Appendix A
Legislation, guidance and codes
Legislation, guidance and codes that influenced the preparation of the Enforcement Policy.
A. 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. For local authorities, the specified functions include those carried out by environmental health and licensing services.
The Council will exercise its regulatory activities in a way which is:
- Accountable: the Council’s activities will be open to public scrutiny, with clear and accessible policies, and fair and efficient complaints procedures.
- Consistent: to ensure that similar issues are dealt with in an equitable way, making full use of guidance produced by Government and other agencies.
- Fair: to ensure a fair and even-handed approach.
- Proportional: to consider whether proposed action is proportionate considering all relevant factors, including the severity of the offence, likely outcome and costs of proceedings.
- Transparent: to ensure enforcement action to be taken by the Council is easily understood. Clear distinctions will be made between legal requirements and recommendations about good practice which are not compulsory.
- Objective: to ensure that decisions are not influenced by the ethnic origin, gender, religious or political beliefs, or sexual preferences or mental or physical ability of the offender, complainant or witness.
Where any rights contained within the Human Rights Act 1998 may be affected, officers will consider whether the action is both necessary and proportionate, and ensure that the provisions of that Act are taken into consideration as necessary.
B. Regulators’ Code
The Council has had regard to the Regulators’ Code in the preparation of this policy.
In certain instances the Council may conclude that a provision in the Regulators’ Code is either not relevant or is outweighed by another provision. The Council will ensure that any decision to depart from the Regulators’ Code will be properly reasoned, based on material evidence and documented.
C. Human Rights Act 1998
The Council is a public authority for the purposes of the Human Rights Act 1998.
The Council therefore applies the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms to all decisions it makes. 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.
D. Data Protection Act 1998
Where there is a need for the Council to share enforcement information with other agencies, it will follow the provisions of the Data Protection Act 1988.
E. The Code for Crown Prosecutors
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. The Code sets out two tests that must be satisfied; commonly referred to as the ‘Evidential Test’ and the ‘Public Interest Test’:
a) 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. The Council must be satisfied there is enough evidence to provide a "realistic prospect of conviction" against each alleged offender.
b) Public Interest Test - is it in the public interest for the case to be brought to court?
The Council will balance factors for and against prosecution carefully and fairly, considering each case on its merits. The public interest factors that the Council will take into account are detailed under the enforcement options available to it in Appendix C.
F. Regulatory Enforcement and Sanctions Act 2008
The Regulatory Enforcement and Sanctions Act 2008, as amended, established the Primary Authority scheme.
The Council will comply with the requirements of that Act when it is considering taking enforcement action against any business or organisation that has a Primary Authority, and will have regard to guidance issued by the Secretary of State in relation to Primary Authority.