Background Enforcement Provisions in the Act
30.The Act repeals section 5 of the 1994 Act and replaces it with a power for Ministers to set out a code of good enforcement practice. This provides a safeguard if problems are encountered with the voluntary approach. The policy, including the “light-touch” nature of the reserve power, was the subject of a consultation exercise published by the Cabinet Office on 28 September 1999(15) involving both enforcers and those subject to enforcement.
31.The provisions are designed to provide assurance to business, the voluntary sector and others that the Government would be able to bring pressure to bear on enforcers that failed to apply best practice along the lines of the Concordat. A code made under this power would not be directly binding on enforcers. But businesses found by a court or tribunal to be in breach of a statutory requirement would be able to ask for the enforcer’s failure to follow the code to be taken into account in determining the appropriate penalties, award of costs or other action.
32.The power is intended to counter unjustifiably inflexible or over-zealous enforcement. The provisions of the Act allow a code to be tailored to address the particular enforcement problem that had emerged. Before making an Order the Government must consult publicly on why and how the power should be used; any such consultation will follow the Government’s Code of Practice on Written Consultation(16). This will explain the underlying circumstances, the enforcement bodies or activities that would be affected and the proposed content of the code. In accordance with the requirements of Good Policy Making: A Guide to Regulatory Impact Assessment(17), published by the Cabinet Office, the consultation document will be accompanied by a thorough regulatory impact assessment, setting out the expected benefits to business as well as the impact on enforcers.