Criminal Liability in Regulatory Contexts Responses - Law ...

1.198 We hope this example of the RLA experiences in relation to the Housing Act
2004 will be of use to the Law Commission in illustrating the problem. The RLA
was the lead representative for landlords when the Bill passed through
Parliament. We could give a number of instances but the best one is possibly
this. It relates to houses in multiple occupation (HMOs) (i.e. bedsits, shared
houses etc), all HMOs are subject to the Management Regulations. These
regulations create an absolute criminal offence subject to the defence of
reasonable excuse. However, under the previous legislation now superseded by
the 2004 Act a local authority enforcing the regulations had a choice of remedies.
It could serve a statutory notice requiring the carrying out of remedial works. It
could also prosecute. Provision for the Management Regulations was re-enacted
in the 2004 Act but the Government of the day decided that the only enforcement
method would be by way of prosecution! The Government deliberately deleted
the provision for service of notices from the legislation. At our behest
amendments were put down in the House of Lords to overturn this but the
Government was adamant so that the Act was enacted without the previous
provision which allowed service of works notices to enforce compliance! This is
typical of the attitude which has permeated Government. Due to the
Enforcement Concordat hopefully, but not necessarily, local authorities will
usually take informal enforcement action i.e. a warning letter in less serious
cases but a formal sanction short of prosecution has been written out of existing
legislation. This is typical of recent trends. It was a wholly unnecessary
omission.
1.199 One area for concern surrounding formal enforcement steps short of criminal
prosecution is the question of fees being levied by a regulatory authority for
enforcement actions. For instance, under the Housing Act 2004 fees can be
levied to reflect the time involved in taking formal enforcement action. One
advantage of informal action is to avoid fees. Landlords in our experience are,
however, concerned about the use of fees as effectively a back door form of
“fine”. On occasion objection has had to be taken to informal enforcement letters
which then threaten the service of formal notices accompanied by payment of
fees, particularly if there are issues over the requirements made. This gives rise
to concerns. Recipients of informal enforcement may feel under compulsion to
carry out unnecessary remedial action which they would wish to challenge simply
because of the threat of fees. You have to bear in mind that often the recipients
of these notices are not particularly versed in the ways of regulatory enforcement.
1.200 Under the Housing Act 2004 an appeal against fees can only be allowed if the
underlying notice is appealed successfully. One issue of concern is why it was
necessary in many cases to take formal enforcement action at all bearing in mind
the provisions of the Enforcement Concordat. We therefore feel that it is
important that if there is any fee levying power this should also be subject to an
unlimited appeal process with the power to overturn the fee or reduce it even
though the notice itself may not be appealed against at all or any appeal against
the notice may be disallowed. This would provide some form of restraint.
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