If the answer is yes, then you are not alone. This fear is shared by many businesses. The good news is that your concern has been recognized by the government, who has introduced the Regulatory Enforcement and Sanctions Act, 2008 to reduce the regulatory burden on business. This is achieved by the creation of civil sanctions in relation to regulatory offences and through the establishment of the Local Better Regulation Office. By doing this they hope to advance the regulatory system, at both national and local levels, by making it more risk-based, proportionate, accountable, consistent and transparent - and by targeting regulatory effort at cases in which action is needed. The Act came into force on 1st October 2008 (apart from provisions in Part 2 relating to the Primary Authority Scheme that will come into force on 6th April 2009) and is divided into four parts:
Part 1 establishes the Local Better Regulation Office (LBRO) to promote adherence to the principles of better regulation amongst local authorities and through greater co-ordination between local authorities and central government. It will bring financial benefits to businesses through increased clarity and guidance to local authorities, helping them to keep the burdens of regulation on compliant business to a minimum.
Part 2 seeks to secure coordination and consistency of regulatory enforcement by local authorities by establishing a Primary Authority scheme. Businesses operating in more than one local authority area that choose to have a Primary Authority Partnership will benefit from improved consistency of advice and enforcement across local authority trading standards, environmental health, licensing and fire and rescue services.
Part 3 gives regulators an extended tool kit of alternative civil sanctions as a more proportionate and flexible response to cases of regulatory non-compliance normally dealt with in the criminal courts. This extended toolkit will allow regulators to remove the financial benefit gained by businesses that deliberately seek an advantage through non-compliance with their regulatory obligations while helping to secure increased compliance.
Part 4 creates a duty that requires regulators to review their functions, not to impose unnecessary burdens, and unless disproportionate or impracticable, to remove burdens that are found to be unnecessary. Regulators that are subject to the duty must report on progress annually.
The Act allows consideration to be given to introducing the following civil sanctions for regulators to use:
1. Fixed monetary penalty notices – under which a regulator will be able to impose a monetary penalty of a fixed amount. These fixed monetary penalties fines are intended to be used in respect of minor instances of regulatory non-compliance. The fixed penalty notices are seen as enabling regulators to enforce less serious offences in a more proportionate way than a prosecution. These notices can remove the stigma of a criminal conviction and could be used for offences such as not maintaining appropriate records.
2. Discretionary requirements – which will enable a regulator to impose, by notice, one or more of the following:
· a variable monetary penalty determined by the regulator;
· a requirement to take specified steps within a stated period to secure that an offence does not continue or happen again; and
· a requirement to take specified steps within a stated period to secure that the position is restored, so far as possible, to what it would have been if no offence had been committed.
The regulator has the discretion to decide which sanction or combination of sanctions to use in a particular case.
3. Stop notices – which will prevent a business from carrying on an activity described in the notice until it has taken steps to come back into compliance. Stop notices require a business to cease an activity that is causing harm or presents a significant risk of causing serious harm. The objective is to prohibit the business from carrying on the activity until the steps needed to secure compliance with the law have been taken. A business that does not comply with a notice will be guilty of a criminal offence.
4. Enforcement undertakings – which will enable a business, which a regulator reasonably suspects of having committed an offence, to give an undertaking to a regulator to take one or more corrective actions set out in the undertaking. The action that a business can offer to undertake must be:
· action to secure that the offence does not continue or recur;
· action to secure that the position is restored, so far as possible, to what it would have been if the offence had not been committed;
· action, including paying money, to benefit any person affected by the offence; or
· other actions specified by the Minister in the order.
Once an undertaking has been accepted and the business complies with it, the business may not be convicted at any time for the original offence or have an administrative sanction imposed on it.
The above sanctions are an alternative to criminal prosecution and it will be for the regulator to determine the appropriate response to a particular instance of regulatory non-compliance. The Government believes that regulators should have access to effective sanctions that are flexible and proportionate and that ensure the protection of workers, consumers and the environment when tackling non-compliance by businesses. These sanctions should be flexible enough to reflect the regulatory needs of legitimate businesses, as well as being able to ensure that where businesses have saved costs through non-compliance, they do not gain an unfair advantage over those that have complied with their regulatory obligations.
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Muhammad Zubair Abbasi - Environmental Law for Polymer Users
http://www.elpu.net
