Appendix A: Legislation, guidance, and codes
1. Principles of Good Regulation. The Legislative and Regulatory Reform Act 2006, Part 2, requires the Council to have regard to the Principles of Good Regulation when exercising a specified regulatory function. This is specified by the Legislative and Regulatory Reform (Regulatory Functions) Order 2007. For local authorities, the specified functions include those carried out by our environmental health, trading standards and licensing services.
The Council will exercise our regulatory activities in a way which is:
o Proportionate – our activities will reflect the level of risk to the public and enforcement action taken will relate to the seriousness of the offence.
o Accountable – our activities will be open to public scrutiny, with clear and accessible policies, and fair and efficient complaints procedures.
o Consistent – our advice to those regulated will be robust, reliable and similarly advice provided by others will be respected. Where circumstances are similar, a consistent, if possible, approach/action to other local authorities will be followed.
o Transparent – those regulated will be advised appropriately so as to understand what is expected of them and what they can anticipate in return.
o Targeted – resources will be focused on higher risk enterprises and activities, reflecting local need and national priorities.
2. Regulators' Code. The Council has had regard to the Regulators’ Code in the preparation of this policy. In certain instances it may be concluded that a provision in the Code is either not relevant or is outweighed by another provision. It will be ensure that any decision to depart from the Code will be properly reasoned, based on material evidence and documented.
3. Human Rights Act 1998. The Council is a public authority for the purposes of the Human Rights Act 1998. The principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms will be applied. This Policy and all associated enforcement decisions take account of the provisions of the Human Rights Act 1998. In particular, due regard is had to the right to a fair trial and the right to respect for private and family life, home and correspondence.
4. Data Protection Act 1998. Where there is a need for the Council to share enforcement information with other agencies, the provisions of the Data Protection Act 1998 will be followed.
5. The Code for Crown Prosecutors:
o When deciding whether to prosecute, the Council has regard to the provisions of The Code for Crown Prosecutors as issued by the Director of Public Prosecutions. The Code for Crown Prosecutors is a public document that sets out the general principles to follow when decisions are made in respect of prosecuting cases.
o The Code sets out two tests that must be satisfied commonly referred to as the ‘Evidential Test’ and the ‘Public Interest Test’:
§ Evidential Test - is there enough evidence against the defendant? When deciding whether there is enough evidence to prosecute, the Council will consider what evidence can be used in court and is reliable. There must be enough evidence to provide a ‘realistic prospect of conviction’ against each alleged offender
§ Public Interest Test - is it in the public interest for the case to be brought to court?
o The Council will balance factors for and against prosecution carefully and fairly, considering each case on its merits. The public interest factors that will be taken into account are detailed under the enforcement options available to us in Appendix C.
6. Regulatory Enforcement and Sanctions Act 2008 (‘the RES Act’). The Regulatory Enforcement and Sanctions Act 2008, as amended, established the Primary Authority scheme. The requirements of the Act will be complied with when enforcement action against any business or organisation that has a primary authority is being considered, and will have regard to guidance issued by the Secretary of State in relation to Primary Authority
