Legislation: The Regulatory Enforcement and sanctions Act 2008


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In July 2008, the Regulatory Enforcement and Sanctions Act received Royal Assent.1 The Act makes important and potentially ambitious changes to the way in which regulation, including environmental regulation, is implemented and enforced. As such, it should be considered in the context of the government's (wider) better regulation agenda which, broadly speaking, promotes a more effective and efficient risk-based approach to regulation.

If regulation is to be effective in delivering its objectives, then it must be implemented and enforced in such a way as to maximise compliance. This has proved to be a perennial challenge for regulators, policy-makers, lawyers and academics alike and, unsurprisingly, has been the subject of a number of important reviews. An influential and wide-ranging starting point can be found in the Hampton Report, commissioned by the government in the 2004 Budget. Philip Hampton was asked by the then Chancellor 'to consider the scope for promoting more efficient approaches to regulatory inspection and enforcement while continuing to deliver excellent regulatory outcomes'.4 Although the review concluded that the current regulatory system had its good points, it also found that it was uncoordinated, that good practice was not uniform across the board, that there were overlaps in regulators' responsibilities and enforcement activities, and that the system was too bureaucratic and involved too much form-filling. It also pointed to evidence that risk-assessment, essential as a means of directing resources to where they can do most good, is not being used comprehensively and identified a need for more effective enforcement tools with which to punish offenders and reward compliant behaviour.

Regulatory sanctions were further investigated by the Macrory Review, with a view to streamlining the penalty system with the risk-based, proportionate model of regulation advocated by Hampton. Macrory's final report. Regulatory Justice: Making Sanctions Effective, found that regulators rely heavily on criminal prosecution as a response to non-compliance. 6 Although this may be appropriate in certain cases, Macrory argued that more flexible, risk-based enforcement tools may better achieve regulatory outcomes, and that sanctions should comply with six penalty principles. He therefore proposed that the enforcement 'toolbox' be expanded to include both a number of new civil sanctions and, where prosecution is deemed the appropriate response, a suite of alternative sentencing options.

The provisions of the Regulatory Enforcement and Sanctions Act 2008 implement many of the recommendations of both the Hampton and Macrory Reviews, and are best read in conjunction with guidance issued by the Department for Business Enterprise and Regulatory Reform.  Part I creates a Local Better Regulation Office, the objective of which is to promote the fair and efficient delivery of regulation by local authorities. Closely related to this, in Pail II of the Act, is the nomination of a Primary Authority by a regulated entity whose operations cross local authority boundaries. Part III of the Act gives effect to a number of the Macrory Review recommendations and introduces inter alia fixed and variable civil monetary penalties and enforcement undertakings. Finally, Part IV places a duty to keep regulatory functions under review and, when carrying out those functions, not to impose unnecessary burdens. The Act came into force on 1 October 2008, with the exception of Part II which should come into force on 6 April 2009. It applies to England and Wales (in respect of both reserved and devolved matters) and has limited application in Scotland and Northern Ireland.

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