Enforcement Policy, October 2024

The 'Regulators' Code (gov.uk)' applies on a statutory basis for many council services and, where it does not, the council adopts the principles behind it for all enforcement activity on a voluntary basis (as recommended by government, in place of the previous voluntary enforcement concordat). It sets out what businesses, and others being regulated, are entitled to expect from enforcement officers.

This policy applies to enforcement action undertaken by or on behalf the Council. Where considered appropriate, this overarching policy may be supplemented by additional enforcement policies and procedures produced by individual service areas; and these are published on the council's website.

Officers will act in accordance with the principles of the statutory Regulators' Code and the Growth Duty. However, in certain instances we may conclude that a provision in the Regulators' Code or Growth Duty (gov.uk) is either not relevant or is outweighed by another provision.

Other relevant provisions include (but are not limited to):

• the Enforcement Policy Statement of the Health and Safety Executive
• the National Local Authority Enforcement Code Health and Safety at Work England, Scotland and Wales, April 2013
• the Food Standard Agency's Regulators' Code
• the Secretary of State's Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions, November 2015
• case law

We will ensure that any decision to depart from relevant policy guidelines will be properly reasoned and based on material evidence. Any departure from this policy will first be considered by the relevant director unless a delay in making such a decision will result in serious risk of personal injury, risk to public health or impact effective running of the service. All such decisions will be recorded on our systems in compliance with the Openness of Local Government Bodies Regulations 2014.

Where the Council has adopted service standards for enforcement practices within individual services, enforcement action will usually follow the procedures laid out for those service areas, unless specific circumstances indicate otherwise and where a departure from this could be justified.

So far as it is appropriate to do so, the council will be open about how it will undertake its responsibilities and explain in a timely manner when it is necessary to take enforcement action.

We will also take steps to publicise prosecutions and other enforcement activity that we believe will have a deterrent effect on other people. We will use social and other media to make clear that Wiltshire Council acts to protect finite public resources, protect the law-abiding majority and to dispel any suggestion that we are a "soft touch".

The council will make decisions based on evidence and in line with the principles of natural justice. The council will ensure that officers who take enforcement action on its behalf are appropriately authorised to do so (either under statute or by virtue of the council's scheme of delegation), competent, suitably qualified and trained and acting in accordance with adopted service standards.

Any complaints will be dealt with in accordance with the council's customer complaints procedure, but having regard to any on-going legal processes. The council will ensure that enforcement action and investigations take place in accordance with relevant provisions from the following:

• Health and Safety at Work Act 1974
• Police and Criminal Evidence Act 1984 - and associated codes of practice;
• Criminal Procedure and Investigations Act 1996;
• Human Rights Act 1998
• Regulation of Investigatory Powers Act 2000
• Criminal Justice and Police Act 2001
• Housing Act 2004
• Legislative and Regulatory Reform Act 2006
• Regulatory Enforcement & Sanction Act, 2008
• Public Sector Equality Duty under the Equalities Act 2010
• Protection of Freedoms Act 2012
• Anti-social Behaviour, Crime and Policing Act 2014
• Data Protection Act 1998 and GDPR 2018
• Code for Crown Prosecution Service
• any other relevant legislation other enforcement services regularly use

This is not an exhaustive list. Regard shall be had to other relevant legislation, statutory guidance, codes of practice for enforcement agents, national regulatory codes, as well as corporate guidance and policies.

In a number of cases the law provides a right of appeal against various types of enforcement action. In cases where legislation requires it, the council will seek to ensure that relevant details of the appeal mechanism are clearly set out in writing.

This policy involves a concerted approach by the council to take more enforcement activity, to publicise this to a greater extent and to ensure that we increase the protection we provide to our communities.

The council believes that prevention is better than cure and will often work to advise and assist on compliance with the law. All enforcement activities will be carried out in a helpful manner, actively working with individuals and businesses to advise on compliance.

Officers will explain clearly in plain language what is expected of those to whom legislation applies and what can be expected of the enforcement service. Clear distinctions will be drawn between statutory requirements and advice or guidance regarding what is good practice but not compulsory.

Any enforcement action will be proportionate to the risk and seriousness of the breach of legislation. There may be occasions when the breach is considered to be serious and/or where informal action is not appropriate. In such cases, immediate enforcement action may be taken without prior notice and, as noted above, some services have specific legislative guidance and regulations which set out the enforcement requirements in these services.

In assessing what enforcement action is necessary and proportionate, consideration will be given to the six core principles underlying the design of an effective modern sanction system as set out in the Macrory Review, these are:

• aim to change the behaviour of the offender
• aim to eliminate any financial gain or benefit from non-compliance
• be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction
• be proportionate to the nature of the offence and the harm caused
• aim to restore the harm caused by regulatory non-compliance, where appropriate
• aim to deter future non-compliance

In line with the Regulators' Code, we will also ensure that risk assessment precedes and informs all aspects of our approaches to regulatory activity, including advice, support, enforcement and sanctions by assessing the risks to regulatory outcomes. Our risk assessments frameworks will:

• be based on all available relevant and good-quality data
• include explicit consideration of the combined effect of the potential impact of noncompliance on regulatory outcomes, and the likelihood of non-compliance
• evaluate the likelihood of non-compliance, consider all relevant factors including: past compliance records and potential future risks, the existence of good systems for managing risks, evidence of recognised external accreditation, and management competence and willingness to comply

Every case is unique and will be considered on its own merits. However, when making decisions whether to prosecute or not the council will take into account the advice set out in the Director of Public Prosecution's Code for Crown Prosecutors (cps.gov.uk) on the need for the evidential and public interest tests to be met.

The council will endeavour to ensure that enforcement action is consistent by taking a similar approach in similar circumstances, based on the Regulators' Code and other statutory provisions. However, officers will take into account many variables such as level of risk, compliance history and the attitude and actions of those involved - and the facts of each case - which may result in different outcomes in what appear potentially similar investigations.

Where national schemes or authoritative guidance for enforcement risk assessment exist, we will base our assessments upon them where it is appropriate to do so. An example of this is the HSE Enforcement Management Model. This approach helps to:

• provide a framework for making consistent enforcement decisions
• monitor the fairness and consistency of inspectors' enforcement decisions in line with policy
• assist offenders in their understanding of the principles which inspectors follow when deciding on a particular course of action

The council maintains management systems to monitor the quality and nature of enforcement activity undertaken so as to ensure, as far as is practicable, uniformity, consistency in approach and a quality service in general.

Where an enforcement team wishes to commence a prosecution or legal action they are supported by legal services and a standardised enforcement manual, which sets out requirements for putting together effective prosecution files. An Enforcement Management Group, comprising team managers from the various enforcement functions, will share best practice on implementing this standard approach.

In a similar way, council services will ensure appropriate liaison arrangements are in place with other authorities and enforcement agencies which may have a shared enforcement role, to ensure consistency of decisions.

When making enforcement decisions, the council will ensure that there is no discrimination against any individual on the grounds of age, race, ethnic or national origin, nationality, religion and belief, sex, gender identity, marital status, employment status, disability, sexual orientation, social class, responsibility for children or dependents, trade union membership, unrelated criminal convictions or any ground that cannot be justified.

Regulatory activity will be based on relevant factors such as business size and capacity and the nature of reported breaches.

Assistance of others is often crucial to the success of enforcement action by the council. Where information is given to assist the council's enforcement, the council will treat such information with confidence. However, if formal action is taken, information that has been provided may be required to be disclosed and made public by law.

Where non-compliance has been dealt with by providing advice or guidance the council will monitor that compliance in a variety of ways. For low risk, low level non-compliance, the council will seek reassurance that compliance will be secured. For more serious non-compliance, revisits or further proactive monitoring may be undertaken. Council services will work with and consult other service areas within the council, or other agencies, as necessary (recognising that lack of compliance in one area may be indicative of a lack of compliance in others). This multifaceted approach will help to deliver increased levels of compliance.

Within the council, an Enforcement Management Group will allow for relevant information on non-compliance to be shared between enforcement teams, or gathered from other services. The Group will offer advice to individual officers in determining the best and most appropriate course of action. This will ensure that enforcement action is intelligence-led and does not lead to problems being passed between services.

Where there is a wider regulatory interest, enforcement activities will be coordinated with other regulatory bodies and enforcement agencies to maximise the effectiveness of any enforcement. Where an enforcement matter affects a wider geographical area beyond the local authority's boundaries, or involves enforcement by one or more other local authorities or organisations, where appropriate all relevant authorities and organisations will be informed of the matter as soon as possible and all enforcement activity coordinated with them. The officers will share intelligence relating to wider regulatory matters with other regulatory bodies and enforcement agencies including:

• government agencies including HMRC, DWP and UK Border Force
• Wiltshire Police
• Dorset and Wiltshire Fire and Rescue Services
• HSE and Statutory Undertakers

Where there is a need for the council and any of the enforcement teams to share information with other agencies, we will follow the provisions of Section 115 of the Crime and Disorder Act 1998, the UK General Data Protection Regulation 2018 (UK GDPR), the Data Protection Act 2018, as well as Part 9 of the Enterprise Act 2002. Under s241A of the Enterprise Act 2002, a public authority which holds prescribed information to which section 237 applies, may disclose that information to any person for the purposes of, or in connection with, prescribed civil proceedings only (including prospective proceedings). All investigations are undertaken in accordance with legal requirements and relevant government guidance, as well as council policies on information sharing and data protection.