Protective Services enforcement policy and authorisations

Introduction

Our Environmental Health and Trading Standards Services are responsible for ensuring that individuals and businesses who must comply with the laws that we enforce do so. This includes compliance with any conditions attached to a registration or licence granted by us.

This page sets out our enforcement policy and explains what regulated persons can expect from us when we carry out our regulatory functions.

Our approach to enforcement is based upon the requirements of the Regulators Code for reserved matters (UK government legislation) and the Scottish Regulators’ Strategic Code of Practice for devolved matters (Scottish government legislation).

In addition to this Enforcement Policy, our Business Regulation Intervention Policy details our operational policy with regard to food law and occupational health and safety law to take account of regulator specific standards relating to these functions. These policies combined satisfy our legal obligation to have enforcement policies which apply to food law and occupational health and safety law.

In summary, we will conduct our regulatory role in a manner which is:

• Transparent – when we take undertake our regulatory functions including enforcement action, we will explain the reasons why and any appeal procedures which are available.
• Accountable – we will publish performance information to illustrate compliance with Service aims and standards.
• Consistent – we will operate fairly, taking account of all relevant enforcement guidance, liaising with national and local partners to promote consistency of enforcement.
• Proportionate – we will take enforcement action in a manner which is proportionate to the circumstances, considering the seriousness of the non-compliance, the due diligence and history of the business, the level of risk presented to consumers and competitors, and the need to secure future compliance.
• Targeted – we will work on an intelligence led, risk assessed basis to ensure that resources are deployed where required and enforcement actions are necessary.

In our policy:

• ‘Regulated person’ - means anyone who must comply with the laws we enforce. Regulated persons will mainly be businesses and their employees but may also include non-business organisations, private individuals and North Lanarkshire Council. We will not give the Council more favourable treatment compared to other regulated persons.
• ‘Enforcement’ - includes all action taken by us following discovery of a potential breach of the law with the ultimate aim of ensuring compliance. This may include the provision of business advice and guidance, formal enforcement action and the use of our investigatory powers (as defined in Appendix A).

Our aims

We endeavour to:

• Ensure that regulated persons take action immediately to deal with serious risks.
• Promote and achieve sustained compliance by regulated persons.
• Treat all regulated persons fairly.
• Be helpful to regulated persons who wish to comply.
• Support those who comply by targeting those who do not, in particular by taking firm action against those who flout the law or act irresponsibly.
• Protect the public in a way which does not stifle enterprise, hinder economic progress or place unnecessary burdens on businesses.
• Communicate this policy effectively to those people who are affected by it.
• Pursue continuous improvement in regulatory practice based on the principles of better regulation.

We will strive to achieve our aims by:

1.0 Being answerable

1.1 We firmly believe that prevention is better than cure and place a strong emphasis on the provision of advice to regulated persons. We will actively encourage them to seek advice from us at an early stage, especially ‘start up’ businesses or those expanding into a new area of activity.

1.2 Where possible, we will work with regulated persons to encourage compliance in a helpful manner in preference to taking formal action. However, where business advice and guidance on trader obligations is ignored, we may need to adopt a more formal approach. We will be less likely to take formal action against anyone who regularly seeks and follows the advice we give.

1.3 We will give information and advice in clear and concise language, as far as legislative requirements allow. We will provide general information and advice to regulated persons in a range of appropriate formats and media. We will confirm specific advice in writing upon request.

1.4 Before we take any formal action we will normally provide an opportunity to discuss the matter and if possible resolve points of difference. However, this will not apply when immediate action is required (for example, to prevent or respond to a serious breach, or where there is an imminent risk to health & safety, or where an opportunity for discussion is likely to defeat the purpose of the proposed enforcement action, or to prevent evidence being destroyed).

1.5 Our Officers will explain in writing the reasons why they took a particular course of regulatory action. Where there are rights of appeal against formal action, advice on the appeal mechanism will be clearly set out in writing at the time the action is taken as well as detailed within this policy.

1.6 We aim to minimise the amount and frequency of data collection.

1.7 We publish on our website service standards that include clear information on:

a) How we communicate with those we regulate and how we can be contacted;

b) Our approach to providing information, guidance and advice; our approach to checks on compliance (including inspections, audit, monitoring and sampling visits and test purchases), including details of the risk assessment framework used to target those checks as well as protocols for their conduct, which clearly sets out what those we regulate should expect;

c) Our fees and charges; and which also explains the basis on which these are calculated, and includes an explanation of whether compliance will affect fees and charges;

d) How to comment or complain about the service provided and routes to appeal.

e) We also publish on our website details of our annual performance against our service standards, including feedback from those we regulate, namely customer satisfaction surveys, and data relating to complaints about us and appeals against our decisions. Feedback on alignment with the Scottish Regulators’ Strategic Code of Practice etc. will be aligned into customer satisfaction surveys.

2.0 Being clear

2.1 Occasionally, in order to find out how a regulated person would deal with ordinary member of the public, visits may need to be conducted covertly with the Officers posing as private individuals. However, with the exception of these covert visits, our Officers would normally produce their written credentials (including their name and photographic identification), will explain the purpose of their visit and how it will be carried out.

2.2 We will consult regulated persons generally about the way we go about our work and to contribute to the development of policies and service standards. We will carry out regular customer satisfaction surveys of those which have been inspected and those which have been investigated in response to a complaint from the public. We will publish the results of any surveys and explain what we will do in response. Before changing policies, practices or service standards, we will consider the impact on business and engage with business representatives.

2.3 This policy explains what regulated persons can expect from us. If you feel we have not complied with it, or if you are dissatisfied with any action we have taken, you can use the Council’s complaints procedure to request that we carry out a formal review of that action. The action will be reviewed by a senior officer who was not involved in the original decision making process. We will fully explain the reasons for our decision and, if we decide to vary the action, we will describe how that variation will impact on you. If you remain dissatisfied, we will tell you how to take your complaint further.

We will try to be considerate in the timing of our visits but we would ask regulated persons to understand that it would be neither practical nor effective to give advance notice of our visits except in limited circumstances.

2.4 Trading Standards will provide two days written notice of routine inspection visits in line with the requirements of the Consumer Rights Act 2015.

2.5 In responding to non-compliance we identify, we will clearly explain what the non-compliant item or activity is, the advice being given, actions required or decisions taken, and the reasons for these. A clear distinction will be made between action needed to meet statutory requirements and recommendations about good and/or best practice in correspondence.

2.6 Correspondence will contain an indication of the time scale suggested for achieving compliance to allow steps to remedy non-compliance to be planned and prioritised.

2.7 Inspections or visits within commercial premises to assess compliance with statute will be followed up with written feedback as required, either in the form of an intervention report left with the business at the time of intervention or by a written report.

3.0 Being commensurate

3.1 Where we have discretion, when deciding what action to take, we will act proportionately by balancing the risks to the public with the costs to the regulated person of implementing changes.

3.2 When deciding what action to take we will pay particular attention to our impact on smaller organisations. We recognise that small businesses can face different challenges from larger businesses in accessing expertise and understanding and hence complying with the regulations. We will take reasonable steps to ensure that any action we take is proportionate to the size of the organisation, unless that comes into conflict with the need for consistency (see below).

3.3 We will seek to impose the minimum burden compatible with ensuring compliance. Whilst we will encourage the adoption of best practice, we will always clearly distinguish between legal requirements and recommendations.

3.4 We will determine the most appropriate course of action to take by making a careful assessment of all of the following criteria with no one factor likely to be decisive on its own:

(i) The seriousness of the breach and in particular its impact on the safety, health and well-being of all those affected by it;

(ii) The impact on people who are especially vulnerable, for example by reason of protected characteristics as defined in the Equality Act 2010, and in particular whether such people were specifically targeted by the regulated person;

(iii) The steps which the regulated person took or the reasonable steps which they failed to take to prevent the offence;

(iv) The extent to which the regulated person has been proactive in seeking advice from us, and whether they have complied with any advice we have given;

(v) The history of compliance and in particular whether any previous warnings went unheeded;

(vi) Evidence of fraudulent, deliberate, irresponsible, reckless or negligent behaviour and evidence of aggression or harassment;

(vii) The likelihood of the contravention happening again;

(viii) The extent to which the regulated person accepts its responsibilities and is willing to heed advice;

(ix) Whether the breach is rectified promptly;

(x) The need to deter future breaches;

(xi) The nature and extent of the evidence available to us.

4.0 Being consistent

4.1 We will ensure that everyone who is regulated by us is treated in accordance with this enforcement policy and with published service standards to ensure that everyone regulated by us is treated consistently on each occasion, and in accordance with other regulated persons. We will do this by developing and reviewing protocols for use by our Officer, monitoring the enforcement action taken by our Officers, and by training them.

4.2 We fully support the ‘home authority’ and 'primary authority' principles as the means by which regulated persons trading across local authority boundaries are able to rely on one local authority as their main source of advice on compliance.

4.3 We will work with other local authorities in Scotland and throughout the UK to ensure consistent interpretation and application of the law. We will do this by playing an active part in cross-border working groups, as well as by having regard to guidance from bodies such as Food Standards Scotland and the Health & Safety Executive.

4.4 We will be fair in our dealings with regulated persons. Where we can exercise discretion, we will take into account the unique circumstances of each situation and balance this with the need for consistency of enforcement.

4.5 When investigating complaints we will carry out all investigations in an independent, fair and even-handed manner by listening with an open mind to what everyone connected to the dispute has to say. Although we may give advice to any complainer, enforcement officers will not act on their behalf. We will only form an opinion after examining the facts.

4.6 We will not measure ourselves by the quantity of enforcement action we take and we will not set targets (other than for minor environmental criminal activities) in relation to statutory notices or prosecution reports to COPFS. We will not take enforcement action specifically to assist with someone’s civil claim (except to the extent that Trading Standards Officers may undertake civil enforcement actions in terms of enhanced consumer measures in terms of the Enterprise Act 2002) and we will, where practicable, ensure that breaches with both criminal and civil elements are investigated by different officers.

4.7 We will communicate in an effective manner when providing information and advice, for example, by providing it in an alternative format to suit the needs of the user. We will provide a language interpreting service during interviews, where deemed necessary, and always when questioning persons suspected of committing offences.

4.8 We will gather data to monitor our impact on people with different needs and we will use it to improve the way we carry out our work. We will also monitor our enforcement actions to ensure that no person or group is unfairly treated.

4.9 We will take account of cultural issues and seek ways of developing our employees’ capacity to deal with these effectively. We will take account of equalities needs during consultations.

5.0 Being focussed

5.1 We will deliver an efficient, effective and timely service and minimise business compliance costs, where possible, by reducing unnecessary bureaucracy and delays.

5.2 We will help those we regulate to design simple and cost-effective compliance solutions to improve confidence and day to day management control.

5.3 We will work collaboratively with other regulators and those they regulate to anticipate, generally, and to understand and address compliance challenges associated with strategic innovations or growth plans.

5.4 We have appropriate governance to consider the relevant merits of situations which are less clear cut e.g. where a regulatory decision has the potential to impact significantly on the viability or sustainable growth of a business.

5.5 We will use the principles of risk assessment by taking into consideration the likelihood of non-compliance. We will use these principles at every stage of the decision-making process , including choosing the most appropriate type of intervention or way of working with those regulated, targeting checks on compliance such as determining the frequency of inspection, and when arranging other visits, for example to take samples and carry out projects; and when taking enforcement action. We will investigate complaints from members of the public where appropriate and according to resources.

5.6 We will use standard risk assessment schemes such as those produced by Local Government Regulation (LGR), CoSLA and Food Standards Scotland and, where appropriate, the Health & Safety Executive and publish these on our website. We are early adopters of the Annex 5 guidance on risk assessment of food law interventions prior to national implementation in April 2019. Regulated persons will generally be assessed as being high, medium or low risk. The assessment is usually based on the risk which the activity presents to the public or employees, the complexity of the legislation, the size and type of organisation, and the confidence which we have in the ability of the regulated person to comply based on our knowledge of their control systems and previous compliance levels, including evidence of relevant external verification. On request, we will explain to any regulated person why we have assigned them a particular risk rating.

5.7 Our data shows that lower risk entities do still occasionally fail to comply with the law. Where these fall outwith an intervention’s structure we will carry out a small element of random inspections but only where the burdens have been minimised or as required by our role as a market surveillance authority.

5.8 Where appropriate we will conduct follow up visits within 30 days after the issue of a written warning or formal warning to check whether appropriate action has been taken.

5.9 We review the effectiveness of chosen regulatory activities in delivering desired outcomes in our Operational Plan and review these annually making any necessary adjustments.

5.10 We will tailor our approach to differentiate between sectors which are generally compliant or actively working to improve performance and those who are deliberately choosing not to comply.

Appendix A - The definition of ‘enforcement’

Enforcement action

Informal enforcement action may include verbal and written advice, written warnings (issued by an investigating officer) and formal warnings (issued by a senior officer) which advise that further contraventions could result in formal enforcement action.
Formal enforcement action includes statutory notices (which require the recipient to do something specific such as prohibiting the use of a premises or process where there is a risk to health and/or safety), fixed penalty notices, applications to a civil court for an enforcement order and reports to the Crown Office and Procurator Fiscals’ Service recommending prosecution in a criminal court. It also includes any report by us to the licensing committee or the licensing board recommending that they suspend or revoke a licence or registration.

Investigatory powers

The statutory powers which our Officers can use to help them to check whether the law is being complied with and to investigate any breach of the law.

Routine investigatory powers usually include the power to:

• Inspect premises at any reasonable time.
• Inspect goods.
• Inspect documents where there is reason to suspect a breach has been committed.
• Purchase goods to test whether the law is being complied with (called a ‘test purchase’).
• Take samples for analysis.

Formal investigatory powers usually include the power to:

• Seize and detain goods and documents where there is a reason to believe they are required as evidence.
• Apply to a Sheriff or a Justice of the Peace for a warrant to enter premises by force if necessary or to take a constable to avoid the potential of obstruction in the execution of our duties.
• Prohibit access to unsafe premises, equipment or goods pending an investigation.

Appendix B - Legislation, Guidance and Codes that Influenced the Preparation of the Joint Enforcement Policy

A. Principles of Good Regulation

The The Legislative and Regulatory Reform Act 2006, Part 2, requires North Lanarkshire Council to have regard to the Principles of Good Regulation when exercising a specified regulatory function as 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 and Trading Standards Services.

We recognise that our regulatory activities should be carried out in a way which is:

(i) Proportionate,

(ii) Accountable,

(iii) Consistent,

(iv) Transparent, and

(v) Targeted to situations which need action.

B. Scottish Regulators’ Strategic Code of Practice (in relation to devolved regulatory functions)

The Code requires us, as Regulators, to adopt the following high level operational approaches:

• Adopt a positive enabling approach in pursuing outcomes that contribute to sustainable economic growth.
• In pursuing our core regulatory remit, be alive to other interests, including relevant community and business interests; taking business factors appropriately and proportionately into account in our decision making processes; and protecting public health and safety.
• Adopt risk and evidence based protocols which help target action where it is needed and help to ensure the achievement of measurable outcomes.
• Develop effective relationships with those we regulate and have clear two-way communication in place.
• Tailor our approach depending on the nature of the sector they are regulating and the desired outcomes. This includes a commitment to advice and support for those who seek to comply, allied with robust and effective enforcement when justified.
• Recognise, in our policies and practice, a commitment to the five principles of better regulation: regulation should be transparent, accountable, consistent, proportionate and targeted only where needed.
• Pursue continuous improvement in regulatory practice based on the principles of better regulation.

C. Human Rights Act 1998

North Lanarkshire Council is a public authority for the purposes of the Human Rights Act 1998. We therefore apply the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 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 2018

Where there is a need for North Lanarkshire Council to share enforcement information with other agencies, we will have regard to the provisions of the Data Protection Act 2018 and the EU General Data Protection Regulation.

E. Food Law Code of Practice

North Lanarkshire Council has responsibility for enforcement of food legislation and carries out its food enforcement activities with regard to the provisions of the The Food Law Code of Practice (Food Standards Scotland, 2019) and any subsequent revisions.

In this regard our Business Regulation Service’s Intervention Policy details our operational policy with regard to regulation of food law and occupational health and safety law to take account of the regulator specific standards relating to these functions over and above this Enforcement Policy. It is within this Intervention Policy, which is available on our website and is readily available to Food Business Operators and/or food business establishments and consumers. This Intervention Policy covers all areas of food law that we have a duty to enforce and includes criteria for the use of all the enforcement options that are available. When drafting this Intervention Policy we considered advice issued by Food Standards Scotland, the Scottish Food Enforcement Liaison Committee and the Food Standards Authority and the Local Government Association, where that advice is relevant to Scotland. Within our Intervention Policy, the full range of enforcement options remain open to an Authorised Officer. In deciding the type of enforcement action to take, an Authorised Officer will have regard to the nature of the breach and the history of compliance of the Food Business Operator. In the case of new businesses, an assessment of the Food Business Operator’s willingness to undertake the work identified by the Officer and whether it involved a deliberate act to mislead or defraud customers or others.

F. Standard for Health and Safety Enforcing Authorities

North Lanarkshire Council has responsibility for enforcement of health and safety legislation and carries out its health and safety enforcement activities in accordance with the requirements of the National Local Authority Enforcement Code. A business may refer to the Independent Regulatory Challenge Panel where they consider that they operate in a lower risk health and safety sector and have been unreasonably subject to a proactive health and safety inspection by us.
 

G. Regulatory Enforcement and Sanctions Act 2008 (‘the RES Act’)

The Regulatory Enforcement and Sanctions Act 2008 established the Primary Authority scheme. We will comply with the requirements of the Act when we are considering taking enforcement action against any business or organisation that has a registered Primary Authority partnership. 

H. Submissions for Prosecution

North Lanarkshire Council will look to general principles to follow when decisions are made in respect of such submissions and will take account of ‘Reports to the Procurator Fiscal - A Guide for Non-Police Reporting Agencies’. In particular, we must be satisfied that such actions meet what are commonly referred to as the ‘Evidential Test’ and the ‘Public Interest Test’:

a. Evidential Test - is there enough evidence against the accused? When deciding whether there is enough evidence to submit a report for consideration for prosecution, North Lanarkshire Council must consider what evidence can be used in Court and is reliable. We 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?

North Lanarkshire Council will, in consultation with Procurators Fiscal, where practicable, balance factors for and against prosecution carefully and fairly, considering each case on its merits. The public interest factors that we will take into account are detailed within paragraph 3.4 of this enforcement policy and under the enforcement options available to us in Appendix C.

If criminal proceedings are instituted then goods or documents pertaining to any alleged offence may be liable for forfeiture by the courts. Details may also be passed on to the Crown Office for examination and investigation by civil and criminal recovery units under proceeds of crime legislation.

I. Regulation of Investigatory Powers (Scotland) Act 2000 – (RIPSA)

In some circumstances it may be necessary for our officers to make observations of a person(s) in a covert manner. If such action is deemed necessary, then any such surveillance shall be undertaken appropriately, on a lawful basis and in compliance with the Council’s procedures to cover the requirements of RIPSA.

Appendix C - Enforcement Actions available in respect of criminal and civil breaches

A. Compliance Advice and Support

Our advice and guidance is focussed on assisting those we regulate to understand and meet their responsibilities. When we provide advice and guidance legal requirements are distinguished from suggested good practice. The impact of the advice or guidance will be considered so that it will not impose unnecessary burdens in itself.

All advice or warnings issued will normally relate only to contraventions of legislation. We shall not issue advice or warnings regarding good practice unless a regulated person requests that we do so. In offering advice we wish to make it clear that:

• Legislation may change over time and the advice given is based on the information available at the time the guidance was produced. It is not necessarily comprehensive and is subject to revision in light of further information becoming available;
• Only the Courts can interpret statutory legislation with any authority; and
• Advice is not intended to be a definitive guide to, nor a substitute for, the relevant law.

Independent legal advice should be sought where appropriate. Any guidance and information we publish will be in a clear, accessible, concise format using media appropriate to the target audience and written in plain language for the audience. We have mechanisms in place to consult those we regulate in relation to guidance we produce to ensure it meets their needs.

B. Undertakings

Undertakings under the Enterprise Act 2002 require that a trader refrain from future conduct that is detrimental and unfair to the interests of the consumer.

The Trading Standards Service will ask traders who persist in detrimental conduct to voluntarily sign an Undertaking stating that they will desist from such conduct. Failure to agree to an Undertaking may result in an Enforcement Order (similar to interdict) being sought via the Sheriff Court.

C. Statutory (Legal) Notices

There are a wide range of statutory notices that may be issued by our officers. All such Notices shall comply with the conditions associated with the relevant legislation and shall provide appropriate guidance to ensure the terms of the Notice are easily understood. In addition, details shall always be provided to allow contact with the appropriate officer to discuss any aspect of the Notice further. Follow up action with regard to failure to comply with statutory notices is subject to management review.

D. Financial penalties

Any fixed penalty charges issued by our officers shall be issued in a manner which complies with the relevant legislation, accompanied by sufficient information to ensure that details of the offence are clearly understood, together with where and when the relevant payment should be made.

Our issue of fixed penalty notices will include procedures to reflect a level of care towards alleged offenders under the age of 18 years which is consistent with our level of care extended to young test purchasers. We will not issue a fixed penalty notice to a person under 18 years of age on the first offence, choosing to advise and educate to avoid a repeat offence, in accordance with principles to protect the health and wellbeing of young people in our communities in all areas that we impact upon.