disadvantages, and select the most promising solution,
if a legislative solution is chosen, work up the proposed solution in sufficient detail so that draft legislation could be produced, and
test the worked-up solution against a range of factual scenarios to see whether the solution would have the desired effect in those scenarios.

3. In the course of doing this, policy makers will of course need to work out what the existing legislative landscape is, and how that affects, and is affected by, the proposed solution.

4. Some policy issues that arise are novel or unique, and as such may require creative thinking and entirely novel solutions. Similarly, sometimes what is wanted is a new solution to a commonly occurring problem.

5. But there are some commonly occurring policy issues that are dealt with by adopting a commonly occurring legislative solution. That is what this guidance is concerned with.

6. For these cases, it is possible to identify issues that may need to be addressed, when working up and instructing on the proposed solution. That is what we have done for a number of legislative solutions.

7. The aim of the detailed guidance is to stimulate thinking, increase awareness of possible options, improve the quality of instructions, and improve the efficiency of the policy-making and instructing processes, by articulating matters that may need to be addressed.

8. Please note, however:

The detailed guidance in the following Chapters sets out matters that may need to be considered. Some of these matters are likely to arise in all or most cases, but other matters may arise only sometimes or even rarely. So please don’t assume that the instructions necessarily need to address all the issues identified in the detailed guidance.
Depending on the policy, it may of course be the case that something not mentioned in the detailed guidance is wanted – whether in addition to the matters mentioned there or instead of some of those matters.
Above all, it must be emphasised that although the detailed guidance aims to assist policy makers and instructors, it is not intended to constrain thinking and is not a substitute for working out what is really wanted from a policy perspective.

9. We hope that the detailed guidance will also help policy makers when they are dealing with any other topics upon which legislation is required, as the detailed guidance in the following Chapters is a guide to the level of meticulous analysis that needs to be undertaken whenever policy on legislation is developed and instructed on.

Format of following Chapters

10. Each Chapter deals with a particular legislative solution, and is in the following format:

Description of the solution

11. This high level description is intended to assist policy makers in selecting the correct solution for the policy issue they wish to address.

12. Where there is a section on related solutions, the aim is to draw the policy maker’s attention to alternative policy solutions.

Elements of the solution

13. This section consists of a series of questions that the instructor may or will need to address, in order to enable the drafter to produce a draft.

Examples of the solution

14. This section lists examples of the solution, so that policy makers, instructors and drafters can easily locate examples of the solution.

15. These examples show the policy and drafting choices that have been made in other contexts. Again, the aim is to show examples that reflect a range of policy choices that have been made, not to constrain thinking.

Additional solutions to be added in future

16. We hope to expand this guidance over time, to include detailed guidance on other legislative solutions, including:

publishing documents
guidance (including codes of conduct and codes of practice)
information sharing
reorganisation of public bodies (including merger and dissolution)
ombudsmen
subordinate legislation.

Any suggestions as to other legislative solutions that might be covered would be welcome.

Question 3

Establishing a statutory corporation

Accepted Answer

1. Description of the legislative solution

This legislative solution establishes a body or office to exercise statutory functions, where it has been decided that those functions should be exercised by a new public authority, rather than by Ministers^{[footnote 1]}, an existing public authority or a voluntary or private sector body.

The reasons for establishing a new body or office as a statutory corporation, rather than in another form such as an unincorporated association, generally relate to the fact that a statutory corporation has its own legal personality distinct from that of the individual members or office-holder. It can therefore enter into legal relations and hold property, and continues to exist despite changes in the membership of the body or holder of the office. Executive and regulatory agencies are commonly statutory corporations with their own staff and budgets, whereas advisory bodies and tribunals are not usually statutory corporations.

In England, Wales or Northern Ireland, a statutory corporation may be a body corporate (i.e., a body with a number of members) or a corporation sole (i.e., an office held by a single individual). Scots law does not have the concept of a “corporation sole,” but legislation may provide that an office constitutes a “distinct juristic person” from the individual holding it, which is intended to achieve a similar effect to creating a corporation sole.

Instead of creating a body or office directly, an Act may delegate the power to establish it (for example, by giving Ministers the power to establish it through subordinate legislation).

Designation: an alternative to establishing a new statutory corporation may be to designate an existing person or body to exercise particular functions.

Collaboration: it may be appropriate to require the newly created statutory corporation and other bodies to work together in exercising their functions.

Elements of the legislative solution

1. Name and status of the statutory corporation

1.1. What will be the name of the body or office (including, where appropriate, the name in Welsh, Gaelic etc. as well as English)?

1.2. Should the body or office have Crown status, either generally or for particular purposes? The main effects of a body having Crown status are that it is not bound by legislation that does not bind the Crown, and that its staff are Crown servants. Most statutory corporations (and most other public bodies) are not Crown bodies.

2. Positions to which appointments are made

2.1. In the case of a body corporate:

2.1.1. How many members should there be? It is more usual to set a maximum and minimum number of members than to legislate for a specific number.

2.1.2. Should there be different types of member (such as executive and non-executive members, or professional and lay members)? Must there be members of every type?

2.1.3. Should all members be appointed to the body, or should any of them be members automatically by virtue of holding another office (such as the relevant Auditor General)?^{[footnote 2]}

2.1.4. Should there have to be a chair? And a deputy chair? Should they be appointed directly to those positions, or chosen from the members of the body?

2.2. In the case of an individual office:

2.2.1. Should there be one or more deputies to the office-holder? Should a deputy be a separate office-holder, or a member of staff designated for the purpose?

2.1.2. In which circumstances should the corporation’s functions be exercised by a deputy (for example, if the office is vacant or the office-holder is unable to act)?

3. Appointment of members or office-holder

3.1. Who should appoint the office-holder and any deputy, or the chair and members of the body? Appointments might, for example, be made by Ministers, the legislature, the Queen, other members or staff of the statutory corporation, or by another body.

3.2. Should appointments have to be made on the recommendation or nomination of another body, or be approved by another body (such as Ministers or the legislature)?

3.3. Should any criteria have to be applied in making appointments, or should there be any qualifications for appointment (such as particular skills or experience)? Should any matters disqualify people for appointment (such as membership of the legislature or a local authority)?

3.4. Should the appointment process be subject to external oversight? (Where appointments are made by Ministers, this is likely to require an amendment to the relevant public appointments legislation: see the Annex.)

3.5. Should membership of the statutory corporation disqualify a person from membership of the House of Commons or devolved legislature? (This may require an amendment to the relevant disqualification legislation: see the Annex.)

3.6. For what period should a person be appointed? An Act may fix the term of office, or give the person making the appointment power to fix it, perhaps subject to a maximum.

3.7. Should a person be eligible to be re-appointed at the end of the period of appointment? Should there be any restriction on the number of times a person may be re-appointed?

3.8. Who should set the terms of appointment (insofar as they are not set by the legislation)?

4. Termination of appointment

4.1. Should a person be able to resign from office, and if so how (e.g., notice to Ministers or the chair)?

4.2. Should it be possible to suspend or dismiss a person from office? Who should be able to suspend or dismiss a person, and on what grounds? The grounds should reflect the nature and functions of the body or office.

4.3. Should the Act set the grounds and procedure for dismissal, or give the person making the appointment the power to deal with them in the appointment letter?

4.4. Where an Act specifies grounds for dismissal, the general ground of unfitness, unwillingness or inability to act seems to be universal. Other more specific grounds that may be mentioned include:

unauthorised absence from meetings of a body for a period (often 6 months);
conviction for a criminal offence;
insolvency or indebtedness.

4.5. If insolvency is to be a ground for dismissal, which types of insolvency proceedings or arrangements should give rise to the power to dismiss?

4.6. Should any events (such as election to the legislature) automatically terminate a person’s appointment?

5. Conflicts of interest

5.1. Is anything needed to prevent or regulate conflicts between the personal interests of members or office-holders and the performance of their functions?

5.2. Should it be sufficient to rely on the person who makes appointments to consider potential conflicts of interest in the appointment process?

5.3. Should a prejudicial conflict of interest be a ground for dismissal?

5.4. Alternatively, should members be required to declare conflicts of interest (e.g., at meetings of the body) and prohibited from taking part in decisions in which they have an interest? Or should the corporation just be required to make arrangements for dealing with conflicts of interest?

5.5. Should the body be required to keep and publish a register of members’ interests? (This is the norm for Scottish devolved bodies but less common elsewhere.) If so, which interests must be registered? When does the duty to register them arise?

6. Effect of vacancy or other defect on validity of acts

6.1. Who should exercise the functions of an individual office-holder if the office (and any post of deputy) is vacant or if the office-holder (and any deputy) cannot act because of a conflict of interest? Should there be provision for Ministers to appoint another person to act?

6.2. If the position of chair of a body corporate is vacant, or if the body has fewer members than it is required to have, should the body still be able to act? Or should anything done by the body be invalid?

6.3. If the appointment of a member is procedurally defective, or was made in breach of any eligibility rules, should a decision in which the member participates be valid?

6.4. Should a decision be valid if it is made in breach of rules relating to conflicts of interest?

7. Payments to members

7.1. What sort of payments (if any) should the statutory corporation make to its members? Should they receive remuneration (such as a salary or fees) for performing their duties? Should they receive payments in respect of expenses they incur, or other allowances?

7.2. Should the statutory corporation have a power or a duty to pay remuneration or allowances? Should Ministers be able to require it to pay them? Should the amount of the payments be set by Ministers, or by the corporation with the approval of Ministers?

7.3. Should other payments be possible, such as compensation for loss of office? Is such compensation paid by Ministers, or by the statutory corporation with their approval? Must there be special circumstances to justify paying compensation?

7.4. Should the corporation make pension arrangements for its members? Should it have a power or duty to do so? Should it be free to choose whether to operate its own pension scheme, make payments into another scheme, or provide pensions in some other way? Should its pension arrangements require Ministerial approval?

7.5. Should members be entitled to join the GB or NI civil service pension scheme? (This may require an amendment to the relevant legislation: see the Annex.)

8. General powers

8.1. A statutory corporation will have the power to do things that are incidental to the exercise of its functions. Examples may include holding land and other property, making contracts, participating in companies, co-operating with others, receiving assistance in performing the corporation’s functions, and bringing legal proceedings.

8.2. Should any of the corporation’s general powers be restricted? For example, should it be allowed to invest money only in certain ways, or require Ministerial approval to dispose of property or form a company? Should it be prevented from doing any things that might otherwise be regarded as incidental to its functions?

8.3. Should the corporation be able to provide assistance to others for purposes that go beyond its own aims and functions? Should it have the power to give assistance to other bodies for the performance of the functions of those other bodies?

8.4. Should the corporation have a duty to do anything that it might otherwise have an incidental power to do? For example, should it be required to consult other public authorities, share information with them, or co-operate with them?

8.5. If the corporation is expected to share information with others, is it necessary to remove or qualify any restrictions that might otherwise prevent it from doing so?

8.6. In Northern Ireland, legislation establishing a body corporate usually applies section 19 of the Interpretation Act (Northern Ireland) 1954, which contains a number of general provisions about the powers and procedures of statutory corporations.

9. Procedure

9.1. Should the corporation be free to make its own rules regulating its decision-making procedure, including the quorum for meetings? Should it be required to make rules or standing orders? Should the rules be approved, or even made, by Ministers?

9.2. Do any aspects of the corporation’s procedures need to be specified or regulated by the legislation? For example, are special rules needed about quorum, to ensure that different categories of member are represented at meetings?

10. Committees

10.1. Is the corporation likely to establish committees? Should it be required to establish particular types of committee (e.g., regional committees, advisory committees)?

10.2. Should there be requirements relating to the membership of any of its committees?

10.3. Is a committee, or the corporation itself, likely to establish sub-committees? Should there be any membership restrictions for sub-committees?

10.4. Should people who are not members of the body be eligible for appointment to its committees? Should people who are not members of a committee be eligible for appointment to its sub-committees? If non-members are appointed:

10.4.1. Should there be a limit on how many non-members can be appointed?

10.4.2. Can a committee or sub-committee consist entirely of non-members?

10.4.3. On what terms should non-members be appointed? Can they be paid?

10.4.4. Are non-members entitled to vote at committee or sub-committee meetings?

11. Staff

11.1. Will the statutory corporation need staff? Will it employ its own staff? Will it be staffed by civil servants provided by the sponsoring department or administration? Will staff be seconded to the statutory corporation from other organisations?

11.2. Should the corporation be required to have a chief executive (or any other posts)? Should the chief executive be appointed by the corporation itself? Should the appointment have to be approved by Ministers? Should the first appointment be made by Ministers?

11.3. Should the corporation be free to determine the terms and conditions on which staff are employed (including their remuneration), or should the terms and conditions be approved or set by Ministers?

11.4. Should the corporation have a power to make pension arrangements for staff, or a duty to do so? Should it be free to decide whether to operate its own pension scheme, make payments into another scheme, or provide pensions in some other way? Should its pension arrangements require Ministerial approval?

11.5. Should staff be entitled to join the principal civil service pension scheme? (That follows automatically where people employed by the corporation are civil servants; otherwise it may be necessary to amend the relevant legislation: see the Annex.)

11.6. Should the statutory corporation be exempt from the obligation to have employer’s liability insurance in respect of injury or disease suffered by its employees?

12. Delegation

12.1. Should the statutory corporation have the power (or be under a duty) to delegate the exercise of any of its functions? The corporation might, for example, have the power to delegate functions to:

committees or sub-committees;
individual members of the corporation;
members of staff.

12.2. Where there is a power to delegate to a committee or sub-committee, should it only permit delegation to a committee or sub-committee that meets certain membership requirements (or other requirements)? Should a power to delegate to members of the corporation or its staff be limited to particular types of member?

12.3. Should any functions be excluded from a general power to delegate, so that they must be exercised by the corporation itself, for example because of their importance?

12.4. Should the statutory corporation retain the power to exercise a function it has delegated? Or can only the delegate exercise the delegated function?

12.5. Should a committee be able to sub-delegate functions that have been delegated to it, for example to a sub-committee or an individual member of the committee?

12.6. Should any other delegation between parts of the statutory corporation be possible?

13. Execution and authentication of documents

13.1. If the corporation has a seal for executing deeds (which is generally only needed for land transactions), should there be any requirement for the use of the seal to be accompanied by the signature of particular members or employees of the corporation? Should this be left to the corporation to decide for itself?

13.2. Should there be a presumption that a document has been properly signed and sealed, so that there is no need to prove its authenticity (in the few cases where that would be required by the law of England & Wales or Northern Ireland)?

13.3. In Scotland, provision about these issues is not required, as they are addressed by the Requirements of Writing (Scotland) Act 1995; in Northern Ireland, section 19(1)(c) of the Interpretation Act (Northern Ireland) Act 1954 may be sufficient.

14. Money

14.1. Should the statutory corporation receive payments (or “grants”) from Ministers? (This would not be appropriate for a Scottish body that is to form part of the Scottish Administration.) Should it be possible for the payments to be made subject to conditions (including conditions that could mean the money has to be repaid)?

14.2. Should the statutory corporation have the power to borrow money? Should it be able to borrow from any lender, or only from Ministers? Should there be any limit on how much it can borrow? Should borrowing require the approval of Ministers?

14.3. Might Ministers provide any other forms of financial assistance (such as guarantees or indemnities)?

14.4. Should the corporation be able to accept gifts, even if the property is likely to be held for the long term and money may need to be spent to maintain it?

14.5. Should the statutory corporation be able to charge fees for providing services or carrying out any of its functions? Should it be free to decide how much to charge, or should the fees require the approval of Ministers or be set by them?

14.6. Should the corporation be required to pay any sums that it receives to Ministers or into the relevant Consolidated Fund?

14.7. Should the corporation have the power to make grants, lend money or give other financial assistance? Should it be able to give assistance subject to conditions?

14.8. Should there be any restrictions on its powers to give financial assistance, such as requirements that assistance is only given for particular purposes or on particular terms, or a requirement to obtain the agreement of Ministers?

15. Plans, estimates and reports

15.1. Should the statutory corporation be required to produce an estimate of income and expenditure for each financial year (other than its first financial year)?

15.2. Should it be required to prepare a plan for each financial year, or for a longer period, setting out how it proposes to carry out its activities during the period? Occasionally both annual and longer-term plans are required, or annual plans are required to include financial estimates.

15.3. Should the statutory corporation be required to make annual reports on how it has exercised its functions during each financial year?

15.4. If any of these documents are required:

15.4.1. When must the statutory corporation prepare the document? Consider which period the first estimate, plan or report must cover, and when it must be prepared.

15.4.2. Are there any specific matters that an estimate, plan or report must deal with, or any criteria or standards that it must apply?

15.4.3. Should there be any requirement to consult in preparing the document?

15.4.4. Should the document be submitted to Ministers? Should there be a requirement to lay it before the relevant legislature (by the corporation or Ministers), or for it to be published?

15.5. In the case of an estimate or plan:

15.5.1. Should the document require the approval of Ministers? Should they be able to modify it?

15.5.2. Should the corporation be required to exercise its functions in accordance with its plan? Should Ministers be required to provide funding in accordance with a plan or estimate?

16. Accounts and audit

16.1. If there are accounting and audit requirements, they should appear in the legislation establishing the statutory corporation. (But for Scottish bodies, rely on sections 19, 21 and 22 of the Public Finance and Accountability (Scotland) Act 2000 if they apply.)

16.2. The usual form of accounting provision requires the corporation to keep proper accounts and accounting records, and to prepare a statement of accounts for each financial year in accordance with directions given by Ministers (or HM Treasury).

16.3. Are special rules needed about the appointment, identity or responsibilities of the corporation’s accounting officer? For example, is it necessary to require that the accounts are signed by the statutory office-holder, or to enable Ministers to appoint the accounting officer or specify the officer’s responsibilities?

16.4. The standard features of audit provisions are:

16.4.1. The accounts must be submitted to the relevant Auditor General.

16.4.2. The Auditor General must examine, certify and report on the accounts.

16.4.3. The certified accounts and report must be laid before the relevant legislature.

16.5. Consider:

16.5.1. whether the accounts should be submitted to the relevant Auditor by the statutory corporation itself or by Ministers;

16.5.2. whether to specify a date by which the accounts must be submitted (31 August and 30 November are common) or give Ministers the power to do so;

16.5.3. whether the certified accounts and report should be laid before the relevant legislature by the Auditor or by Ministers;

16.5.4. whether to specify a period within which the certified accounts and report must be laid (4 months from submission of the accounts is common).

16.6. Occasionally statutory corporations are required to establish audit committees. If an audit committee is to be required, what functions and membership should it have?

16.7. Should the relevant Auditor General have the power to carry out examinations into the economy, efficiency and effectiveness with which the statutory corporation is using or has used its resources? If so:

16.7.1. Does the power need to exclude any questioning of the policies pursued by the corporation?

16.7.2. Should there be a duty to consult anyone before exercising the power?

16.7.3. Should the Auditor have a duty or only a power to make a report of the results of the examination?

16.7.4. Should reports be published, or made to Ministers or the relevant legislature?

16.8. Accounts usually relate to financial years running from 1 April to 31 March, but where a corporation is established on a date other than 1 April it will be necessary to determine what its first accounting period should be.

17. Control by Ministers or legislature

17.1. Should Ministers have a general power to give directions to the statutory corporation in relation to the exercise of its functions? Should there be exceptions?

17.2. Should the corporation be required to comply with requests from Ministers to give them information or advice?

17.3. Should the corporation be under a general duty to have regard to Ministerial guidance when exercising its functions?

17.4. Should there be any procedure for giving directions or issuing guidance (such as a requirement to consult the corporation)? Must they be published?

17.5. Alternatively, does the nature of the body or office mean that it must not be subject to the direction or control of Ministers?

17.6. In that case, should it be subject to any special form of oversight by the legislature instead?

18. Other legislation relating to duties and scrutiny of public bodies

18.1. Should freedom of information legislation apply to the corporation, so that there is a general right of access to information it holds?

18.2. Should the records of the statutory corporation be public records that must be managed and made available in accordance with public records legislation?

18.3. Should the corporation be subject to investigation by an Ombudsman where there is a complaint of maladministration?

18.4. Should the corporation be required to comply with public sector equality legislation?

18.5. Should the corporation be subject to review or investigation by other Commissioners concerned with children, older people, etc.?

(The Annex lists the legislation dealing with these issues.)

19. Reorganisation of existing public bodies

19.1. Is the new statutory corporation intended to replace one or more existing bodies, in whole or in part?

19.2. Should the new corporation take on any or all of the functions that are currently exercised by an existing body? Which functions should be transferred to it?

19.3. Should the new corporation be put into the position of the existing body, so that it can continue anything that the existing body was doing at the time of transfer? (Should that be the case where existing functions are not being transferred but the new corporation is being given functions similar to those of a predecessor body?)

19.4. Should the new corporation assume any or all of an existing body’s property, rights and liabilities?

19.5. Should Ministers have the power to determine which property, rights and liabilities are transferred? The usual method for doing this is by making a transfer scheme. Consider whether there are particular issues that the scheme may or must include.

19.6. Should any transfer include property, rights or liabilities that could not otherwise be transferred (for example because their transfer requires someone’s consent)? Should it include criminal liabilities, or rights and liabilities that have not yet arisen?

19.7. Will staff be transferred from an existing body to the new statutory corporation? Legal advice will be needed on whether TUPE will apply to the transfer of staff, so that contracts of employment are continued. If TUPE does not apply, it will be necessary to make equivalent provision if the policy requires there to be continuity of employment.

19.8. Should staff transferred from an existing body be entitled to continue as active members of their existing pension scheme?

19.9. Might the new corporation need a right of access to property or information held by an existing body, or vice versa? Might ownership of property need to be shared?

19.10. Should any property, rights or liabilities of an existing body be transferred to a person other than the new corporation, such as Ministers?

19.11. If an existing body is being wound up, consider what provision needs to be made about its final annual report and accounts. Who should be required to prepare them (for example, the successor body or Ministers)? What procedure should apply to their preparation and to the audit of the final accounts?

20. Power to dissolve the new statutory corporation

20.1. Should there be a power for Ministers to bring the corporation’s existence to an end? This may be appropriate where:

20.1.1. the statutory corporation is intended to perform a fixed set of tasks or to have a limited lifespan;

20.1.2. circumstances can be envisaged in which the corporation would no longer need to exist, for example because it had achieved its aims;

20.1.3. a group of authorities is being established which may need to be reorganised in future.

20.2. A power to use subordinate legislation to dissolve a body established by primary legislation may be controversial.

Examples of the legislative solution

Acts of the UK Parliament

Advanced Research and Invention Agency Act 2022, sections 1 to 8 and Schedule 1
Domestic Abuse Act 2021, Part 2 (Domestic Abuse Commissioner)
Environment Act 2021, Chapter 2 of Part 1 and Schedule 1 (Office for Environmental Protection)
Medicines and Medical Devices Act 2021, section 1 and Schedule 1 (Commissioner for Patient Safety)
Trade Act 2021, section 6 and Schedule 4 (Trade Remedies Authority)
Parliamentary Buildings (Restoration and Renewal) Act 2019, section 2 and Schedule 1 (Parliamentary Works Sponsor Body)
Financial Guidance and Claims Act 2018, sections 1 to 5 and Schedule 1 (single financial guidance body)
Higher Education and Research Act 2017, sections 1 and 2 and Schedule 1 (the Office for Students) and sections 91 and 92 and Schedule 9 (United Kingdom Research and Innovation)
Children and Social Work Act 2017, section 36 and Schedule 3 (Social Work England)
Energy Act 2016, Part 1 (Oil and Gas Authority)
Enterprise Act 2016, Part 1 (Small Business Commissioner) and Part 4 (Institute for Apprenticeships)
Small Business, Enterprise and Employment Act 2015, section 41 and Schedule 1 (Pubs Code Adjudicator)
Care Act 2014, Part 3 (Health Education England, Health Research Authority)
Defence Reform Act 2014, section 13 and Schedule 4 (Single Source Regulations Office)
Groceries Code Adjudicator Act 2013, section 1 and Schedule 1 (Groceries Code Adjudicator)
Energy Act 2013, section 77 and Schedule 7 (Office for Nuclear Regulation)
Health and Social Care Act 2012, section 61 and Schedule 8 (Monitor), Part 8 (National Institute for Health and Care Excellence)
Protection of Freedoms Act 2012, Chapter 3 of Part 5 (Disclosure and Barring Service)
Child Poverty Act 2010, section A1B and Schedule 1 (Social Mobility Commission)
Marine and Coastal Access Act 2009, sections 1 to 3 and Schedule 1 (Marine Management Organisation)
National Health Service Act 2006, section 1H and Schedule A1 (National Health Service Commissioning Board)
Police Reform Act 2002, section 9 and Schedule 2 (Independent Police Complaints Commission)
Local Government, Planning and Land Act 1980, section 135 and Schedule 26 (Urban Development Corporations)

Annex: other legislation about public bodies

The legislation mentioned below lists the public bodies or categories of body to which it applies, and may therefore need to be amended to apply to a new statutory corporation. Check the legislation in question to see how it describes the types of body it applies to.

Oversight of appointments

Oversight by Commissioner for Public Appointments of appointments by Ministers of the Crown or the Welsh Ministers: Public Appointments Order in Council 2015
Oversight by Commissioner for Public Appointments for Northern Ireland of appointments by NI Departments: Commissioner for Public Appointments (Northern Ireland) Order 1995
Oversight by Commissioner for Ethical Standards in Public Life in Scotland of appointments by the Scottish Ministers: Public Appointments and Public Bodies etc. (Scotland) Act 2003

(If appointments to a body are to be monitored by the UK or NI Commissioner, the body should be listed in the next Order in Council replacing or amending the current Order.)

Disqualification from membership of legislature

House of Commons: House of Commons Disqualification Act 1975
Northern Ireland Assembly: Northern Ireland Assembly Disqualification Act 1975
Senedd Cymru: section 16 of the Government of Wales Act 2006 (if members or employees are to be disqualified, this should be done by amending Part 2 of Schedule 1A to the 2006 Act or by Order in Council under section 16, depending on whether they are to be disqualified from standing for election or only from taking up office if elected)
Scottish Parliament: Order in Council under section 15 of Scotland Act 1998

Civil service pensions

UK: Superannuation Act 1972 and Public Service Pensions Act 2013
NI: Superannuation (Northern Ireland) Order 1972 and Public Service Pensions Act (Northern Ireland) 2014 Freedom of information
UK, England, Wales and NI public authorities: Freedom of Information Act 2000
Scottish public authorities: Freedom of Information (Scotland) Act 2002

Public records

Records of UK Government departments and sponsored bodies: Public Records Act 1958
Welsh public records: Government of Wales Act 2006, sections 146-8 (but until an order is made under section 147, the Public Records Act 1958 applies)
Records of Scottish public bodies: Public Records (Scotland) Act 2011
NI records: Public Records Act (Northern Ireland) 1923

Ombudsmen

UK Government departments and other bodies exercising non-devolved functions: Parliamentary Commissioner Act 1967
Wales: Public Services Ombudsman (Wales) Act 2019
Scotland: Scottish Public Services Ombudsman Act 2002
NI: Public Services Ombudsman Act (Northern Ireland) 2016

Public sector equality legislation

GB: Equality Act 2010, Part 11 (general public sector equality duty and specific duties imposed by a Minister of the Crown, the Welsh Ministers or the Scottish Ministers)
NI: Northern Ireland Act 1998, sections 75 and 76 (general public sector equality duty and prohibition on religious discrimination)

Reviews and investigations by other Commissioners

Wales:

Review by Children’s Commissioner for Wales of the effect of a body’s exercise of its functions on children: Care Standards Act 2000, Part 5
Review by Older People’s Commissioner for Wales of the effect of a body’s exercise of its functions on older people: Commissioner for Older People (Wales) Act 2006
Potential for body to be required to comply with Welsh language standards enforced by the Welsh Language Commissioner: Welsh Language (Wales) Measure 2011
Duty of public bodies to carry out sustainable development, subject to examination by the Auditor General for Wales and review by the Future Generations Commissioner for Wales: Well-being of Future Generations (Wales) Act 2015

Scotland:

Requirement for body to produce code of conduct for members, and power for the Commissioner for Ethical Standards in Public Life in Scotland to investigate alleged breaches of the code: Ethical Standards in Public Life etc. (Scotland) Act 2000

Northern Ireland:

Review by Northern Ireland Commissioner for Children and Young People of arrangements made by authorities and investigation of complaints that they have infringed the rights or adversely affected the interests of a child or young person: Commissioner for Children and Young People (Northern Ireland) Order 2003
Review by Commissioner for Older People in Northern Ireland of arrangements made by authorities and investigation of complaints that they have adversely affected the interests of an older person: Commissioner for Older People Act (Northern Ireland) 2011.

Question 4

Strategies

Accepted Answer

Description of legislative solution

This legislative solution deals with provisions to give effect to a policy desire for a person to be required to formulate a strategy in relation to a particular objective.

A relevant objective might be the achievement of a particular goal or task, or the tackling of a particular problem or challenge.

Why have a strategy?

Whether to address a problem by way of a legislating for a strategy is, ultimately, a policy question. There might be many reasons for proceeding in this way. To give direction or focus to activity in a particular area? To get various agencies to pull together? To drive activity in relation to a new social value or goal? To make transparent the way in which a person is working? To deliver a degree of “soft” accountability, in the sense of there being a document which gives rise to political accountability even if there are no legal sanctions for non-delivery? Considering these questions is central both to determining whether a strategy is the right policy choice and if so, what the content of the provision needs to be.

Strategy provisions are popular, but do give rise to an ongoing administrative burden. This burden may be difficult to lift even if, many years later, the issues with which the strategy is concerned are very much diminished in importance

Elements of the legislative solution

1. Duty to formulate a strategy

Basic idea: requirement for a person to formulate a strategy in relation to an objective.

1.1 Need to describe the objective: i.e., what is it that is to be achieved, or helped to be achieved, by the strategy? May be quite specific (e.g., meeting a target) or more general (e.g., achieving a certain goal or furthering a certain longer term aim).

1.2. Need to describe the goal of the strategy in relation to the objective, e.g.—

achieving it;
helping to achieve it.

1.3. Need to say who is to formulate the strategy. If more than one person, need to say how, legally, they are to work in relation to the formulation of the strategy.

1.4. Need to say whose action is to be regulated by the strategy.

1.5. Need to describe the content of the strategy, e.g.—

how the objective will be achieved or furthered;
what action is intended in pursuance of achieving the objective;
how progress is to be measured.

1.6. Need to describe whose action it is which is to be the subject of the strategy: the person formulating the strategy or someone else? Both?

1.7. Over what period is the strategy to be for?

Fixed period, e.g., 3 or 5 years?
Indeterminate?

The answer here may depend on the nature of the strategy.

2. Format of the strategy

2.1. How is the strategy to be embodied?

Simple requirement to have a strategy?
Or a requirement to embody the strategy in a document?

2.2. If the strategy is to be set out in a document, should the document be made public in any way (e.g., published, sent to particular persons, laid before the legislature)?

3. Formulation of the strategy

How is the strategy to be formulated?

3.1. Requirement to consult particular people? If so, is consultation general or on a draft of the strategy?

3.2. Requirement to have regard to particular issues, needs or information?

3.3. If not prepared by Ministers, requirement to involve them? Sometimes strategy must be submitted in draft for Ministerial approval. If so, should Ministers be able to amend? What is to happen if Ministers reject?

3.4. Requirement to obtain agreement of persons subject to the strategy before including material about them?

4. Legal consequences of the strategy

4.1. Is there to be any legal consequence in relation to the strategy?

Not always essential. The existence of the strategy gives rise to a degree of political accountability.

4.2. Sometimes legal consequences are imposed in relation to the achievement of the objective of the strategy, e.g.—

requirement to, or to endeavour to, achieve it;
reporting on progress in achieving it.

In such cases, it is probably unnecessary to create legal consequences in relation to the strategy as well.

4.3. Alternatively, may (but as noted above do not need to) create legal consequences in relation to the strategy, e.g.—

May go so far as a requirement on some person to “follow” or “act in accordance with” the strategy.
Alternative options include a requirement on some person to “have regard to” the strategy.

4.4. Choices here depend on the nature of the objective, e.g.—

If a specific objective such as the meeting of a target, may be more appropriate to create legal consequences in relation to the objective. For example, the objective might be to eradicate carbon emissions. It is the failure to do so that matters here, not the failure to follow the strategy.
If the objective is more uncertain such as “promotion” of some social issue, may be more appropriate to create legal consequences in relation to the strategy. For example, there might be an obligation to have a strategy promoting low carbon living. It is the following of the strategy (or having regard to it) which is important.

4.5. Obligations may be placed on the person whose strategy it is, or on other persons.

4.6. Ministers may be given powers to direct persons to take steps to implement the strategy.

5. Changing the strategy

5.1. What scope should there be for changing the strategy?

None?
Free to revise at will?
Requirement to review or act on particular information to revise?
Requirement to review may be ongoing (i.e., “to keep under review”) or to be done at or before the expiry of set intervals.

5.2. What should the procedure be for changing the strategy?

Usually corresponds with the requirements for preparing the strategy in the first place.
Sometimes relaxed where the proposed changes will not materially alter the strategy.

5.3. If the strategy is changed, should there be any requirements to make the change public?

Usually corresponds with the requirements for making the strategy public in the first place.
Sometimes those requirements are relaxed where the proposed changes will not materially alter the strategy.

A strategy as described above is about action in pursuance of a particular objective. It can in a narrow sense be distinguished from an obligation to identify the objective itself. Often that objective is stated in the legislation. However, it is perfectly possible for obligations to be put on a person both to identify objectives and to articulate the action to be taken in pursuance of their achievement. Whether in such a case it is right to describe the resulting document as a “strategy” is a moot point, but there are certainly examples of such obligations comprising both elements being called strategies. Drafters can advise on the best language to use in individual cases.

A strategy can also be distinguished from the placing on a person of obligations to set out how they will carry out particular functions without any link to the achievement of particular objectives. Such obligations are, perhaps, further away from a strategy itself and might be more properly be encapsulated in a “plan”. Again, however, the best language to use is a matter where drafters can advise.

However these related forms of obligation are characterised and described, many of the elements described above will apply in relation to them.

Examples of the legislative solution

Domestic Abuse Act 2021, section 13
Scottish Biometrics Commissioner Act 2020, Section 28
Scottish National Investment Bank Act 2020, Sections 13 and 15
Parliamentary Buildings (Restoration and Renewal) Act 2019, Section 5
Scottish Crown Estate Act 2019, Section 22
Transport (Scotland) Act 2019, Part 1 (National Transport Strategy)
Fuel Poverty (Targets, Definition and Strategy) (Scotland) Act 2019, Section 6
Legislation (Wales) Act 2019, Section 2
Islands (Scotland) Act 2018, Section 3
Social Security (Scotland) Act 2018, Section 8
Forestry and Land Management (Scotland) Act 2018, Sections 3 to 7
Child Poverty (Scotland) Act 2017, Section 3 (delivery plan)
Higher Education and Research Act 2017, Sections 99 and 100
Public Health (Wales) Act 2017, Parts 2 and 8
Immigration Act 2016, Sections 2 and 5
Carers (Scotland) Act 2016, Part 5
Modern Slavery Act 2015, Section 42
Infrastructure Act 2015, Section 3 and Schedule 2S
Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015, Sections 3 to 8, 12 and 13
Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, Sections 12 and 19
Children’s Services Co-operation Act (Northern Ireland) 2015, Section 3
Procurement Reform (Scotland) Act 2014, Sections 15 to 17
Housing (Wales) Act 2014, Sections 50 and 52
Health and Social Care Act 2012, Section 193
Autism Act (Northern Ireland) 2011, Sections 2 and 3
Child Poverty Act 2010, Sections 9 to 13 (now repealed, but still a relevant example)
Flood and Water Management Act 2010, Sections 7 to 12
Homelessness Act 2002, Section 3
Warm Homes and Energy Conservation Act 2000
Financial Services and Markets Act 2000, Section 2E
Greater London Authority Act 1999, Sections 41 to 44 (and the various specific strategies in the Act)
Petroleum Act 1998, Sections 9A to 9C
Crime and Disorder Act 1998, Section 6
Environment Act 1995, Section 80

Question 5

Collaboration

Accepted Answer

Description of the legislative solution

This solution is designed to impose specific duties on two or more parties to work with each other if certain criteria are satisfied.

This may involve a party delegating functions to another body, a party exercising functions on behalf of another body, a party assisting another body with its functions, a body co-ordinating functions for another body or two parties jointly exercising functions. Other activities are possible.

The purpose of such collaborative arrangements may be to increase efficiency, although different purposes may be specified.

This solution forms part of a category of legislative solutions that relate to cooperation and joint working. See below for a description of some of these other solutions.

This solution forms part of a category of legislative solutions that relate to bodies working together. These include:

The general cooperation solution, which is where bodies are put under a general duty to cooperate with each other.
The joint working solution, which is usually somewhere between the general cooperation solution and the collaboration solution in terms of how intense the duty is.
The asymmetric duty solution, which is where a body is simply required to provide another body with help or resources. This is done using simple duties but can achieve the same effect of a collaboration (such as efficiencies etc).

Elements of the solution

1. Define collaboration arrangements

What kind of collaboration arrangements are envisaged?

For example, the parties might only be required to assist in the exercise of the other parties’ functions. This is relatively light touch.
However, many collaborations involve either:
- the parties discharging functions jointly, or
- one party discharging functions on behalf of another party.
In addition, the focus of the collaboration may be on ‘back office’ functions or on operational functions (a collaboration would usually stop short of a full merger).

Each form of collaboration has different implications, which need to be considered. For instance, if one party should be able to discharge the functions of another party, the following points need to be considered:

Who should be responsible for the exercise of the functions?
Are powers of delegation required to effect the collaboration?
Should the party that is exercising the functions be able to charge a fee for providing the service?
Should the arrangement be symmetrical (each party being able to exercise the other’s functions) or asymmetrical (one party being able to exercise the functions of another, but not the other way round)?

2. Is legislation needed?

Depending on the kind of collaboration that is intended, there is the question of whether legislation is needed to achieve this. Legal advice will be needed to answer this question.

3. Identify parties

Who is to be the subject of the collaboration arrangements? For instance, two or more categories of public bodies could be involved. This is a basic requirement.

Should it be possible for additional, non-specified parties to be involved in the arrangements? For instance, it might be desirable to allow a contractor to be party to the arrangements if the contractor might actually perform the functions involved. This allows for more flexibility.

4. Identify functions

What functions should be subject to the collaboration agreement?

Will it be all or some of the functions of the parties involved?
If it is only some of the functions, is the dividing line between those functions and the body’s other functions sufficiently clear?

Is there a need to distinguish between “operational” and “back-office” functions? In some cases, the objective is to allow back-office functions to be merged without impacting operational functions. A particular example is collaboration between the emergency services.

5. Define purpose

Should the purpose of entering into the collaboration arrangements be defined? For instance, the collaboration could be for the purposes of:

Making the exercise of the parties’ functions more efficient,
Making the exercise of the parties’ functions more effective, or
Promoting the uptake of a particular service or product provided by the parties.

If a purpose is defined, this can be used as a relevant consideration for the parties. For instance, if a party is considering whether to enter into collaboration arrangements the body might be required to take into account whether the arrangements would be in the interests of efficiency or effectiveness.

6. Process of entering into collaboration arrangements

Should the parties be required to consider on an ongoing basis whether they should enter into collaboration arrangements with each other? This may be useful if there is a concern that the parties would not otherwise consider entering into such arrangements.

Should there be a procedure for how arrangements might be arrived at? Here is an example of a possible procedure:

Party A could consider that it is in the interests of its effectiveness to collaborate with Party B.
Party A notifies Party B of this.
Party B considers whether it would be in the interests of its own effectiveness to collaborate with Party A.
If Party B concludes that it would be, Party A and Party B must enter into collaboration arrangements.

What is to be the mechanism for parties to agree on:

the functions that will be subject of the arrangements, and
how they are to be exercised (whether jointly or by one party on behalf of another)?

Should there be a requirement to consult, and if so who should be consulted and how should they be consulted? Depending on the bodies involved, it may be desirable to have consultation requirements so that stakeholders’ views are taken into account.

Should it be possible for collaboration to be imposed on parties by way of a direction from Ministers (or a Northern Ireland department)? This may be needed if it is considered that the parties might not otherwise work together.

7. Restrictions

Should there be any exceptions to the requirement to collaborate? For instance, it may be that one of the parties has a particularly sensitive function that should not be subject to the arrangements.

Do special considerations need to be taken into account when considering whether to collaborate? Again, a party may have a sensitive functions that should be given particular regard before collaborating.

Are special consultation requirements required for any of the parties? For instance, some bodies are overseen by others and it might be appropriate for that party to consult the overseer before entering into arrangements (for instance, some police forces are overseen by police and crime commissioners or by policing boards).

8. Effect of collaboration arrangements

Consider whether the functions that are the subject of the collaboration agreement are to be exercised on the basis of the parties’ current powers, or whether new powers are required. For instance, it may be that some of the parties do not have sufficient powers to delegate functions.

It may be that the policy is to ensure that the parties simply have sufficient powers to give effect to the collaboration. If so, it may be that a general power is needed to allow the parties to do anything “necessary or expedient” in relation to the collaboration. However, if the policy is not to give any significant new powers to the parties, such a power may need to be qualified by reference to any other legal restrictions imposed on the parties.

If Party A is exercising the functions of Party B under the collaboration arrangements, should Party B still be able to exercise those functions? Or should Party B be unable to exercise those functions?

Should a duty to take all reasonable steps to give effect to the collaboration be imposed on the parties? It may be thought that the parties need to be further encouraged to collaborate once the arrangements are in place.

9. Additional matters to consider

The following issues will need to be considered:

Payments: Should the parties be allowed to make payments to each other in pursuance of the collaboration agreement? This is particularly relevant in cases where a body is exercising the functions of another body.

Formal requirements: Is the collaboration to be contained in a document? Should it be published? Should Ministers (or a Northern Ireland department) be informed?

Sanction: Should there be an explicit sanction for any failure to comply with any of duties relevant to entering into collaboration arrangements? An alternative is to rely on judicial review if the only parties to the agreement are public bodies.

Ending collaboration: How, and in what circumstances, is (or may) the collaboration to be brought to an end? An example might be a time limit, although another option would be to allow the parties to withdraw from the arrangements if it no longer served its purpose (such as efficiency).

Variation: Consider how, and in what circumstances, the parties can vary their collaboration arrangements.

Information sharing: Consider whether any information sharing powers are required, and if so whether anything needs to be said about the use of shared information.

NB: legal advice may be required as regards information sharing and data protection.

Guidance: Should there be a power or duty to provide guidance about collaboration arrangements for the parties?

Devolution: If the collaboration will involve bodies across jurisdictions, are there any special considerations? For instance, are technical provisions required to make this work? Legal advice will be needed on this point.

Dispute resolution: Is a mechanism needed to address situations where a collaboration breaks down or is threatening to break down?

Scrutiny / accountability: Is there a need to have a mechanism that allows for scrutiny of the collaboration? For instance, a reporting requirement on the parties might assist with this.

Question 6

Examples of the legislative solution

Accepted Answer

Domestic Abuse Act 2021, Part 3 (domestic abuse protection notices and domestic abuse protection orders)
Sentencing Act 2020 (the “Sentencing Code”) includes the following “behaviour orders” for England and Wales which may be imposed in criminal proceedings on a person who has been convicted of an offence –
- Criminal behaviour orders (Chapter 1 of Part 11);
- Sexual harm prevention orders (Chapter 2 of Part 11);
- Restraining orders (Chapter 3 of Part 11);
- Parenting orders (Chapter 4 of Part 11);
- Binding over (Chapter 5 of Part 11).
Prohibition of Female Genital Mutilation (Scotland) Act 2005, Sections 5A to 5R – inserted by the Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020, section 1 (female genital mutilation protection orders). Note in particular the extra-territorial effect provisions: see Sections 5A(6) and (7) and 5B(2)(a).
Offensive Weapons Act 2019, Part 2 – introduced knife crime prevention orders.
Abusive Behaviour and Sexual Harm (Scotland) Act 2016, Part 2 – replaced sexual offences prevention orders and risk of sexual harm orders in Scotland with sexual harm prevention orders (Chapter 3) and sexual risk orders (Chapter 4).
Housing and Planning Act 2016, Chapter 2 of Part 2 – introduced banning orders for rogue landlords and property agents.
Human Trafficking and Exploitation (Scotland) Act 2015, Part 4 – introduced trafficking and exploitation prevention and risk orders.
Modern Slavery Act 2015, Part 2 – introduced slavery and trafficking prevention and risk orders.
Counter-Terrorism and Security Act 2015, Chapter 2 of Part 1 – introduced temporary exclusion orders for persons suspected of involvement in terrorism.
Anti-social Behaviour, Crime and Policing Act 2014, Parts 1 and 4 – replaced ASBOs in England and Wales with injunctions (Part 1); also introduced community protection notices (Chapter 1 of Part 4) and public space protection orders (Chapter 2 of Part 4).
Terrorism Prevention and Investigation Measures Act 2011 – replaced control orders with terrorism prevention and investigation measures (TPIMs).
Control of Dogs (Scotland) Act 2010 – introduced dog control notices.
Serious Crime Act 2007, Part 1 – introduced serious crime prevention orders (England and Wales, and Northern Ireland).
Prevention of Terrorism Act 2005 – introduced control orders.
Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, sections 2 to 8 – introduced risk of sexual harm orders for Scotland.
Antisocial Behaviour etc. (Scotland) Act 2004, Part 2 – introduced new kind of ASBOs for Scotland.
Anti-social Behaviour (Northern Ireland) Order 2004
Sexual Offences Act 2003 – introduced:
Sexual harm prevention orders (England and Wales: sections 103A to 103K); see also Chapter 2 of Part 11 of the Sentencing Act 2020
Sexual offences prevention orders (Scotland: Sections 104 to 113) (to be repealed)
Sexual risk orders (England and Wales: Sections 122A to 122K)
Risk of sexual harm orders (Northern Ireland: Sections 123 to 129)
Criminal Justice and Police Act 2001, Section 33 – travel restriction orders (in connection with drugs offences).
Crime and Disorder Act 1998, Part 1 – introduced anti-social behaviour orders (ASBOs), and also parenting orders and child safety orders. As regards parenting orders, see also, for England and Wales, Chapter 4 of Part 11 of the Sentencing Act 2020.
Protection from Harassment Act 1997 and Protection from Harassment (Northern Ireland) Order 1997 – introduced restraining orders and non-harassment orders.
Part 2 of the Football Spectators Act 1989 – banning order (on conviction of certain offences) (England and Wales).
Company Directors Disqualification Act 1986 – disqualification order preventing a person from being a company director.
Licensed Premises (Exclusion of Certain Persons) Act 1980 – exclusion orders (in connection with offences on licensed premises) (England and Wales, and Scotland).

Note regarding instructing for Scotland

Consider speaking to officials in the Scottish Government’s Justice Directorate, the Lord President’s Private Office and the Scottish Courts Service when instructing this legislative solution. Practical difficulties have arisen in the Scottish courts over particular aspects of some of the UK statutes listed above due to the conferral of a civil jurisdiction on the High Court of Justiciary, and there is an institutional preference for bespoke provision in the manner of e.g. the Antisocial Behaviour etc. (Scotland) Act 2004.

Ultimately the guidance here should not be viewed in isolation. Previous examples of this solution may not be suitable or helpful for the policy needs of the new legislation which is being instructed.

Question 7

Designation of bodies

Accepted Answer

Description of legislative solution

This legislative solution allows a body to be identified to perform certain, often specialist, functions. For example, a higher education regulator might want the assessment of the standards of higher education providers to be conducted by a specialist assessment body.

In many cases, the body must be either representative of a sector or otherwise suitable to be designated to perform the functions. The terms of the designation need to be considered.

The solution provides some flexibility, can ensure that functions are performed independently and by experts, and can also restrict the kind of bodies that may be designated.

NB: In some statutes, the language of “recognition” is used instead of “designation”.

The statutory corporation solution could be used to establish a body or person, which could become designated under this solution.

Elements of the solution

1. Identify functions to be designated

What are the functions that the designated body will be required to perform?

Are they functions that the body already exercises?
Or are they functions that the body will need to exercise in addition to its current functions?
- If so, will further powers be required?

In some cases, the designated functions will be existing Ministerial functions ^{[footnote 3]} and the policy is that an external body would be better placed to perform those functions.

In other cases, the policy will be that new functions should be performed by a body – if so, the new functions will need to be identified.

2. Identify type of body

Should the designated body be a public body or a private body (perhaps performing public functions)? If it is a private body, there may be implications in terms of how to enforce any duties (such as through the use of injunctions).

Should the body be a body corporate? This may not be necessary and depending on the designated functions, they could be performed by an individual or an unincorporated association.

Should the body be based in the UK? It may create inflexibility to specify this.

3. Process of establishing a designation

The process of establishing which body should be designated, and which functions it should perform, is important. However, the legislation may be more or less detailed depending on the policy and the circumstances.

A less elaborate way of designating a body is to simply leave it to the discretion of a Minister or whichever relevant authority has the power to designate. Secondary legislation could also be used. However, who does the designation should be identified.

A more elaborate way of designating a body could be as follows. This assumes that an authority (such as a regulator) has the power to designate.

Before recommending a designation, the authority conducts a consultation with relevant stakeholders.
Having consulted, the authority decides whether to recommend the body to perform the functions.
The authority notifies the body (and Ministers if desired) of its decision.
The body is then designated (subject to the agreement of Ministers if desired). A parliamentary procedure might be used, such as notifying Parliament or using secondary legislation.
In each of the powers described in these steps, the powers could be duties.

4. Suitability of the designated body

It is usual for a body to be designated only if it is suitable. Whether that is defined or implied is a policy question.
- If suitability is defined, the following points could be considered:
  - Should there be a requirement for the body to be representative of the sector? If so, what is wanted in this regard?
  - Should there be a requirement that the body is capable of performing the designated functions properly? If so, what is wanted in this regard?
  - To the extent that the above issues are matters of opinion, who is to judge whether the criteria are met?
  - Has the body agreed or applied to perform the designated functions?

5. Effect of designation

Where there is a designation in place, the following things should be considered:
- If the designated body is performing functions of another body, should that other body be able to continue to exercise those functions?
- Are there any additional duties, such as reporting or information sharing duties that should apply to the designated body?
- Are there any functions that the designated body should be prevented from performing whilst the designation is in place? This could address conflict of interest points.
- Also, if there is no designated body, who is to exercise

6. Oversight and withdrawal

Linked to the effect of the designation, oversight of the designated body needs to be addressed. The following should be considered:
- Should the designated body provide information to the authority which made the designation or anyone else?
- Should the designated body provide an annual report?
  - If so, what associated requirements are there? For example, the timing of the report and how it should be published.
- Should the authority be required to conduct reviews of the designated body every few years?
  - If so, what associated requirements are there? For example, the timing of the review and how it should be published.
- Should the authority be required to inform anyone if it has concerns about the performance of the designated body?
- Should the authority be able to give directions to the designated body?
This leads to a consideration of the circumstances when the designation should be withdrawn. These circumstances might include:
- Where the designated body is under-performing,
- Where the designated body and the authority agree, or
- When a specified time limit for the designation has run out.

7. Financial matters

Should it be possible to pay the designated body for performing the designated functions?
Should the designated body be able to charge fees for its services?

Question 8

Licensing

Accepted Answer

Description of legislative solution

This legislative solution involves making the doing of an otherwise lawful activity unlawful, unless done in pursuance of (and in accordance with) a licence. It is, therefore, a tool used to regulate and monitor a particular activity – or in other words to decide how it should be done. The power to grant licences may be conferred on a part of government or on another body or person. Licensing regimes range from the very simple (e.g., a dog licence or a TV licence – perhaps better regarded as a way of raising money rather than regulating the activity?) to the complex (e.g., planning permission or the licensing of the supply of electricity).

Notification regime

A close relation of this legislative solution is a notification regime, ie a regime that requires a person to notify a regulator of the person’s intention to do a particular kind of activity, with the regulator having certain powers in relation to the doing of the activity. An example of this is to be found in Part 2 of the Communications Act 2003 (which regulates certain providers of electronic communications services etc).

Registration regime

Another close relation is a registration regime, i.e., a regime that provides that a person may do an activity only if the person’s name appears on a register kept by an authority.

In substantive terms, in comparison to a licence there are usually fewer (or no) grounds for refusing an application to register, and little or no discretion about doing so. But complex registration regimes may provide for qualifications for registration, for conditions to be imposed and for registrants to be removed from the register if certain conditions are met (e.g., registration of doctors by the General Medical Council). In such cases, the difference between “licence” and “registration” may be minimal.

Elements of the legislative solution

1. Activity to be regulated

1.1. What is the activity that is to be subject to the licensing regime?

NB: there is an important link here to the issue of enforcement, considered below - doing the activity without a licence is almost invariably criminalised, so the activity must be defined with sufficient clarity to form the basis of an offence.

1.2. Should there be any exceptions, i.e., any persons who may do the activity without a licence or any other cases in which the activity may be done without a licence?

For example, if the activity is something that may be done by a public authority as part of, or incidentally to, its functions, should the public authority require a licence? Does anything need to be said about this in order to achieve the right result^{[footnote 4]}?

2. The licensing authority

2.1. What body or other person is to grant licences?

2.2. Is there a single body for the regime or a number of local bodies e.g., councils (or a mixture of the two)?

2.3. If local bodies are to issue licences: are the licences in respect of each body’s area only, or do they have effect generally? If the latter, what are the implications as regards enforcement? Can local bodies act together and issue a joint licence or parallel local licences?

3. Applications for licences

3.1. Who may apply for a licence (anyone, or only certain kinds of person)?

3.2. Should a licence authorise only the legal person to whom the licence is granted, or should it also authorise the activities of others? If the latter, does anything need to be said about this in order to achieve the right result? For example, should a licence granted to a company authorise employees and/or agents of the company? Or if the licence relates to activity on land, should a licence granted to the owner of the land authorise the activity on the land, regardless of who does it?

3.3. Should it be possible to grant a licence jointly to two or more people (where this makes sense in terms of the activity to be regulated)?

For example, if the licence relates to activity on land or in a building, what is to happen where the land or building is jointly owned?

3.4. Are there to be any restrictions on the circumstances in which applications may be made?

4. Grant or refusal of application for licence

4.1. Should there be a discretion to grant a licence, or a duty to grant one (except in certain cases)?

If a discretion, do any conditions need to be met in order for a licence to be granted? Are they matters of fact or opinion?
If a duty, what are the cases where there is no duty to grant? Are they cases where there is a duty to refuse the application, or is there still a discretion to grant a licence?

4.2. What kinds of activity should a licence actually authorise, and to what extent should the activity be authorised?

For example, should a licence authorise:

the whole range of the regulated activity,
a certain sub-set of that activity (e.g., driving only certain types of vehicle, or entering into only certain kinds of credit agreement), or
a particular example of the activity (e.g., a licence for a particular vehicle or for particular premises to be used as a house in multiple occupation)?

4.3. What should the duration of a licence be?

4.4. May conditions be imposed on the doing of the activity?

If so:

What kinds of conditions?
Should all the permitted conditions be set out in the legislation (so that the person granting the licence can or must choose between them), or should there be a wider discretion to impose conditions of their own devising (if so provide some examples of conditions - take particular care if a condition might confer a discretion on a person, e.g., by referring to things approved or specified by a person)?
Should there be “standard” conditions which must be included in the licence, or are automatically included unless the authority decides otherwise?

4.5. What is the procedure for applications?

In particular:

Should the applicant be entitled to prior notice of an intended refusal? Or to a hearing where it is proposed to refuse the application?
Should the licensing authority be permitted or required to consult others about granting a licence?

See section 12 below for points to consider if third parties may have an interest.

5. Amendment of licences

5.1. Should amendments of licences be possible? If so, consider the following.

5.2. Should the licensee (i.e., the licence holder) be able to make an application for amendment?

5.3. Should the licensing authority be able to amend the licence on its own initiative?

5.4. Should someone other than the licensee or the licensing authority be capable of applying for it to be amended?

5.5. In relation to any application to amend:

Should there be any restrictions on making applications?
Should any conditions need to be met in order for the licence to be amended?
Should the power to amend be unlimited or may the licence be amended only in certain ways and/or in certain circumstances?
What is the procedure for considering applications for amendment of licences (see the questions above as regards the procedure for applications for licences)?

5.6. Similar questions arise as regards the making of amendments by the licensing authority of its own initiative. Additional questions (as regards procedure) in such a case are:

Should there be a requirement to give the licensee notice of a proposed amendment?
Should there be a requirement to give the licensee an opportunity to make representations about the proposed amendment?

6. Transfer of licences

6.1. Should it be possible for a licence to be transferred from one person to another? If so:

Should it be possible for an application to be made for the transfer of the licence?
Should there be any restrictions on making such applications?
Should any conditions be met in order for the licence to be transferred?
See the questions above about the procedure for considering applications for licences.

6.2. Does anything need to be said about situations where a person’s property transfers by operation of law, e.g., the insolvency or death/dissolution of the licensee?

7. Suspension/revocation/surrender of licences

7.1. Should the licensing authority be able to suspend the licence?

If so:

Should it be able to do so only on certain grounds (if so what are they)?
Should there be any restrictions on the period for which a licence may be suspended (if so, can the period be extended and if so how)?
What is the procedure for suspending the licence? In particular, does notice of a proposed suspension need to be given and does the licensee need to be given the opportunity to make representations about the suspension or proposed suspension?
Should a suspension be capable of being lifted (otherwise than at the end of any fixed period of suspension), and if so how?
What should the effect of suspension be (e.g., should the licence be treated as not existing for all purposes, or if fees are payable from time to time should they still be payable)?

7.2. Should the licensing authority be able to revoke the licence?

If so:

Should it be able to do so only on certain grounds (if so what are they)?
What is the procedure for revoking the licence? In particular, should there be a requirement to give notice of a proposed revocation and should the licensee be given the opportunity to make representations about the proposed revocation?
Is any transitional provision needed in the event of a revocation (eg regarding activity which already underway when the licence is revoked and cannot easily be stopped)?

7.3. As regards suspension or revocation, should partial suspension or revocation be possible? If partial revocation is to be possible, consider the potential for overlap between that and the amendment of a licence by the licensing authority of its own initiative.

7.4. Would compensation need to be paid where a licence is revoked or suspended?

7.5. Should the licensee be able to surrender the licence? If so:

Are there to be any restrictions on this?
What is the procedure for surrendering a licence?
If there is a licence fee, is the licensee entitled to a pro rata refund?

8. Renewal of licences

8.1. If a licence is valid for a particular period, can it be renewed?

8.2. If so, in what respects (if any) should the process of renewal differ from the process of applying for a licence?

8.3. Does anything need to be said about the continuation of the licence while the renewal application is being processed (or is the idea that any renewal should occur before the end of the period for which the licence is valid)?

9. Fees

9.1. Are fees payable? If so, the following issues arise.

9.2. Are they payable in respect of applications and/or appeals?

9.3. Are they payable in respect of licences? If so, is there a one-off charge or is a fee payable in respect of each period (e.g., year), so long as the licence is in force?

9.4. How are the fees to be set?

If in primary legislation, should there be a power to amend?
If in subordinate legislation, what procedure?
If less formally: should there be constraints on the power? Should there be a duty to (a) consult before setting the fee (b) publish the licensing authority’s fee-setting policy (c) publish the amount of the fee?

9.5. Should it be possible to set different fees for different cases (if so, provide examples)?

9.6. What are the consequences of not paying a fee (e.g., if an annual fee is payable, should the licence be suspended or revoked? If so, should this occur automatically, or be a ground for suspension/revocation?)

9.7. Are there any restrictions in other legislation as regards the amount of the fee, and if so does anything need to be said about this?

10. Appeals

10.1. Is there a right of appeal against administrative decisions? If so, see the legislative solution on appeals against administrative decisions.

11. Applications and appeals: contents, form etc

11.1. What provision is wanted as to the contents and form of applications and appeals, and the way (or manner) in which they must be made?

11.2. Should applicants be required to provide copies of documents?

11.3. What provision is to be in primary legislation, what in subordinate legislation, and what requirements are to be imposed more informally (e.g., by the giving of a general direction)?

11.4. Should the licensing body be able to require an applicant to provide further information/documents? If so, should failure to comply entitle the licensing body not to proceed with the application and/or to refuse it?

11.5. Should the licensing authority be required to process applications within a time-limit? If so how is that requirement to be enforced?

12. Applications and appeals: interests of third parties

12.1. Do third parties have an interest in whether the licence is granted and/or any licence conditions? Compare, for example, a TV licence with a licence to incinerate waste on a commercial basis.

12.2. If third parties may have an interest, consider:

whether, and how, particular interested parties or the public at large should be informed when applications and/or appeals are made (e.g., should there be a duty to publish notice of the application/appeal);
whether interested parties should be given the opportunity to make representations in relation to any application or appeal;
whether any interested party should be able to appeal against the grant of a licence (or in respect of the conditions of a licence).

See also the questions above about the licensing authority consulting others and the legislative solution on appeals against administrative decisions.

13. Enforcement

13.1. How is the prohibition on undertaking the activity without a licence to be enforced?

13.2. Are any powers of entry, search or inspection required? See the powers of entry, inspection, search and seizure legislative solution.

13.3. Are any powers of arrest or detention required?

13.4. Should there be a (criminal) offence? See the criminal offences legislative solution. If so, should it be an offence simply to undertake the activity without a licence, or would acting in that way be a ground for issuing an enforcement notice or compliance notice (breach of which would be an offence)? See the civil sanctions legislative solution.

13.5. If there is to be an offence, is the policy to allow fixed penalty notices? See the legislative solution for fixed penalty notices.

13.6. An alternative is a civil monetary penalty regime – see the civil sanctions legislative solution.

13.7. If the authority is to have power to impose conditions as part of the licence, how should those conditions be enforced? (Offence? Ground for revoking the licence?)

14. Publicity

14.1. Is anything wanted to enable the public to know whether a person has a licence (eg a requirement to display the licence at a place of business or to state the licence number in business documentation)?

14.2. Is there to be a register of licences, and if so what is it to contain and who may have access to it?

15. Objectives/guidance

15.1. Is there a desire to set out objectives that guide the whole system? If so, should they be set out in primary or subordinate legislation, or issued more informally?

15.2. Should someone have a power or duty to issue guidance as regards the operation of the licensing system? If so, should there be a duty to consult before issuing guidance? Is a duty to publish guidance required?

Question 9

Powers of entry, inspection, search and seizure

Accepted Answer

Description of the legislative solution

This solution confers, and regulates, the power to enter premises and to inspect or search them, possibly seizing and removing items found there. Such powers are usually – but not always – exercised for the purpose of finding out whether a criminal offence has been committed.

The power to enter premises may be conferred on constables or on other public officials (such as employees of a Department, a local authority or a statutory body).

The Home Office Code of Practice on Powers of Entry issued under sections 47 to 53 of the Protection of Freedoms Act 2012 gives further information and guidance regarding “non-devolved” powers of entry (see section 47 of the Act for detail about what “non-devolved” means here). ‘Relevant persons’ as defined in those sections must have regard to the guidance.

Elements of the solution

1. Are new powers of entry needed?

Two initial issues are:

1.1. What is the purpose of any proposed new power (for example, to investigate an offence or to facilitate the exercise of some other function)?

1.2. Is a new power necessary? It may be that existing powers are sufficient to meet the policy intention.

The following powers of entry are of general application:

In England and Wales, and probably in Northern Ireland, a power exists at common law for constables to enter premises to deal with or prevent a breach of the peace. In Scotland the police have some powers of entry at common law when (a) they are in close pursuit of someone who they believe has committed, or is about to commit, a serious crime; (b) they detect a disturbance; or (c) they hear cries for help or of distress.
In England and Wales and Northern Ireland, a power for constables with a warrant to enter premises in connection with the investigation of indictable offences: see section 8 of the Police and Criminal Evidence Act 1984 (“the PACE Act”) and Article 10 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (“the PACE Order”).
In England and Wales and Northern Ireland, a power for constables without a warrant to enter premises for a number of specified purposes, mostly to do with arresting persons for certain offences or recapturing persons unlawfully at large (see section 17 of the PACE Act and Article 19 of the PACE Order).
In England and Wales and Northern Ireland, a power for constables without a warrant to enter any premises occupied or controlled by a person who is under arrest for an indictable offence, if the constable has reasonable grounds for suspecting that there is evidence there that relates to that offence or another indictable offence (see section 18 of the PACE Act and Article 20 of the PACE Order).
In England and Wales and Northern Ireland, where a person has been arrested for an indictable offence, a power for constables without a warrant to enter any premises in which the person was when, or immediately before, being arrested, for the purpose of searching for evidence relating to the offence (see section 32 of the PACE Act and Article 34 of the PACE Order).

In each case it will need to be decided, in the light of the existing common law and statutory powers (whether or not listed above), whether new provision is necessary. Where a common law power already exists, that power could be replaced by a statutory power if it were considered desirable to do so (for example, in the interests of clarity or of updating the law), even though it is not strictly necessary.

Note also that sections 15 and 16 of the PACE Act and Articles 17 and 18 of the PACE Order provide various procedural safeguards for the operation of entry-and-search powers by constables under warrants (whether under that Act or Order or under other legislation). Where a new power is conferred on constables, some of the questions considered below will be answered by those sections/Articles. (Note that “constable”, in England and Wales and Northern Ireland, is not confined to police constables; for Northern Ireland, see section 43A of the Interpretation Act (NI) 1954.)

Schedule 5 to the Consumer Rights Act 2015 contains a generic set of investigatory powers for the enforcement of offences that may be committed by (broadly speaking) traders or those providing a business service to the public (such as estate agents). The powers are available to the enforcing authorities responsible for enforcing those offences – for example, district councils in England or Northern Ireland, or local weights and measures authorities in Great Britain. New provision may not be necessary if it’s appropriate to rely on those powers (or, perhaps, those powers could be varied or supplemented in certain respects as required).

There are other instances where legislation already provides for a set of investigatory powers in certain kinds of cases – an example is section 108 of the Environment Act 1995 in relation to pollution control.

2. If a new power of entry is needed, how will it be exercisable: only with a warrant, or without one?

Some powers of entry are exercisable only if a warrant is obtained. Others are exercisable without this requirement. If a new power is to be conferred, should it be exercisable only by warrant?

It is almost unheard of for a power to enter private dwellings to be exercisable without a warrant.
The following factors may tilt the policy balance in favour of requiring a warrant:
- Powers of seizure may be exercised on entry.
- The purpose of the entry is to allow a search to be carried out to ascertain whether an offence has been committed.
- Force may be used to effect entry.
- The powers are exercisable by persons other than constables or other law enforcement officers.
Sometimes a power is split into two, so that it is exercisable in some circumstances only with a warrant and in other circumstances without. See the splits between sections 239 and 240 of the Housing Act 2004 and between sections 62A and 62D of the Animal Health Act 1981 (on the one hand) and sections 62B and 62E of that Act (on the other).

Whether the power is to be exercisable with or without a warrant, what conditions (substantive and procedural) will need to be fulfilled before exercising the power?

If a warrant is to be required, the following matters will need to be resolved:—
- the grounds for the issue of the warrant (that is, the grounds for entry);
- who issues the warrant;
- who may apply for the warrant;
- who may execute the warrant (that is, who may exercise the power);
- the form and contents of the application;
- the contents of the warrant.

It will be necessary to specify most or all of these in the statute.

Where it is decided that the power of entry is to be exercisable without a warrant, the relevant statute will need to specify:—
- the grounds for the exercise of the power of entry;
- who may exercise the power.

In order to provide appropriate safeguards in the absence of a judicial warrant, powers exercisable without warrant are usually also subject to one or more other conditions prior to their exercise, such as:

authorisation by a senior official (a safeguard falling short of judicial approval);
the giving of notice to the owner or occupier of the premises.

All of these matters are dealt with below under separate headings.

3. Questions arising on warrant powers

3. 1. What are the grounds for the issue of the warrant to be?

The choice of grounds for the issue of a warrant will depend on the policy.
It is often the case that two different types of ground are set out, and that both need to be satisfied.
The first type of ground relates to why entry is required at all. It might be that there are reasonable grounds for suspecting that there has been a breach of a requirement and that there is material evidence on the premises, or that an offence is being committed on the premises. Or entry might be required in order to inspect or investigate some activity or state of affairs on the premises even if no wrongdoing is suspected.
The second type of ground relates to why a warrant (with the element of coercion which accompanies it) is justified. Commonly these are: that entry has been requested and has been refused, or is likely to be refused if it is requested; that the owner or occupier cannot be found; that requesting entry would defeat the purpose of the entry (such as by giving the occupier the opportunity to destroy evidence).
The usual test is that the person issuing the warrant must be “satisfied” that the grounds exist. Often there is an explicit test of reasonableness. It might be that the issuer must be satisfied that entry is “reasonably required” for one or more of the listed purposes. Or it might be that there are reasonable grounds for believing that a state of affairs exists.

3.2. Who is to issue the warrant?

In the vast majority of cases, the warrant is to be issued by (and the application is to be made to): in England and Wales, a justice of the peace; in Scotland, a sheriff, summary sheriff ^{[footnote 5]} or justice of the peace; in Northern Ireland, a lay magistrate.
In some exceptional cases, the power to issue a warrant is vested in a more senior judge.

3.3. Who may apply for the warrant and to whom is it issued?

Should the statute specify who is to make an application for a warrant? The person who exercises the power of entry may or may not be the same as the person who makes the application for the warrant. Some statutes make clear that the applicant and the executor may be different individuals, as when a warrant applied for by one official of a statutory body may be executed by any other official of it.
Some statutes specify the person to whom the warrant is issued, but not the person who is to execute it. In the absence of any indication to the contrary, the implication in such cases is probably that the warrant must be executed by the person to whom it is issued (and no-one else). But it is better to leave no doubt. See further below under “…who will be able to exercise the power?”.

3.4. What are the form and content of the application for a warrant?

Should the legislation spell out in any more detail what the application must contain? In particular, will the application be required to be supported by particular material or by evidence of a particular kind?
It is the usual - but not universal - practice to specify some formal requirements as to how the application is to be supported:
- For England and Wales, this is usually by “information in writing”, by “information [given] on oath”, or by “sworn information in writing”.
- For Scotland, all the above expressions are used, as well as “evidence on oath”.
- For Northern Ireland, it is by “complaint on oath”, by “complaint in writing” or by “a complaint in writing [and] substantiated on oath”.

3.5. What information should the warrant contain?

Should the legislation spell out what is to be contained in the warrant (such as the name of the applicant, the date of issue, the premises to be searched and the articles sought)?

3.6. How long should the warrant to be valid for? Will it authorise entry on more than one occasion?

Should there be a period within which entry must be effected (i.e., how long is the warrant to be valid for)? Many provisions require that a warrant must be executed within one month. Some provide for it to remain valid for three months. Occasionally, statutes provide that a warrant is to remain in force until it is executed.
Does the warrant permit entry on more than one occasion? The law on this point is not entirely clear, but from a drafting point of view, it seems that the only safe course is to assume that the result of silence will be that only one entry is permitted. If the policy is that more than one entry is to be possible under a single warrant, clear words to that effect will be needed.

4. Questions arising on powers exercisable without warrant

4.1. What are the grounds for exercising the power to be?

Even where a power is exercisable without warrant, setting out some grounds for its exercise is an essential element. These will often be similar to those discussed above (under the equivalent heading for warrant-based powers), except of course they will not be expressed as matters of which the issuer of the warrant must be satisfied. Instead, they will be expressed either as objective criteria or as matters of which the person exercising the power must be satisfied.

4.2. Should authorisation by a senior official be necessary?

Should the person seeking to exercise the power be required to obtain prior authorisation of a senior official in his or her organisation? This requirement is sometimes added as a safeguard against the improper use of the power.

4.3. Should notice to the owner or occupier be necessary?

Should the legislation require advance notice of the exercise of the power to be given to the owner and/or to the occupier of the premises? This is an important safeguard, but in some cases the giving of notice may defeat the purpose of the exercise of the power. Notice is more likely to be required where the power is exercisable in relation to a private dwelling.
Where notice is required, the legislation ought to indicate how much notice must be given. The appropriate length of the notice period will differ according to the circumstances. Should it be specified, or is “reasonable” notice sufficient?

5. Further questions arising in either case

5.1. Who should be able to exercise the power?

A statute will need to state:
- for a power exercisable by warrant, who is authorised to execute the warrant;
- for a power exercisable without warrant, who may exercise a power of entry.
Should the power be conferred on an artificial person (such as a body corporate)? If so, it must be remembered that the power of entry must ultimately be exercised by an individual. The most prudent course may be to require that the warrant be issued to an “officer” or “member [of staff]” of the body, or even that the warrant is to be issued to an individual named in it. If it is to be issued to an officer (or member of staff), can it be any officer (or member of staff) or must they be specified or authorised to perform this function on behalf of the body? If so, who should be able to authorise this? Should the legislation provide that the exercise of the power can be delegated to someone else (eg, if the warrant is issued in the name of the body, or to an officer but does not name him/her, can it be executed by another officer)?
Where an entry-and-search warrant is issued to a constable, the default position is that the warrant may be executed by any constable (not just the constable to whom it is issued): see section 16(1) of the PACE Act and Article 18(1) of the PACE Order. Where a new power exercisable by warrant is to be conferred on a constable in England and Wales or Northern Ireland, should this default position be changed?

5.2. Should the person authorised to exercise the power be able to take other persons?

Should it be possible for other persons to accompany the person exercising the power of entry? In the absence of express provision, it is unlikely that a power to take accompanying persons would be implied unless their presence is a necessary part of exercising the power or is otherwise clearly envisaged by the power.
If accompanying persons are to be permitted, what is their role to be? How much detail should be spelled out about this? In particular, should accompanying persons be required to be persons of a particular type (e.g., constables or particular types of inspector), or can they be anyone the person exercising the power thinks appropriate? Where the power is to be exercisable by warrant, should it be the case that the person exercising the power can bring other people with them only if authorised to do so by the warrant (and should the warrant have to name the person, or type of person, who can accompany them)?

5.3. What property (premises) should the power extend to?

If the power is to be exercisable in relation to “premises”, does anything need to be said about the meaning of that word in the particular context? Particular attention may need to be given to whether to include vehicles or vessels.
In particular, are there to be any special rules in relation to private dwellings (or other particular kinds of premises relevant to the context)? Should the power cover Crown property?
In the case of a warrant, should it be for specified premises or should it (exceptionally) be for “all premises” (see section 8(1A) of the PACE Act and Article 10(1A) of the PACE Order)?
Should there be any geographical limitations on the power of entry (e.g., is a power conferred on a local authority only to be exercisable in relation to premises in the area of the authority)?

5.4. At what time of day should the power be exercisable?

Should the power be exercisable at any time? Or only at a reasonable hour? Or at a reasonable hour unless it appears that the purpose of the entry may be frustrated if it is exercised at a reasonable hour?

5.5. Should there be a duty to produce the warrant or other evidence of the authority for exercising the power?

In the case of a power exercisable by warrant, should there be a duty to produce the warrant or a copy of it and/or other documentation to the occupier of the premises? If so, is that duty to arise only when production is requested (or, to the contrary, even in the absence of a request)?
In the case of power exercisable without a warrant, should there be a requirement to show documentation (such as written authority to exercise the power, or identification)? If so, should this duty arise only when production is requested?

5.6. Should it be permitted to use force in the exercise of the power?

Should anything be said about the use of force (bearing in mind that the law is unclear about whether force is permitted in the absence of words to that effect)?
In the case of warrants, should the use of force be authorised only if this is mentioned in the warrant? Or should the use of force be authorised (by words in the statute) on the basis of a warrant which is silent about it?

5.7. Should there be an express power to permit the taking of equipment onto the premises?

What equipment might be necessary or desirable for the purpose for which the entry is required?
Does anything need to be said to permit the bringing of that equipment onto the premises? (This is only likely to be necessary if the power of entry may entail the use of substantial equipment which would significantly interfere with the occupier’s rights over and above what would ordinarily be involved in such an entry.)

5.8. Should there be any associated powers, such as the power to require the occupier to produce documents or other items, or to require an explanation of matters, or to permit the seizure of property?

Is express provision needed about any of the following:

A power to inspect / examine / measure / sample any “items” or “things”
A power to inspect and take copies of or extracts from “documents” (or “records”, if that adds anything)
A power to “seize” (and “remove”? and “retain”?) items or things
A power to require others to provide an explanation of documents (or anything else)
A power to require others to provide assistance
How any of the above powers operate in relation to computers and IT equipment (including the possible need for a power to require the information to be rendered into visible and legible form, and made capable of being taken away).

5.9. If there is a power to search for or to seize material, should any particular material be excluded from the exercise of that power?

For example, should the power exclude material which is (in England and Wales or Northern Ireland) subject to legal professional privilege or (in Scotland) material in respect of which a claim to confidentiality of communications could be maintained?

5.10. If it should be possible to seize property, what is to happen to it?

A power to seize items is almost invariably accompanied by some provision about what is to happen to them afterwards.
Property seized by the police is governed, in England and Wales and Northern Ireland, by section 22 of the PACE Act and Article 24 of the PACE Order and by the Police (Property) Act 1897 and, in Scotland, by the common law (see also section 3I of the Victims and Witnesses (Scotland) Act 2014).
Where property is seized by persons other than the police, express provision is usually made reproducing at least some of the effect of section 22 of the PACE Act and Article 24 of the PACE Order.
One possibility is provision that “anything that has been seized or taken away under [this power] may be retained for so long as is necessary in all the circumstances”.
Other provisions expressly refer to use as evidence at a trial for a relevant offence and/or forensic examination or for investigation in connection with a relevant offence.
This is frequently combined with a qualification where the item itself is not needed, for example “no item may be retained for [those purposes] if a photograph or a copy would be sufficient for [them]”.
Alternatively, there may be a qualified duty to return items.
Occasionally, there is a power to destroy things that have been seized (for example, perishable goods), although care must be taken here to ensure compatibility with Convention rights.

5.11. Should there be an obligation to re-secure the premises against trespassers?

Should the legislation include provision requiring unoccupied premises to be left “as effectively secured against trespassers [or unauthorised entry] as when the person exercising the power found them” (or other words to similar effect)?
The inclusion of this obligation may be taken as an indication that force may be used in the exercise of the power (since if no force is required to enter a property, it is not secure against trespassers). If the policy is that force may not be used to exercise a particular power, then this provision should be included with caution (if at all).
Almost invariably, the obligation is imposed only when the premises are empty at the time of entry. (This suggests that its purpose is to prevent further entry by unauthorised persons rather than to compensate the property owner for damage to the property.)

5.12. Should there be a sanction for obstructing exercise of the power of entry (or associated powers)?

What sanction, if any, should the occupier of premises face for obstructing the exercise of a power of entry or failing to comply with requirements associated with such a power? This will need to be considered alongside the question of whether force may be used in the exercise of the power (because if force is not permitted, the sanction for obstruction may be the only means of ensuring that the power is effective).
Where the power of entry is conferred on a constable, no special provision is needed: it is an offence in all UK jurisdictions to wilfully obstruct a constable in the execution of his or her duty, or a person assisting a constable in the execution of his or her duty.
Some powers conferred on persons other than constables contain provisions making it an offence to obstruct that person in the exercise of the power.
A number of statutory provisions confer on someone entering premises the power to require persons on the premises to assist them in various ways. In such cases, it will be necessary to consider whether any general sanction for “obstructing” the exercise of a power should apply to a refusal to provide the assistance requested and, if not, whether there should be a separate sanction for failing to provide the requested assistance.

5.13. Should anything be said about the effect of failure by the person exercising a power to comply with any requirements concerning its exercise?

Entry to premises which is not authorised by a warrant or a statutory provision (or by the consent of the owner/occupier) will be unlawful and actionable in trespass.
But what if, where an entry is apparently authorised by a warrant or statute, there is a breach of one or more of the statutory requirements - for example, if the procedure for applying for a warrant is not followed correctly, or evidence of authorisation is not produced to the occupier? Should this render the whole exercise of the power unlawful?
It cannot be predicted with confidence how the courts will approach legislation which is silent on the point, so it may be that making express provision as to the consequences of the breach of any requirements would lead to greater certainty. But care needs to be taken with the width of any express provision which validates something that would otherwise be irregular.

5.14. Does anything else need to be said?

For example, about:

The making and keeping of records relating to the entry.
The return of the warrant to the court that issued it. Some provisions require the warrant to be returned to the issuing court when it has expired or has been exercised, although the purpose of this type of provision is not entirely clear.
Compensation where land or property is damaged in the course of exercising the power (perhaps unless the damage results from actions of the owner or occupier).

Question 10

Fixed penalty notices

Accepted Answer

Description of the legislative solution

This solution authorises the giving of a fixed penalty notice (“FPN”), which is a notice giving the recipient the opportunity of discharging any liability to conviction for an offence by paying a fixed sum of money within a particular period.

The power to issue fixed penalty notices tends to be conferred in respect of lower level offending. The issuing of a notice is an alternative to prosecuting the offender.

A classic example is the giving of a fixed penalty notice for a minor traffic offence.

The power may be conferred when the offence in question is created, or at a later time.

NB: Notices which impose a civil liability on the recipient, not alleged to have committed an offence, are sometimes called fixed penalty notices – these are not the same thing.

Civil monetary penalties

Another policy option is to create a scheme for civil monetary penalties: see the civil sanctions legislative solution.

Almost always, a person on whom a civil monetary penalty is imposed has a right of appeal against it, and that is a key feature that distinguishes such penalties from the fixed penalty notices dealt with in this legislative solution, where the alternative to paying the FPN is prosecution and “having your day in court”.

Sometimes, notices imposing civil monetary penalties are called fixed penalty notices, which can be confusing.

Criminal offences

As regards the underlying offences, see the criminal offences legislative solution.

Scotland – fiscal fines In Scotland, the power of a procurator fiscal to issue a fine may suffice (i.e., may mean that a power to give a fixed penalty notice is not needed) - an advantage is that a system for the collection of the penalty money is in place. Whether issuing a fixed penalty notice or a fiscal fine, the usual standards for prosecution would apply.

Elements of the solution

1. In respect of what offences should FPNs be capable of being given?

2. What test should be applied for the giving of an FPN?

A commonly used formulation is that the giver of the notice has “reason to believe” that a person has committed an offence.

Alternatives include “reasonable grounds for believing” that the person has committed an offence, and it appearing that there are “grounds for instituting…proceedings for an offence”.

3. Who may give an FPN?

This will usually be those responsible for enforcing the legislation. So, for ordinary criminal offences it might be a “constable”, while for regulatory offences it might be an authorised officer of the body – department, local authority etc – responsible for enforcing the regulatory scheme.

If referring to an “authorised officer”, what is to be the method of authorisation?

4. What provision is to be made about the form and contents of FPNs?

The form and contents of FPNs could be set out in primary legislation, there could be a power to make subordinate legislation about these matters, or a mixture of both.

As regards contents, the provisions commonly provide that the notice must state the offence and give particulars of the circumstances alleged to constitute the offence, and must contain most or all of the following information:

the amount of the penalty,
the period for payment of the penalty,
the consequences of not paying the penalty,
the person to whom and the address at which payment must be made,
the method of payment.

5. How should the amount of the fixed penalty be determined?

5.1. How should the amount of the penalty be determined?

Is an amount to be specified?
Or is there to be a formula for calculating the amount of the fixed penalty?
Or is legislation to set the maximum amount (and the minimum amount?), leaving the giver of the notice a discretion as to the amount of the penalty?
If there is to be discretion as to the amount of the penalty, should there be a power to issue guidance as to the exercise of the discretion, with the giver of the notice being required to have regard to the guidance?

5.2. If an amount (whether the amount of the penalty, or the maximum or minimum amount) is to be specified, should it be specified in primary legislation (if so should there be a power to substitute a new amount) or, alternatively, should it be specified in subordinate legislation?

6. Duration of the period for paying the penalty (“the notice period”)

6.1. Should there be a fixed notice period, or is there to be a minimum period (with the FPN to specify the actual period)?

6.2. Should the duration (or minimum duration) of the notice period be set out in primary or subordinate legislation?

7. Discount for early payment

7.1. Should there be a discount for early payment of the fixed penalty?

7.2. If so, the questions above about the amount of the payment and duration of the period arise here too, i.e., how is the reduced amount, and the period for which the reduced amount is payable, to be determined?

8. What should be the effect of giving an FPN?

8.1. The usual effect of giving an FPN is that a person may not be prosecuted for the offence in the period for making the payment, and may not be prosecuted at all if payment is made within that period (subject to the notice being withdrawn, as to which see below). Is this what is wanted, or is something different wanted?

8.2. In some cases, an FPN has the further effect of imposing a penalty on the recipient if the person fails to pay the fixed penalty within the period for payment and also fails to indicate that the person wishes to be tried for the offence (e.g., Road Traffic Offenders Act 1988 s.55) - see section 11, below.

8.3. Some examples of the solution provide that the recipient of the FPN may be prosecuted within the period for payment. They also provide that in such cases the notice is treated as withdrawn. Is this wanted and, if so, what happens if the person has already paid the fixed penalty? Is there any need for this provision (as a similar result could be achieved by withdrawing the FPN and then prosecuting)?

9. What provision should be made about payment of the fixed penalty?

9.1. To whom should any payment of a fixed penalty be made?

9.2. Should anything be said about the way in which payments should be made (e.g., requiring or permitting payments to be made in particular ways)?

9.3. Should anything be said about when payments made in a particular way are to be treated as paid? (For example, it is common to provide that payments made by post are treated as paid when they would be delivered in the normal course of post.)

10. Withdrawal of fixed penalty notices

10.1. Should it be possible to withdraw an FPN? This might be wanted for cases where the recipient of the FPN should be prosecuted, as well as for cases where the recipient has not committed the offence.

10.2. If it should be possible to withdraw an FPN, are there any limits on the withdrawal of a notice and what are the consequences of a notice being withdrawn? (For example: may the recipient of the FPN be prosecuted, or does the bar on prosecution continue despite the withdrawal? Does any payment that has been made need to be repaid? NB a provision as to repayment may do double duty, as it indicates that an FPN may be withdrawn despite payment of the fixed penalty.)

10.3. If, unusually, it is to be possible to prosecute the recipient of an FPN in the notice period (without having withdrawn the FPN, and without the recipient having given a notice of the kind mentioned immediately below), it would make sense to provide that the FPN is treated as withdrawn by the commencement of a prosecution.

11. Notice of intention not to pay the fixed penalty, representations, appeals etc

11.1. Should provision be made about the giving of a notice, by the recipient of the FPN, indicating that he or she does not intend to pay the fixed penalty (or asks to be tried for the offence to which the FPN relates)?

11.2. What is the effect of such a notice? Is it simply that proceedings in respect of the offence may be brought even if the notice period has not ended? If so, is there any purpose in providing for the giving of such notices (given that it is possible to withdraw the FPN or wait until the end of the notice period in any event)?

11.3. Is there any consequence of not giving such a notice? As mentioned at paragraph 8.2 above, in some cases failure to give such a notice will result in a penalty being imposed. If this is what is wanted, indicate what penalty is to be imposed and how it is to be enforced.

11.4. Some examples provide for the possibility of representations to be made in respect of the FPN or, occasionally, for appeals against the giving of the FPN. If any of this might be wanted, consider carefully what the purpose of the additional machinery is. It is always open to a recipient of an FPN to state that he or she is not guilty, and to invite the matter to be tested by prosecuting in the normal way. Another thing to bear in mind is any time limits for summary prosecutions – representations and appeals will take time.

12. Evidential matters

The usual practice is to provide for a signed certificate stating that payment has, or has not, been received to be evidence (or in Scotland sufficient evidence) of the facts stated. If this is wanted, state who must sign the certificate.

13 . Duty to give name and address?

13.1. Should a person be required to give his or her name and address, for the purposes of being given an FPN?

13.2. If so, should failure to provide the information be an offence (and, if so, what are the ingredients of the offence, the maximum penalty and the mode of trial)?

14 . Guidance on giving of FPNs

14.1. Should there be a power or duty to give guidance as regards the giving of FPNs?

14.2. If so, should anything be said about the giving of the guidance (eg persons who must be consulted first)? Should there be a duty to publish the guidance?

14.3. Alternatives include a requirement to publish an enforcement policy. Such a policy would set out the circumstances in which a fixed penalty notice is likely to be given, and those in which prosecution is likely to be the preferred response to the offending.

15. Report on FPNs that have been given?

Should there be a duty to produce a report, at intervals, giving details of FPNs that have been given? If this is wanted, provide details of who must make the report, whether the report must be published or given to another person, and the periods in respect of which a report must be made.

16. Use of fixed penalty receipts

16.1. What is wanted as regards the use of fixed penalty receipts?

16.2. Can the person to whom payments in respect of FPNs are made keep the monies, or must that person pay the monies to Ministers (or an NI department) or into the relevant Consolidated Fund?

16.3. If the monies may be retained, can they be used as the person considers appropriate, or only for particular purposes or functions?

16.4. If there are to be restrictions on the use of the monies, what else is wanted in connection with this (e.g., do accounts need to be kept, and published or provided to another person, to ensure that the restrictions are complied with)?

17. Notices and payments sent electronically

Should the FPN scheme provide for notices and/or payments to be sent electronically? (this issue may arise in a number of places above).

Question 11

Preventative Orders

Accepted Answer

Description of legislative solution

This solution protects the public from harm through civil orders or notices, targeted against individuals, that prevent or prohibit certain identified kinds of activity from occurring or recurring. Such activity may otherwise be perfectly lawful in itself. A civil preventative order may have the advantage of providing more flexibility than criminal prosecution.

The power to issue the order may be conferred on central or local government, on the civil or criminal courts, or on another legal person.

In the consideration of how to approach the problem that the proposed legislation is aimed at, this solution might be viewed as almost the mirror image of licensing: the latter involves prohibiting everyone from undertaking an activity, then licensing to permit it in individual cases (licences being applied for voluntarily); whereas preventative orders stop individuals undertaking an activity which might generally be lawful (orders being imposed on a person involuntarily). From a technical perspective, it can be seen that the typical procedures surrounding preventative orders involves many of the same considerations as for licensing: e.g. application, variation, renewal, discharge, appeal, and enforcement through the creation of an offence of non-compliance.

There is also a clear link with criminal offences in general. Civil preventative orders such as ASBOs, trafficking and exploitation prevention orders and dog control notices may be seen as an alternative for policy-makers to the creation of a criminal offence for the same kind of harmful activity. So although usually they are civil orders, they may appear to have a criminal “feel” to them, in restricting or prohibiting certain kinds of behaviour. They are also often used in criminal courts after conviction for relevant offences (for example sexual offences). See the criminal offences legislative solution, especially paragraph 16.7.

The crucial difference is one of timing: preventative orders represent an attempt to act before the harmful activity actually occurs, rather than punish it after the fact, by restricting an individual from doing something that may enable them to cause harm of a particular kind. This may be a key factor when considering which legislative solution is chosen for the particular policy problem.

Elements of the legislative solution

1. Activity to be regulated

1.1. What is the harmful activity that is to be the subject of the preventative order?

1.2. Does it matter where the harmful activity takes place (could it be outside the jurisdiction concerned)?

1.3. What triggers should there be for an application for the order? For example, conviction and sentencing for a relevant offence (and / or acquittal on the grounds of mental disorder or other relevant court finding) or a freestanding application after certain factual criteria are met, or both.

2. Procedure for applications for preventative order

2.1. Who may apply for a preventative order? Who hears the application?

This will ultimately depend on the gravity of the harm which the order seeks to prevent.

2.2. What is the process to be for applying for an order?

For example, should any pre-application consultation be needed?

2.3. Should the applicant be entitled to a hearing? Should the person who is to be subject to the order be entitled to a hearing?

If so, what rules of evidence should apply? For example, who should bear the burden of proof, and to what standard of proof – civil or criminal?

2.4. Should there be a requirement to give notice of the application to the person who is to be subject to the order and / or to any other interested persons – and if so, to whom?

2.5. Should there be an opportunity for the person who is to be subject to the order and / or any other interested persons to make representations on the order?

Natural justice would usually require some form of due process for the person(s) affected by the order – a strong justification would be needed for a lack of provision on this or else ECHR issues are likely to arise.

2.6. Consider also any impact on existing court rules – and whether new rules are needed – as a result of the procedures proposed for the order.

3. Grant or refusal of application for preventative order

3.1. Is there to be a discretion to grant the order, or a duty to grant one?

3.2. If a discretion, what criteria must the decision-maker use to assess the application? Are these criteria matters of fact or opinion? Should the criteria apply to each requirement or prohibition in the order, or to the order as a whole?

3.3. If a duty, are there exceptions where the duty to grant the order does not arise? Are these cases where there is a straightforward duty to refuse the application, or should there be a residual discretion to grant the order?

4. Content and form of preventative order

4.1. What form is the order to take and what should the order contain on its face?

4.2. Is the principal requirement preventing or prohibiting the harmful activity unconditionally or is the activity to be allowed subject to meeting specified conditions?

4.3. If the activity is to be allowed subject to conditions, what conditions may be imposed? Should all the permitted conditions be set out in the legislation, or should there be a wider discretion to impose conditions? Should there be default conditions which must be included?

4.4. May the order specify particular positive steps the person subject to the order must take to prevent the harmful activity (e.g. muzzling a dangerous dog, reporting at a police station)? Or particular examples of activity (e.g. playing music excessively loudly, foreign travel) that the person is prohibited from undertaking?

4.5. What ancillary requirements should (or may) the order contain?

One common example would be a duty on the person subject to the order to notify the relevant authority of changes in name or address.

4.6. What should be the permitted duration of an order? Are the minimum and / or maximum periods prescribed? Can they be extended?

Orders of indefinite length may raise ECHR issues, particularly if regulating behaviour that would otherwise be lawful.

A situation can arise, on the sentencing of an offender in separate criminal proceedings, where a preventative order already exists, having been imposed by the civil courts – and the criminal court would examine whether the existing order should be varied. Therefore consider whether there should be extension of the order on conviction for another offence (see also paragraph 7.8 below).

4.7. What other particular details (if known) must be included in the order?

For example: the date of service and effect; the name and address of the person subject to the order; the reasons for service of the order; and information for the person subject to the order on further procedures e.g. on appeal, variation, discharge and on non-compliance with the order constituting an offence (if applicable).

4.8. What provision on content and form is to be in primary legislation, and what details can be left to subordinate legislation? If subordinate legislation is chosen, what parliamentary procedure is deemed appropriate?

5. Variation, renewal and discharge of preventative order

5.1. Should it be possible for a preventative order to be varied, renewed or discharged?

5.2. If so, should the original applicant (e.g. if a public authority) be able to vary, renew or discharge the order of its own motion? Or should it have to make an application to do so?

5.3. If the original applicant can vary etc of its own motion, what is the procedure for doing so? Should notice be given to the person subject to the order and any other interested persons? Are they to have an opportunity to make representations?

Again, ECHR issues are likely to arise without adequate provision of due process here.

5.4. Who would hear an application to vary, renew or discharge?

In Scotland the strong preference of the Courts Service, for resourcing reasons, is that such applications should go back to the court of first instance.

5.5. Who else should be able to apply to vary, renew or discharge – e.g. the person subject to the order? Should there be any restrictions on doing so – for example a time limit, or only specific grounds being available?

5.6. What criteria need to be met in order for the order to be varied, renewed or discharged?

5.7. How does the procedure for applying for variation, renewal or discharge differ (if at all) from the procedure for the main application?

5.8. What should be the status of the original order while the variation / renewal / discharge application is being processed – should it be suspended or should it continue in force?

6. Appeals

6.1. What rights of appeal should there be against decisions concerning the preventative order?

Appeal rights may be particularly important if, for instance, there is no opportunity to make oral representations on the initial application. The question of what is adequate due process may be measured cumulatively.

For detailed questions to consider in relation to appeals, see the legislative solution on appeals against administrative decisions. The questions set out in that solution will be relevant even if the power to make the preventative order is conferred on a court rather than an administrative body.

6.2. Should there be explicit double jeopardy provision?

That is, where an application is made and dismissed, or the grant of an order successfully appealed, a rule that there can be no repeat application made for another order against the same person unless there is a change of circumstances. An absence of double jeopardy restrictions may raise ECHR issues (see control orders under the Prevention of Terrorism Act 2005 as an example).

7. Enforcement

7.1. How should the preventative order be enforced? Are there to be general duties on government or other persons e.g. to monitor compliance with orders?

7.2. Is it necessary for the preventative order to be enforceable throughout the UK? For instance, in Scotland, the need for subordinate legislation under section 104 of the Scotland Act 1998 will need to be considered at the same time as the primary legislation is instructed.

7.3. Is there to be a discrete offence of breach of the order? If so, see the criminal offences legislative solution.

7.4. Are any post-conviction orders to be available? For example, disqualification from ownership of dangerous dogs (see also paragraph 10.2 below on last-resort alternative options).

7.5. What is the status of the original order after prosecution / conviction for breach?

7.6. As an alternative or additional approach to creating a discrete offence of breach of the order, are there to be specific consequences for the person subject to the order if separate offences are committed while the order is in force – e.g. the existence of the order serving to aggravate the sentence for those separate offences?

7.7. Are the police or other persons to be given particular powers of entry, search, arrest or detention in order to be able to enforce compliance with the order? See the powers of entry, inspection, search and seizure legislative solution.

8. Interim orders

8.1. Should it be possible to make an application for an interim preventative order?

8.2. If so, who may apply for an interim order? To whom is the application to be made?

8.3. When should the application for the interim order be capable of being made? Only at the same time as the main application is made, or separately?

8.4. What are the criteria to be used by the decision-maker to assess the interim application?

8.5. How are these criteria to be different to the assessment of the main application? For example, is a broader or a narrower discretion to be given to the decision-maker?

8.6. What is the procedure for applying for an interim order? How does it differ (if at all) from the procedure for the main application? Should there be a requirement to give notice to those affected and an opportunity for them to make representations? See paragraph 2.5 above on this.

8.7. When should the interim order come into effect and for what duration? For example, for a fixed period or until determination of the main application (or until any first appeal has been determined or withdrawn, or the time for appealing has expired without an appeal being made)?

9. Register of orders

9.1. Is there to be a register or database containing the preventative orders in force?

9.2. If so, who is to maintain and manage it?

9.3. What information should it contain?

9.4. Who should be able to access it? Should fees be payable for access?

9.5. Should the information contained in it be capable of being shared with other bodies and persons?

If so, the interaction with the Data Protection Act 2018 – and related ECHR issues – would need careful consideration.

10. Miscellaneous issues

10.1. Are there to be any mechanisms for monitoring the implementation of the preventative orders? This may be a particular issue where the orders are perceived as being highly restrictive (e.g. control orders). Such mechanisms might include, for example–

the preparation and laying before Parliament of a report on the orders;
the appointment of a person to review the operation of the legislation; or
a “sunset clause” making the legislation expire after a fixed period of time.

10.2. Should there be a last-resort or alternative option available if it appears that a preventative order is, or would be, ineffective or inappropriate? For example, an application for a dog’s destruction where a dog control notice has failed or is likely to fail.

10.3. Can one kind of order lead on to another kind? For instance, the Antisocial Behaviour etc. (Scotland) Act 2004 allows a sheriff, if imposing an ASBO on a child, to make a linked parenting order against the child’s parent, and to refer the case to a children’s hearing.

10.4. Also of note in the 2004 Act is the requirement for the sheriff to explain the ASBO’s terms in ordinary language when making it: something that might be considered in particular for orders that can be made against children.

Question 12

Criminal offences

Accepted Answer

Description of legislative solution

This legislative solution creates a criminal offence to penalise a particular activity or a failure to do something. The solution involves making a particular act, omission or course of conduct punishable in a criminal court.

The policy driver may be:

to discourage certain actions or behaviour by making the actions or behaviour punishable as a criminal offence;
to encourage certain behaviour so that failure to do something is punishable as a criminal offence;
to “give teeth” to a separate statutory requirement, so that a failure to comply with the requirement becomes a criminal offence;
to enforce an international obligation.

A provision creating a criminal offence usually has four key components:

a precise statement of the prohibited behaviour (an act, omission or course of conduct, which may also include a description of the required state of mind);
a declaration that the prohibited behaviour is an offence;
a statement of the punishment;
a statement about the court in which the offence may be tried (mode of trial).

It may also have a fifth component: a defence. This means that where the prohibited behaviour occurs, it may still be possible that, if the defence is made out, the accused person is not guilty of the offence.

Rather than create an entirely new offence the policy might be to modify an existing offence or add further elements to it, for example by modifying the penalty or providing for different or additional powers for a court on a person’s conviction.

Different United Kingdom jurisdictions

When a new criminal offence is created the general rules and principles of criminal law will apply both to how it is interpreted and dealt with by the criminal courts. Remember that criminal law and procedure often differs between the three jurisdictions of the United Kingdom: England and Wales, Scotland, and Northern Ireland. The same point applies to policing and how an offence might be investigated or enforced (including who might enforce it).

The Sentencing Code (England and Wales)

A new offence should specify the penalty for the offence but that provision will be applied in the context of overall sentencing law. The sentencing legislation for England and Wales was recently consolidated in the Sentencing Act 2020 (Parts 2 to 13 of the Act contain “the Sentencing Code”).

European Convention on Human Rights

Proposals for new offences may engage various Articles of the ECHR, so legal advice will need to be sought on ECHR compatibility, particularly in relation to Articles 6 (right to a fair hearing) and 7 (no punishment without law).

General policy and guidance on the creation of criminal offences

Each devolved area and jurisdiction will have general policies and guidance about the creation of new offences, including guidance on consulting the persons, bodies or Government departments likely to be impacted by the offence (for example the judiciary or the courts service). Such policies may influence thinking on the key components of the offence.

It is important to consider the impact of creating a new offence on the criminal justice system, and the associated costs.

Consider whether a civil enforcement option (for example, civil monetary penalties) might be a better alternative to creating a new offence, especially in regulatory contexts. See the civil sanctions legislative solution. Civil sanctions are easier to administer and less resource-intensive than criminal sanctions, enabling a speedier response to regulatory breaches, and allowing more flexibility. Whether they are appropriate will depend on the behaviour that is being targeted and its perceived seriousness.

The creation of criminal offences may be combined with civil enforcement tools: see paragraph 1 below.

Or a new criminal offence may be supplemented by other legislative solutions. See:

fixed penalty notices legislative solution;
powers of entry, inspection, search and seizure legislative solution.

Consider also the licensing legislative solution. Providing that an activity may only be undertaken in accordance with a licence can be seen as an alternative to making that activity an offence, in the sense that it involves regulating the activity rather than prohibiting it outright; but a licensing regime will require a means of enforcement where activities are carried on without a licence or in breach of a licence, which may involve creating criminal offences or providing for other sanctions (such as civil sanctions).

Elements of the solution

1. The enforcement strategy

1.1. Before deciding on what the offence might say, consider how the offence is intended to fit within the overall strategy for dealing with the behaviour.

1.2. Is the policy simply to add a criminal offence to the “general” criminal law?

1.3. Is the policy to create an offence in conjunction with other enforcement options? For example, the creation of new search and seizure powers or powers to require information? Does it need to be made to fit within an existing enforcement regime?

1.4. If the offence is intended to “give teeth” to a requirement to do something or not to do something, the way in which the requirement is framed will influence the type of offence required. For example:

a regulatory authority may be empowered to give a person a notice to do something, or stop doing something (this may be called an “enforcement notice”, “improvement notice”, “compliance notice”, “stop notice” or similar), with breach of the notice being an offence;
a statutory requirement may be imposed on a person to notify the police or regulatory authority of certain information, with breach of the requirement being an offence;
a civil or a criminal court may be empowered to make a behaviour order of a certain kind (for example a serious crime prevention order), with breach of the order being an offence: see the preventative orders legislative solution, and paragraph 16.7 below.

1.5. Is the prohibited behaviour only to be prosecutable as a criminal offence in certain circumstances, with a civil sanction or enforcement regime available for less serious instances? For example:

behaviour to be punishable at first, or in less serious cases, by a civil sanction (for example, a civil monetary penalty), but to be punishable by an offence in the case of repeated or more serious instances of the behaviour (note that provision may be needed to avoid the imposition of both a civil and a criminal penalty for the same conduct);
behaviour to be punishable by a criminal offence, but the person can avoid criminal liability by paying a penalty: see the fixed penalty notices legislative solution.

1.6. See also the civil sanctions legislative solution.

2. Is a new criminal offence needed?

2.1. Consider what common law or statutory offences already exist to penalise the targeted behaviour. Is there an existing offence which deals with that behaviour, or with elements of that behaviour?

2.2. A new criminal offence should be created only after careful consideration, where doing so is proportionate (is an offence a proportionate response to the problem identified?) and necessary. The impact on the criminal justice system and the associated costs must be considered. Consider whether a civil enforcement option (for example, civil penalties) might better achieve the policy, especially in regulatory contexts.

2.3. If an existing offence covers the same behaviour but is not quite what is wanted, why is it thought to be inadequate? And why is a new offence the preferred solution? Would amending or building on an existing offence achieve the policy aim? Where offences overlap, consider the factors that would determine which offence is likely to be charged in which circumstances. Overlapping provisions might give rise to arguments (for example) that conduct which could be charged under a specific provision may not be charged under a more general one.

2.4. Duplicating existing offences is unnecessary and should be avoided.

2.5. Note that offences around making false statements and representations and so on may well already be covered by existing general offences. See, in particular:

2.6. As regards Scotland, fraud and perjury are common law offences, and see also sections 44 and 45 of the Criminal Law (Consolidation) (Scotland) Act 1995.

2.7. Generic import and export offences are contained in the Customs and Excise Management Act 1979.

2.8. Could any existing common law or statutory offences that cover similar ground be abolished or repealed, or consolidated?

3. What behaviour is to be criminalised?

3.1. Exactly what behaviour do you plan to criminalise? This must be described with precision. Any uncertainty risks injustice and would be likely to be resolved by a court in favour of a defendant.

3.2. Every offence requires some kind of action or conduct, an “actus reus”. What are to be the constituent elements? Is the prohibited conduct a positive act, an omission, or a course of conduct?

3.3. Think about when the offence would be committed:

if the offence is a one-off act, is that behaviour relatively easy to identify?
if the offence consists of not doing something (for example, not complying with a statutory requirement), when does that inaction constitute the commission of the offence? Does the conduct only become criminal after the expiration of a period of time, for example a period given to comply with a requirement in a notice?
if the offence consists of a course of conduct, at which point does the conduct become an offence? Does the conduct only become an offence after a specified number of incidents of it?

3.4. Many regulatory provisions impose duties on particular persons to act in a particular way; these are often accompanied by an offence of failure to comply with the duty. Where the behaviour relates to compliance with requirements or prohibitions, is any breach intended to constitute an offence? If the offence is to be reserved for “serious” or “persistent” breaches, when is it envisaged that the breach becomes a criminal offence?

3.5. It may be necessary for an Act to confer a power for regulations to make further provision about a particular element of the behaviour in question, expanding on whether particular behaviour does or doesn’t constitute the offence. But the position should be made clear in the Act if at all possible.

4. What mental element is necessary to commit the offence?

4.1. What are to be the mental elements of the offence (“mens rea”)? Consider each element of the conduct that constitutes the offence and determine what mens rea should relate to each element. For example:

the person has knowledge of a particular matter;
the person believes or suspects a particular matter;
the person intends to produce a certain result;
the person is reckless as to a certain result being produced.

4.2. An offence may have an objective or subjective mental element or a combination of both, for example:

by reference to what a reasonable person would have done;
by reference to what the suspect knew or ought to have known.

4.3. The mental element might require an element of fault rather than a state of mind, for example an inadvertent taking of an unjustifiable risk, driving without due care and attention, or failure to take “reasonable steps”.

4.4. Is the mental element to be included in a defence (see paragraph 8 below) rather than in the description of the offence?

4.5. Some provisions qualify an offence by making it a defence for the person charged to show that he or she lacked or could not have been expected to have knowledge about a particular element of the conduct.

4.6. Criminal offences tend to contain commonly used terms for mens rea, for example, “knowingly”, “dishonestly”, “recklessly”, or “intentionally”. When deciding on the most appropriate mental element for the offence policy makers need to be aware of how the courts are likely to interpret the term in its new context. Lawyers should be able to advise on this.

4.7. Is it the intention that the offence contains no mental element? This may sometimes be appropriate for technical or regulatory offences or offences with relatively minor penalties or offences where public safety is at risk.

4.8. Consider also the required mental element for any secondary party’s liability for the offence.

4.9. See examples at the end of the chapter.

5. Who is to be capable of committing the offence?

5.1. Is any person to be capable of committing the offence? Or just certain categories of people (for example, holders of a licence, where the offence consists of doing something in breach of the conditions of the licence, or a person who cares for a child or a vulnerable person)? Are there certain categories of people that cannot commit the offence?

5.2. Can the offence be committed by a person under the age of 18? If so, what is the minimum age? (The age of criminal responsibility in England and Wales is 10 years old; children are subject to different treatment and are dealt with by youth courts).

5.3. Are companies, partnerships and unincorporated associations to be capable of committing the offence, or just individuals? If the offence can be committed by a corporation, it is usual to provide for the criminal liability of directors and other senior officers of the corporation, so that they can be prosecuted as well as the corporation ^{[footnote 6]} (see examples at the end of the chapter).

5.4. If the offence can be committed by a partnership or an unincorporated body, express provision will usually be required to make that clear. If individual partners, or senior members of the unincorporated association, are to be liable for the offence in addition to the partnership, express provision will also be required.

6. Where may the offence be committed?

6.1. Is the offence to form part of the law of England and Wales only, Scotland only, Northern Ireland only, or in some or all of those jurisdictions?

6.2. Is it to be possible to commit the offence outside the United Kingdom? If legislation says nothing about this, the presumption would be that the offence may only be committed in the United Kingdom (or in the jurisdiction or jurisdictions within the United Kingdom to which the offence extends).

6.3. If it is to be possible to commit the offence outside the United Kingdom, it would be expected that the legislation specifies some link to the United Kingdom – for example, that a person may commit an offence outside the United Kingdom only if the person is a British citizen or has some other specified link to the United Kingdom. What should that link be?

6.4. If an offence can be committed outside the United Kingdom, the legislation will need to include provision ensuring that the offence can be tried in the United Kingdom. See examples at the end of the chapter.

6.5. It may occasionally be necessary to consider which elements of an offence must occur within a jurisdiction, for example where an offence has a “conduct” and a “consequence” element. Lawyers can advise as to the common law position that would apply if legislation is silent on the point.

6.6. Consider also whether an offence committed in one jurisdiction in the United Kingdom should be able to be tried in another jurisdiction in the United Kingdom. For offences created by devolved Acts, this may require an order under the UK Government’s consequential powers in the Scotland Act 1998^{[footnote 7]}, the Government of Wales Act 2006 or the Northern Ireland Act 1998.

6.7. Senedd Cymru cannot legislate “otherwise than in relation to Wales” (subject to a limited exception for certain ancillary provisions), so it will be necessary to consider how to ensure that an offence created by an Act of Senedd Cymru relates to Wales. Where there are a number of elements that constitute the offending behaviour, it may be necessary to require some or all of them to take place in Wales in order to make the necessary connection. There may be more than one way in which a sufficient relationship with Wales could be established. Since this is a question of legislative competence, legal advice will be required to identify the available options^{[footnote 8]}.

7. Attempting, assisting, encouraging or conspiring to commit the offence

7.1. Should it be possible for the offence to be committed by people who do not themselves do the acts against which the offence is aimed? Consider whether or not the new offence should be capable of being committed by a person who aids, abets, counsels or procures the commission of the offence (secondary liability), commits the offence as part of a conspiracy, or otherwise encourages or assists the offence. This may well be covered by existing legislation - lawyers can advise.

7.2. Relevant existing legislation for England and Wales and Northern Ireland includes:

7.3. It may occasionally be desirable to make specific provision about these matters (for example, where the aim is to catch preparatory acts that would not be caught by the law of attempt). Lawyers can advise further.

7.4. As regards Scotland, secondary or “art and part” liability operates generally at common law, and as regards statutory offences, section 293 of the Criminal Procedure (Scotland) Act 1995 applies so that the secondary offender commits the same offence as the principal. So it is usually unnecessary to provide expressly for secondary offences. Similarly, attempts are automatically imported into all common law and statutory offences by section 294 of the Criminal Procedure (Scotland) Act 1995.

8. Are there to be any exceptions or defences?

8.1. Consider whether there are certain categories of person that are not to be capable of committing the offence, or whether there are to be certain circumstances in which an offence would not be committed.

8.2. Alternatively, a defence might be wanted for the offence. For example, where the offence is to breach a particular duty it may be a defence for the person charged with the offence to show that they took reasonable steps to avoid breaching it.

8.3. Common defences include that the person:

did not know a particular fact, or did not suspect a particular state of affairs,
took all reasonable precautions,
exercised due diligence,
had a reasonable excuse,
acted with lawful authority.

See examples at the end of the chapter.

8.4. Where the conduct that constitutes the offence contains no mental element, it is likely that a defence may be required (for example, acting with due diligence).

8.5. Alternatively, a more specific defence may be wanted that is unique to the offence. The defence should be described with as much precision as the offence itself.

8.6. Note also that a new criminal offence will be read as subject to defences that are generally available in the criminal law (such as duress or self-defence) even if the offence is expressed in absolute terms or a statutory defence is provided for.

8.7. If there is to be a defence or exception to the offence, where does the burden of proof lie? If it is intended that the defendant should have to prove something (“a reverse burden of proof”), legal advice will be needed. It may well be more appropriate to impose an “evidential burden” on a defendant, in other words, the defence must raise evidence to put a matter in issue, and it is then for the prosecution to disprove it beyond reasonable doubt. The drafting should make the position clear (see examples at the end of the chapter).

8.8. Sometimes it may be useful to state that acting in a particular way does not constitute a defence.

8.9. Sometimes it may be useful for an Act to confer a power for regulations to expand on cases in which certain behaviour does not constitute an offence, but the position should be made clear in the Act if at all possible.

8.10. Would a statutory presumption be useful? A presumption may be conclusive, or it may be capable of being rebutted by evidence. See examples at the end of the chapter.

9. How is the offence to be enforced?

9.1. Who is to investigate whether an offence has been committed and deal with offenders? Is it the police, or another enforcement authority?

9.2. Do the police, or other enforcement authority, have the necessary powers to enforce the offence? Consider powers of arrest, powers of entry, powers to search persons or property or to seize property (see powers of entry, inspection, search and seizure legislative solution, especially paragraph 1 and paragraphs 5.8 to 5.10). Will legislation need to provide for new powers of enforcement, or the modification of existing powers? Existing powers may well be sufficient: if they are, do not duplicate them.

9.3. Is enforcement to be undertaken exclusively by one particular enforcement authority to the exclusion of others?

9.4. Should there be statutory provision for enforcement authorities to co-operate or work together (see collaboration legislative solution)? Or, perhaps, provision to allow one enforcement authority to delegate the lead enforcement role to another in certain circumstances?

9.5. Consider how the police, or other enforcement authority, will obtain the information required to monitor whether an offence is being committed. Are inspection powers needed, or powers to obtain information from certain kinds of individuals or bodies?

9.6. Should it be possible for an investigator to give a disclosure notice in relation to the offence under Chapter 1 of Part 2 of the Serious Organised Crime and Police Act 2005 (notice requiring another person to provide information or documents, available in relation to listed offences only)?

9.7. Where relevant, consider whether special provision is needed to enable cross-border enforcement, or enforcement at sea or in the air.

10. Extending the time limit to bring a prosecution

10.1. There are general statutory time-limits for bringing a prosecution for a summary offence. They are set out in section 127 of the Magistrates’ Courts Act 1980 (England and Wales), section 136 of the Criminal Procedure (Scotland) Act 1995 and Article 19 of the Magistrates’ Courts (Northern Ireland) Order 1981/1675.

10.2. Should the time-limit for bringing a prosecution for a summary offence be extended? This may be wanted, for example, to allow time for civil sanctions to be imposed first, or where an investigation is likely to be lengthy. See examples at the end of this chapter.

10.3. There is no general statutory time-limit for either-way offences or indictable only offences. Infrequently, the policy may be to impose such a time-limit in the case of a particular offence.

11. Prosecuting the offence

11.1. Always remember that the offence must be capable of being prosecuted successfully in practice. Prosecutors can provide valuable advice about this.

11.2. Are any special provisions required in relation to evidence and how elements of the offence are to be proved in court, for example a certificate quantifying the amount of duty avoided to be treated as conclusive evidence of that fact?

11.3. Are any special provisions necessary in relation to the prosecution of the offence? In rare cases, it may be desired to impose a requirement for the (personal) consent of the Director of Public Prosecutions or the Attorney General, the Counsel General to the Welsh Government or the Attorney General for Northern Ireland. Such a requirement may be imposed only after consultation and with good reasons. See examples at the end of the chapter.

11.4. Who is expected to prosecute the offence? In England and Wales the Crown Prosecution Service has the power to prosecute most offences but the policy may be for the offence to be prosecuted by another prosecuting authority, for example local authorities or a Government Department. In Northern Ireland, the Public Prosecution Service for Northern Ireland has the power to prosecute most offences but local authorities and Departments also have a power to prosecute.

11.5. In Scotland, the Lord Advocate and the Crown Office and Procurator Fiscal Service are responsible for all public prosecutions (the police and other public authorities have no powers to prosecute).

11.6. If the policy is for a particular prosecuting authority to prosecute the offence, is additional provision necessary to enable this to happen, for example, provision enabling the transfer of information, or some adjustment to the authority’s power to prosecute, or who can present the case at court?

11.7. Is additional provision required to enable the prosecutor to offer an alternative to prosecution in respect of the offence? For example, where an offence in England and Wales may be committed by a corporate body, a partnership or an unincorporated association, should it be possible for the prosecutor to enter into a deferred prosecution agreement with that body in respect of the offence? See Schedule 17 to the Crime and Courts Act 2013.

12. What is the mode of trial?

12.1. There are two kinds of criminal proceedings.

12.2. Summary proceedings:

in England and Wales and Northern Ireland, this means proceedings in the magistrates’ courts;
in Scotland, this means proceedings in the Justice of the Peace courts or by a judge alone in the sheriff court.

12.3. Or proceedings on indictment (England and Wales and Northern Ireland) / solemn proceedings (Scotland):

In England and Wales and Northern Ireland, this means proceedings before a judge and jury^{[footnote 9]} in the Crown Court;
In Scotland, this means proceedings by jury in the sheriff court, or in the High Court of Justiciary.

12.4. An offence may be triable:

only summarily;
(rarely) only on indictment; or
either summarily or on indictment (referred to in England and Wales as an “either-way offence”).

12.5. What should the mode of trial for the offence be?

12.6. Key considerations for deciding the mode of trial for the offence include:

the desired maximum penalty for the offence (do the relevant courts have the power to impose it?);
the availability of a particular kind of penalty (can it only be imposed in proceedings on indictment / solemn proceedings?);
the seriousness of the offence (it may be appropriate to allow proceedings on indictment / solemn proceedings to deal with more serious instances of offending behaviour);
the complexity of the offence, the need for complex expert evidence or the likelihood of a long trial;
the availability of jury trial for the offence.

12.7. In Northern Ireland, consider whether the offence should be added:

13. Penalty for the offence - general

13.1. The desired penalty must of course be proportionate to the offence.

13.2. Is the desired penalty consistent with similar offences?

13.3. Note that certain kinds of disposals – for example, community orders, or suspended sentences - are available to a court under general sentencing legislation, without it being necessary to make special provision for a particular offence.

13.4. Penalty provisions need to be drafted using very particular language, and what is permitted in each jurisdiction will depend on the criminal law of those jurisdictions and may vary. You will need to take advice from lawyers. For typical examples, see the end of the chapter.

14. Fines

14.1. If the offence is to be punishable by a fine, is that an unlimited fine or is there to be a maximum level of fine that may be imposed on a person committing the offence?

14.2. If the offence is to be an either-way offence, are there to be any differences between the fine that may be imposed following summary conviction and the fine that may be imposed following conviction on indictment?

14.3. Infrequently, the policy may require a power to impose daily or periodic penalties in the case of the offence continuing (for example, an additional penalty for each day on which the offence continues).

15. Imprisonment

15.1. Is the offence to be punishable by imprisonment? This should be reserved for only the most serious wrongdoing.

15.2. If the offence is to be punishable by imprisonment, what is to be the maximum term of imprisonment?

15.3. What should be the difference between the maximum period of imprisonment that may be imposed on summary conviction and the maximum period of imprisonment that may be imposed on conviction on indictment?

15.4. Should there be a mandatory minimum (or life) sentence for the offence? See, as regards England and Wales, the example in section 311 of the Sentencing Code (minimum sentence for certain firearms offences).

15.5. Should there be a mandatory life sentence for the offence if it follows an earlier conviction for that or certain other offences? See, as regards England and Wales, section 273, section 283 and schedule 15 to the Sentencing Code.

15.6. Should there be a minimum sentence of imprisonment for the offence if it follows an earlier conviction for that or certain other offences? See, as regards England and Wales, the examples in sections 313 to 315 of the Sentencing Code.

15.7. Should it be possible to impose an extended sentence of imprisonment (or, for an offender under 21, an extended sentence of detention) for the offence? See, as regards England and Wales, offences listed in Schedule 18 to the Sentencing Code, and see sections 306 and 308 and (for example) sections 279 to 281 of that Code. As regards Northern Ireland, see sections 12 to 14 of, and Schedules 1 and 2 to, the Criminal Justice (Northern Ireland) Order 2008 (life sentences, indeterminate sentences and extended sentences).

15.8. Do you want the offence to be part of the unduly lenient sentence scheme in Part 4 of the Criminal Justice Act 1988 (as regards England and Wales and Northern Ireland)? See section 35 of that Act: an offence triable only on indictment will automatically fall within that scheme, but in other cases the offence would need to be included in a statutory instrument. (In Scotland, the Crown may appeal a sentence for undue leniency in both summary and solemn proceedings (see section 175(4A) of the Criminal Procedure (Scotland) Act 1995 and section 108 of that Act).

16. Relevant factors for sentencing; particular sentencing options; effect of conviction

16.1. As regards England and Wales, the Sentencing Code contains provisions about sentencing procedure from conviction onwards, and orders generally available to a court when dealing with someone who is convicted of an offence, including ancillary orders that may be imposed in addition to the principal punishment.

16.2. Are there additional matters that a court should be required to consider when sentencing which are not covered by existing sentencing law and guidelines? Is additional provision required to enable the court to provide for particular kinds of orders or disposals? Do you want to specify that particular consequences follow from conviction? Some examples follow.

16.3. Does the offence need to be added to any existing provision in the general criminal law so that the court must treat certain matters as aggravating factors when sentencing for the offence? See for example, as regards England and Wales, sections 67 and 71 of the Sentencing Code (offences committed against emergency workers and drugs offences committed near schools). Should the court be required to state that the aggravating factor applies?

16.4. Are there are any limitations on the sentence that a court might impose for the offence (for example, the unavailability of conditional discharge?

16.5. Should it be possible to deprive the offender of certain property on conviction (forfeiture, deprivation, destruction orders)? As regards England and Wales, is the power in section 153 of the Sentencing Code sufficient, or is a separate power necessary? For examples of separate powers, see sections 160 and 161 of the Sentencing Code.

16.6. Should it be possible to impose a confiscation order under the Proceeds of Crime Act 2002? If so, should the offence be a “lifestyle offence”? In that Act, see section 75 and Schedule 2 (England and Wales), section 142 and Schedule 4 (Scotland) and section 223 and Schedule 5 (Northern Ireland).

16.7. Should it be possible for the court to make a behaviour order following conviction for the offence (for example, a criminal behaviour order, a sexual harm prevention order (England and Wales and Scotland) or a sexual offences prevention order (Northern Ireland), or a serious crime prevention order)? If so, the offence may need to be added onto a list of offences in another Act. As regards England and Wales, see the examples in Part 11 of the Sentencing Code, including the list in section 379 of the Code. For serious crime prevention orders, see the Serious Crime Act 2007, sections 19 (England and Wales and Northern Ireland) and 22A (Scotland), and the “serious offences” listed in Schedule 1. For new behaviour orders of this kind, see the preventative orders legislative solution.

16.8. Should conviction of the offence lead to the offender being disqualified from doing something? For example, disqualification as a company director (see, as regards England and Wales and Scotland, sections 2 and 5 of the Company Directors Disqualification Act 1986, disqualification from holding certain positions, disqualification from keeping animals, or disqualification from holding a driving licence (as regards England and Wales, see Chapter 1 of Part 8 of the Sentencing Code.

16.9. Should conviction of the offence prevent the offender obtaining certain kinds of licence or result in the offender losing an existing licence? See, for example, the consequences under the Licensing Act 2003 of being convicted of an offence listed in Schedule 4 to that Act (England and Wales only; see in particular sections 113 and 129), or the consequences under the Gambling Act 2005 of being convicted of an offence listed in Schedule 7 to that Act (England and Wales and Scotland; see in particular sections 71, 115 and 126).

16.10. Should conviction of the offence require the offender to notify the police or some other organisation of certain matters, for example, residence, contact details or car registration? See for example Part 2 of the Sexual Offences Act 2003 (see the list of offences in Schedule 3) and section 47 of the Counter-Terrorism Act 2008.

16.11. Section 10 of the Corporate Manslaughter and Corporate Homicide Act 2007 allows a court to require an organisation convicted of corporate manslaughter etc to publicise details relating to the conviction (a publicity order).

17. A power for subordinate legislation to create a criminal offence

17.1. Rather than providing for a criminal offence in an Act, is the policy for an Act to create a power for regulations to create the offence?

17.2. If so, be aware that strong justification will be needed, because the offence would be unlikely to receive the same level of parliamentary scrutiny. This is likely to be an exceptional case.

17.3. A power in an Act for regulations to create an offence should, at least, specify the maximum penalties that regulations may impose for the offence and state the mode of trial for the offence. The Act should describe as tightly as possible the kind of behaviour to be criminalised in offences that may be created by the regulations.

17.4. Exceptionally, if there is particular justification for such an approach, it may be appropriate to provide in an Act that regulations may impose requirements or prohibitions, and to state in the Act that breach of those requirements or prohibitions is to be an offence (see for example section 33(1)(c) of the Health and Safety at Work etc Act 1974).

17.5. Note that legislation creating criminal liability should be as accessible as possible and locating different elements of the offence in different enactments might not achieve that aim.

Examples of legislative provisions

Obviously there are a very great number of examples of criminal offences in primary and secondary legislation. The following examples attempt to pick out a few kinds of provisions relating to offences that may be useful.

Aspects of drafting of offences, defences, presumptions:

Offence consisting of an omission: section 24A of the Theft Act 1968 (dishonestly retaining a wrongful credit)

Offence committed by a course of conduct: sections 2A and 7(3) of the Protection from Harassment Act 1997 (stalking – requires two incidents before “a course of conduct” amounts to an offence)

Attempt to commit an offence:

Section 95 of the Adoption and Children Act 200
Section 4 of the Road Traffic Act 2008

Offence requiring knowledge or suspicion of certain facts: section 12(2) of the Ivory Act 2018

Offence requiring intention:

Section 52(1) of the Offensive Weapons Act 2019
Section 3 of the Investigatory Powers Act 2016 (intention + no lawful authority)
Section 67A of the Sexual Offences Act 2003 (inserted by the Voyeurism (Offences) Act 2019)

Offence requiring intention or recklessness: section 2(1)(c) of the Terrorism Act 2006

Offence with combination of different mens rea for different constituents of the offence: section 5 of the Psychoactive Substances Act 2016

Additional provision where offence continues to be committed following conviction:

Section 168(2) of the Planning Act (Northern Ireland) 2011
Section 106 of the Wireless Telegraphy Act 2006

Offence reserved for repeated breach: section 12(1) of the Tenant Fees Act 2019 (monetary penalty may be imposed for the first breach)

Providing that a particular person or category of person may not commit an offence: section 15(1) of the Birmingham Commonwealth Games Act 2020 (the Organising Committee cannot commit an offence)

Absolute offence with no defence (strict liability offence):

Statutory presumptions:

Section 5 of the Offensive Weapons Act 2019 (presumption about contents of a labelled container)
Sexual Offences Act 2003, see sections 75 and 76 (evidential and conclusive presumptions about consent)
Section 3 of the Food Safety Act 1990 (presumption that food commonly used for human consumption found in premises used for the preparation of such food is intended for human consumption)

Defence - taking all reasonable precautions and exercising all due diligence:

Section 1(2) of the Offensive Weapons Act 2019
Section 15(2) of the Financial Guidance and Claims Act 2018
Section 56 of the Space Industry Act 2018

Some other defences:

Section 10(4) of the Birmingham Commonwealth Games Act 2020 (lack of knowledge)
Section 40(6) of the Offensive Weapons Act 2019 (reasonable belief)
Section 1(5) of the Official Secrets Act 1989 (did not know and had no reasonable cause to believe…)
Section 5 of the Public Health (Wales) Act 2017 (did not know and could not reasonably have been expected to know…)
Section 1(2)(b) of the Laser Misuse (Vehicles) Act 2018 (lack of intention + due diligence)
Section 1(2)(a) of the Laser Misuse (Vehicles) Act 2018 (reasonable excuse)
Section 58(3) and (3A) of the Terrorism Act 2000 (reasonable excuse)
Section 50 of the Serious Crime Act 2007 (“acting reasonably”)
Section 14 of the Birmingham Commonwealth Games Act 2020 (acting in accordance with an authorisation)
Section 6(2) of the Offensive Weapons Act 2019 (good reason or lawful authority)
Schedule 4 to the Space Industry Act 2018, paragraph 5(4) (lawful authority or reasonable excuse)

Typical wording used to indicate an evidential burden on a defendant:

Providing that something is not a defence: section 13(6) of the Birmingham Commonwealth Games Act 2020 (acting in accordance with a licence is not a defence)

Conferring a power for regulations to make further provision about what does or doesn’t constitute an offence, or to specify further defences:

Section 13(2) to (4) of the Birmingham Commonwealth Games Act 2020
Section 15(2) of the Birmingham Commonwealth Games Act 2020
Section 7(3) of the UEFA European Championship (Scotland) Act 2020
Section 40(13) of the Offensive Weapons Act 2019

Mode of trial and penalties:

The mode of trial is usually indicated as part of the penalty provision.

Typical penalties for offences that apply in England and Wales, in Scotland and in Northern Ireland: section 53 of the Space Industry Act 2018:

Summary offence, fine only: subsection (2) or (5);
Summary offence, fine or imprisonment (or both): subsections (3) and (7);
Either-way offence, fine only on summary conviction, fine or imprisonment on indictment: subsection (1);
Either-way offence, fine or imprisonment on both summary conviction and indictment: subsections (4) and (8)*;
Indictable-only offence: subsection (6).
But note that it is no longer correct to refer, as subsection (8) does, to section 154(1) of the Criminal Justice Act 2003. The reference should now be to paragraph 24(2) of Schedule 22 to the Sentencing Act 2020. (This point only relates to England and Wales).

Extra-territorial application of offences:

sections 72 and 73 of and Schedule 3 to the Domestic Abuse Act 2021 (Schedule 3 amends other Acts, eg. the Protection from Harassment Act 1997 and the Sexual Offences Act 2003, regarding extra-territorial application of offences in those Acts)
section 52 of the National Security and Investment Act 2021 (exceptionally wide extraterritorial application)
Section 11 of the Birmingham Commonwealth Games Act 2020
Section 48 of the Criminal Finances Act 2017
Sections 2 and 16 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015
Section 12(2)-(6) of the Bribery Act 2010
Schedule 7 to the Counter-Terrorism Act 2008, paragraphs 32 and 34
Section 17 of the Terrorism Act 2006
Section 108A of the Electricity Act 1989 (inserted by the Energy Act 2004)
Section 72 of the Sexual Offences Act 2003
Sections 52 and 55 of the International Criminal Court Act 2001 (extra-territorial application of ancillary offences of the kind mentioned in paragraph 7.2 above)
Section 1A of the Biological Weapons Act 1974 (inserted by the Anti-terrorism, Crime and Security Act 2001)
Section 1(1) of the Aviation Security Act 1982 See also, for a more general application of criminal law to things done outside the UK on spacecraft launched in the UK: section 51 of the Space Industry Act 2018

Liability of directors, partners etc:

Prosecuting an offence:

Consent required before prosecution:

Requirement for a particular prosecuting authority to enforce the offence: section 91 of the Children and Families Act 2014 (local weights and measure authority in England and Wales must enforce the offence of underage purchasing of tobacco)

Extension of time-limits for summary offences:

Section 107(3A) to (3D) of the Wireless Telegraphy Act 2006 (inserted by the Digital Economy Act 2017) (United Kingdom)
Section 220 of the Bankruptcy (Scotland) Act 2016 (Scotland)
Section 3(1) to (3) of the Prevention of Social Housing Fraud Act 2013 (England and Wales)

(Note the inclusion of provisions about how the prosecution proves when a particular thing happens, for the purposes of the time-limit).

Power to create offences by regulations:

Examples of other points:

Interplay with the Customs and Excise Management Act 1979 (import and export offences and related powers of forfeiture):

Section 34 of the Ivory Act 2018
Sanctions and Anti-Money Laundering Act 2018, section 17(6) and paragraphs 27 and 28 of Schedule 1
Section 55 of the Psychoactive Substances Act 2016

Duties of enforcement agencies and provision about which is to be the lead enforcer: sections 24 to 26 of the Tenant Fees Act 2019

Powers of court following conviction (examples in recent Acts, in addition to those mentioned in paragraph 16):

Section 19 of the Psychoactive Substances Act 2016 (power to make a prohibition order; see also section 32)
Section 54 of the Psychoactive Substances Act 2016 (forfeiture order)
Section 9B(4) to (6) of the Caravan Sites and Control of Development Act 1960, inserted by the Mobile Homes Act 2013 (power to revoke the licence for a caravan site)
Section 164 of the Marine and Coastal Access Act 2009 (forfeiture powers)

Consequential amendments of other legislation in connection with new criminal offences:

Schedule 5 to the Psychoactive Substances Act 2016.

Question 13

Civil Sanctions

Accepted Answer

Description of legislative solution

This legislative solution creates a civil sanctions regime, for civil sanctions to be imposed by a person other than a court: frequently a public body operating as a regulator of a particular sector, or (for example) Ministers, government departments or local authorities.

The aim of a civil sanction is to control behaviour in some way, but without criminalising it.

The kind of civil sanctions that may be wanted, and their relationship (if any) with criminal offences, will of course depend on the context and purpose of the policy. What is the aim of the policy? It might, for example, be:

to try to ensure compliance with a regulatory regime;
to stop ongoing conduct that is causing harm or damage;
to penalise behaviour of a certain kind.

There is a spectrum of sanctions, ranging from those that aim to ensure that a person does something or stops doing something, to those that are more punitive in nature, notably a civil monetary penalty.

This solution primarily considers the following formal civil enforcement tools:

Monetary penalties;
Statutory notices requiring the recipient to do something, or stop doing something (these might be called enforcement notices, improvement notices, compliance notices, stop notices, or have some similar label);
Statutory notices or orders requiring the recipient to take specified steps to restore the position that existed before conduct that has caused harm or damage occurred (these might for example be called remediation notices or restitution orders);
Undertakings (agreements) reached between a person and a regulatory authority as to certain actions that need to be taken (usually called enforcement undertakings or enforcement obligations).

This solution usually involves granting considerable discretionary powers to enforcement authorities, and so it is essential to ensure that the powers are targeted, transparent and proportionate.

Note in particular that civil monetary penalties can be substantial, and are often far higher than fines imposed by the criminal courts following successful prosecution of a criminal offence. So it is especially important to consider the appropriateness of such civil sanctions and to build in safeguards (such as the right of appeal). This is discussed further below.

Relationship with criminal offences

It may be that civil sanctions are all that is required to deliver the policy. Or it may be that a civil sanctions regime is to form part of a broader enforcement strategy that also includes criminal offences. See the criminal offences legislative solution.

Underpinning criminal offence: frequently, a criminal offence already exists in respect of certain conduct, and the policy is to make a civil sanction available as an alternative sanction for the same conduct.

Where there is an existing criminal offence, or a new underpinning offence is created, the policy might be (for example):

for civil sanctions to be available as an alternative to the criminal sanction for the same conduct;
for the imposition of a monetary penalty for a first or less serious breach, with the criminal sanction reserved for more serious or repeated breaches;
for a fixed penalty notice enforcement approach (see the fixed penalty notices legislative solution).

Part 3 of the Regulatory Enforcement and Sanctions Act 2008 allows a Minister of the Crown or the Welsh Ministers to make an order providing that a particular regulatory authority (such as the Environment Agency) has the power to impose monetary penalties, stop notices and other civil sanctions as an alternative to criminal prosecution for the same conduct.

No underpinning criminal offence: it may be the policy to allow civil sanctions in respect of conduct which does not constitute a criminal offence (for example, conduct which constitutes a breach of a licence, a breach of a statutory prohibition, or a failure to comply with a statutory requirement).

Back-up criminal offence to ensure that civil sanctions “have teeth”: an example of this is where an enforcement notice may be given in respect of particular conduct, but a breach of the enforcement notice is to be a criminal offence.

There are some further categories of civil enforcement tools to consider. One possibility is to provide for tools that prevent a person carrying on an activity, or place restrictions on them doing so (for example, suspending or revoking a licence or imposing further conditions on a licence-holder, or disqualifying an individual from being a director of a company, or from practising as a health professional). See, in particular, the licensing legislative solution.

There is the option of using disclosure and publicity as a means of encouraging compliance. That may involve taking a power to publicise companies that have breached requirements. Alternatively, legislation may require an authority to publish the compliance records of all operators (that might be an effective way of enforcing voluntary standards).

Statutory notices may be used to require a person to provide specified information to an authority (often called information notices)

Legislation might provide for orders or notices that prevent certain (otherwise lawful) behaviour: see the preventative orders legislative solution.

And legislation might provide for the seizure (and disposal) of goods or confiscation of assets.

See also paragraph 16 of the criminal offences legislative solution (particular sentencing options).

Consideration should also be given to the legislative solution about powers of entry, inspection, search and seizure, to allow investigation and enforcement of civil sanctions.

Impact on justice system

A civil sanctions regime is likely to have impacts on the justice system, for example where provision is made for:

a right for a person receiving a civil sanction to appeal to a court or tribunal against it (see paragraph 9 below);
a right for a regulatory body to apply to a court for enforcement of a statutory notice or order (see paragraph 5.1 below).

So it is necessary to consider the impact and associated costs and consult accordingly.

Elements of the solution

1. What kind, or kinds, of civil sanctions are wanted?

1.1. What kind of behaviour is to be encouraged, required, prevented or penalised?

1.2. What enforcement tools are already available for the targeted behaviour? Is it necessary to devise a new enforcement regime, or would it be better to build on or revise an existing scheme?

1.3. Is the conduct in question already a criminal offence? Is the policy to repeal the offence and rely only on new civil sanctions? Or should the offence be retained in addition to the new civil sanctions?

1.4. Is the conduct in question a breach of a statutory provision (though not an offence)?

1.5. The policy may be to allow just one kind of sanction – frequently, a monetary penalty – or it may be to allow a menu of different kinds of sanctions with different aims.

1.6. Consider whether it is possible to adopt the civil sanctions described in Part 3 of the Regulatory Enforcement and Sanctions Act 2008. There are limitations: an order may be made only in the case of certain pre-existing criminal offences^{[footnote 10]}, and the legislation is of limited application as regards Scotland and Northern Ireland (see sections 56 and 57)^{[footnote 11]} .

1.7. Should the civil sanctions be consistent with the sanctions described in RESA 2008?

1.8. If several kinds of sanctions are to be available, consider the relationship between them (for example, should it be possible for a person to be given a monetary penalty for conduct that has already given rise to the person being given a stop notice?)

1.9. Where underpinning criminal offences exist, is provision needed to achieve the result that a person cannot be subject to both a civil and a criminal penalty for the same conduct? This will depend on the kind of civil sanctions involved.

2. Who may impose a civil sanction? Who is the sanction to be imposed on?

2.1. Which enforcement authority or authorities are to have power to impose the sanction(s) (for example, local authorities, a Northern Ireland Department, a regulatory authority such as OFCOM or the Scottish Environment Protection Agency)?

2.2. Would it be appropriate for different enforcers to enforce different provisions? Is any provision needed about different enforcement authorities cooperating, providing assistance or sharing information? Or, perhaps, provision to allow one enforcement authority to delegate the lead enforcement role to another in certain circumstances?

2.3. Powers are usually given to authorities, rather than to authorised officers of authorities.

2.4. Can a civil sanction be imposed on particular people only (for example, people carrying on particular types of business, or holding particular types of licence)?

3. Grounds for imposing a civil sanction, and standard of proof

3.1. What, exactly, is the behaviour that gives grounds for imposing a civil sanction?

3.2. What is the standard of proof that is to be applied in deciding whether the grounds for the civil sanction are made out?

Where the civil sanction is a severe one, for example a monetary penalty, it is likely that the criminal standard – beyond reasonable doubt – ought to apply.
Arguably, that should also be the case for any civil sanctions that may be imposed as an alternative to a criminal prosecution for the same behaviour (so, for example, the legislation might state that an authority may impose a penalty on a person if satisfied beyond reasonable doubt that the person has committed an offence).
But it may be possible to justify a less onerous standard of proof, e.g., where the sanction is not an alternative to a criminal prosecution, or - even where there are underpinning criminal offences - where a civil sanction is itself less punitive (e.g., an enforcement notice). For example, the standard of proof might be a reasonable suspicion by an authority that an offence has been committed or that a requirement is not being complied with, or simply that an authority is satisfied that there has been a failure of a specified kind.

3.3. The standard of proof will need to be considered for each kind of civil sanction, and may differ according to the sanction.

3.4. Careful consideration will be needed where the policy is that a civil sanction may be imposed on a person in relation to a criminal offence (for example, an authority may impose a sanction if satisfied beyond reasonable doubt that a person has committed the offence), and the offence requires a particular state of mind (e.g., an offence that requires knowledge of something). Should it be necessary, in order to impose the civil sanction, for the authority to be satisfied about the mens rea element of the offence, or not?

4. Power to issue enforcement notices, stop notices, remediation notices etc or agree undertakings

4.1. Where it is proposed to give a person a formal notice of some kind imposing a sanction, does the person have to be given warning first (this is sometimes called a notice of intent)? What are the time-limits for giving such a warning notice? What details must the notice contain? Can the requirement to give a warning notice be dispensed with in an emergency? Should the recipient of the notice be able to make representations about the proposed sanction?

4.2. What details must the formal enforcement notice, or other kind of notice imposing a sanction, contain? For example, what steps must be taken by the recipient (the relevant step might be to refrain from doing something, rather than doing something)? Within what time period? It is usual to require the notice to specify the breach or non-compliance that has given grounds for serving the notice, to give details of any appeal rights (see paragraph 9 below), to specify the consequences of non-compliance with the notice, and to state the deadline for compliance.

4.3. Should the legislation state the kinds of steps that the enforcement authority may require the recipient to take? What are the limits on what the authority may require the recipient to do? Must the steps be taken to comply with a requirement that has been breached, to make good harm that has been done, or something else? May steps be required to be taken only for a specific purpose? Can the steps include paying money to anyone else?

4.4. Should it be possible for the enforcement authority to vary or cancel a notice? Could a recipient of a notice apply to have it varied or cancelled? See paragraph 9 of the giving notice legislative solution.

4.5. Where a stop notice is wanted, should provision be made for it to cease to have effect at the end of a specified period (a temporary stop notice)? Should there be provision for compensation of a person receiving a stop notice or a temporary stop notice (where, for example, the notice is overturned on appeal)?

4.6. How should notices be given to a person? Consider electronic service. See the giving notice legislative solution, especially paragraphs 5 and 11.

4.7. An alternative to a notice system – or an additional enforcement tool – might be to provide that an enforcement authority may accept undertakings from a person about their future behaviour.

5. Enforcement of notices and undertakings

5.1. What should be the means of securing compliance with an enforcement notice or an enforcement undertaking? This might be:

providing that it is an offence to fail to comply (see the criminal offences legislative solution);
providing that a civil monetary penalty could be imposed for failure to comply;
providing that a person has a duty to comply with the notice or undertaking and that that duty is enforceable by the enforcement authority in civil proceedings for an injunction or (in Scotland) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988;
providing that, if the notice is not complied with, the enforcement authority may apply to a court for an order of a particular kind specified in the legislation.

5.2. Another possibility is to allow a remediation/restitution notice or order to be imposed for failure to comply with an enforcement notice or stop notice, requiring the recipient to restore the position to what it was before the harmful conduct occurred, within a specified time, at the recipient’s expense.

5.3. An alternative is to provide a power for the enforcement authority to conduct the remedial works itself, and to recover the costs of doing so from the person responsible for the breach.

5.4. If the costs of remediation could be substantial, is the person responsible likely to be able to pay for it? If not, should there be a scheme whereby operators enter into financial arrangements for the purpose of meeting prospective liabilities arising from the need for remediation works?

6. Power to impose civil monetary penalties

6.1. Where a person may be prosecuted for an offence or be liable for a penalty for the same behaviour, who is to decide which enforcement option to take, and on what grounds should they decide? Should criteria be specified in the legislation?

6.2. Should the legislation specify the criteria that an enforcement authority must take into account in deciding whether to impose a penalty? Are there to be particular cases stated in the legislation in which an authority is not able to impose a penalty?

6.3. Are the amounts of penalties to be fixed in legislation (known as fixed penalties), or can the enforcement authority decide what amount to impose (known as variable penalties)? What is the level of penalty that may be imposed? Should the levels differ depending on the conduct in question?

6.4. If the enforcement authority can determine the amount of the penalty, should the legislation specify criteria that must be taken into account in deciding the level of penalty? What is the maximum level that may be imposed? Where different amounts of penalties may be imposed depending on certain criteria, even if the amounts and criteria are left to be specified by subordinate legislation (see paragraph 10 below), the primary legislation should still specify the maximum amounts that may be imposed.

6.5. Occasionally it may be appropriate to provide for penalties to be payable at a daily rate for repeat or enduring failure to comply.

6.6. Should it be possible for the enforcement authority to vary or cancel a penalty? If there is a power to vary a penalty that has already been imposed, should it only be a power to reduce it and not to increase it? Should this be possible even if the penalty has been paid (in which case, should it be refunded)?

7. Procedure for imposing civil monetary penalties

7.1. Should a warning or notice of intent be required before a civil monetary penalty may be imposed? What are the time-limits for giving the notice? What details must the notice contain?

7.2. It is usual to require such a notice and for it to state the reason that the enforcement authority proposes to impose a penalty, the amount of the penalty, and information about making representations (see next point).

7.3. If a notice of intent is to be given to a person, there is then almost invariably provision allowing the person to make representations about the proposed sanction. What are the time-limits for doing that? Who would consider the representations?

7.4. Should the recipient be given an opportunity to discharge their liability to pay the full penalty by payment of a smaller sum specified in the notice of intent, or by offering an undertaking? Within what time-limits?

7.5. What details must a notice imposing a monetary penalty contain? It is usual to require details about the reason (grounds) for imposing the penalty, how to pay it, the period within which it must be paid, the consequences of failing to pay it, and any appeal rights (see paragraph 9 below).

8. Payment of civil monetary penalties

8.1. What is the deadline for paying the penalty?

8.2. Should there be a discount for penalties paid early? How early must they be paid to take advantage of the discount?

8.3. Does late payment incur interest charges, or additional penalties?

8.4. What should happen where a civil monetary penalty is not paid?

The usual position would be that the penalty would be recoverable as a civil debt (in other words, ordinary court proceedings to recover the debt would be required).
It may be useful for provision to be made enabling the debt to be recoverable, on the order of a court, as if it were payable under a court order: that means that the debt may be recovered by means of an easier and quicker court procedure.

8.5. Is there any reason to depart from the usual position that receipts from civil monetary penalties should be paid into the relevant Consolidated Fund?

9. Appeals

9.1. Is there to be a right of appeal to a court or tribunal (or other independent decision-maker) against a civil sanction that has been imposed (for example, an appeal to the First-tier Tribunal, or (in Scotland) a sheriff)?

9.2. You will need advice from lawyers about whether article 6 of the ECHR requires appeal rights in a particular case. Monetary penalties are very likely to require rights of appeal.

9.3. If there are to be appeal rights, see the appeals against administrative decisions legislative solution.

10. Is a power to make further provision by subordinate legislation needed?

10.1. If the power to impose civil sanctions is conferred by primary legislation, is it necessary to create a power for subordinate legislation to make further provision (transitional, consequential, supplementary) about the civil sanctions?

10.2. It may be that the primary legislation sets out a basic framework (types of sanctions available, grounds for imposing them and so on) with subordinate legislation needed to fill in the details or vary the amounts. It is best to include as many details as possible in the primary legislation.

10.3. Where civil sanctions relate to a number of offences, prohibitions or requirements, one approach might be to provide a power for subordinate legislation to specify the offences, prohibitions or requirements in question.

10.4. Another option is for primary legislation to confer a power for subordinate legislation to give powers to an enforcing authority to impose civil sanctions. With that approach, it is likely that the powers that the regulations might allow an enforcing authority to exercise would need to be set out in the primary legislation in considerable detail, so it would still be important to consider the matters in this legislative solution.

11. Further considerations

11.1. Consider whether any provision is needed about the following matters.

11.2. Are there principles or other requirements that an enforcement authority must apply or follow when using its powers to impose civil sanctions? If so, should they be set out in legislation?

11.3. Or should the authority be required to develop and publish its own principles or policies (guidance) for using the powers? If so, does any particular process need to be followed (for example, as to consultation, publication or laying before the legislature)?

11.4. Should an enforcement authority be required to publish a report about how it has used its powers to impose civil sanctions? In particular, where an authority has power to impose monetary penalties, it might be required to publish a record of penalties imposed, with details of the parties and the types of non-compliance involved.

11.5. Should an enforcement authority be able to recover its costs in connection with civil sanctions? Can all costs be covered (for example, legal or other costs as well as the costs of an investigation)? How is the requirement to pay the costs to be imposed? How long does a person have to pay? Is there any right to challenge the amount of the costs or appeal against a notice requiring them to be paid?

12. Investigation or monitoring for the purposes of civil sanctions

12.1. Just as for a criminal offence, it will be necessary to obtain information and gather evidence in order to discover whether a rule is being breached or there is failure to comply with a requirement. Does the authority able to impose the civil sanction have the necessary powers? Consider powers of entry, inspection and search (see the powers of entry, inspection, search and seizure legislative solution, especially paragraph 1 and paragraphs 5.8 to 5.10). Will legislation need to provide for new powers, or the modification of existing powers?

12.2. Consider how the police, or the enforcement authority with powers to impose the sanctions, will obtain the information required to monitor whether it would be appropriate to impose a civil sanction. Are inspection powers needed, or powers to obtain information from certain kinds of individuals or bodies?

12.3. In the regulatory context, the powers listed in section 108 of the Environment Act 1995 may provide a useful checklist (but powers should be sought only if they are necessary and proportionate).

Examples of the legislative solution

Enforcement notices, stop notices, enforcement undertakings etc

Monetary penalties

Medicines and Medical Devices Act 2021, Part 1 of Schedule 2 (the Secretary of State may impose monetary penalties if satisfied beyond reasonable doubt that an offence under the Act or other specified legislation has been committed)
National Security and Investment Act 2021, sections 40 to 47 (the Secretary of State may impose monetary penalties if satisfied beyond reasonable doubt that an offence under the Act has been committed)
Schedule 5 of the Referendums (Scotland) Act 2020 (fixed and variable monetary penalties, as well as other civil sanctions; the Electoral Commission may impose penalties if it is satisfied beyond reasonable doubt that an offence has been committed)
Part 3 of the Non-Domestic Rates (Scotland) Act 2020 (monetary penalties for breach of requirements to provide information)
Tenant Fees Act 2019, section 8 and Schedule 3 (a local weights and measures authority or district council in England may impose a monetary penalty if satisfied beyond reasonable doubt that a person has breached a provision of the Act or committed an offence under the Act)
Transport (Scotland) Act 2019, sections 6, 7 and 27, and 58 (penalty charges payable to local authorities for driving in breach of the rules in a low emission zone, and for parking infractions)
Part 6 of the Data Protection Act 2018 (the Information Commissioner may impose a monetary penalty for breaches of the Act or for breaches of an information notice, assessment notice or enforcement notice): see in particular section 155 and Schedule 16
Schedule 1, Part 1, of the Ivory Act 2018 (the Secretary of State may impose a monetary penalty if satisfied beyond reasonable doubt that a person has committed an offence under the Act)
Part 8 of the Policing and Crime Act 2017 (the Treasury may impose a monetary penalty if satisfied on the balance of probabilities that a person has breached certain prohibitions etc – see sections 146 to 149)
Higher Education and Research Act 2017, section 15 and Schedule 3 (the Office for Students may impose a monetary penalty for breach of registration conditions by education providers)
Investigatory Powers Act 2016, section 7 and Schedule 1 (the Investigatory Powers Commissioner may impose a monetary penalty in certain circumstances where the Commissioner does not consider that the person has committed an offence under the Act)
Sections 46A to 46D of the Environmental Protection Act 1990, inserted by the Deregulation Act 2015: a waste collection authority in England may impose a monetary penalty for household waste breaches. This regime replaced, for England, the previous criminal offence for such breaches (see section 46(6), which was the previous offence, now applying only in relation to Scotland and Wales)
Chapter 1 of Part 3 of the Immigration Act 2014, sections 23 to 31 (the Secretary of State may impose a monetary penalty on a landlord or landlord’s agent for contravention of a provision of the Act)
Part 2 of the Mobile Homes (Wales) Act 2013, sections 15 and 16 (a local authority may impose a (low) fixed monetary penalty in respect of licensing breaches. Note that this is called a “fixed penalty notice”^{[footnote 12]} and, unusually, seems to be the enforcement method of first resort, to be followed up, if not paid, by a compliance notice)

Examples relating to some particular points on civil sanctions

Enforcement of notices, undertakings etc:

Paragraph 9 of Schedule 1 to the Ivory Act 2018 (failure to comply with a stop notice is an offence)
Section 155(1)(b) of the Data Protection Act 2018 (the Information Commissioner may impose a monetary penalty for failure to comply with an information, assessment or enforcement notice)
Paragraph 10 of Schedule 1 to the Investigatory Powers Act 2016 (failure to comply with enforcement obligations is enforceable in civil proceedings for injunction etc)
Section 18 of the Psychoactive Substances Act 2016 (where a prohibition notice is breached, the enforcing authority may apply to a court for a prohibition order)
Chapter 4 of Part 3 of the Enterprise Act 2002, section 94 (failure to comply with enforcement undertakings or enforcement orders is enforceable in civil proceedings for injunction etc; also – unusually – provides for a private right to damages (section 94(4))
Chapter 3 of Part 1 of the Competition Act 1998, section 31E (the Competition and Markets Authority may apply to a court for enforcement of competition commitments)

Provision about compensation for a stop notice:

Section 47 of the Forestry and Land Management (Scotland) Act 2018 (temporary stop notice) Section 75 of the Reservoirs (Scotland) Act 2011

Section 9ZL of the Ancient Monuments and Archaeological Areas Act 1979 (inserted by the Historic Environment (Wales) Act 2016) (temporary stop notice)

Enforcing payment of monetary penalties:

Interest charges for late payment of penalty:

Provision for enforcement authority to recover its costs:

National Security and Investment Act 2021, sections 45 to 47
Medicines and Medical Devices Act 2021, Part 3 of Schedule 2 (enforcement costs recovery notices)
Schedule 1, Part 4, of the Ivory Act 2018
Section 9C of the Caravan Sites and Control of Development Act 1960 (inserted by the Mobile Homes Act 2013; see also section 9I)
Section 88 of the Reservoirs (Scotland) Act 2011

Preventing liability for several civil sanctions, or for a criminal offence and a civil sanction:

National Security and Investment Act 2021, section 43
Sections 8(4) and 12(4) of the Tenant Fees Act 2019
Paragraph 20 of Schedule 2 to the Sanctions and Anti-Money Laundering Act 2018
Paragraphs 4, 10(2) and 19 of Schedule 1 to the Ivory Act 2018
Schedule 19C to the Political Parties, Elections and Referendums Act 2000, paragraphs 4 and 22

Requirement for enforcement authority to publish guidance about its use of enforcement powers:

Powers to make regulations about civil sanctions

Power for regulations (or order) to expand on civil sanctions created by an Act:

Power for regulations to change the amount of monetary penalties: section 9 of the Tenant Fees Act 2019

Power for regulations (or order) to allow the imposition of civil sanctions relating to offences created by an Act:

Section 59 of the Space Industry Act 2018 (regulations may allow a regulator to impose the kinds of civil sanctions described in Part 3 of the Regulatory Enforcement and Sanctions Act 2008, relating to offences created by the Space Industry Act)
Sections 83 and 86 of the Reservoirs Act (Northern Ireland) 2015 (the Department of Agriculture, Environment and Rural Affairs may make regulations allowing the imposition of fixed or variable monetary penalties where satisfied beyond reasonable doubt that a reservoir manager has committed an offence under the Act)
Sections 35 and 36 of the Marine Act (Northern Ireland) 2013 (an order may allow the Department of Agriculture, Environment and Rural Affairs to impose a fixed monetary penalty where satisfied beyond reasonable doubt that a person has committed an offence under the Act. See also Schedule 2 – there is a lot of detail here about what provision such an order would have to make)
Sections 93 to 96 of the Marine and Coastal Access Act 2009 (an order may allow an enforcement authority to impose fixed or variable monetary penalties relating to licensing offences under the Act. See also Schedule 7 - there is a lot of detail here about what provision such an order would have to make)

Power for subordinate legislation to allow the imposition of civil sanctions in the Regulatory Enforcement and Sanctions Act 2008, relating to offences created by the subordinate legislation: see section 62 of the Regulatory Enforcement and Sanctions Act 2008, and Schedule 7 to that Act

Power for regulations to create civil sanctions where there is no criminal offence:

Part 6 of the Traffic Management Act 2004 (penalty charges, see in particular sections 72, 78, 80, 82 and Schedule 9; the enforcing authorities may set the level of charges, and the regulations may create criminal offences).

Question 14

Giving Notice

Accepted Answer

Description of the legislative solution

This solution is concerned with giving notice as part of a legislative scheme. The relevance of a number of the issues outlined below will vary according to the reason for giving notice. There are many reasons for requiring notice to be given, for example it may be necessary to:

give information to a particular person for a particular purpose,
give a person a warning,
inform a person of a decision, the reasons for the decision and the consequences of the decision,
advise a person of one’s intentions,
prohibit a person from doing something,
require or permit a person to do something,
appoint or designate a person to a particular role,
initiate a process or a particular step in a process.

The giving of a notice may therefore enable a person to respond to a proposal and make representations about it, or it may enable a person to prepare for forthcoming changes.

This solution is concerned with the issues that may arise when considering what provision is required for giving notice. The issues don’t arise in every case, and how much needs to be said will depend on the context. So, for example, there won’t be a need for much detail where the person giving the notice and the person receiving it are known to each other, where the information that needs to be contained in the notice is straightforward or where the notice doesn’t have an impact on the rights of individuals. Although this note refers to notices, these issues may also apply to giving or serving other documents and information.

Provision about notices may be included in almost any legislative scheme. For example, a licensing regime may include various requirements to give notices. See also the legislative solutions about fixed penalty notices, civil sanctions and powers of entry, inspection, search and seizure.

Elements of the legislative solution

1. Form of notice

1.1. What form should the notice take?

1.2. The form that a notice is to take will sometimes be obvious from the context but in other cases it may be necessary to specify the form. Alternatively the recipient of the notice could be given the power to specify its form. If nothing is said, and the context does not require a particular form, then it will be for the person giving notice to choose its form.

1.3. If the form is to be specified:

Should the notice be given in writing, or could it be given orally or in some other way? Is the aim only to ensure that information is provided, or also to ensure that it is provided in a permanent form?
If the notice has to be given in writing, can it be an electronic document or communication, or does a paper “hard copy” have to be provided?
Should the notice be produced using a standard form or template?

2. Content of notice

2.1. What should be included in the notice?

2.2. For example, a notice could be required to set out:

the date of its issue or the date on which it has effect,
the reasons for giving it,
an explanation of its effect or the consequences of not complying with it,
information as to how and when to make representations,
an explanation of any rights of appeal or review,
information about time limits.

2.3. Is anything else needed to accompany the notice (such as other documents)?

2.4. Might the information that must or may be contained in the notice need to be changed from time to time?

3. Conditions to be satisfied before notice can be given

3.1. Should the legislation set out any conditions to be satisfied before the notice can be given?

3.2. For example:

a person could be required to obtain the agreement of a third party before giving notice,
a person could be required to consult before giving notice,
a person could be required to be satisfied as to the existence of particular state of affairs before giving notice,
a person could be required to be satisfied that giving notice will contribute to a particular purpose or aim.

3.3. If there are to be conditions, should the notice be required to be given within a specified period of the conditions being satisfied?

4. To whom should notice be given?

4.1. Notice may need to be given to a particular person, to a group of persons, to persons in a particular area or to the world at large. The recipient (and how to give notice) will depend on why notice is being given.

4.2. As a general rule, those with an interest in a process or proposed decision, should be made aware of it. The extent to which a person’s interests may be affected should determine whether or not they should be given a notice.

4.3. Should service on a person acting on behalf of a person with an interest in the notice be permitted, such as on a person’s solicitor?

5. How should notice be given?

5.1. If notice is to be given to specific people, how should it be given?

5.2. It may not be necessary for the legislation to specify the manner of giving notice as this may be clear from the context or the policy may be not to specify any particular manner. Or in the case of legislation to which Section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 or section 24 of the Interpretation Act (Northern Ireland) 1954 applies^{[footnote 14]}, it may be that nothing different from, or additional to, what is provided for in those sections is wanted. Those sections set out the methods of service that are allowed where legislation authorises or requires a document to be served on a person. These will apply unless there is a contrary intention.

5.3. If certain ways of giving notice are to be set out in the legislation, should giving notice be permitted only by the methods that are set out, or should the methods that are set out be examples of what may be many possible ways of giving notice?

5.4. Where there is more than one potential recipient, could service on just one be sufficient, or is service on all necessary (or on all those who are known to the person giving the notice)?

5.5. The manner of giving notice could be allowed to be specified administratively.

5.6. Possible ways of giving notice include: sending by post; delivering to an address; electronic service; service in person; affixing to premises; any other method agreed by the parties.

Sending by post

5.7. Depending on the legislation in question, provisions of the different Interpretation Acts apply to service by post^{[footnote 15]}. Section 7 of the Interpretation Act 1978 and sections 13 and 14 of the Legislation (Wales) Act 2019 apply ^{[footnote 16]} if service by post is permitted (whether expressly or not) or required. They contain default provisions about what steps must be taken to serve the document and about when it is assumed to arrive. Section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010^{[footnote 17]} and section 24 of the Interpretation Act (Northern Ireland) 1954^{[footnote 18]} contain similar provision. Is something additional to, or different from, what is said in those Acts wanted? For example, if something different is wanted about the time at which service is treated as having been effected, provision will be needed for this.

5.8. Should service by post in a particular way be required (such as by first class post, by recorded delivery or by registered post^{[footnote 19]})?

5.9. Should something be said about the address to which a notice can be sent or delivered? For example a company may have a number of different addresses, or a person may have two homes. Unless the context makes it clear which address a notice should be sent to, it may be necessary to specify which one should be used.

5.10. Is it necessary to make provision about service on different kinds of bodies (such as bodies corporate, partnerships and local authorities)? If so, what address should be used for the different types of bodies? What address should be used for an unincorporated association?

5.11. Note that section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 contains provision about a person’s proper address and refers to a person’s usual or last known place of abode or business. Where these apply, consider whether anything different or additional is wanted. Service where there is no address

5.12. Should provision be made about how to give notice to persons unknown or to the world at large, or to a person who has no address or whose address is not known? Giving notice by publishing it somewhere or by displaying it on land are possible ways of doing this^{[footnote 20]}.

Personal service

5.13. If service in person is permitted, how should this to be applied to persons other than individuals? For example personal service on a body corporate could be on one of its officers, personal service on a partnership could be on a partner, and personal service on a governing body could be on one of its members.

5.14. A notice is often required to be given in person when entering premises, when taking things away from premises or when bringing things on to premises. In these cases, consider to whom the notice should be given. It may not always be possible to identify the owner, occupier, manager or lessee of the premises. Should giving notice to any person on the premises be sufficient? If no person is present, should the notice be capable of being given by being left in a prominent place?

5.15. Should leaving the notice with another person suffice? Section 24(2) of the Interpretation Act (Northern Ireland) 1954 allows service on a person to be effected by leaving a document for the intended recipient with some person apparently over the age of sixteen at the intended recipient’s usual or last known place of abode or business.

Affixing to premises

5.16. Where a notice relates to premises, to land or to a monument or other structure or place, or to a vehicle, should the notice be given by being displayed on the site or vehicle or close to it? For example at a school or hospital entrance, or on the land where something has been seized. And how should any such notice be displayed? For example, prominently or in a place accessible to the public.

Electronic service

5.17. If electronic service is allowed or required (though requirements to serve electronically are rare), should a particular type of electronic communication be used (for example, e-mail)? This could be specified or left to the parties to agree.

5.18. Consider whether any conditions should be applied before electronic service can take place. These could include things like requiring the recipient to signify consent in advance. Such a requirement may be needed only when the recipient is a private body or an individual. If consent is to be required, should it be to all notices or specific ones, and is there any information that needs to be given when signifying consent?

5.19. Should provision be made about what address to use for electronic service?

5.20. It may be that electronic service should not be allowed, or that some notices should not be capable of being given electronically. Legislation sometimes prevents fixed penalty notices, for example, from being served electronically.

5.21. Are there any technical requirements that should apply if a notice is served electronically? For example that the notice must be in a particular format, must be legible, must be capable of being retained by the recipient, or that the text must be capable of being used.

5.22. Note that the Legislation (Wales) Act 2019 and the Interpretation and Legislative Reform (Scotland) Act 2010. both contain provisions about electronic service^{[footnote 21]}. Where these apply, consider whether anything different or additional is wanted.

5.23. Where electronic service is to be the default, consider whether to allow an intended recipient to indicate a wish to receive a notice in some other way.

6. Publication

6.1. Should the notice be published? If the notice is to the public at large, publication is likely to be needed. It may also be needed in order to advise others that a notice has been given to specific people.

6.2. Publication could be online, in newspapers, in the Gazettes^{[footnote 22]} or in whatever way the person giving the notice considers appropriate. A copy of a notice could be required to be displayed where those affected by it are likely to see it. Consider whether hard copies of the notice should be made available.

6.3. Where a public body issues notices, should there be a requirement to publish all its notices? If so, where should they be published, when and how? Should only those in force be published? Should publication only on a website be sufficient? Should there be a requirement to supply copies of the notice, and if so to whom? Should the notices be made available for inspection? Should charging for copies be permitted?

6.4. Should a notice be required to be published for a particular period?

6.5. If notices generally have to be published, should it be possible to decide not to publish a notice or to withhold parts of a notice in certain circumstances? This might be wanted, for example, in order to protect trade secrets, for purposes related to national security or for reasons related to personal safety. Might it be necessary to require that certain notices are not published, for those or other reasons?

7. Timing

7.1. Consider whether time limits should be imposed (for example, on giving notices, for publishing notices, for doing things after notice has been given or for the time during which a notice has effect). Should any time limits run from a particular day (including that day) or from a particular time of day? Should they end on a particular day? Should the time limits run from the time the notice is sent or received? Should time limits (expressed in days) include only working days?

7.2. How should any time limits apply where there is more than one potential recipient of a notice?

8. Exceptions to a requirement to give notice?

8.1. Are there circumstances in which the requirement to give notice should not apply? For example, a requirement to give advance notice of an intention to exercise a power to enter premises to seize documents or goods may, in some cases, defeat the purposes of the exercise of that power.

8.2. Should waiver of a requirement to give notice be allowed or precluded?

9. Amendment or withdrawal of a notice

9.1. Should a notice be capable of being amended or withdrawn? If so consider:

whether there should be a limit on when this can be done,
what should be the effect of amendment or withdrawal,
whether any procedure for giving the notice, and any conditions to be satisfied, should apply in the same way to amending or withdrawing the notice,
whether there should be a requirement to notify anyone,
whether amendment or withdrawal should be permitted on application only,
the date from which a variation or withdrawal should be effective.

10. Appeals and reviews

10.1. Should it be possible to appeal against the notice or apply for a review of the notice? This is likely to be relevant where a notice imposes requirements or prohibitions.

10.2. If there is to be a right of appeal, see the legislative solution on appeals against administrative decisions.

11. Failure to comply with requirements in relation to the giving of a notice

11.1. What should be the effect of a failure to comply with requirements in relation to the giving of a notice? A failure might consist, for example, of:

a notice not being given in time,
a notice not being in the proper form,
a notice not containing the required information,
the conditions to be met before giving notice not being met fully.

11.2. Should a notice that fails to comply with any of the requirements that apply to it be invalid? Or should there be cases where a notice is valid despite a failure to comply?

11.3. Legislation often does not specify the consequences of failing to comply, but if no provision is made then the effect of non-compliance will depend on the nature of the failure and its effect, and may have to be determined by the courts.

11.4. If a particular result is wanted in all cases, such as a particular failure invalidating the notice, this may need to be specified.

12. Regulations

12.1. In certain circumstances it may be appropriate for matters relating to notices to be dealt with in regulations, for example, details relating to the form or content of a notice, the manner of giving a notice, how to publish, time limits, amending or withdrawing a notice, etc.

Examples of the legislative solution

Many statutes contain provision about notices. Below are some examples of provision on notices that may be useful.

Form of notice:

Scotland

Wales

Renting Homes (Wales) Act 2016, section 236(3) (regulation making power to set out form of notice), section 236(4) (permits the giving of notice in electronic form subject to conditions)

Northern Ireland

Conditions to be met before notice can be given:

Scotland

Wales

Tax Collection and Management (Wales) Act 2016, section 94 (time limits on giving notice after conditions met)
School Standards and Organisation (Wales) Act 2013, section 32C(3) (conditions to be met before notice can be given)

How to give notice:

UK

Data Protection Act 2018, section 141 (how notice may be given to individuals, bodies corporate, bodies unincorporate and partnerships in Scotland)
Cultural Property (Armed Conflicts) Act 2017, section 25(2) (how notice must be given and how to give notice to a person with no address in the United Kingdom or whose address is unknown)
Digital Economy Act 2017, section 28(a person’s proper address for notices)
Psychoactive Substances Act 2016, section 16 – (how notice may be given, including personal delivery), section 46(3) (notice when item seized from premises to be left in a prominent place if not reasonably practicable to give to an affected person)
Companies Act 2006, section 1168 and Schedules 4 and 5 (detailed provision on sending documents to a company)
National Health Service Act 2006, Schedule A1, paragraph 5(3)(b) (notice may be delivered in person or sent by first class post)
Communications Act 2003, Schedule 3A, paragraph 91 (requirement to send notice by registered post or recorded delivery)
Acquisition of Land Act 1981, section 6(4) (if not practicable to ascertain name or address of an owner, lessee, tenant or occupier, document may be served by delivering it to a person on the land or leaving it on or near the land)

Scotland

Private Housing (Tenancies) (Scotland) Act 2016, section 62 (meaning of notice to leave and stated eviction ground)

Wales

Regulation and Inspection of Social Care (Wales) Act 20I6, section 84 (general provision as to how to give notice)
Renting Homes (Wales) Act 2016, section 237(4) (technical requirements for electronic service)
Tax Collection and Management (Wales) Act 2016, section 103(5) (how notice of inspection of premises to be given)
Health and Social Care Act 2012, section 148 (when notice sent by registered post or recorded delivery, or by an electronic communication taken to have been received)

Northern Ireland

Publication of notices:

Scotland

Forestry and Land Management (Scotland) Act 2019, section 45(6)-(7) (display of temporary stop notice on land to which notice relates)

Wales

Public Services Ombudsman (Wales) Act 2019, section 56 (publication of notices)

Northern Ireland

Timing:

Scotland

Wales

Additional Learning Needs and Education Tribunal (Wales) Act 2018, section 23(5) (time periods when notice required to be given to more than one person)

Northern Ireland

Appeals and reviews:

Scotland

High Hedges (Scotland) Act 2011, section 12 (appeals against decisions relating to high hedge notices)

Wales

Northern Ireland

Licensing of Pavement Cafés Act (Northern Ireland) 2014, section 19 (notice may provide for revocation, etc. to take effect on date notice is served if necessary in public interest)

Failure to comply with requirements:

UK

Wales

Question 15

Appeals against administrative decisions

Accepted Answer

Description of the legislative solution

This legislative solution provides a right for a person to appeal against a decision that has been made under a statutory scheme, such as a decision of a public authority to grant or refuse a licence, issue a notice or make an order. An appeal is usually made to a court or tribunal, but sometimes to a Minister, department or other person who is independent of the original decision-maker. This legislative solution is concerned with appeals against administrative decisions, not with appeals against criminal convictions or against other judgments of the courts in criminal or civil proceedings.

A right of appeal may be an important means of ensuring that a process is fair and compatible with procedural obligations arising under the European Convention on Human Rights. Lawyers will be able to provide advice as to when an appeal procedure may be required. In general, an appeal is more likely to be needed if a decision has a significant effect on a person’s rights (e.g. their liberty, privacy, property or ability to carry on a business). Considerations of fairness and ECHR compatibility will also be relevant to the detailed questions in this legislative solution about the nature of the appeal.

Whether a right of appeal is required, and the nature of any appeal that is provided, will be affected by the adequacy of any other procedural safeguards in the decision-making process, because the question of fairness may be assessed by considering the process as a whole. An appeal may be particularly important if there is no chance for people to make representations before a decision is taken or confirmed.

A new right of appeal is likely to have impacts on the wider justice system, so it will be necessary to consider the impacts and associated costs and to consult accordingly.

A right to require the original decision-maker to review or reconsider its decision, or a system of alternative dispute resolution, may sometimes be provided instead of (or in addition to) a right of appeal. And in some cases the possibility of bringing a claim for judicial review of the original decision may be sufficient so that no provision for a right of appeal is necessary (although appeals may cover a wider range of grounds than can be raised in judicial review proceedings).

This legislative solution uses the following terms:

appellant – a person who is appealing against a decision;
appellate body – the tribunal, or other body or person, that receives and decides appeals.

Elements of the legislative solution

1. Which decisions can be appealed against?

1.1. Should there always be a right to appeal against decisions of the type in question, or should the right only arise if the decision has certain effects? For example, there might be a right to appeal against an order or notice only if it imposes particular types of restriction or obligation.

1.2. In the case of a decision that is made in response to an application, such as a decision whether to grant a licence, should the right of appeal attach only to certain types of decision that can be taken on the application? For example, should there be an appeal against a refusal of an application, but not against the granting of a licence? Should it be possible to appeal against the terms on which a licence is granted?

1.3. In cases involving applications, should the right of appeal depend on a decision being made, or should it also be possible to appeal against a failure to determine the application within a certain time?

2. Who can bring an appeal?

2.1. Should the right of appeal only be available to the person to whom the decision is addressed, such as an applicant whose application is refused or a person on whom a sanction is imposed?

2.2. Should other people who are directly or indirectly affected by a decision have a right of appeal? For example, if a decision has the effect of prohibiting an activity, should there be a right of appeal for anyone who has been carrying on that activity or intends to do so? What about people who are adversely affected by the fact that others can no longer carry on the activity?

2.3. Should other third parties have a right to appeal? For example, should a person who objects to the granting of a licence be able to appeal against the decision to grant it? Should such a right of appeal depend on the person having an interest that is affected by the granting of the licence, and if so, what kind of interest and what effect on it are required?

3. On what grounds can an appeal be brought?

3.1. Should there to be any limits on the grounds on which appeals can be brought? Legislation may simply confer a right to appeal against a decision without specifying any limitations, but in some cases the grounds on which appeals may be brought are specified. For example, the grounds for appealing against a notice requiring compliance with a statutory requirement might include:

that there has been no breach of the requirement in question;
that any breach that has occurred has not had detrimental effects;
that someone else was responsible for any breach that took place;
that the steps required by the notice, or the deadline for taking them, are impossible or unreasonable;
that the notice was not properly issued or served, or the notice or the procedure followed was defective in some other way.

3.2. In some cases, an appeal may only be brought on the ground that the decision was wrong as a matter of law, or on the grounds that can be raised on a claim for judicial review. For example, it may be appropriate to limit the grounds of appeal in this way if the original decision is made after factual evidence has been considered at a hearing or inquiry, or if it is a Ministerial decision in which policy considerations are likely to play a large part.

3.3. If the grounds of appeal are to be listed, care needs to be taken that potentially valid grounds are not inadvertently excluded. Note also that the grounds on which appeals may be brought will affect the procedures that are appropriate for dealing with appeals and the powers that the appellate body will need when it decides an appeal (see sections 6 and 8 below).

4. To whom must an appeal be made? And who is to determine the appeal?

4.1. Is there an existing tribunal, court or other body that is suitable to deal with the appeal (e.g. because it already deals with similar types of appeal or has relevant expertise)? If existing courts or tribunals are to be used, at what level in the court or tribunal system should appeals be considered (e.g. the county court or the High Court, or in Scotland the sheriff court or the Court of Session; the First-tier Tribunal or the Upper Tribunal)?

4.2. If appeals are to be made to Ministers^{[footnote 23]}, should Ministers deal with appeals themselves, or should they be required to appoint another person to deal with them? Should the role of an appointed person be to decide the appeal or just to report to Ministers so that they can decide? Should Ministers have the power to remove and replace appointed persons, or to take over the handling of particular appeals from them? Should there be any limit on who they can appoint?

4.3. If no existing arrangements are suitable, should a new body or tribunal be created to deal with the appeals in question? Or should individuals or panels be appointed to deal with appeals on a case-by-case basis? If new arrangements are being created, what provision will be required for the establishment and administration of the new system? This might include provision about:

the appointment of members of the appellate body (including any chair or presiding member);
eligibility and qualifications for appointment to the appellate body;
different categories of member (e.g. legal or professional members and lay members);
duration and conditions of appointment;
removal and resignation of members;
remuneration and pensions of members;
responsibility for funding the appellate body and providing administrative support (including staff);
public accountability of the body (for example a duty to produce an annual report).

4.4. The decision about who should receive and decide appeals may be influenced by a number of factors, including:

who makes the original decisions that are appealed against;
the expected number of appeals and nature of the issues they will raise (including any evidence that will need to be considered);
whether using a particular appellate body will ensure fairness and ECHR compatibility;
cost, efficiency and convenience (which may count in favour of using an existing appellate body, where one exists, rather than establishing a new one);
relevant policies of the administration or legislature in question (e.g. policies that new appeals should be made to a particular tribunal).

5. Time limits and other requirements for bringing and responding to appeals

5.1. What rules should there be about how and when appeals can be brought, and about responding to appeals? If the appeal is to be made to an existing court or tribunal, there are likely to be general rules for proceedings in that court of tribunal that will apply by default to new proceedings that are added to its jurisdiction. In that case, consider whether there is already sufficient provision about bringing and responding to appeals in the existing rules, and whether any additional or different provision that is needed could be made under existing powers.

5.2. Should there be an automatic right of appeal, or should a person have to take other steps before exercising a right of appeal, such as requesting a review of the decision in question? Should an appellant require the permission of the appellate body to bring an appeal? A permission requirement might, for example, be used to determine whether a third party has a sufficient interest to appeal against a decision (see paragraph 2.3 above).

5.3. How much time should be allowed for bringing an appeal? Should it have to be brought within a particular period (e.g. a specified number of days) calculated by reference to when the decision is made or notice of it is given? Should an appeal have to be brought before something else has happened (e.g. before the decision has taken effect)?

5.4. Should the appellate body have the power to allow an appeal out of time, and should the power depend on particular conditions being met (such as the appellant showing a reasonable excuse for delay)?

5.5. Are there requirements relating to the way in which an appeal is to be initiated? Must a particular procedure or form be used, or must a notice of appeal contain particular information (e.g., the grounds on which the appeal is being brought)? Should any other information or documentation have to be provided when bringing an appeal (e.g., a copy of the original decision)? See also the giving notice legislative solution.

5.6. Should an appellant be required to pay a fee for bringing an appeal? If so, how will fees be set?

5.7. Should the original decision-maker be required to respond to the appeal? How much time should it be allowed for doing so? What must the response contain? Should the original decision-maker be required to provide any other documents or information?

5.8. If the intention is to set out the procedure for bringing an appeal or responding to it in subordinate legislation, what types of provision should it be possible to make about the procedure?

6. Procedures for dealing with appeals

6.1. What powers and procedures will the appellate body require for dealing with an appeal? If an existing appellate body is to deal with the appeal, are the powers and procedures of that body adequate or will they need amending to cater for the new rights of appeal?

6.2. What case management powers should the appellate body have?

6.3. Should the appellate body be given powers to make interim orders before the appeal is decided? The nature of any powers will depend on the subject-matter of the appeal, but could potentially include matters such as requiring undertakings or payments into court, or prohibiting steps that would undermine the proceedings.

6.4. Should an appellant be free to withdraw an appeal, or should this require the agreement of the appellate body?

6.5. Will anyone other than the appellant and the original decision-maker be able to take part in the appeal? Will a person who wishes to intervene in the appeal require the permission of the appellate body? How and when should an application to intervene be made?

6.6. How should appeals be determined? Should there be a hearing in person or virtually, or will the appellate body be able to make decisions on the basis of written submissions alone? Should a party to the appeal be able to insist on a hearing?

6.7. If an appeal is to be determined at a hearing, who should be able to appear at the hearing? May parties be legally represented at hearings? Should experts or other witnesses be allowed to give evidence?

6.8. If the appellate body is to consider evidence, what types of evidence will it need to consider? Will it need powers to require witnesses to give evidence or produce information or documents? Will oral evidence have to be given on oath (or by affirmation)? Should there be any limits on the types of witness or evidence that can be called? Should witnesses be entitled to allowances for attendance? Should failure to comply with a requirement to give evidence be a criminal offence? (See the criminal offences legislative solution.)

6.9. Should appeal proceedings take place in public? Will the appellate body need powers to share information with certain persons for the purposes of the appeal? Will it need to handle sensitive evidence or vulnerable witnesses? Does it need powers to exclude public access to any of the evidence it receives (e.g. on grounds relating to national security, commercial sensitivity or personal safety), or to facilitate the giving of evidence by vulnerable people? Should there be powers to order that parties are not named, or to restrict the reporting or broadcasting of proceedings?

6.10. Is provision needed about service of documents issued by the appellate body and sent by the parties (including electronic service of documents)? See the giving notice legislative solution.

6.11. If the intention is to set out the procedure for dealing with appeals in subordinate legislation, what types of provision should it be possible to make about the procedure?

7. Effect of a pending appeal on the original decision and on other legal proceedings

7.1. What status should the original decision have during the period in which an appeal could be brought or while an appeal is being considered?

7.2. Should the decision only take effect once the period for appealing has expired without an appeal being brought, or any appeal has been dismissed or withdrawn? Or should it be possible for the decision to take effect despite the fact that an appeal is pending or could still be brought (and then continue in effect unless the appellate body overturns or amends it)?

7.3. If the original decision can take effect despite the fact that an appeal is pending or could be brought, should the appellate body have the power to suspend the effect of the decision until the appeal has been determined or withdrawn? Should it be able to do so on its own initiative or only on the application of the appellant?

7.4. These questions need to be considered especially carefully in the case of a decision to revoke a licence or impose a prohibition if the consequence of the revocation or prohibition is that a business cannot continue in operation.

7.5. Should the decision-maker be able to withdraw or amend its decision while an appeal is ongoing? (Or in the case of an appeal against a failure to make a decision, should it be able to make a decision for the first time?) What effect should doing so have on the appeal proceedings?

7.6. If the subject matter of the appeal could be relevant to a matter in issue in a criminal prosecution or other legal proceedings, is provision needed to deal with the relationship between the appeal and those other proceedings? For example, should a criminal court be required to adjourn proceedings until the appeal has been determined?

8. Powers of appellate body when deciding appeal

8.1. What powers should the appellate body have when it decides the appeal? Should it only be able to confirm or set aside the original decision? Should it also be able to vary the original decision or correct errors in it? Should it be able to remit the matter to the original decision-maker for a fresh decision? Should it have the power to substitute its own decision, and if so, should it have to follow any requirements or procedures that apply to the original decision?

8.2. Should there be any limits on when the appellate body can exercise certain powers, or requirements for it to exercise those powers in particular circumstances? For example, it might have the power to set aside the original decision only if it is satisfied that there has been an error of law or fact, or it might be required to set the decision aside if it is satisfied that there has been such an error.

8.3. Should the appellate body determine the appeal only by reference to the circumstances at the time when the original decision was made, or should it be able to take account of a change in circumstances?

8.4. Should the appellate body have additional powers to give effect to a decision in favour of an appellant? Should it have the power to order the original decision-maker or anyone else to take action of any kind? If the effect of the original decision was not suspended pending the determination of the appeal, should the appellate body be able to award compensation to a person who has suffered loss as a result of the original decision? If so, should compensation carry interest?

8.5. Should the appellate body be able to award a party its costs of bringing or defending an appeal? Should any entitlement to costs depend on unreasonable conduct by the other party? An existing appellate body may already have powers to award costs.

8.6. Should the appellate body be required to publish or record the outcome in a particular way?

8.7. If the appeal is to an existing court or tribunal, some of these questions may already be addressed generally by the legislation that established it. And where there is provision for an appeal to a court under certain Northern Ireland legislation, section 22 of the Interpretation Act (Northern Ireland) 1954 makes general provision about the powers of the court in dealing with the appeal (including powers to remit cases and award costs).

9. Further appeals

9.1. Should a further appeal against the decision of the appellate body be possible, or should its decision be final?

9.2. If there is a further right of appeal, to whom will further appeals be made?

9.2. On what grounds will a further appeal be available? The possible grounds for bringing a second appeal are generally narrower than for the original appeal, and are often limited to points of law (as opposed to findings of fact or the exercise of discretion).

9.4. The answers to these questions may be governed by the decision about who deals with the original appeal; for example, if the original appeal is to the First-tier Tribunal, the default position is that a further appeal will lie to the Upper Tribunal on a point of law.

9.5. The considerations in sections 5 to 8 are also relevant to second appeals (although existing court or tribunal rules may already deal with some or all of those matters).

10. Effect of appeals on future exercise of powers

10.1. Should the fact that a decision has been successfully appealed prevent another decision of the same kind being taken in relation to the same circumstances? This may be particularly relevant to enforcement action and orders imposing requirements or prohibitions. An absence of restrictions on repeated attempts to impose the same measures may raise ECHR issues.

Examples of the legislative solution

Provisions conferring rights of appeal

UK

Scotland

Wales

Northern Ireland

Provisions establishing tribunals or other appellate bodies

UK

Scotland

Tribunals (Scotland) Act 2014, Part 1 (Scottish Tribunals)
Mental Health (Care and Treatment) (Scotland) Act 2003, section 21 and Schedule 2 (Mental Health Tribunal for Scotland)

Wales

Northern Ireland

Provisions about the conduct of appeals

UK

Up-to-date versions of the procedure rules for the First-tier Tribunal and Upper Tribunal are published on www.gov.uk

Scotland

Wales

Northern Ireland

References to Ministers should be read as including Northern Ireland Departments. ↩
These are the (UK) Comptroller and Auditor General, the Comptroller and Auditor General for Northern Ireland, the Auditor General for Scotland and the Auditor General for Wales. ↩
In NI, references to Ministers are to be read as references to an NI department. ↩
Different interpretative rules for Westminster legislation, devolved Scots legislation and devolved Northern Ireland legislation mean that silence about public authorities may, for any that are Crown bodies, produce different results. ↩
Many statutes conferred this function on a stipendiary magistrate. This office has now been replaced by that of summary sheriff: see sections 5 and 128 and Schedule 5 of the Courts Reform (Scotland) Act 2014. ↩
As regards Northern Ireland, section 20(2) of the Interpretation Act (Northern Ireland) 1954 makes provision about liability of directors etc of corporate bodies. That may be sufficient, or further provision may be required. ↩
In Scotland, the need for subordinate legislation under section 104 of the Scotland Act 1998 will need to be considered at the same time as instructing on a Bill (where the policy is that it should be possible to try an offence created by an Act of the Scottish Parliament in England and Wales). ↩
See for example section 2 of the Public Health (Minimum Price for Alcohol) (Wales) Act 2018, under which the offence is to supply alcohol from premises in Wales, or to authorise the supply of alcohol from premises in Wales, at a selling price below the applicable minimum price for the alcohol. Subsection (4) provides that “it is immaterial for the purposes of subsection (1)(b) whether the authorisation takes place in Wales or elsewhere”. ↩
The proceedings may be without a jury in a few particular cases. ↩
In addition, section 62 of RESA 2008 allows civil sanctions to be imposed when creating new offences in subordinate legislation under certain Acts specified in Schedule 7 to RESA 2008. ↩
Note also that in 2012, a UK Government Written Ministerial Statement indicated that powers under RESA 2008 to impose fixed monetary penalties, variable monetary penalties and restoration notices should only be conferred if the sanctions are to be imposed on undertakings with more than 250 employees. ↩
It may avoid confusion to reserve the label “fixed penalty notice” for the kinds of penalties described in the fixed penalty notices legislative solution. ↩
See footnote 10. A similar notice in the Pension Schemes Act 2017 is also called a “fixed penalty notice” (see sections 17 and 18 of that Act). ↩
See section 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 as to its application (generally section 26 applies to Acts of the Scottish Parliament and a Scottish instrument (as defined in section 1(4) of that Act)). See sections 1 and 2 of the Interpretation Act (Northern Ireland) 1954 as to its application (generally section 24 applies to an Act of the Northern Ireland Assembly (or an Act of the Parliament of Northern Ireland) and an instrument made under such an Act, or where another statute, such as a Northern Ireland Order in Council, provides that it is to apply). ↩
Generally section 7 of the Interpretation Act 1978 applies to Acts of the UK Parliament and subordinate legislation made under those Acts, and sections 13 and 14 of the Legislation (Wales) Act 2019 apply to Acts of Senedd Cymru that receive Royal Assent on or after 1 January 2020, and Welsh subordinate instruments (as defined in section 3(2) of that Act). See the preceding footnote above as to application of section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 and section 24 of the Interpretation Act (Northern Ireland) 1954. ↩
These provide that service where a letter is properly addressed, pre-paid and posted, and is treated as being served “at the time at which the letter would be delivered in the ordinary course of post” (Interpretation Act 1978, section 7), or ‘on the day on which the letter containing the documents would arrive in the ordinary course of post’ (Legislation (Wales) Act 2019, section 14). ↩
A document sent by a registered post service or by recorded delivery is to be taken to have been received 48 hours after it is sent. ↩
Service of a document “may be effected by prepaying, registering and posting an envelope addressed to the person on whom the document is to be served at his usual or last known place of abode or business and containing such document; and, unless the contrary is proved, the document shall be deemed to have been served at the time at which such envelope would have been delivered in the ordinary course of post”. See also the Recorded Delivery Service Act (Northern Ireland) 1963 which means that section 24(1) of the 1954 Act also applies to documents sent by recorded delivery. ↩
Note that Part 1 of Schedule 8 to the Postal Services Act 2000 means that references to post, registered post, recorded delivery, first class post are not limited to the postal system of the Post Office. ↩
For Northern Ireland, see section 24(2)(e) of the Interpretation Act (Northern Ireland) 1954 which contains provision about service when the name or address of the intended recipient cannot be ascertained. ↩
Sections 13 and 14 of the Legislation (Wales) Act 2019 provide that service is effected if an electronic communication is properly addressed and is sent in an electronic form which is capable of being accessed and retained by the recipient. Service is deemed effective on the day the document is sent. Section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 permits service by electronic communication where there is prior agreement. ↩
The Gazettes are official journals of record and contain certain statutory notices. The three Gazettes are - the London Gazette (for notices relating to England and Wales), the Belfast Gazette or the Edinburgh Gazette. ↩
References to “Ministers” here mean the Secretary of State or another Minister of the Crown, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland Department (as appropriate). ↩

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Foreword by Elizabeth Gardiner, First Parliamentary Counsel

Introduction

Developing policy for legislation

Format of following Chapters

Description of the solution

Elements of the solution

Examples of the solution

Additional solutions to be added in future

Establishing a statutory corporation

1. Description of the legislative solution

2. Related legislative solutions

Elements of the legislative solution

1. Name and status of the statutory corporation

2. Positions to which appointments are made

3. Appointment of members or office-holder

4. Termination of appointment

5. Conflicts of interest

6. Effect of vacancy or other defect on validity of acts

7. Payments to members

8. General powers

9. Procedure

10. Committees

11. Staff

12. Delegation

13. Execution and authentication of documents

14. Money

15. Plans, estimates and reports

16. Accounts and audit

17. Control by Ministers or legislature

18. Other legislation relating to duties and scrutiny of public bodies

19. Reorganisation of existing public bodies

20. Power to dissolve the new statutory corporation

Examples of the legislative solution

Acts of the UK Parliament

Acts of Senedd Cymru

Acts of the Scottish Parliament

Acts of the Northern Ireland Assembly

Annex: other legislation about public bodies

Oversight of appointments

Disqualification from membership of legislature

Civil service pensions

Public records

Ombudsmen

Public sector equality legislation

Reviews and investigations by other Commissioners

Strategies

Description of legislative solution

Why have a strategy?

Elements of the legislative solution

1. Duty to formulate a strategy

2. Format of the strategy

3. Formulation of the strategy

4. Legal consequences of the strategy

5. Changing the strategy

Related issues

Examples of the legislative solution

Collaboration

Description of the legislative solution

Related legislative solutions

Elements of the solution

1. Define collaboration arrangements

2. Is legislation needed?

3. Identify parties

4. Identify functions

5. Define purpose

6. Process of entering into collaboration arrangements

7. Restrictions

8. Effect of collaboration arrangements

9. Additional matters to consider

Examples of the legislative solution

Designation of bodies

Description of legislative solution

Related legislative solutions

Elements of the solution

1. Identify functions to be designated

2. Identify type of body

3. Process of establishing a designation

4. Suitability of the designated body

5. Effect of designation