The Regulator's Compliance Code came into effect on 6 April 2008. The Code, to which regulators "must have regard", provides guidance to regulating bodies, such as the Health and Safety Executive, the Fire and Rescue Authorities and Local Authorities, with a view to promoting an efficient and effective approach to inspection and enforcement whilst at the same time not imposing unnecessary burdens on the regulated.
The Code reflects the six principles identified in the Hampton Report into Reducing Administrative Burdens: Effective Inspection and Enforcement which are as follows:
- Regulators should use comprehensive risk assessment to ensure that resources are concentrated in the areas which need the most.
- Regulators should provide authoritative accessible advice easily and cheaply.
- No inspection should take place without a reason.
- Businesses should not have to give unnecessary information, or give the same piece of information twice.
- The few businesses that persistently break regulations should be identified quickly and face proportionate and meaningful sanctions.
- Regulators should be accountable for the efficiency and effectiveness of their activities.
The requirement to have regard to the Code applies when regulators are setting their policies, and not when they are engaged in any individual investigation. However, businesses which feel that they are suffering from onerous or incompetent regulation should find the Code extremely useful in challenging the regulator. For example, has the regulator provided the "clear concise and accessible" legal advice which will make it easier for regulated businesses to understand and meet their obligations? If not, an abuse of process defence may be available in a subsequent prosecution. Certainly, any failure by a regulator to observe the Code will undermine criticism of those regulated.
The Code requires regulators to have procedures to assess the effectiveness of their information and support services, and to involve regulated entities in developing regulatory guidance. Such specific recommendations should ensure that the Code is not merely pious cant, but a valuable tool for measuring regulator performance which will no doubt be frequently consulted by businesses facing enforcement action.
The regulators currently bound by the Code include:
- Charity Commission for England and Wales
- The Civil Aviation Authority (some functions)
- The Commission for Equality and Human Rights
- The Director of the Assets Recovery Agency
- The Environment Agency
- The Financial Services Authority
- Fire and Rescue Authorities in England
- The Food Standards Agency
- The Football Licensing Authority
- The Forestry Commission
- The Gambling Commission
- The Gangmasters Licensing Authority
- The Health and Safety Executive (Nuclear industry excepted)
- The Office of Fair Trading (competition or merger law functions excepted)
- The Registrar of Companies
- Local Authorities in England
- Local Authorities in Scotland (reserved matters excepted).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.