PRIMARY AUTHORITY

Operating as an Enforcing Authority

Updated October 2015

CONTENT• When and how does Primary Authority affect how you

do your job?

• What is Primary Authority?

Inspection plans

Primary Authority Advice

Notifications of enforcement action

The Primary Authority Register

• How is it working in practice?

• Future developments

WHEN DO YOU NEED TO THINK ABOUT PRIMARY

AUTHORITY?

FOUR KEY STAGES1. When you are planning or programming proactive

regulatory interventions, including inspections, sampling visits, test purchases, other checks on compliance or advisory visits

2. When you are carrying out proactive visits or other checks on business compliance

3. When you receive a complaint or enquiry about a business

4. When you are considering how to deal with non-compliance by a business

FOUR KEY QUESTIONS1. Is the business in Primary Authority?

Check the Primary Authority Register

IF SO,

2. What must I do to comply with the law?

3. How can the primary authority help me to do what I need to do more efficiently and effectively?

4. How can I support the primary authority in ensuring the business is regulated effectively?

PRIMARY AUTHORITY REGISTER

• A secure database holding details of all nominated partnerships

• Can be accessed only by registered users • Available to:

local authority officers regulating businesses national regulators businesses in direct partnerships co-ordinators

• New users can be set up by any officer registered as an ‘Administrator’

• Operated by BRDO

WHAT IS PRIMARY AUTHORITY?

STATUTORY BASIS OF THE SCHEME

• A statutory scheme established by the Regulatory Enforcement and Sanctions Act 2008 (‘RES Act’)

• The scheme provides for a partnership between a business and a single local authority - its ‘primary authority’, in a specified area of regulation

• Partnerships are formed through nomination by the Secretary of State, following consultation with relevant national regulators

• A primary authority is entitled to recover its costs for providing primary authority services

• The Act creates a number of statutory duties for ‘enforcing authorities’

KEY ASPECTS OF PRIMARY AUTHORITY

• About regulation by ‘local authorities’, in specified regulatory areas

• The primary authority provides advice and guidance which is assured through a statutory mechanism

• The primary authority can guide local checks on the business, for example by publishing an inspection plan

• The primary authority shares information and intelligence, guiding consistent and proportionate regulation

• A primary authority is entitled to recover its costs from a partner business

PRIMARY AUTHORITY SCOPE

• Regulatory scope is defined under section 4 and schedule 3 of the RES Act

• Includes most legislation in the regulatory areas of:Environmental Health; Trading Standards; Fire Safety; Welsh regulations in relation to sunbeds, single use

carrier bag charges and mobile home licensing

• List of Primary Authority Categories• Devolution – limited scope in Scotland and Northern

Ireland

BUSINESS ELIGIBILITY (1)

• A business regulated by more than one local authority Premises in multiple local authority areas eg. retail chains,

hotel, restaurant and pub chains Products marketed or sold in multiple local authority areas

eg. manufacturers, producers

• Now described in the statutory guidance as a ‘direct partnership’

DIRECT PARTNERSHIPS

Business

Primary Authority

Enforcing Authority

Enforcing Authority

Enforcing Authority

Nominated partnership

BUSINESS ELIGIBILITY (2)

• A business that is part of a group of businesses collectively regulated by more than one local authority, where these businesses ‘share an approach to compliance’: Members of a trade association that provides regulatory

guidance on which the businesses rely; Franchisees following compliance controls specified by the

franchisor; A group of related companies following the same compliance

controls.

• Described in the statutory guidance as a ‘co-ordinated partnership’

CO-ORDINATED PARTNERSHIPS

Business 1

Co-ordinator

Shared approach to compliance

Business 2

Business 3

Business 4

Primary Authority

Nominated partnerships

FEATURES OF PRIMARY AUTHORITY• The scheme encourages a flow of information, and the

use of that information to drive improvements in compliance to target enforcement resources where they are most

needed to inform consistent and proportionate responses to non-

compliance • The primary authority has three statutory ‘tools’ it can use:

An inspection plan Primary Authority Advice to the business Primary Authority Advice to Local Authorities

• Primary Authority Advice is underpinned by the statutory requirement for notifications of proposed enforcement action

INSPECTION PLANS • A primary authority is able to produce an inspection plan

– to guide enforcing authorities

– to enable the primary authority to build a detailed picture of where the business is getting it right and where there are problems

• Can address programmed, planned or proactive interventions

• Can’t make requirements in respect of reactive interventions in relation to matters of specific concern about the business

INSPECTION PLAN PROCESS

• Developed by the primary authority, in consultation with the business and any relevant national regulator(s)

• Must meet the requirements of the statutory guidance

• Takes effect only when it is consented to by the Secretary of State and published via the Primary Authority Register

NATURE OF INSPECTION PLANS

• Setting out requirements that enforcing authorities must follow – National inspection strategy co-ordinated by the primary

authority

– Activities not to be undertaken locally

– Policies/ procedures not to be reviewed

– Targeting local inspection activity

• Providing information to assist enforcing authorities• Gathering feedback

INSPECTION PLANS – STATUTORY DUTIES

• An enforcing authority must follow any requirements of a published inspection plan when: planning proactive work; andcarrying out proactive interventions

• The enforcing authority can request agreement from the primary authority to an alternative approach

• The request should be submitted via the secure area of the Primary Authority Register, setting out the alternative approach and the reasons for it

• Where an inspection plan requires feedback, this must be provided

PRIMARY AUTHORITY ADVICE

• Primary Authority Advice can be issued by the primary authority to: a business ie. advice on compliance to local authorities ie. advice on how to exercise their

regulatory function in relation to the business

• Primary Authority Advice is issued directly to the business, in the case of a ‘direct partnership’ via the co-ordinator, in the case of ‘co-ordinated

partnerships’

PRIMARY AUTHORITY ADVICE

• Primary Authority Advice to a business may: address questions of interpretation or applicability of the

law address the suitability of a business’ control systems eg.

procedures that set out the precautions that a business will take to avoid breaches

• Primary Authority Advice is described as providing ‘assurance’ to the business because a primary authority is able to direct against enforcement action proposed by the enforcing authority that would be inconsistent with the advice

THE NOTIFICATION PROCESS (1)

• The legislation requires enforcing authorities to notify all enforcement action to the primary authority. This is done via the secure area of the Primary Authority Register

• Notification is usually required prior to taking the action

• In limited, specified circumstances notification may be retrospective eg.Emergency prohibition notices (food hygiene)Emergency remedial action notices and emergency

prohibition orders (housing)Abatement notices (environmental protection)Action that is urgently require to avoid a significant risk

of harm...

THE NOTIFICATION PROCESS (2)

• Notification of proposed action provides the primary authority with an opportunity to consider the enforcement action, and to direct against it where it is inconsistent with Primary Authority Advice given

• Where the primary authority doesn’t direct against the proposed enforcement action, the enforcing authority, if it wishes to proceed, must first notify the business via the secure area of the Primary Authority Register

STATUTORY DETERMINATION PROCESS

• Only applies once proposed enforcement action is notified

• Referrals to determination can only be made with consent from the Secretary of State

• Referral is a measure of last resort where there is disagreement as to whether Primary Authority Advice:

– was ‘correct’

– was ‘properly given’

– is ‘inconsistent’ with proposed enforcement action

• Application to Secretary of State may be made by any of the 3 parties, in specified circumstances

HOW IS PRIMARY AUTHORITY WORKING IN PRACTICE?

as at 1st October 2015

• Over 7300 businesses in partnerships• 163 local authorities and fire and rescue

authorities providing partnerships• A variety of business sizes, from micro businesses

to multi-national manufacturers and retailers

• A wide range of business types and sectors

EXAMPLES OF GOOD PRACTICE

• Helping businesses to comply and grow

• Providing assurance

• Reducing compliance costs

• Reducing ‘gold plating’

• Using feedback from enforcing authorities

• Sharing specialist knowledge

KEY MESSAGES TO TAKE AWAY

• Primary Authority is there to help local regulators to do their job

• Primary Authority is statutory – you, as an officer of the enforcing authority, must meet the requirements of the scheme when dealing with businesses that have a primary authority

• The number of businesses that are participating in the scheme is growing fast in a wider range of sectors – they will be in your area

• The Primary Authority Register holds all of the information you need, so use it – if you aren’t registered yet then make sure you do register

FUTURE DEVELOPMENTS

The Enterprise Bill proposes amendments to expand and simplify Primary Authority, including:

•Enabling businesses who only trade in one local authority, or have not yet started trading, to join.•Simplifying the arrangements for co-ordinated partnerships. •Streamlining processes.

BRDO discussion document is available at https://www.gov.uk/government/organisations/better-regulation-delivery-office

FURTHER INFORMATIONBRDO operates the scheme and provides information and training

Website: www.primaryauthorityregister.info

Email: pa@brdo.bis.gsi.gov.uk

Tel: 0121 345 1201

Resources for enforcing authorities:https://primaryauthorityregister.info/par/index.php/regulator-support/enforcing-authorities

Follow @BRDOregulation on Twitter or join our LinkedIn groups:Better Regulation and Primary Authority Network