Clause 50
Regulatory Enforcement and Sanctions Bill [Lords]
9:30 am
Pat McFadden (Minister of State (Employment Relations and Postal Affairs), Department for Business, Enterprise & Regulatory Reform; Wolverhampton South East, Labour)
The regulator will have to judge, after an enforcement undertaking has been offered and if it has been accepted, that it has been complied with. The regulator must make a judgment. As I said, subsection (3) sets out the types of things that we are talking about. Subsection (4) provides that if an enforcement undertaking is accepted, the person may not be prosecuted for the offence, or have a fixed monetary penalty or discretionary requirement imposed on them, unless they fail or are deemed to have failed to comply with the undertakings.
We are saying that if a business, in the course of such an investigation, says, “These are the actions that we wish to take in order to put this matter right”, and it has come forward in such a way, it should benefit from doing so. There should be an incentive to do so, rather than its being placed in a situation where the option is available but if the business exercises it, it gets no benefit, because it is equally liable to all the other penalties that we have been talking about.
That is in a situation where there is compliance, but—a significant but—where a person fails to comply with their undertaking, the regulator will be able to prosecute the person for the original offence or impose a fixed monetary penalty or discretionary requirement. Subsection (5) enables the Minister to include further provision in the order, such as the procedure for entering into the enforcement undertaking, publication of the details, certification by the regulator that that has been complied with, and so on.
There is not a right of appeal against the enforcement undertaking itself, given that that is something volunteered by the person and not imposed on them by the regulator. We believe in allowing enforcement undertakings. We can envisage a reputable, well-intentioned business coming forward to exercise that option. The lack of compliance may be completely inadvertent. It may be that it did not know that it was not compliant, but it is something that it is more than happy to put right. That could be an important option available. It is something that was encouraged by Professor Macrory and is another important addition to the Bill.