Schedule – Civil Sanctions
33.Schedule A1 is introduced by section 7 of the Measure.
34.The provisions of the Schedule enable the Welsh Ministers to make provision by regulations for civil sanctions for breaches of regulations under sections 14A or 14B (referred to in Schedule A1 as “safety regulations”). Breaches of safety regulations for the purposes of the Schedule include failure to comply with a requirement of the regulations and obstruction or failure to assist an enforcement authority (see section 7 for provision about enforcement authorities). All powers to impose civil sanctions must be conferred on the enforcement authority.
35.Regulations may provide for 4 different kinds of civil sanction:
fixed monetary penalties,
discretionary requirements,
stop notices, and
enforcement undertakings.
Fixed monetary penalties (paragraphs 2 and 3 of Schedule A1)
36.A “fixed monetary penalty” is a requirement to pay to an enforcement authority a penalty of an amount specified in the regulations. The maximum penalty that may be imposed is £5,000. Regulations may only confer a power to impose a fixed monetary penalty where the enforcement authority is satisfied on the balance of probabilities that the breach has occurred.
37.Paragraph 3 of Schedule A1 sets out the procedure for imposing fixed monetary penalties including the issue of a notice of intent, an opportunity to discharge the liability, the process of making representations and objections, a final notice, the appeals process for the person on whom the fixed monetary penalty has been imposed and the grounds of appeal.
38.The regulations should also specify the circumstances in which an enforcement authority may not decide to impose a fixed monetary penalty for example for exceptional operational reasons such as inclement weather, vehicle failure, or an emergency where pupils may not otherwise be able to get home.
Discretionary requirements (paragraphs 4, 5 and 6 of Schedule A1)
39.Regulations may provide for an enforcement authority to impose one or more discretionary requirements on a person who breaches safety regulations. Again the enforcement authority must be satisfied on the balance of probabilities that the breach has occurred.
40.A discretionary requirement may include a requirement to pay a penalty of an amount determined by an enforcement authority; or a requirement to take such steps specified by the enforcement authority to secure that the breach does not continue or recur.
41.A discretionary requirement cannot be imposed on a person for the same act or omission on more than one occasion.
42.Paragraph 5 of Schedule A1 sets out the procedure for discretionary requirements including a notice of intent, the process of making representations and objections, the payment of penalties in the case of a variable monetary penalty and the appeals process, grounds of appeal and the consequences of non-compliance.
43.Provision may also be made in regulations to allow an enforcement authority to impose a monetary penalty (‘a non-compliance penalty’) on a person who fails to comply with a discretionary requirement to take step to secure that a breach does not continue or recur (paragraph 6 of Schedule A1).
Stop notices
44.The regulations may confer on an enforcement authority the power to serve a stop notice. A stop notice prohibits a person from carrying on an activity specified in the notice until the person has taken the steps specified in the notice. Before issuing a stop notice an inspector must be satisfied that the activity presents a significant risk of causing serious harm to human health and involves a breach of the regulations concerning the description of vehicles used for learner transport.
45.Regulations must make provision about compensation for loss suffered as the result of the service of a notice. But they may provide for compensation only in cases specified in the regulations or only in relation to descriptions of loss specified in the regulations. The regulations must also provide for appeals against decisions not to award compensation or in relation to the amount.
46.Where a person on whom a notice is served does not comply with a stop notice the person is guilty of an offence and liable -
on summary conviction, to a fine not exceeding level 5 on the standard scale (currently £5,000), or imprisonment for a term not exceeding six months, or both, or
on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.
47.When section 154(1) of the Criminal Justice Act 2003 is commenced the maximum term of imprisonment on summary conviction will be extended to twelve months (see paragraph 10 of Schedule A1).
Enforcement undertakings (paragraph 11 of Schedule A1)
48.The regulations may confer on an enforcement authority the power to accept an enforcement undertaking from a person where the enforcement authority has reasonable grounds to suspect that the person has breached the safety regulations. An enforcement undertaking is an undertaking to take such action as may be specified in the undertaking within a specified time period. The effect of the undertaking is that as long as there is compliance with the undertaking other kinds of enforcement action cannot be taken in respect of the act or omission to which the undertaking relates. The actions that cannot be taken during the operation of an enforcement undertaking are: proceedings for a criminal offence, a fixed monetary penalty or a discretionary requirement. Paragraph 11 of Schedule A1 also sets out the power by regulations to make provision for the procedure for enforcement undertakings, their terms, publication and variation and provision about compliance, monitoring and appeals.
Combination of sanctions (paragraph 12 of Schedule A1)
49.Paragraph 12 makes provision to ensure that a combination of a fixed monetary penalty, a discretionary requirement and a stop notice cannot be used in relation to the same breach of safety regulations.
Ancillary matters
50.In the case of monetary penalties the regulations may include provision for early payment discounts, the payment of interest or other financial penalties for late payment, and the recovery of penalties, interest and penalties for late payment as civil debts (paragraph 13 of Schedule A1).
51.Provision in the regulations may also provide for the payment of costs incurred by an enforcement authority; in particular, investigation costs, administration costs and the cost of obtaining expert advice (paragraph 14 of Schedule A1).
52.Provision for appeals in the regulations under Schedule A1 must provide for appeals to be made to the First-tier Tribunal or to another tribunal created under an enactment (paragraph 15 of Schedule A1).
53.The regulations may make provision to enable the enforcement authority to require the person on whom the sanction has been imposed to publicise the fact (paragraph 16 of Schedule A1).
54.The regulations may provide for officers of a body corporate or a partnership to be personally liable to civil sanctions as well as the body corporate or partnership itself (paragraph 17 of Schedule A1).
55.Where a power is conferred on an enforcement authority, that enforcement authority must publish guidance about the enforcement authority’s use of civil sanctions including the circumstances in which the penalty is likely to be imposed, the circumstances in which it may not be imposed, the amount of the penalty, how liability for the penalty may be discharged and the effect of discharge, and rights to make representations and objections and rights of appeal (paragraph 18 of Schedule A1).
56.Regulations conferring powers on an enforcement authority to impose civil sanctions must secure that an enforcement authority from time to time publishes reports specifying the cases where civil sanctions have been imposed (paragraph 18 of Schedule A1).
57.An enforcement authority must act in accordance with the principle that all regulatory activities should be carried out in a way that is transparent, accountable, proportionate and consistent and that regulatory activities should only be targeted at cases where action is needed (paragraph 20 of Schedule A1).
58.The Welsh Ministers must review the operation of any provisions they make which confer power on an enforcement authority to impose civil sanctions. The review must happen as soon as practicable after the end of three years from the date that the provision comes into force (paragraph 21 of Schedule A1).
59.The Welsh Ministers may be appointed as the enforcement authority in regulations, in which case any receipts from civil sanctions will be paid into the Welsh Consolidated Fund by effect of section 120 of the Government of Wales Act 2006. Paragraph 22 of Schedule A1 makes provision about the payment of receipts from civil sanctions into the Welsh Consolidated Fund where the enforcement authority is a person or body other than the Welsh Ministers.