Power to impose monetary penalties

1 (1) The Secretary of State may give a notice (a “penalty notice”) imposing a penalty on a person if satisfied on the balance of probabilities that the person—

(a) has failed to comply with a requirement imposed on the person to—

(i) pay a fee in accordance with regulations under section 106C(1), or

(ii) provide information in accordance with regulations under section 106D(1) or (2), or

(b) has, in purported compliance with a requirement imposed on the person under regulations under section 106D(1) or (2), provided information that is false or misleading in a material respect.

(2) The amount of a penalty imposed by a penalty notice must be such amount as is specified in, or determined in accordance with, regulations made by the Secretary of State.

(3) A penalty imposed by a penalty notice must be paid to the Secretary of State within such period as may be specified in the notice.

(4) The Secretary of State may not give more than one penalty notice to a person in respect of the same failure or conduct.

(5) Regulations under this paragraph are subject to the affirmative procedure.

Warning notices

2 (1) Where the Secretary of State proposes to give a penalty notice to a person the Secretary of State must give the person a notice (a “warning notice”) notifying the person of the Secretary of State’s proposal.

(2) A warning notice must—

(a) state the name and address of the person to whom the Secretary of State proposes to give a penalty notice;

(b) give reasons why the Secretary of State proposes to give the person a penalty notice;

(c) state the amount of the proposed penalty;

(d) specify the date before which the person may make written representations to the Secretary of State.

(3) The date specified under sub-paragraph (2)(d) must be a date falling at least 28 days after the day on which the warning notice is given.

Penalty notices

3 (1) Within the period of six months beginning with the day on which a warning notice is given to a person the Secretary of State must give to the person—

(a) a notice stating that the Secretary of State has decided not to give a penalty notice to the person, or

(b) a penalty notice.

(2) But the Secretary of State may not give a penalty notice to a person before the end of the period specified in the warning notice for making written representations.

(3) A penalty notice given to a person must—

(a) state the name and address of the person;

(b) give details of the warning notice given to the person;

(c) state whether or not the Secretary of State has received written representations in accordance with that notice;

(d) give reasons for the Secretary of State’s decision to impose a penalty on the person;

(e) state the amount of the penalty;

(f) give details of how the penalty may be paid;

(g) specify the date before which the penalty must be paid;

(h) give details about the person’s rights of appeal;

(i) give details about the consequences of non-payment.

(4) The date specified under sub-paragraph (3)(g) must be a date falling at least 28 days after the day on which the penalty notice is given.

(5) The Secretary of State may cancel a penalty notice by giving a notice to that effect to the person to whom the penalty notice is given.

(6) If a penalty notice is cancelled the Secretary of State—

(a) may not give a further penalty notice in relation to the failure or conduct to which the notice relates, and

(b) must repay any amount that has been paid in accordance with the notice.

Enforcement

4 If a person does not pay the whole or any part of a penalty which the person is liable to pay under this Schedule the penalty or part of the penalty is recoverable—

(a) if the county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

Appeals

5 (1) A person who is given a penalty notice may appeal to the First-tier Tribunal (“the Tribunal”) against the decision to give the notice or any requirement of it.

(2) An appeal may be on the ground that the decision or requirement—

(a) is based on an error of fact,

(b) is wrong in law, or

(c) is unreasonable.

(3) But an appeal against the amount of a penalty may not be made on the ground mentioned in sub-paragraph (2)(c).

(4) An appeal under this paragraph must be made before the end of the period of 28 days beginning with the day on which the penalty notice is given.

(5) On an appeal the Tribunal may—

(a) confirm or quash the decision to give the penalty notice, or

(b) confirm or vary any requirement of it.

(6) In determining an appeal the Tribunal may—

(a) review any determination of fact on which the decision or requirement appealed against is based, and

(b) take into account evidence which was not available to the Secretary of State when giving the notice.

(7) Where an appeal in respect of a penalty notice is made under this paragraph the notice is of no effect until the appeal is determined or withdrawn.

(8) Where an appeal is or may be made to the Upper Tribunal in relation to a decision of the Tribunal under this paragraph, the Upper Tribunal may suspend the notice to which the appeal relates until the appeal is determined or withdrawn.

(9) If the Tribunal confirms or varies a decision or requirement appealed against under this paragraph, the person to whom the penalty notice is given must comply with the notice or the notice as varied (as the case may be)—

(a) within such period as may be specified by the Tribunal, or

(b) if the Tribunal does not specify a period, within such period as may be specified by the Secretary of State and notified to the person.”.’—(Sir John Whittingdale.)

This amendment inserts a new Schedule 5A into the New Roads and Street Works Act 1991 which makes provision about the imposition of monetary penalties in relation to requirements contained in new Part 3A of that Act (see Amendment NC39).

Brought up, and added to the Bill.