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A Critical Analysis and Review of the Procedure

and Substance of Appeal Rights to the First-tier

Tribunal (General Regulatory Chamber)

Charmaine Cole

Professor Christopher Hodges

Centre for Socio-Legal Studies, University of Oxford

Forewords by

Judge Alison McKenna, Chamber President

Sir Ernest Ryder, Senior President of Tribunals

July 2020

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Forewords

Foreword by Sir Ernest Ryder, Senior President of Tribunals

It cannot be doubted that the First-tier Tribunal (General Regulatory Chamber) has an

unstable way of working that is a consequence of the manner in which it has been given its

functions over time. It has an increasing work load, and the peripatetic nature of the GRC

means that there is a need to plan the deployment of its judges and members and the allocation

of its highly specialist workload.

This welcome Report is issued as a response to concerns raised by judges working within the

system, who are coping with those ever increasing demands. It is essential that access to justice

is deliverable efficiently and effectively by the Tribunal system. There is no room for the

exclusion of any of our users who need that access. This Report shows that there is a significant

lack of consistency of thought in the drafting of legislation which gives rise to appeal rights. It

makes clear that there is a need for clarification and consistency in the regulatory regimes

both as regards procedure and substance, but that simple solutions can be found. There is a

need to improve the practice relating to how appeal rights are designed so that the jurisdictions

exercised by the GRC can work from a coherent template. If the simplification suggested in

this Report were implemented, there would be a considerable dividend in increasing the access

to, and delivery of, justice in the GRC. Clarity would be increased and unnecessary costs would

be reduced.

The context is that there is already in place a reform programme which aims to modernise the

justice system and make it fit for purpose. My Report of 29 January 2019 on The

Modernisation of Tribunals 2018 sets out the strategy for the reform programme as it affects

Tribunals. An implementation plan Innovation Plan for 2019-20 applies the aims, principles,

design concepts and solutions identified in the strategy to the Tribunals and sets out plans for

the next stage of reform. This Report is a further stage in what needs to be done in the GRC as

an additional project. I strongly recommend that officials in Government and HMCTS work

with the judiciary to re-consider how appeal rights are characterised and drafted. Working

with the GRC would be an excellent first step. Those designing and writing legislation should

take account of the template in the current Report so as to produce legislation that adequately,

accurately and consistently clarifies the relevant appeal or review rights.

I am very grateful to the CSLS in the University of Oxford for the time and specialist expertise

they have applied to the task of examining with the judiciary a particular problem. This is a

template for future partnership working between the academy and the judiciary.

Sir Ernest Ryder, TD, PC, DL,

Senior President of Tribunals,

Royal Courts of Justice,

Strand,

London WC2A 2LL

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Foreword by Judge Alison McKenna, Chamber President First-tier Tribunal (General

Regulatory Chamber).

From my vantage point in the General Regulatory Chamber, I enjoy a unique viewpoint in

respect of regulatory appeals. I often wonder if I am the only person who can see that

the panoply of modern civil regulators from whom we hear appeals have many powers in

common, yet exercise them in different ways, seemingly unaware of each other.

Having sat in the GRC since its inception in 2009, I have also seen exponential growth in the

number, range and complexity of appeals. I am frequently notified of newly-created appeal

rights, yet the drafters of statutory instruments do not seem to have learned the lessons hard-

won from satellite litigation in other areas.

Regulatory appeals can have profound consequences for regulators, appellants, and the public

at large. Who may and may not practise a profession? Who gains or loses accredited status?

When is a regulated entity required to supply information to its regulator? The rule of law

requires the powers of a regulator to be clear, and the regulated to understand their rights.

Cohesion and consistency in the regulators' exercise of their powers and in the framework for

appeals coming to the Chamber would, in my view, enhance public confidence in this important

area.

It has for some time seemed to me that a review of the regulatory appeals landscape would be

beneficial. A fortuitous meeting with Professor Hodges provided an opportunity for me to

discuss the Chamber's work with Charmaine Cole. I am greatly indebted to them both for this

comprehensive review of the General Regulatory Chamber's work and I commend it to policy-

makers, regulators and the regulated alike.

Judge Alison McKenna

Chamber President (General Regulatory Chamber)

The Law Courts

Winchester

SO23 9EL

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Executive Summary

Recommendations based on our research of the legislation under which appeals may be made

to the First-tier Tribunal (General Regulatory Chamber):

Use the attached check list to ensure all relevant aspects of the appeal process have been

considered when drafting any new legislation

Introduce amendments to existing legislation, in order to form existing rights into a

more coherent framework

Consider the arrangements for co-ordination between Regulators, Ombudsmen,

Tribunals, and other bodies with similar jurisdiction in any particular field.

Introduction

There is a growing list of UK bodies – somewhere upward of 900 - that exercise regulatory,

sometimes even quasi-judicial, functions in England and Wales, from local authorities and

professional associations to non-ministerial government regulators and executive non-

departmental public bodies such as the Gambling Commission.1 Increasingly the route for

appealing a particular action, decision or indeed omission, from one of these regulatory bodies

is to a First-tier Tribunal, and unless there is a specialised tribunal such as for tax or property,

then jurisdiction for such appeals is conferred on the peripatetic General Regulatory Chamber

(“GRC”) whose functions were established by, and under, the Tribunal, Courts and

Enforcement Act 2007 (“the TCEA”) and which comes under the judicial leadership of the

Senior President of Tribunals.

At present at least sixteen different jurisdictions sit in the GRC, which consequently results in

it being required to consider appeals that encompass diverse areas of critical and complex law

such as charity, environmental, food safety and transport. In its first year, namely the second

half of 2008, the GRC heard just 28 appeal cases, but the growth rate since then has been

exponential. Ten years on, i.e. 1 April 2018 to 31March 2019, and 1,888 appeals were heard

by panels in the GRC, sitting at HMCTS venues throughout England and Wales. Thus, the case

load, as well as the range of jurisdiction for this Chamber is increasing phenomenally. Judge

McKenna, Chamber President of the GRC, writing in the 2019 Annual Reports noted: “The

Chamber’s workload continues to rise, with notable increases in receipts in the Information

Rights, Pensions and Transport sectors.”2 In 2019 it acquired a novel jurisdiction in relation to

1 Parliamentary Affairs, Volume 44, Issue 4, October 1991, 505, 520, available at:

https://doi.org/10.1093/oxfordjournals.pa.a052321. For a list of regulatory bodies see:

https://www.gov.uk/government/organisations 2 Senior President of Tribunals Annual Report 2019, available at: https://www.judiciary.uk/wp-

content/uploads/2019/10/6.5845_The-Senior-President-of-Tribunals-Annual-Report-2019_Print_NoCrops.pdf

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appeals brought under the Ivory Act 2018 and preparations are underway for a seismic swell

of cases as more appeal rights are due to come to the GRC as a result of the UK’s withdrawal

from the European Union.3

The varied regulatory regimes responsible for the appeal rights have created an appeal system

which lacks coherence, occasionally leading to uncertainty and satellite litigation. Such a

confusion of different procedures is an impediment to the delivery of justice and a threat to the

rule of law because the powers of the state and the rights of the citizen must be clear. Delivery

of justice would be improved if these impediments were removed. It follows, a priori, that the

solution may lie simply with clearer and more consistent drafting of the relevant legal

provisions, drawing on the experience of twelve years’ worth of GRC appeal cases. With this

in mind, we were asked to investigate the appeal rights arising under the legislation that come

within the jurisdiction of the GRC and, if possible, to produce a recommendation that would

achieve a more coherent framework. The frequency with which appeal rights are conferred on

the GRC was evident in the acquisition of several new appeal rights during our period of

research, namely March to July 2020. From a review of these, it is clear they are mostly created

in secondary legislation and bear little resemblance to each other.

Research Project

The objective of the research has been to critically evaluate all of the relevant legislation which

give rise to appeal rights before the GRC in order to determine a universal approach that would

result in a more economic and time efficient, as well as an easier to use, appeal system for

people with legal disputes regarding the decision of a government Regulator, as well as the

judges, non-legal members, barristers and others involved in the work and functions of the

GRC. The ultimate outcome of the project has been to devise an elementary template that could

inform the various Overseeing Government Departments (“OGDs”) in future drafting of such

rights and to bring to attention some of the issues that arise with the publication of poorly

planned legislation.

While a survey of all GRC users and/or a fuller investigation of appeal rights creation was

beyond the scope of this particular project, what has come to light during research and

discussion with Tribunal judges is that several shortcomings exist in the practical process of

law-making. By way of example, while the GRC should, in theory, be notified and consulted

on any new proposal to extend its jurisdiction under the Judicial Impact Test procedure, this is

not always observed and therefore judges can by confronted by changes without prior notice,

sometimes leading to them having to deal with less than ideal arrangements.4 Thus, we are

aware that several impediments to the delivery of justice currently exist in the present process

and it is anticipated that further work is necessary and that our research may be simply a starting

point for a fuller discussion on improvements in the practice of creating statutory appeal rights.

With the above provisos in mind, our methodology has been to analyse each of 80 pieces of

legislation (list attached), namely the Acts, Regulations and SIs which give rise to appeal rights

in the General Regulatory Chamber and categorise them according to the particular rights and

3 Ibid. 4 It is mandatory for a JIT to be supplied by the OGD to the MOJ which should pass it on to the Chamber

President. Sometimes, however, it is never sent or sent too late for the President to have any input into the

proposal. “Ideally it should come at an early stage with an offer to discuss the draft SI,” McKenna, J. A copy of

the form is available at: https://www.gov.uk/government/publications/justice-impact-test

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remedies referenced therein. While the starting point for our research was neutral with regard

to a preference, and without detailed knowledge of the specifics of many of the areas covered

in terms of jurisdiction or subject, we have been able to identify certain legislative provisions,

which in terms of their clarity, comprehensive scope, language and so on, could be used to

provide a model for future drafting, regardless of the jurisdiction. As much as possible the

obvious disparities have been recognised and conflicting provisions or instances that could

result in different judicial interpretations have been flagged.

Rationale

The underlying motivation for the research project is more than access to justice, which is

jeopardised where the law is insufficiently precise, and time and money of all parties can be

mis-used where there remains significant scope for interpretation and a breadth of mis-

interpretation and re-interpretation. It is also about the efficiency of delivery of justice, which

is at the heart of the reform programme underway in the UK’s judicial system. The current

situation makes it extremely difficult to plan, in terms of ensuring jurisdictional expertise,

deployment of judges and members and other Tribunal staff and is, essentially, unsustainable.

We have thus attempted to identify as much conformity as possible in the existing appeal rights,

drawing a list of essential aspects that ought to be addressed by the relevant legislation and to

highlight the benefit in making the enabling legislation clear, consistent and comprehensive.

Use of secondary, or delegated, legislation has grown considerably in the past three decades,

since it permits the relevant sections of government to fill in the details of primary

legislation.5 While this may be beneficial for the flexibility and level of detail it allows, the

priority is prima facie the substance of such detail and not the consideration of whether appeal

rights are appropriate, sufficient or fit for purpose. Too frequently contradictions of appeal

rights and/or remedies arise between the primary and delegated legislation, which may come

into force years or even decades after its primary legislation was drafted and it is then left to

the Tribunal, or higher courts, to resolve the conflict and to interpret the intention of the

legislators. In some instances, the appeals process is totally overlooked in the secondary

legislation. A recent example of this is the Isles of Scilly (Application of Water Legislation)

Order 2019, which includes no provision on appeal rights to the First-tier Tribunal. However,

the purpose of section 4 is to apply the Water Resources Act 1991 to the Isles of Scilly as it

applies to the rest of England. The 1991 Act contains appeal rights to the GRC.

Because legislation has been drafted piecemeal over many years, the result is perhaps

unsurprisingly an ad hoc collection of rights and remedies, which is unsatisfactory both to those

called to interpret the law and those who come under it. Even within a jurisdiction there is

variable language and content employed in the legislation falling within it.

By way of example, while almost half of the legislation creating the appeal rights to the GRC

concern environmental regulations, this does not mean the rights or remedies in these

regulations, or even the terms used to describe the rights are identical. A significant percentage

of the environmental regulations are, and will be, enforced by Local Authorities. It would make

good sense to have a communication link between for example a lead Local Authority, the

Environment Agency and the GRC in order to ensure a co-ordinated approach to interpreting,

5 See: https://www.parliament.uk/about/how/laws/delegated/

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the legislation, but the solution lies as much in avoiding ambiguity and circumlocution in the

legislation in the first place.

Interestingly, despite the environmental jurisdiction being the most extensive in terms of the

numbers of regulations and statutory instruments creating rights for appealing to the GRC (38

of the 80 pieces of legislation reviewed), “the Information Rights and Pensions jurisdictions,

together with Transport, continue to provide the largest volumes of cases.”6 Many of the

problematic matters raised in this report (and referenced in the case law) have been issues for

deciding in appeals regarding the Pensions Regulator, the Driver and Vehicle Standards

Agency and against the Information Commissioner’s Office concerning decisions made under

the Freedom of Information Act 2000 or a breach of the Data Protection Acts 1998 or 2018.

Yet, a common approach has not even been agreed for these three jurisdictions – or between

these three Regulators - making up well over two-thirds of the GRC’s workload,7 and instead

the Tribunal has relied on interpretations, arguments and decisions from upper tribunals and

courts to help it decide matters as fundamental as vires, let alone the remedies or powers then

appropriate and available to it.

We have noted above a need for cooperation being required between a Tribunal and a

regulatory authority and/or governmental authority. We anticipate that such cooperation will

increasingly be demanded. A further example would involve letting agents, where the GRC

hears appeals on matters such as non-publication of fees and secondary ticketing. However,

Local Authorities also have enforcement powers, and there is no mechanisms for discussion or

coordination of approaches. It might, for example, be useful for there to be a communication

channel with the lead Local Authority (currently Yorkshire). Similarly, it would be helpful for

there to be a communication mechanism between the GRC and the relevant Primary Authorities

under a wide range of other trading enforcement legislation.8

Our Analysis

It is certainly not the intention here to engage with, or even venture into, the debate on

traditional legislative drafting techniques or conventions but rather to offer an explanation for

why there is an anomalous assortment of GRC appeal rights and to identify the characteristics

of efficient and effective drafting of such rights that would minimise ambiguity of legislation

and divergence of outcome.

What became clear early on in our research is, perhaps unsurprisingly, that a significant

distinction can be noted between the appeal rights and remedies as drafted per primary and

secondary legislation. The primary legislation giving rise to appeal rights in the GRC such as

the Charities Act 2011, by definition, is more well-considered. It is the product of drafting by

Parliamentary Counsel and with a significant amount of Parliamentary time then spent on

dedicated scrutiny and amendment by committees, interested parties and so on. Secondary

legislation, by contrast, is the result of an individual or small group within an OGD, who may

6 Senior President of Tribunals Annual Report 2018, available at: https://www.judiciary.uk/wp-

content/uploads/2018/05/spt-annual-report-2018-v3.pdf 7 Together these three jurisdictions accounted for 1,655 of the 1,888 receipts April 2018-March 2019. 8 See generally: http://www.gov.uk/guidance/local-regulation-primary-authority and Primary Authority

Statutory Guidance (department for Business, Energy & Industrial Strategy, 2017) at

http://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/707382/primar

y-authority-statutory-guidance-2017.pdf

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indeed be technical experts but who may be unaware of the consequences of not specifying

whether an appeal is to proceed by way of a review or a rehearing!

Almost all of the provisions examined as part of this project mention who has standing to bring

the appeal (though not on who expressly does not). Most legislation is also clear on what the

nature of the appeal is, that is to say what can be appealed, ie whether a monetary penalty,

decision to register, failure to issue a notice etc. Less clear, however, are the powers the

Tribunal has, or does not have, in allowing the appeal and much of the legislation is silent on

aspects such as whether fresh evidence is allowed if the appeal is a rehearing, what the time

limits are for bringing the appeal, or even something seemingly as important as whether or not

the Regulator’s decision (even where it is the subject of the appeal) is suspended pending the

outcome of the appeal.

As noted above, the GRC is called upon to hear and decide appeals regarding legal disputes

across a plethora of extremely diverse and often technical subjects, which more often than not,

originated as policy in the relevant OGD. The GRC’s determination of an appeal varies

depending on what is stated in the enabling legislation. Up to this point, where the enabling

legislation is unclear, the GRC judges have relied on judicial interpretation and the procedural

rules of the Chamber.9 It is obviously in the interest of all parties to reduce court time and to

replace uncertainty with certainty. A system lacking certainty can result in injustice. It is our

view that many of the problems which currently arise are caused by confusion regarding vires.

We suggest that legislative reform is necessary to eliminate the risks of uncertainty but it could

also be advantageous in reducing costs, by allowing for more shared training (including with

enforcement agencies), Chamber-wide guidance and better use or resources such as hearing

rooms and Tribunal staff.

While the GRC itself was established as part of a streamlining exercise of the courts back in

2008, it would be extremely beneficial now as part of the reform programme to develop

standardised categories of claims and orders in the GRC. Thematic jurisprudential hearings,

for example concerning financial penalties, or fit and proper person, rather than per regulator

jurisdictional hearings might be an appropriate reform. So too, some form of precedent or

model for drafting appeal rights with various options addressing the key components of the

relevant enabling legislation, i.e. the who, what and how of the relevant legislation.

Any such template would need at the outset to include provisions to ascertain whether or not

the GRC has clear jurisdiction with regard to hearing the appeal. Confusion here has been

caused by failure to articulate in the legislation the procedure prior to the appeal, with some

legislation specifically providing that the GRC has no jurisdiction unless and until the

Regulator has first conducted a review and that the appeal is then only against the outcome of

the review. This approach, of course, may have the advantage that it reduces the number of

cases brought before the GRC and therefore in our opinion this approach might be considered

as a default. However, the issue is not addressed in most legislation, which is then resolved

through judicial interpretation: See Mosaic Community Centre v Pensions Regulator.10

9 See:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/846373/Conso

lidated_FtT_GRC_Rules_20191113__002__final.pdf 10 Mosaic Community Centre Ltd vs The Pensions Regulator [2015] UKFTT PEN_2015_0004 (GRC) (12

August 2015), available at: https://www.bailii.org/uk/cases/UKFTT/GRC/2015/PEN_2015_0004.html

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It is imperative that the legislation spell out who has the legal standing to bring the appeal.

Certain legislation such as the Legal Services Act (Appeals from Licensing Authority

Decisions) (General Council of the Bar) Order 2018, the Energy Information Regulations 2011

and the Reservoir Act 1975 are vague or silent on who the appellant is. Schedule 6 of the

Charities Act 2011, by helpful contrast, clearly sets out for each section of the Act that creates

appeal rights, who has standing under that particular provision. This particular Act creates

multiple appeal rights and thus provides for different people to have standing, with different

rights and remedies depending on whether it is a review reference or an appeal. The Green Deal

Framework Regulations 2012 is notable in that it mentions who cannot bring an appeal. The

range of appellants across the jurisdictions studied is wide. For example, the Food Safety Act

1990 allows “any person who is aggrieved by a decision of an authorised officer” to appeal

whereas the Redress Schemes for Lettings Agency Work and Property Management Work

(Requirement to belong to a Scheme) (England) Order 2014 is more specific, allowing only

“(a) person who is served with a notice imposing a monetary penalty under paragraph 3 of the

Schedule” to appeal. It may be perceived that there is a new policy to limit those allowed to

bring an appeal for example, Schedule 6 column 2 of the Charities Act 2011 as enacted,

frequently gave standing to "any person who is or may be affected...." to appeal, thus leaving

open any number of future appellants but when the Act was amended in 2016, all the new

appeal rights were limited to “the person on whom a notice is served”.11 The question of

standing is somewhat problematic with respect to regulatory appeals where a third party has

been given the right to intervene in the regulatory relationship, since it forces the legislator to

decide if the intention of the OGD was to create enforceable private rights by that third party

or to send the Regulator back to the drawing board. The Freedom of Information Act 2000,

which came into full effect in 2005, for example, has no permission stage or filter (which one

might expect if a third party wants to say there is a problem in the regulatory relationship

between the Information Commissioner’s Office and a public authority). Instead, the requester

seeks to enforce ‘private’ rights to information on the basis that the Regulator has the decision

notice wrong and the Tribunal is then called on to substitute its decision for that of the

Regulator. Further, the Tribunal has recently been held to be obliged to enforce its decision and

can be expected to be engaged in lengthy fact-finding hearings. See Moss12 where Judge Jacobs

in the Upper Tribunal decided the Tribunal has jurisdiction to enforce its substituted decision

notice.

A common issue which has been highlighted by our analysis, is whether the appeal should be

conducted as a procedural review or a rehearing. We have categorised which appeals are

specifically foreseen to proceed as a review only, that is to say that the issue is whether the

Regulator’s decision or action was reasonable and lawful based on the evidence before it,

applying identical principles to the High Court in a judicial review, or instead a complete

rehearing and fresh decision by the Tribunal. It goes without saying that the distinction is

salient, since each gives rise to distinct legislative options as to the Tribunal’s powers. There

is concomitantly no power to make a fresh decision with respect to a review, although a power

of remitter is provided, generally or on terms,13 which may supply a useful option where the

11 See Nicholson v Charity Commission, available

at: https://assets.publishing.service.gov.uk/media/575be4b4e5274a0da9000018/nicholson-v-charity-

commission.pdf 12 Information Commissioner v Moss and the Royal Borough of Kingston upon Thames: [2020] UKUT 174

(AAC), available at:

https://assets.publishing.service.gov.uk/media/5ee72eede90e070432b489b8/GIA_1940_2018.pdf 13 see Charities Act 2011 ss. 321, 322, 323

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grounds for review include error of fact, since it precludes the multiple fact-finding hearings,

which would otherwise ensue. The distinction is not always clear however, and indeed the

legislation is unfortunately either silent on this matter or provides for both possibilities without

detailing the different potential consequences. Obviously unless addressed in the enabling

legislation this blurring can give rise to hybrid appeal rights which has resulted in duplicate

appeal processes in different forums regarding the same decision.14

When determining an appeal as a rehearing there is frequently the question of whether or not

new evidence, relevant to the appeal, may be produced. The Charities Act 2011 references this

in s319(4), as does the Gambling Act 2005 s144 (4) which states that “the Tribunal may take

account of evidence which was not available to the Commission.” Only very few other pieces

of enabling legislation make mention of it and the First-tier Tribunal Rules, which derive their

statutory authority from the TCEA, must be relied on. Rule 15 of the Rules provides for

evidence to be admitted “whether or not [it] was available to a previous decision-maker”, which

would clearly seem to mean new evidence can always be admitted, even if it is not referred to

in the appeal-enacting legislation. However, the matter has often arisen and been discussed in

cases coming before the Upper Tribunal. Judge Jacobs in Information Commission v Home

Office15 indicated back in 2011 that at least prima facie the role of any First-tier Tribunal is “to

undertake a fresh consideration of the case on the evidence and arguments put to it….[and that]

there is generally no restriction on the issues, evidence or argument that the tribunal can

consider.” More recent case law suggests however, that fresh evidence can only be relevant to

a full merits/new decision jurisdiction, as per Central London Community Healthcare NHS

Trust v Information Commissioner, discussed at some length in Leave.EU v Information

Commissioner. 16 Although this case is only first instance and therefore does not set a precedent,

it is to be noted that leave to appeal to the Upper Tribunal has been granted and it will be

extremely interesting to see what is decided in that forum, particularly if one recalls Malnick,17

in which the Upper Tribunal decided that the Information Commissioner was functus once she

had issued a decision notice under section 50 of the Freedom of Information Act 2000, and so

was not able to revisit or revise such a notice. That decision means that the Tribunal cannot

remit a decision notice to the Information Commissioner and is obliged to substitute its own

decision notice for that of the Information Commissioner.

Different legislation has used different terms for the same purpose, but also different definitions

for the same terms. It would therefore be helpful to have an agreed list of definitions and what

they mean specifically for GRC appeals for terms such as: (a) “fit and proper person” as the

Tribunal is called upon not infrequently to do more than simply review the facts but rather to

stand in the shoes of the Regulator and make judgements concerning an Appellant’s conduct

(see Harris18); (b) “fixed penalty”, since Tribunal can only uphold or not uphold a fixed

penalty, i.e. not vary the amount.19 Significant time is wasted where these definitions are not

made clear. Even within the same jurisdiction there are contradictory approaches. For example,

s158 of the Data Protection Act 1998 simultaneously provides that the Information

Commissioner should set a fixed penalty for a breach of the Data Protection (Charges and

14 The Watchtower and Bible Tract Society case [2016] EWCA Civ 154. 15 Information Commissioner v Home Office (2011) UKUT17 (AAC) 16 Leave.EU v Information Commissioner, available at:

http://informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i2604/Leave.EU%20Group%20Ltd%20&

%20Eldon%20Insurance%20Services%20Ltd.pdf. 17 Malnick and ACOBA [2018] UKUT 72 (AAC), available at:

https://assets.publishing.service.gov.uk/media/5e208b08e5274a6c38aae2a2/_2018__AACR_29ws.pdf 18 Harris v Registrar of Approved Driving Instructors [2010] EWCA Civ 808 19 The Watchtower and Bible Tract Society case [2016] EWCA Civ 154 for definition of fixed penalty.

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Information) Regs 2018 and that an appeal against the amount is possible to the Tribunal. If

the amount is appealable then the legislator possibly did not intend it to be a “fixed penalty”.

A further concern, which has been highlighted through this research, is the inconsistent

approach toward remedies and the subsequent problems that may result in practice. Under some

legislation the Tribunal appears to have only very limited powers such as to uphold or not an

earlier decision of the Regulator. At other times it is called upon to take a discretionary

approach standing in the shoes of the Regulator or even give such directions for disposing of

the appeal as it thinks just. The Environmental Protection Act 1990 s46D for example, gives

jurisdiction to the GRC to hear appeals concerning penalty notices but only provides by way

of remedy that the GRC can “withdraw or confirm the requirement to pay the fixed penalty”.

By contrast, the Environmental Civil Sanctions (England) Order 2010, regulation 10 gives the

Tribunal more extensive powers in relation to a monetary penalty, in so much as it can:

withdraw, confirm or vary the requirement or notice or take such steps as the regulator could

take in relation to the act or omission giving rise to the requirement or notice; or remit the

decision whether to confirm the requirement or notice, or any matter relating to that decision,

to the regulator. There are many other examples of such a range of powers granted to the

Tribunal.

Certain enabling legislation mention exceptions powers and remedies, such as s166 of the Data

Protection Act 2018, which allows the “data subject” to apply to the Tribunal for an injunction

and is often utilised (though thus far, not granted). This power is an anomaly and might more

appropriately belong in the County Court, which, unlike the Tribunal, would have the

jurisdiction to determine the substantive data protection dispute. A further atypical remedy,

which is potentially problematic is seen in sections 325-330 of the Charities Act 2011 which

allow the Charity Commission (providing the permission of the Attorney-General is granted)

and/or the Attorney-General to refer a question to the Tribunal where it concerns the operation

of charity law or its application to a particular state of affairs, if it would be desirable to do so.

The Commission’s scope for reference is limited, however, to speculative questions concerning

the carrying out of its functions. While the Commission is obliged to give effect to the

Tribunal’s determination, it is not obliged to make the reference and any charity or person or

charity trustee “likely to be affected” by the determination while entitled to be a party to the

proceedings, may not then proceed in litigation on the same point. The problem arising with

this power to clarify and settle the law is that it is merely hypothetical, and the Tribunal has no

power to direct any particular outcome. It is to be noted here that the Law Commission

considered in its 2017 report on Charities law,20 the powers exercisable on the determination

of a reference to the Tribunal, as well as whether it is appropriate to allow the Commission to

make a referral without first obtaining the Attorney-General’s consent.

There does not seem a logical reason for this irregular position vis-à-vis powers and discretions

granted and obligations imposed on the Tribunal, and it is our proposition that it is merely the

awkward consequence of a regulatory regime that has grown organically and therefore it is an

issue that now needs addressing. Especially given the many new appeal rights which are to be

directed to the GRC under the EU Exit legislation.

Additionally, the analysis of the appeal rights has highlighted the present inconsistent approach

regarding whether or not a Regulator’s decision is suspended pending the determination of the

20 Law Commission report on technical issues in Charities Law, Law Com 375, 2017 available at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/644711/6.378

1_LC_HC304_Technical_Issues_in_Charity_Law_FINAL_080917_WEB.pdf

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appeal. Certain legislation, and indeed the majority of the legislation giving rise to appeal rights

in the GRC, such as the Pensions Act 2008, automatically suspend the Regulator’s decision. In

others it is necessary to apply to the Tribunal for a suspension or stay under Rule 20 of the

First-tier Tribunal Rules.21 Such applications of course, take time and are granted, or not, at the

discretion of the Tribunal. In cases where the Regulator’s decision concerns whether a person

is considered “fit and proper” to pursue a certain activity and where there may be an issue of

public safety, for example under s125, s128 of the Road Traffic Act 1988, the Registrar’s power

to suspend the decision could be the default, rather than relying on a decision by the Tribunal.

The effect of suspending, or not, the Regulator’s decision whilst awaiting the outcome of the

appeal of course, results in mixed (detrimental or profitable) consequences, particularly as

concerns a decision to licence or register a person or entity such that livelihoods, commercial

enterprises and professions, and economic wellbeing are affected is extremely important and

therefore a consistent approach needs to be sought.

A final point needs to be made regarding appeals against inquiries, such as those arising under

the Charities Act 2011 and Data Protection Acts 1998. The approach of the legislators of these

primary Acts is to provide for appeals against the opening of an inquiry, whereas other

legislation such as taxation legislation provide only for appeals against the conclusion of such

an inquiry, which appears more logical since such is capable of correcting reputational or other

damage if the findings are erroneous. Appeals against the opening of an inquiry, on the other

hand, can not only delay, but also inhibit, the inquiry process. It is therefore far from clear why

a different approach has been adopted in the rights coming before the GRC and the Tax

Chamber and what the rational might be for such a difference.

Conclusions

In conclusion, our analysis of the rights and remedies as they stand at present suggests a

disorganised amalgam with potential to cause at best unnecessary expense, frustration and

uncertainty, at worst a serious miscarriage of justice.

As the Tribunal continues to acquire novel jurisdictions, it become increasingly critical that in

order to ensure the GRC remains fit for purpose, any new appeal rights ought to be drafted with

an homogenous approach regarding intention, text, definitions and extent.

Our recommendation is therefore that more thought needs to be given in the drafting of new

appeal rights and that a single approach ought to be adopted, for example, by devising a model

drafting template as basic as a tick box, or decision tree, which ensures each essential

component of any appeal has been considered by the OGD and addressed, where necessary, in

the legislation. With regard to the existing appeal rights as discussed above, we would propose

a simple solution. Our recommendation would be the introduction of a single piece of amending

legislation, that would change, remove or add to the wording of current statutes, to effectively

standardise the rights/remedies. More particularly, we would like to see amending legislation

giving effect to the following modifications:

21 See:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/846373/Conso

lidated_FtT_GRC_Rules_20191113__002__final.pdf

13

1. Where no provision made as to who has standing only the person who has received the

notice or who is affected by a decision may appeal that matter to the Tribunal.

2. Where no provision about whether or not the process is a rehearing or review, it is

assumed that it is a full merits review and that fresh evidence is admissible with the

Tribunal making a fresh decision.

3. De jure and de facto, the relevant Regulator has first conducted an internal review

(mandatory reconsideration).

4. Suspension of effect of the Regulator’s decision by lodgement of the notice of appeal.

With regard to future legislation, it may be beneficial to have specific categories of drafting

templates dependent on whether the subject of the appeal concerns a regulated entity, licenced

profession or fixed penalty notice for example. It is our view that regardless of whether this

option is pursued, as a very minimum each piece of legislation must be clear on what the right

of appeal consists of, who has standing and what powers the Tribunal has if it allows the appeal.

It would also be helpful to clarify the Tribunal’s jurisdiction and whether or not the Regulator’s

decision is suspended.

Included below at Annex 1 is an initial template for a more consistent approach to future

drafting, based on the issues that came out of our analysis. It asks the questions that needs

answering or at least thought through by the legislator. At Annex 2 we have provided a short

example of how a piece of future legislation providing appeal rights to the GRC might look.

Charmaine Cole

Christopher Hodges

Centre for Socio-Legal Studies, University of Oxford

16 July 2020

14

Annex 1: Template for efficient drafting regarding appeals to GRC:

(1) Procedure prior to the appeal:

a) Is the intention to provide direct jurisdiction to the First-tier Tribunal?

Options

(i) An appeal under this Order is to the First-tier Tribunal.

(ii) An appeal under this legislation is to the General Regulatory

Chamber of the First-tier Tribunal by virtue of article 3(a) of

the First-tier Tribunal and Upper Tribunal (Chambers) Order

2010.

(iii) An appeal may be brought to the Tribunal against any decision,

direction or order mentioned in column X of Sch Y.

b) If it is not intended to provide direct jurisdiction then what is first

contemplated?

Options

(i) the Regulator must first conduct a review or decide not to

conduct a review… (only this review or decision can then be

appealed).

(ii) Consent required? Eg: Regulator? Attorney-General?

(iii) Fees to be paid for appeal

(2) Legal Standing:

a) Who is the Applicant? Who is the Respondent? Who is not the applicant?

(i) Person/s – need to be specific about whether it is only the

person who has received the notice/decision or whether any

other person who is, or may be, (now or in the future) affected

by the notice/decision may appeal. Do exclusions need to be

made? (see Reg 21 of Climate Change Agreements

(Administration) Regs 2012.)

(ii) Entity – The Regulator, a registered entity/charity, operator,

keeper etc.

Options

(i) Energy Act 2016: “A person affected by any such decision may

appeal against it”

(ii) The complainant

(iii) Energy Savings Opportunity Scheme Regs 2014 gives rights to

a “responsible undertaking”

(iv) A recognised body

(3) Scope of Appeal:

15

a) What is the subject matter of the appeal?

Options

i) Notice regarding XYZ (final, penalty, compliance,

enforcement)

ii) Decision: to list, to register, not to register

iii) Financial penalty – can the notice itself be appealed? What

about the amount, ie is the intention that the monetary penalty

is fixed or variable? Is there a discretionary maximum?

iv) Information request, eg measurements, samples, documents

v) Stop notice

vi) Requirements or conditions to licence, undertaking etc

vii) Determination

viii) De-registration

ix) enquiry

b) Is it worth mentioning what cannot be appealed?

NB: It may be useful to use a Schedule with columns if the scope for appeal is wide.

Eg: If the appeal concerns whether the applicant can become a regulated

entity/undertake licenced activity, stop notices and (fixed and variable) financial

penalties. See

Below is an efficient and unambiguous legislative example (from Flood and Coastal

Erosion Risk Management Information Appeal (Wales) Regs 2011) covering (2) and

(3) above, but not (1):

Right of Appeal

1. A person on whom a penalty is imposed by a penalty notice may appeal to the First-tier

Tribunal against the penalty.

However, it could have been drafted more precisely, as follows:

A person, on whom a penalty is imposed by a variable monetary penalty notice under s of XXX

Act, may appeal to the First-tier Tribunal against the amount of the penalty or its imposition.

(4) Timing:

a) Is it urgent? It is recognised that the nature of certain appeals and

applications to the General Regulatory Chamber is such that a speedy

determination of the appeal is necessary in the interests of justice. If

the appeal is considered urgent then the expedited procedure should

apply.22 Option: to use a Schedule.

b) Procedural time limits, eg within 28 days of the date on which the

notice/decision is received.

22 See: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part28

16

c) Presumption of Service. Is it intended to provide a rebuttable

presumption of deemed service of notices? If yes, then is the proof of

non-service the balance of probabilities test?

(5) Effect of the Appeal:

a) Is the Regulator’s decision/notice automatically suspended by lodgement of

the notice of appeal?

b) If yes, in whole or part?

c) If not, then make a list itemising what is and what is not suspended.

d) Does the Tribunal have a discretion to suspend the decision/notice?

e) Are stop notices to be treated differently?

f) Is this a matter which needs to be addressed by virtue of subject matter, eg

regulated activity, licence revoked, monetary penalties?

Options

(i) The bringing of an appeal suspends the effect of the decision pending

the final determination by the Tribunal of the appeal or its withdrawal.

Does this include an onward appeal to the Upper Tribunal?

(ii) All notices (other than stop notices) are suspended pending appeal.

(6) Grounds for Appeal:

a) For the purposes of rule 22(2)(g) of the Tribunal Procedure (First-tier

Tribunal) (General Regulatory Chamber) Rules 2009(1), it would be of

assistance to set out the grounds for appeal.

Options

(i) Appellant may appeal on any ground.

(ii) Appellant may appeal where the decision (for example to serve

the penalty notice) was based on an error of fact; was wrong in

law; was unreasonable; or any other reason.

(iii) On the grounds that the decision was unfair or unreasonable; or

wrong for any other reason.

(iv) The grounds for appeal are— (a) that the decision was based on

an error of fact; (b) that the decision was wrong in law; (c) that

the decision was unreasonable; (d) that any step specified in the

notice is unreasonable; (e) that the person has not committed

the offence and would not have committed it had the stop

notice not been served; (f) that the person would not, by reason

of any defence, have been liable to be convicted of the offence

had the stop notice not been served; (g) any other reason.

17

(v) A person affected by any such decision may appeal against it to

the Tribunal—(a) on the grounds that the decision was not

within the powers of the Regulator, or (b) on the grounds set

out in the corresponding entry in column 2 of the table.

(7) Procedure

a) Is there a special procedure?

b) Do any particular pieces of information need to be provided to the

Tribunal?

Options

(i) The notice of appeal under rule 22 of the Tribunal Procedure (First-

tier Tribunal) (General Regulatory Chamber) Rules 2009 must (in

addition to complying with the requirements of those Rules) be

accompanied by—

(a) a copy of the (enforcement/penalty/any other) notice/decision;

(b) copies of any representations made under section XXX of the Act

(8) Nature of Appeal

a) Unless otherwise stipulated, is the assumption that the appeal is a rehearing,

where the Tribunal must “undertake a fresh consideration of the case on the

evidence and arguments put to it”?23 The outcome should be a fresh

decision.24

Options

(i) Fresh evidence allowed?

(ii) Can the evidence post-date the Regulator’s decision?

(iii) Is the test/standard objective?

(iv) Definitions of terms important here

b) If the Tribunal is to conduct a procedural review, ie that decision was

unlawful, then standards must be articulated in the enabling legislation.

The outcome should be remittal. If the permitted ground for review is error

fact, then remittal should be on the facts, as the Tribunal found them.

c) If a mixture of a) and b) then must be very clear about which matters are to

proceed via a) and which via b).

(9) Effect of Appeal

23 Judge Jacobs in Information Commissioner v Home Office (2011) UKUT 17 (AAC). 24 Malnick and ACOBA [2018] UKUT 72 (AAC), available at:

https://assets.publishing.service.gov.uk/media/5e208b08e5274a6c38aae2a2/_2018__AACR_29ws.pdf

18

a) Is the intention to automatically suspend the decision/notice pending the

appeal?

b) What is suspended? What is not suspended? Is the suspension in whole or

part?

c) What about stop notices? Is there discretion to suspend?

Options:

(i) A requirement or notice which is the subject of an appeal is

suspended (in its entirety) pending the determination or

withdrawal of the appeal.

(ii) The bringing of an appeal— (a) suspends an enforcement notice,

financial penalty or publication taking effect; (b) does not

suspend a determination referred to in article XY(1) or a civil

penalty not described in sub-paragraph (a) taking effect.

(10) Powers of the Tribunal in regard to the appeal:

a) Each section of the enabling legislation needs to be considered and then

addressed specifically here, an exhaustive list or maybe a separate

Schedule, particularly for complex legislation eg Greenhouse Gas

Emission Trading Scheme Regs 2012, might help. Where there are

financial penalties involved, Tribunal should be able to be vary (is there a

maximum?) as well as simply affirm or quash. Where the Tribunal is able

to make a decision standing in the shoes of the Regulator is anything off

limits? Can the matter be remitted to the Regulator?

b) Financial Penalties:

(i) Is a monetary penalty automatically imposed as a result of an

action or omission, or at the discretion of the Regulator?

(ii) If there is discretion to impose or not to impose a financial penalty,

then: Is the intention for it to be a fixed penalty (in which case the

only power of the Tribunal on appeal will be to uphold or not

uphold, ie not vary)? If not fixed, then is the amount discretionary

for the Regulator? (thus Tribunal on appeal also has discretion):

Tribunal must either—(a) confirm the penalty; (b) reduce the

penalty; or (c) quash the penalty.

(iii) If varying the amount (ie discretionary), is there a

maximum/range?

(iv) On determining such an appeal, the Tribunal may allow an

extension of time for payment of the penalty. Again, need to

consider the factors/discretion

Options:

19

(i) affirm, vary or quash the decision/notice/penalty

(ii) take such steps as the Regulator could take in relation to the act or

omission

(iii) remit the matter/decision to the Regulator

(iv) instruct the Regulator to do, or not to do anything which is within

the power of the Regulator (eg to enter/not to enter, remove/not

remove from register

(v) make some other decision standing in the shoes of the regulator?

Eg as Tribunal “thinks” fit

(vi) maybe the Tribunal may not make a determination that would

result in a decision which could not otherwise have been made

under these Regulation or under the certain other legislation eg the

Registries Regulation 2010 or 2011 – need to mention specifically

in the drafting.

(vii) withdraw, confirm or vary the requirement or notice; take such

steps as the Regulator could take in relation to the act or omission

giving rise to the requirement or notice; remit the decision whether

to confirm the requirement or notice or any matter relating to that

decision to the Regulator.

Example Schedule where monetary penalties are concerned:

Appeals against fixed monetary penalties

1.—(1) The person on whom a fixed monetary penalty is imposed may appeal against the decision to impose it(1).

(2) The grounds of appeal are—(a)that the decision was based on an error of fact;(b)that the decision was wrong in

law;(c)that the decision was unreasonable;(d)any other reason permitted by the First-tier Tribunal.

Appeals against variable monetary penalties

2.—(1) The person on whom a variable monetary penalty is imposed may appeal against the decision as to the

imposition or amount of the penalty.

(2) The grounds of appeal are—(a)that the decision was based on an error of fact;(b)that the decision was wrong in law;

(c)that the amount of the penalty is unreasonable;(d)that the decision was unreasonable for any other reason; (e)any

other reason permitted by the First-tier Tribunal.

(11) Standards and Burden of Proof:

a) What does the legislator intend?

b) Does the Tribunal determine the standard? If so, why?

c) With whom does the burden lie? The Regulator or the Appellant? NB:

Sometimes the legal burden of proof lies with one and the evidential

burden with the other.

20

Options

(i) as in a criminal prosecution

(ii) beyond reasonable doubt

(iii) Administrator must prove breach of commission on the balance of

probabilities

(iv) the Tribunal must determine the standard of proof (taking into

consideration other cases)

(12) Definitions

The legislation coming before the GRC has utilised a variety of terms but also

different definitions for terms. It would be helpful to have an agreed list of

objective definitions for GRC appeals for use across the different jurisdictions.

Below is a non-exhaustive list of terms for which a common definition could be

drawn up by way of a Schedule.

Options

In this regulation:

a) “enforcement notice” means a notice given under section X(y) or (Y)(z) of

the XXX Act.

b) “Fixed penalty notice”

c) “fit and proper person” …. (for the purposes only of this particular case, is

it sector-specific…or in general).

d) “misconduct”

e) a “relevant notice” means a variable monetary penalty notice, compliance

notice or stop notice.

f) Use of terms – Qtn: are they interchangeable? Definitions needed? Section

headed Interpretations?

- enforcement agency/administrator/Regulator

- Quash, withdraw, revoke, cancel, remit

21

Annex 2: Example legislation for GRC Appeals

Appeals

1. An appeal under this legislation is to the General Regulatory Chamber of the

First-tier Tribunal by virtue of article 3(a) of the First-tier Tribunal and Upper

Tribunal (Chambers) Order 2010 (S.I. 2010/2655). The Tribunal Procedure

(First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (S.I.

2009/1976) sets out procedural rules relating to such appeals.

2. An appeal may only be made once the Regulator has conducted a review?

Who?

3. (1) A person (aggrieved, affected) on whom a (monetary penalty notice/civil

notice is served) may appeal against—

What?

(a) any decision, direction or order mentioned in column 1 of Sch X (ie the

monetary penalty notice or any provision of it/decision to register), or

(b) any refusal of a request by the person to issue a notice of variation or

cancellation in relation to the monetary penalty notice.

Grounds for Appeal

4. For the purposes of rule 22(2)(g) of the Tribunal Procedure (First-tier Tribunal)

(General Regulatory Chamber) Rules 2009(1), the grounds for appeal are—

(a) that the decision (to issue the notice under para 3) was based on an error of

fact;

(b) that the decision was wrong in law, including error or fact;

(c) that the amount of the penalty is unreasonable;

(d) that the decision was unreasonable for any other reason.

Time?

5. An appeal must be made within 28 days beginning with the day on which the

(notice/decision) subject to the appeal is served.

Effect of Appeal?

6. Where there is an appeal under paragraph 3, any (enforcement notice/civil

penalty notice/obligations) need not be complied with until the appeal is

withdrawn or finally determined by the First-tier Tribunal [and an authority that

22

received a notice of appeal from a person on whom it has iposed a penalty must not

take action to recover the penalty as a debut until the appeal is either determined or

withdrawn].

Further details, ie hearing or review? Fresh evidence allowed?

7. If a re-hearing the First-tier Tribunal may re-determine any fact on which the

(regulator’s decision / the notice) was based. In determining such an appeal the

Tribunal—

(a) must consider afresh the decision, direction or order appealed against, and

(b) may take into account evidence which was not available to the Regulator.

If a review, the First-tier Tribunal conducts a procedural review of the decision

made by the Regulator on the basis of the facts then before it.

Standard of Proof

8. In any appeal the burden of proof is on the Appellant, and -

(a) where a question to be decided on the appeal is whether an offence has been

committed, the enforcement authority must prove the commission of the offence

beyond reasonable doubt; The Regulator must prove the offence according to the

same burden and standard of proof as in a criminal prosecution.

(b) In respect of any other issue to be decided on the appeal, the standard of proof

is on the balance of probabilities.

Tribunal Powers?

9. In a re-hearing, the First-tier Tribunal must either —

(a) dismiss the appeal, or

(b) if it allows the appeal, exercise any power specified in Schedule X.

In a review, the First-tier Tribunal may, if it allows the appeal, quash the

decision and remit for a fresh decision by the Regulator (in accordance with

any finding of fact or direction as to the law given by the Tribunal).

Schedule X

(a) affirm the (decision/enforcement notice/monetary penalty or civil penalty notice);

(b) direct the (specific Regulator) to vary or withdraw the (decision/enforcement

notice/monetary penalty or civil penalty notice); or

(c) impose such other enforcement notice or civil penalty notice as the First-tier

Tribunal thinks fit, provided it is a decision which the Regulator could have taken; or

(d) substitute such other monetary penalty notice as could have been served by the

Regulator if the Tribunal considers—

23

(i) that the notice concerned is not in accordance with the law, or

(ii) to the extent that the notice involved an exercise of discretion by the

Regulator, that the Regulator ought to have exercised the discretion

differently.

The First-tier Tribunal may review any determination of fact on which the refusal to

issue the notice of variation or cancellation was based.

Service of documents

10. Any determination or notice required to be served on a (person/responsible

undertaking), may be served by—

(a) delivering or sending it to, or leaving it at—

(i) the (person/responsible undertaking)'s (home address/registered office) (where

applicable),

(ii) the responsible undertaking's principal place of activity, or

(iii) another address in the United Kingdom specified by the (person/responsible

undertaking) as the preferred address for service, or

(b) sending it by electronic means to the email address provided by the

(person/responsible undertaking).

Where an Act authorises or requires any document to be served by post (whether the

expression “serve” or the expression “give” or “send” or any other expression is used)

then, unless the contrary intention appears, the service is deemed to be effected by

properly addressing, pre-paying and posting a letter containing the document and,

unless the contrary is proved, to have been effected at the time at which the letter

would be delivered in the ordinary course of post.

24

References

Timothy Endicott, Administrative Law,4th Edition, Oxford University Publishing, Oxford, 2018.

Helen Xanthaki, Drafting Legislation: Art and Technology of Rules for Regulation, Hart Publishing,

Oxford, 2014.

Law Commission report on technical issues in Charities Law, Law Com 375, published 2017 available at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/644711/6.378

1_LC_HC304_Technical_Issues_in_Charity_Law_FINAL_080917_WEB.pdf

Senior President of Tribunals Annual Report 2018, available at: https://www.judiciary.uk/wp-

content/uploads/2018/05/spt-annual-report-2018-v3.pdf

Senior President of Tribunals Annual Report 2019, available at: https://www.judiciary.uk/wp-

content/uploads/2019/10/6.5845_The-Senior-President-of-Tribunals-Annual-Report-

2019_Print_NoCrops.pdf

First-tier Tribunal (General Regulatory Chamber) Rules, available at

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data

/file/846373/Consolidated_FtT_GRC_Rules_20191113__002__final.pdf

25

General Regulatory Chamber – Appeals Rights

The First-tier Tribunal (General Regulatory Chamber) is responsible for handling appeals

against decisions made by government regulatory bodies. These bodies are a disparate group

and include local authorities, central government and various specialised agencies. It is

probably worth noting that some of the rights of appeal apply in England and Wales, some UK-

wide, some exist in Wales only and some only in Northern Ireland. This document categorises

the legislation which gives rise to those appeals for the purpose of providing helpful guidance

on the approach which should be taken by legislators when considering drafting provisions for

appeals to the GRC.

The following pages set out:

a) The jurisdictions which sit in the GRC and the relevant legislation under review

b) Who has standing to bring an appeal to the GRC

c) The procedures required prior to commencing an appeal

d) The different types of process and the admissibility of fresh evidence

e) The nature of the appeal

f) Specific categories of appeals; i) applicants seeking to become a regulated entity ii)

applicants appealing the removal of their regulated entity status; iii) GRC required to

make a decision on behalf of the Regulator; iv) applicants objecting to Regulator’s

order for disclosure of information; v) applicants objecting to financial penalty

imposed by the Regulator; vi) objecting to the opening of a statutory inquiry

g) The powers available to the GRC in making judgment

h) The effect of the appeal on the Regulator’s decision

i) Problems and recommendations for reforming the GRC appeal procedure

a) The jurisdictions which sit in the GRC and the relevant legislation

The GRC currently has jurisdiction to hear appeals in at least sixteen different and varied

jurisdictions. The following is a list of the jurisdictions – by alphabetical subject area - and the

main pieces of legislation giving rise to the rights during the period of our research. It should

be noted however, that the list is continually increasing as more Sis are laid providing new

rights which come to the GRC. Also included are statistics on how many pieces of legislation

fall to each jurisdiction and how many cases have been heard in year 1 April 2018 to 31 March

2019 in each jurisdiction.

1. Charity – 1 piece of legislation: 22 cases

- Charities Act 2011: 42 days to bring appeal

2. Community Right to Bid – 1 piece of legislation: 9 cases

- Assets of Community Value (England) Regulations 2012 (79 cases). Need to

request review by Council of listing within 8 weeks of receiving the notice about

the list then 28 days from Council decision.

3. Copyright – 1 piece of legislation: 5 cases

- Collective Management of Copyright (EU Directive) Reg 2016. (1 case) No time

limit mentioned.

4. Electronic Communications -1 piece of legislation:

26

- Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 2011

5. Environment – 38 pieces of legislation: 17 cases

- Ecodesign for Energy-using Products Regulations 2010

- Emissions Performance Standard Regulations 2015

- Environmental Protection Act 1990

- Climate Change Agreements (Administration) Regs 2012

- Energy Savings Opportunity Scheme Regulations 2014

- Reservoir Act 1975

- Flood and Coastal Erosion Risk Management Information Appeal (Wales) Regs

2011

- Greenhouse Gas Emissions Trading Scheme (Amendment) and National

Emissions Inventory Regs 2005

- Marine Licensing (Civil Sanctions) (Wales) Order 2011

- Single Use Carrier Bags Charge (NI) Regs 2013

- Single Use Carrier Bags Charge (Wales) Regs 2010

- Single Use Carrier Bags Charge (England) Order 2015

- Control of Mercury (Enforcement) Regs 2017

- Wildlife and Countryside Act 1981

- Greenhouse Gas Emissions Trading Scheme Regs 2012

- CRC Energy Efficiency Scheme Order 2013

- Marine Licensing (Notices Appeals) (Wales) Regs 2011

- Marine Licensing (Notices Appeals) Regs 2011

- Nagoya Protocol (Compliance) Regs 2015

- Environmental Protection (Microbeads) (Wales) Regs 2018

- Environmental Protection (Microbeads)(England) Regs 2017

- Energy Act 2016

- Environmental Civil Sanctions (England) Order 2010

- Environmental Civil Sanctions (Wales) Order 2010

- Energy Information Regs 2011: 28 days after receiving notice

- Waste (England and Wales) Regs 2011

- Designation of Features (Appeals)(England) Regs 2012

- Designation of Features Appeal (Wales) Regs 2012

- Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regs 2012

- Sea Fish (Marketing Standards) (England, Wales and NI) Regs 2018

- Offshore Environmental Civil Sanctions Regs 2018

- Control of Trade in Endangered Species Regs 2018

- Fluorinated Greenhouse Gases Regs 2015

- EU Parliament and Council Reg 1907/2008 REACH

- Nitrate Pollution Prevention Regs 2015, reg 6

- Ivory Act 2018

6. Estate Agents -1 piece of legislation: 1 case

- Estate Agents Act 1979. 28 days from receiving notice

7. Exam Board – 1 piece of legislation: 1 case

- Apprenticeships, Skills, Children and Learning Act 2009

8. Food – 3 pieces of legislation: 4 cases

- Food Safety Act 1990

- Olive Oil (Marketing Standards) Regs 2014

- Quality Schemes (Agricultural Products and Foodstuffs) Regs 2018

27

9. Gambling – 1 piece of legislation: 0 cases

- Gambling Act 2005. 28 days after notice.

10. Immigration Services – 1 piece of legislation: 10 cases

- Immigration and Asylum Act 1999. 28 days

11. Individual Electoral Registration – 1:

- Representations of the People Regs 2001

12. Information Rights – 8 pieces of legislation: 295 cases

- Data Protection Act 1996

- Data Protection Act 2018

- Environmental Information Regs 2004

- Freedom of Information Act 2000

- Re-use of Public Sector Information Regs 2015

- Police Reform Act 2002

- Privacy and Electronic Communications (EC Directive) Regs 2003

- Electronic Identification and Trust Services for Electronic Transactions Regs 2016

13. Pensions Regulation – 3 pieces of legislation: 713 cases

- Pensions Act 2008, 28 days after Regulator sends review decision

- Pension Schemes Act 2017

- Northern Ireland Pensions – (following the decision in Eakin)

14. Professional Regulations – 8 pieces of legislation: 102 cases

- Letting Agents appeals and Secondary Ticketing appeals

- Consumer Rights Act 2015 (105 cases), 28 days from receipt of final notice

- Redress Schemes for Lettings Agency Work and Property Management Work

Order 2014. 28days

- Transparency of Lobbying, Non-Party Campaigning and Trade Union Admin Act

2014. 28 days

- Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (No 2)

Order 2011.

- Legal Services Act 2007 (Appeals from Licensing Authority Decision) (General

Council of the Bar) Order 2018

- Probate Compensation Scheme Regs

- Legal Services Act 2007 (Chartered Institute of Legal Executives) (Appeals from

Licensing Authority Decisions) Order 2018

15. Transport – 7 pieces of legislation: 647 cases

- Greater London Authority Act 1999

- Rehabilitation Courses (Relevant Drink Offences) Regs 2012

- Road Traffic Act 1988 (10 cases) Need to bring appeal within 14 days if a trainee

instructor appealing about a registration decision or 28 days if an ADI appealing

about a registration decision or a compensation claim

- Trainee licence appeals, check test appeals, fit and proper persons appeals

- Rehabilitation Courses (Relevant Drink Offences) (Wales) Regs 2013

- EU (Recognition of Professional Qualifications) Regs 2015

- Vehicle Drivers (Certificates of Professional Competence) Regs 2007

- Postal Services Act 2000

16. Welfare of Animals – 8 pieces of legislation: 6 cases

- Microchipping of Dogs (England) Regs 2015

- Microchipping of Dogs (Wales) Regs 2015

- Welfare of Animals at the Time of Killing (England) Regs 2015

- Welfare of Animals at the Time of Killing (Wales) Regs 2015

- Mandatory Use of Closed Circuit TV in Slaughterhouses Regs 2018

28

- Equine Identification (England) Regs 2018

- Equine Identification (Wales) Regs 2019

- Animal Welfare (Licensing of Activities involving Animals) (England) Regs 2018

(28 days to appeal after the notice is sent)

29

b) Who has standing to bring an appeal:

The following lists the variations of appellant under the relevant legislation or where

appropriate notes that no details are provided. The list is long and most legislation relatively

precise, however some differences of approach are clear. For example, in some provisions

in the Charity Act 2011 and the Freedom of Information Act 2000 the range of possible

appellants includes person who have no direct relationship with the Regulator, merely an

interest in the relationship between the Regulator and regulated entity. In others the rights

are provided in vague terms such that “an person aggrieved” may appeal, cf Immigration

and Asylum Act 1999. We would query why Parliament has taken different approaches in

these jurisdictions but in others the paradigm is the direct regulatory relationship or the

person directly affected. Should amendments be made to homogenise the approach?

Charities Act 2011

- the Attorney-General (s 319)

- any person specified in the corresponding entry in col 2 of Sch 6 (s 319)

- Charity Commission, provided consent of the Attorney-General has been given (s

325(2).

Assets of Community Value, Reg 11

- “an owner of listed land” may appeal a review where the owner is either the

person who requested the review or a subsequent owner.

Collective Management of Copyright (EU Directive) Regs 2016

- person on whom a financial penalty is imposed

Regulation of Investigatory Powers Sch 1 Pt1 5

- “a person on whom a monetary penalty notice is served may appeal”.

Emissions Performance Standard Regs 2015

- an “operator” may appeal

Energy Savings Opportunity Scheme Regs 2014

- a “responsible undertaking served with a determination under reg 35(5) or para

13(2) Sch2, or with an enforcement or penalty notice

Environmental Protection Act 1990, s46D

- “a person on whom a final notice is served under section 46C may appeal”

Climate Change Agreements (Administration) Regs 2012, Reg 20

30

- the operator may appeal a financial penalty

- a sector association or operator may appeal against a decision to terminate the

agreement

- where an agreement provides for a right of appeal in respect of any other decision

of the administrator.

Flood and Coastal Erosion Risk Management Information Appeal (Wales) Regs, Reg 5

- a person on whom a penalty is imposed by a penalty notice

Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions

Inventory Regs 2005

- Reg 9(1): A person may appeal

Marine Licensing (Civil Sanctions)(Wales) Order 2011

- Reg 12: the person on whom a fixed monetary penalty is imposed

- Reg 20: the person on whom a variable monetary penalty is imposed

Single Use Carrier Bags (Northern Ireland) Regulations 2013

- Does not say

Single Use Carrier Bags Charge (Wales) Regs 2010

- Does not say

Single Use Carrier Bags Charge (England) Order 2015

- Art 16: a seller may appeal

Control of Mercury (Enforcement) Regs 2017

- Reg 8 (8): A person to whom an enforcement notice is given may appeal

- Reg 10 (11): A person to whom a civil penalty notice is given may appeal

- Reg 13 (11): A person to whom a costs recovery notice is given may appeal

Wildlife and Countryside Act 1981, Sch 9A

- An owner of premises in relation to which a species control order is made

Greenhouse Gas Emissions Trading Scheme Regulations 2012

- Reg 73: Subject to paragraph (3), the following persons may appeal to the appeal

body—(a) a person who is aggrieved by a decision determining any application

made by them under these Regulations; (b) a person who is aggrieved by a notice

served on them under any provision mentioned in paragraph (2)

CRC Energy Efficiency Scheme Order 2013, Pt 14

31

- a public body or undertaking notified of a determination referred to in article 57(1)

- a person served with an enforcement notice, against that notice

- a public body or undertaking given notice that they are liable to a civil penalty

Marine Licensing (Notices Appeals) (Wales) Regs 2011

- a person who has been issued with a notice under s72 of the Marine and Coastal

Access Act 2009

- a person who has been issued with a compliance, remediation, stop or emergency

safety notice may appeal

Marine Licensing (Notices Appeals) Regs 2011

- a person who has been issued with a notice under s72 of the Marine and Coastal

Access Act 2009

- a person who has been issued with a compliance, remediation, stop or emergency

safety notice may appeal

Nagoya Protocol (Compliance) Regs 2015

- The person on whom the notice imposing the non-compliance penalty is served

- Person who receives a notice concerning an enforcement undertaking

- Person not compensated for loss suffered as a result of a stop notice

- Person on whom a stop notice is served may appeal

Environmental Protection (Microbeads)(Wales) Regulations 2018

- Person receiving the final notice relating to a compliance notice

- Person on whom a stop notice is served may appeal

- Person who received an enforcement notice

- Person on whom a notice imposing the non-compliance penalty is served

- Person required to pay enforcement costs

Environmental Protection (Microbeads)(England) Regulations 2017

- Person receiving the final notice relating to a compliance notice

- Person on whom a stop notice is served may appeal

- Person who received an enforcement notice

- Person on whom a notice imposing the non-compliance penalty is served

- Person required to pay enforcement costs

Energy Act 2016

- s51: the person, or any of the persons, to whom a sanction notice in respect of a

failure to comply with a petroleum-related requirement was given

- licensee under whose licence the operator operates, if concerning an operator

removal notice given under s48

Environmental Civil Sanctions (England) Order 2010

32

- The person receiving the final notice re fixed monetary penalty, a variable

monetary penalty, compliance notice or restoration notice

- The person on whom a stop notice is served

Environmental Civil Sanctions (Wales) Order 2010

- The person receiving the final notice re fixed monetary penalty, a variable

monetary penalty, compliance notice or restoration notice

- The person on whom a stop notice is served

Energy Information Regs 2011, Sch 4 Pt 6

- Person receiving final notice, stop notice, notice regarding enforcement

undertaking or compliance notice

- Person receiving penalty notice

Waste (England and Wales) Regs 2011, Reg 41

- person on whom a compliance notice, stop notice, or restorations notice is served

Designation of Features (Appeals) (England) Regs 2012

- An owner who is given a notice under paragraph 8(1) of Schedule 1

- An owner who is given notice of a consent decision

- An owner who is given notice of refusal of an application

- A person who is given an enforcement notice

Designation of Features (Appeals) (Wales)) Regs 2012

- An owner who is given a notice under paragraph 8(1) of Schedule 1

- An owner who is given notice of a consent decision

- An owner who is given notice of refusal of an application

- A person who is given an enforcement notice

Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regs 2012

- any person directly affected by a decision of the Secretary of State to refuse an

application for authorisation under Part 3 to act as a green deal assessor

certification body or a green deal installer certification body; or to impose or not

to impose a sanction under Part 8.

- NB: A relevant energy supplier may not appeal under this regulation unless it is

affected by a decision for a reason which is not connected with its collection of

payments under a plan.

Freedom of Information Act 2000

- s 57 the complainant or the public authority

Pensions Act 2008

33

- a person to whom a penalty notice has been issued under s 40 or s 41

Pension Schemes Act 2017

- a person to whom a penalty notice has been issued

Greater London Authority Act 1999

- a person to whom a notice has been issued under s189(1)

- a holder of a London service permit to whom a notice has been issued under

s189(3)

Road Traffic Act 1988

- a person who is aggrieved by a decision of the Registrar (s 131).

Microchipping of Dogs, s14

- an operator, a keeper or a person authorised to implant microchips

Consumer Rights Act 2015

- a person on whom a final notice has been served

Animal Welfare (Licensing of Activities involving Animals) (England) Regs 2018

- any operator who is aggrieved by a decision by a local authority— (a) to refuse to

grant or renew a licence, or (b) to revoke or vary a licence, may appeal to the

First-tier Tribunal.

Food Safety Act 1990

- any person who is aggrieved by — (a) a decision of an authorised officer to serve

an improvement notice; (b) a decision of an enforcement authority to refuse to

issue such a certificate as is mentioned in section 11(6) or 12(8) above; or (c)

subject to subsection (2) below, a decision of such an authority to refuse, cancel,

suspend or revoke a licence required by regulations under Part II of the Act.

Apprenticeships, Skills, Children and Learning Act 2009, Section 151C (inserted by

Education Act 2011, Section 23)

- a recognised body

Estate Agents Act 1979, s 7

- a person who receives notice under paragraph 9 of Schedule 2 to the Act

Nitrate Vulnerable Zone, s6

34

- an owner or occupier of a relevant holding who is sent a notice under regulation

5(3)(b).

Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 2011

- a person on whom a monetary penalty is imposed

Reservoir Act 1975, s2E

- Does not say, but assumption would be the person/entity to whom the notice is

addressed

Gambling Act s141

- an applicant for an operating or personal licence

- a licensee

Immigration and Asylum Act 1999

- any person aggrieved by a relevant decision of the Commissioner

Data Protection Act 2018, s162

- a person who is given a penalty notice or a penalty variation notice

- a person upon whom an assessment notice is served

- a person upon whom an enforcement notice is served

- applicant for a case progression order s.166

Freedom of Information Act 2000

- complainant, or public authority

Transparency of Lobbying, Non-Party Campaigning and Trade Union Admin Act 2014

- a person on whom an information notice has been served (s11)

- person on whom a penalty notice has been served (s17)

Redress Schemes for Lettings Agency Work and Property Management Work Order

2014

- s9: A person who is served with a notice imposing a monetary penalty under

paragraph 3 of the Schedule

Legal Services Act 2007 (Appeals from Licensing Authority Decisions)(General Council

of the Bar) Order 2018

- Not clear

Welfare of Animals at the Time of Killing (England) Regs 2015

35

- s22: a person who is aggrieved by a decision of the competent authority to refuse,

suspend or revoke a certificate, temporary certificate or licence, or to refuse to

modify a certificate or licence, may appeal against it.

Welfare of Animals at the Time of Killing (Wales) Regs 2014

- s22: a person who is aggrieved by a decision of the competent authority to refuse,

suspend or revoke a certificate, temporary certificate or licence, or to refuse to

modify a certificate or licence, may appeal against it.

Equine Identification (England) Regs 2018

- s45 “a person”

Equine Identification (Wales) Regs 2019

- “a person”

Mandatory Use of Closed Circuit TV in Slaughterhouses Regs 2018

- A person who is aggrieved by a decision of an inspector

36

c) Procedures prior to appeal to Tribunal:

(1) Direct Jurisdiction

1. Charities Act – s 319 “an appeal may be brought to the Tribunal against any

decision, direction or order mentioned in column 1 of Sch 6”.

2. Assets of Community Value

3. Collective Management of Copyright (EU Directive) Regs 2016

4. Regulation of Investigatory Powers, Sch1 Pt 1, 5

5. Emissions Performance Standard Regs 2015, Reg 17

6. Environmental Protection Act 1990

7. Environmental Civil Sanctions (England) Order 2010

8. Energy Information Regs 2011

9. Flood and Coastal Erosion Risk Management Information Appeal (Wales)

Regs 2011

10. Transparency of Lobbying, non-Party Campaigning and Trade Union

11. Gambling Act 2005

12. Regulation of Investigatory Powers (Monetary Penalty Notices and Consents

for Interceptions) Regs 2011

13. Reservoir Act 1975, s2E

14. Data Protection Act 2018

15. Greenhouse Gas Emissions Trading Scheme (Amendment) and National

Emissions Inventory Regs 2005

16. Marine Licensing (Civil Sanctions) (Wales) Order 2011

17. Single Use Carrier Bags Charge (England) Order 2015

18. Control of Mercury (Enforcement) Regulations 2017

19. Wildlife and Countryside Act 1981

20. Greenhouse Gas Emissions Trading Scheme Regulations 2012

21. CRC Energy Efficiency Scheme Order 2013

22. Marine Licensing (Notices Appeals) (Wales) Regs 2011

23. Nagoya Protocol (Compliance) Regs 2015

24. Environmental Protection (Microbeads) (Wales) Regulations 2018

25. Environmental Protection (Microbeads) (England) Regulations 2017

26. Energy Information Regs 2011

27. Designation of Features (Appeals) (England) Regs 2012

28. Designation of Features (Appeals) (Wales) Regs 2012

29. Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regs

2012

30. Greater London Authority Act 1999

31. Welfare of Animals at the Time of Killing (England) Regs 2015

32. Welfare of Animals at the Time of Killing (Wales) Regs 2015

33. Equine Identification (England) Regs 2018

34. Equine Identification (Wales) Regs 2019

35. Mandatory Use of Closed Circuit TV in Slaughterhouses Regs 2018

(2) No Jurisdiction unless and until the Regulator has first conducted a review

1. Assets of Community Value Regulations 2012, Reg 11 against listing review

decision; Reg 17 against compensation review decision

2. Redress Schemes for Lettings Agency Work and Property Management Work

Order 2014, Sch can appeal final notice, but first must make rep to Registrar

3. Pensions Act 2008, s44

37

4. Pension Scheme Act 2017

5. Consumer Rights Act 2015

(3) Other Specific appeal procedures

1. Gambling Act 2005 – There is a fee for appeals, ranging from £800 to £14,000

2. Nitrate Pollution Prevention Regs 2015 – need to use special cover sheet and appeal

forms as opposed to the general Notice of Application form on GRC website.

3. Legal Service Act 2007, s81 - A recommendation may be made under section 80

only with the consent of—(a) the person from whose decisions the appeals are to be

made, and (b) where the recommendation is for an order under section 80(1)(b), the

body to which appeals are to be made.

4. Charities Act 2011 – references only - on referral of question to be determined by

the Tribunal, the Charity Commission must first seek permission of the Attorney-

General.

5. Flood and Coastal Erosion Risk Management Information Appeal (Wales) Regs 2011

includes a list of documents which “must” be provided with the appeal

6. Data Protection Act 2018, s 166 requires a copy of the Order to be included with the

appeal. NB: Rule 7A of the GRC Rules was introduced to cover this situation.

Unclear

1. Single Use Carrier Bags (Northern Ireland) Regulations 2013

2. Single Use Carrier Bags Charge (Wales) Regs 2010

38

d) Types of appeal processes and fresh evidence:

Appeals to the GRC may take the form of a complete rehearing or a procedural review, or

anything in between. In some jurisdictions the distinction is clear on the face of the primary

legislation and we have set these out below. However, in certain jurisdictions case law has had

to clarify the nature of the appeal, regarding whether the case should be an appeal or a review.

In particular, attention is drawn to the WatchTower which highlights the need for clarity in the

legislation not just regarding the appeal/review distinction but also for the powers available to

the Tribunal on allowing the appeal. Some legislation has not yet been used to bring an appeal

to the GRC but it is assumed that further ambiguities may arise. Rule 15 of the GRC permits

the admission of fresh evidence, but again, this has been decided in recent case law.

(1) Rehearing

1. Charities Act s319 “the Tribunal must consider afresh the decision, direction

or order appealed against”

2. Community Right to Bid (judicial interpretation)

3. Localism Act 2011

4. Assets of Community Value (England) Regulations 2012, reg 11

5. Regulation of Investigatory Powers

6. Emissions Performance Standard Reg 2015

7. Environmental Protection Act 1990

8. Consumer Rights Act 2015

(2) Procedural Review

1. Charities Act specifies reviewable matters in s321/2

2. Energy Savings Opportunity Regs 2014, Pt 9

3. Redress Schemes for Lettings Agency Work and Property Management Work

Order 2014

4. Consumer Rights Act 2015

5. Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 2011

6. Climate Change Agreements (Administration) Regs 2012, Reg 21

7. CRC Energy Efficiency Scheme Order 2013, Pt 14

(3) Mixed Appeal Rights

1. Flood and Coastal Erosion Risk Management Information Appeal (Wales)

Regs, Reg 5

2. Reservoir Act 1975

3. Charities Act has provisions for rehearing and reviews.

4. Marine Licensing (Civil Sanctions) (Wales) Order 2011

5. Control of Mercury (Enforcement) Regulations 2017

(4) Unclear

1. Charities Act s 52 – in the Watchtower case the confusion between a rehearing and

a review led to the Court of Appeal deciding that the administrative court had

residual jurisdiction where a rehearing was not available

2. FOI Act 2000 s 58, s36 - see Malnick

3. Consumer Rights Act 2015 Sch 10 para 5

4. Greenhouse Gas Emission Trading Scheme (Amendment) and National Emissions

Inventory Regs 2005

39

5. Single Use Carrier Bags (Northern Ireland) Regulations 2013

6. Single Use Carrier Bags Charge (Wales) Regs 2010

7. Single Use Carrier Bags Charge (England) Order 2015

8. Designation of Features (Appeals)(England) Regs 2012

9. Designation of Features (Appeals)(Wales) Regs 2012

10. Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regs 2012

11. Pensions Act 2008

12. Pension Schemes Act 2017

13. Greater London Authority Act 1999

14. Welfare of Animals at the Time of Killing (England) Regs 2015

(5) Admissibility of Fresh Evidence

Specifically mentioned in the following legislation:

1. Charities Act s 319

2. Road Traffic Act 1988, s 131

3. Gambling Act 2005 s144 (4)

4. Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 2011

And, of course, as mentioned above in the report, in the GRC Procedure Rules

40

e) Nature of each Appeal:

Charities Act 2011, s319

- any decision, direction or order mentioned in column 1 of Sch 6 includes

registration, de-registration, inquiries, suspension and removal of trustees (not

penalties)

- references – Tribunal to answer a (hypothetical) question referred to it

Assets of Community Value (England) Regs 2012

- Council’s decision on a listing review (Reg 11)

- decision on a compensation review (Reg 17)

Collective Management of Copyright (EU Directive) Regs 2016

- imposition or amount of financial penalty

Gambling Act 2005

- licence application is turned down

- licence is suspended or revoked

- a fine or warning

- changes to the licence conditions

Immigration and Asylum Act s88

- decision to register

Data Protection Acts 1998, 2018

- the decision to issue a monetary penalty notice

- the amount of the penalty

- decision to issue enforcement notice, assessment notice

- s.166: failure of Information Commissioner’s Office to act on complaint

Freedom of Information Act 2000

- decision notice

- information notice

- enforcement notice

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act

2014, s 17

- decision to issue an information notice

- decision to impose the penalty

- decision to vary the notice

- the amount of the penalty

41

Legal Services Act 2007 (Appeals from Licensing Authority Decision) (General Council of

the Bar) Order 2018

- decisions made by the General Council of the Bar which are appealable under any

provision of (a)Part 5 of the 2007 Act, or (b)the General Council of the Bar’s

licensing rules.

Legal Services Act 2007 (Appeals from Licensing Authority Decision) (no 2) Order 2011

- refusal to grant a licence

- suspension or revocation of licence

- conditions to licence

- fines for breaking the licensing rules

Redress Schemes for Lettings Agency Work and Property Management Work Order 2014

- a final notice imposing a monetary penalty under para 3 of the

Schedule

Regulation of Investigatory Powers

Energy Information Regs 2011

- notices (including stop notices)

Emissions Performance Standard Regs 2015

- Against an enforcement notice or a civil penalty notice

Energy Savings Opportunity Scheme Regulations 2014

- Determination, enforcement notice or penalty notice

Environmental Protection Act 1990, s 46D

- Against the decision to require payment of a fixed penalty

Climate Change Agreements (Administration) Regs 2012, Reg 20

- a financial penalty; a decision to terminate the agreement; or

any other decision of the administrator

Reservoir Act 1975, s2E

- notice confirming designations under s2B

Flood and Coastal Erosion Risk Management Information Appeal (Wales) Regs, Reg 5

- the penalty specified in the penalty notice

42

Greenhouse Gas Emission Trading Scheme (Amendment) and National Emissions Inventory

Regs 2005

- a determination to—(a)refuse an application made under

regulation 5; or (b)attach a condition to an approval or

authorisation notified under regulation 7.

- A monetary penalty notice

Flood and Water Management Act 2010

- financial penalties

Marine Licensing (Civil Sanctions)(Wales) Order 2011

- fixed or variable monetary penalties

Single Use Carrier Bags (Northern Ireland) Regulations 2013

- not clear

Single Use Carrier Bags Charge (Wales) Regs 2010

- not clear

Single Use Carrier Bags Charge (England) Order 2015

- an Administrator’s decision to impose a fixed monetary penalty

under article 9(1); a discretionary requirement under article

10(1); a non-compliance penalty under article 11(1) or

- an Administrator’s decision to require payment of costs under

article 12(1)

Control of Mercury (Enforcement) Regulations 2017

- an enforcement notice

- a civil penalty notice

- a costs recovery notice

Wildlife and Countryside Act 1981, Sch 9A

- the making of a species control order

- any provision of the order

Greenhouse Gas Emissions Trading Scheme Regulations 2012

- a decision determining any application made by a person under

the Regulations

- a notice served under any provision mentioned in para (2).

CRC Energy Efficiency Scheme Order 2013, Pt 14

43

- a determination referred to in article 57(1)

- an enforcement notice

- imposition of a civil penalty

Marine Licensing (Notices Appeals)(Wales) Regs 2011

- a notice under s72 of the Marine and Coastal Access Act 2009

varying, suspending or revoking a marine licence, or extending

a period of suspension

- a compliance, a remediation, stop or emergency safety notice

Nagoya Protocol (Compliance) Regs 2015

- notice imposing the non-compliance penalty

- a decision not to issue a certificate that an enforcement

undertaking has been complied with

- a decision not to award compensation or the amount of

compensation for loss suffered as the result of the service of a

stop notice or the refusal of a completion certificate

- a decision not to issue a completion certificate

- against the decision to serve a stop notice

- final notice – its nature or the amount of a variable monetary

penalty

Environmental Protection (Microbeads) (Wales) Regulations 2018

- final notice relating to a compliance notice (nature of the

requirement) or variable monetary penalty (amount)

- stop notice

- decision not to issue a completion certificate

- a decision not to award compensation or the amount of

compensation

- a decision not to issue a certificate regarding enforcement

undertaking complied with

- a decision not to issue a certificate

- the decision of the regulator to impose the requirement to pay

costs, the amount of those costs, for any other reason.

Environmental Protection (Microbeads) (England) Regulations 2017

- final notice relating to a compliance notice (nature of the

requirement) or variable monetary penalty (amount)

- stop notice

- decision not to issue a completion certificate

- a decision not to award compensation or the amount of

compensation

- a decision not to issue a certificate regarding enforcement

undertaking complied with

- a decision not to issue a certificate

44

- the decision of the regulator to impose the requirement to pay

costs, the amount of those costs, for any other reason

Energy Act 2016

- With regard to an enforcement notice — (i) the measures that

are required to be taken for the purposes of compliance with the

petroleum-related requirement, or (ii) the period for compliance

with the petroleum-related requirement;

- in a case where a financial penalty notice has been given, (i) the

decision to impose the penalty, or (ii) the amount of the

financial penalty

- in a case where a revocation of licence notice has been given,

the decision to revoke the licence, whether in relation to some

or all of the persons to whom it was granted

- in a case where an operator removal notice has been given, the

decision to require the removal of the operator.

Environmental Civil Sanctions (England) Order 2010

- decision to impose a stop notice or any step in it

- decision to impose a final notice: either variable or fixed

financial penalty, compliance, restoration

- amount of variable financial penalty

- nature of the requirement of the final notice

- any reason

Environmental Civil Sanctions (Wales) Order 2010

- decision to impose a stop notice or any step in it

- decision to impose a final notice: either variable or fixed

financial penalty, compliance, restoration

- amount of variable financial penalty

- nature of the requirement of the final notice

- any reason

Energy Information Regs 2011

- decision to impose a stop notice

- decision not to issue a completion certificate

- decision to impose a final notice (either variable financial

penalty or compliance)

- amount of financial penalty

- nature of the requirement of compliance notice

- decision to impose a non-compliance penalty or the amount of

the penalty

Waste (England and Wales) Regs 2011

45

- decision to serve a compliance notice, stop notice or restoration

notice

Designation of Features (Appeals) (England) Regs 2012

- a designation

- a decision on an application for consent to alter, remove or

replace

- a refusal to cancel a designation

- an enforcement notice

Designation of Features (Appeals) (Wales) Regs 2012

- a designation

- a decision on an application for consent to alter, remove or

replace

- a refusal to cancel a designation

- an enforcement notice

Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regs 2012

- a decision of the Secretary of State regarding an application for

authorisation under Part 3 to act as a green deal assessor

certification body or a green deal installer certification body to

impose or not to impose a sanction under Part 8.

Pensions Act 2008

- issuing of a penalty notice or

- the amount of the penalty

Pension Schemes Act 2017

- issuing of a penalty notice or

- the amount of the notice

Consumer Rights Act 2015

- The decision to impose a financial penalty

- Amount of the penalty

Greater London Authority Act 1999

- The decision in relation to which the notice was issued

Road Traffic Act 1988

- a decision of the Registrar

Microchipping of Dogs (England) Regulations 2015

46

- A notice

Animal Welfare (Licensing of Activities involving Animals) (England) Regs 2018

Food Safety Act 1990

- against a food labelling decision or improvement notice issued

by (a) Food Standards Agency or (b) Department for

Environment, Food and Rural Affairs (Defra)

- trading standards

Exam Board

- the decision to impose the fine

- the amount

Estate Agents Act 1979

- a decision of the enforcement authority

Nitrate Pollution Prevention Regs 2015

- proposals referred to in the notice.

Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 2011

- monetary penalty notice

Welfare of Animals at the Time of Killing (England) Regs 2015

- a decision of the competent authority to refuse, suspend or

revoke a certificate, temporary certificate or licence, or to

refuse to modify a certificate or licence

Welfare of Animals at the Time of Killing (Wales) Regs 2014

- a decision of the competent authority to refuse, suspend or

revoke a certificate, temporary certificate or licence, or to

refuse to modify a certificate or licence

Equine Identification (England) Regs 2018

- a decision, by the service of a notice under regulation 39, to

serve a compliance notice, a decision, by the service of a notice

under regulation 40, to impose a non-compliance penalty, a

decision, by the service of a notice under regulation 41, to

impose a fixed monetary penalty, a decision, by the service of a

notice under regulation 42, to require that person to pay

enforcement costs.

47

Equine Identification (Wales) Regs 2019

- a decision to serve a compliance notice, to impose a non-

compliance penalty, to impose a fixed monetary penalty, or to

require a person to pay enforcement costs.

Mandatory Use of Closed Circuit TV in Slaughterhouses Regs 2018

- a decision to serve an enforcement notice or not to issue a

completion notice

48

f) Specific categories of appeals:

We have categorised the legislation giving rise to appeal rights to the GRC into the

following: i) applicants seeking to become a regulated entity ii) applicants appealing

the removal of their regulated entity status iii) GRC required to make decision on

behalf of a Regulator iv) applicants objecting to Regulator’s order for disclosure of

information v) applicants objecting to financial penalty imposed by Regulator vi)

applicants objecting to the opening of a statutory inquiry

There are a number of jurisdictions in the GRC where the question for the Tribunal is whether

the Appellant should be permitted to remain on, or be removed from, the Regulator’s register.

The legislation very often requires the Tribunal to consider the matter “afresh” and make a

decision regarding the conduct and behaviour of the Appellant, rather than just review the facts.

This of course raises several questions. Below is a list of the relevant legislation.

i) Appeals about whether the applicant can become a regulated entity

1. Charities Act 2011

2. Animal Welfare Licensing of Activities

3. Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (General

Council of the Bar) Order 2018

4. Gambling Act 2005

5. Immigration and Asylum Act 1999

6. Animal Welfare (Licensing of Activities involving Animals) (England) Regs 2018

7. Estate Agency Act 1979

8. Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions

Inventory Regs 2005

9. Energy Act 2015

10. Greater London Authority Act 1999, s189

11. Road Traffic Act 1988, s125(3)(e): “fit and proper person” and trainee licences

12. Welfare of Animals at the Time of Killing (England) Regs 2015

13. Welfare of Animals at the Time of Killing (Wales) Regs 2014

14. Animal Welfare (Licencing of Activities Involving Animals) (England) Regs 2018

ii) Appeals against removal of regulated entity status

1. Charities Act 2011 Sch 6 – power to direct the Commission to rectify the register

concerning removal (or not) of an institution from the register. The Tribunal must

consider the matter “afresh”.

2. Marine Licensing (Notices Appeals) (Wales) Regs 2011, Reg 3 and 4 – suspension or

revocation of marine licences

3. Gambling Act 2005

4. Immigration and Asylum Act 1999

5. Animal Welfare (Licensing of Activities involving Animals) (England) Regs 2018

6. Estate Agency Act 1979

7. Energy Act 2016

8. Greater London Authority Act 1999, s189

9. Road Traffic Act 1988, s 128 and s 131(1)

49

iii) Appeals where the Tribunal is making a decision standing in the shoes of the

Regulator

1. Charities Act Sch 6: regarding whether someone is a “fit and proper person” to be a

Charity Trustee. It is not clear however whether this is a subjective or objective test.

2. Collective Management of Copyright (EU Directive) Regulations 2016, Reg 40 –

Tribunal “may make such order as it considers appropriate”.

3. Legal Services Act 2007 (Appeals from Licensing Decisions)(GeneralCouncil of the

Bar) Order2018

4. Emissions Performance Standard Regs 2015, Reg 17 - “impose such other

enforcement notice or civil penalty notice as the Tribunal thinks fit.”

5. Environmental Civil Sanctions (England) Order 2010 5 (d) - “take such steps as the

regulator could take in relation to the act of omission giving rise to the requirement or

notice”.

6. Environmental Civil Sanctions (Wales) Order 2010

7. Flood and Coastal Erosion Risk Management Information Appeal (Wales) Regs 2011

– may vary or quash financial penalty if it thinks it “unreasonable”

8. Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions

Inventory Regs 2005 – may vary a determination of a condition to an approval or an

authorisation

9. Marine Licensing (Civil Sanctions) (Wales) Order 2011 – Reg 28 “take such steps as

the enforcement agency could take in relation to the act or omission giving rise to the

requirement or notice”

10. Single Use Carrier Bags Charge (NI) Regs 2013 – Reg 20 “take such steps as the

Administrator could take in relation to the act or omission giving rise to the

requirement or notice.”

11. Single Use Carrier Bags Charge (Wales) Regs 2010 – Reg 21 “take such steps as the

Administrator could take in relation to the act or omission giving rise to the

requirement or notice.”

12. Single Use Carrier Bags Charge (England) Order 2015 – Art 16 “take such steps as

the Administrator could take in relation to the act or omission giving rise to the

requirement or notice.”

13. Control of Mercury (Enforcement) Regs 2017 – Reg 15(1) “take any action which the

enforcing authority is empowered to take in relation to the failure referred to in the

notice”

14. Wildlife and Countryside Act 1981, Sch 9A – “make such other order as the Tribunal

thinks fit”

15. Greenhouse Gas Emissions Trading Scheme Regs 2012 – Reg 77 (d): “give directions

to the regulator as to the exercise of the regulator’s functions under these

Regulations”.

16. CRC Energy Efficiency Scheme Order 2013, Pt 14 – Tribunal can modify

determination, enforcement notice or penalty “as it sees fit” or instruct the

administrator to do or not to do anything which is within the power of the

administrator.

17. Marine Licensing (Notices Appeals) (Wales) Regs 2011 - Reg 5: Tribunal may “take

such steps as the licensing authority or enforcement authority (as appropriate) could

take in relation to the act or omission giving rise to the notice”

18. Nagoya Protocol (Compliance) Regs 2015 Sch – Pt 6: “take such steps as the

Secretary of State could take in relation to the act or omission giving rise to the

requirement or notice”

50

19. Environmental Protection (Microbeads)(Wales) Regulations 2018, Sch – “take such

steps as the regulator could have taken in relation to the act or omission giving rise to

the requirement or notice”

20. Environmental Protection (Microbeads)(England) Regulations 2017, Sch - “take such

steps as the regulator could have taken in relation to the act or omission giving rise to

the requirement or notice”

21. Energy Act 2016 – s52: “Where a decision is quashed under subsection (5)(a), (6)(a)

or (8), the Tribunal may remit the decision to the Oil and Gas Authority for

reconsideration with such directions (if any) as the Tribunal considers appropriate”; s

36 “substitute its own decision for the decision under appeal.”

22. Energy Information Regs 2011 - Sch4 Pt 6 : “take such steps as the market

surveillance authority could take in relation to the act or omission giving rise to the

requirement or notice”

23. Waste (England and Wales) Regs 2011 – Reg 41: “take such steps as the authority

serving the notice could take in relation to the act or omission giving rise to the

requirement or notice”

24. Energy Savings Opportunity Scheme Regulations 2014 - Tribunal can instruct the

Regulator to do, or not to do anything which is within the power of the regulator.

25. Designation of Features (Appeals) (England) Regs 2012 – Tribunal can substitute a

decision to alter, remove or replace.

26. Designation of Features (Appeals) (Wales) Regs 2012 – Tribunal can substitute a

decision to alter, remove or replace.

27. Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regs 2012- in

relation to a decision whether to impose a sanction under Part 8, the Tribunal can

impose a different sanction or take different action.

28. Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations

2018, Reg 24 - the Tribunal may overturn or confirm the local authority’s decision,

with or without modification.

29. Gambling Act 2005 – s 144 (2) the Tribunal may, in addition to the matters specified

in subsection (1) above, make any order that it thinks appropriate.

30. Immigration and Asylum Act 1999

31. Animal Welfare (Licensing of Activities involving Animals) (England) Regs 2018 –

since can uphold decision with modification

32. Apprenticeships, Skills, Children and Learning Act 2009, Section 151C (inserted by

Education Act 2011, Section 23) s 151 c (4) “take such steps as Ofqual could take I

33. Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 201

34. Freedom of Information 2000- to the extent that the notice involved an exercise of

discretion by the Commissioner, that he ought to have exercised his discretion

differently, he Tribunal shall allow the appeal or substitute such other notice as could

have been served by the Commissioner.

35. Mandatory Use of Closed Circuit TV in Slaughterhouses Regs 2018 – may make

order that it thinks fit as regard the decision not to serve or issue a completion notice.

36. Pensions Act 2008

37. Pension Schemes Act 2017 (by virtue of applicable sections of Pensions Act 2008)

38. Consumer Rights Act 2015

39. Greater London Authority Act 1999, s189 - substitute the decision with any other

decision it thinks appropriate (provided it is within Regulator’s power)

51

iv) Appeals against Orders where the Regulator is demanding information:

1. Charities Act Sch 6 – quash order / substitute any other order which could have been

made by Commission

- But not a rehearing – see s 320

2. Transparency of Lobbying, non-Party Campaigning and Trade Union Admin Act

2014, s 17

3. Energy Act 2016

4. Freedom of Information Act 2000

5. Data Protection Act 2018

6. Police Act

v) Appeals against Financial Penalties imposed by the Regulator:

1. Climate Change Agreements (Administration) Regs 2012

2. Collective Management of Copyright (EU Directive) Regs 2016

3. Data Protection Acts 1998, 2018, s55A: appeal rights ss 48, 49, 155, 162, 163 2018 Act

4. Transparency of Lobbying, non-Party Campaigning and Trade Union Admin Act 2014,

s 17

5. Immigration and Asylum Act 1999

6. Consumer Credit Act 2015, s87: appeal rights sch9 para 5 for Letting Agency and sch10

para 5 for secondary ticketing

7. Environmental Protection Act 1990

8. Energy Information Regs 2011 Sch 4, part 6

9. Energy Savings Opportunity Scheme Regs 2014, Pt 9

10. Flood and Water Management Act 2010 (penalty must not exceed 1000)

11. Flood and Coastal Erosion Risk Management Information Appeal (Wales) Regs 2011

12. Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions

Inventory Regs 2005

13. Marine Licensing (Civil Sanctions)(Wales) Order 2011

14. Single Use Carrier Bags Charge (NI) Regs 2013

15. Single Use Carrier Bags Charge (Wales) Regs 2010

16. Single Use Carrier Bags Charges (England) Order 2015

17. CRC Energy Efficiency Scheme Order 2013, Pt 14

18. Negoya Protocol (Compliance) Regs 2015

19. Environmental Protection (Microbeads)(Wales) Regulations 2018

20. Environmental Protection (Microbeads)(England) Regulations 2017

21. Energy Act 2016

22. Regulation of investigatory Powers (Monetary Penalty Notices and Consent for

Interceptors)

23. Environmental Civil Sanctions (England) Order 2010

24. Environmental Civil Sanctions (Wales) Order 2010

25. Energy Information Regs 2011 – Sch 4, Pt 6

26. Pensions Act 2008, ss 40, 41: Appeal rights s 44

27. Pension Schemes Act 2017

28. Consumer Rights Act 2015

29. Apprenticeships, Skills, Children and Learning Act 2009, Section 151C (inserted by

Education Act 2011, Section 23)

30. Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 2011

52

31. Equine Identification (England) Regs 2018

32. Equine Identification (Wales) Regs 2019

vi) Appeals against opening of statutory inquiry:

1. Charities Act 2011 – s.46

2. Data Protection Act 2018 - Assessment Notices

53

g) Powers the Tribunal may exercise if it allows an appeal:

Charities Act 2011, s319

- dismiss the appeal, or exercise any power specified in the

corresponding entry in col 3 of Sch 6.

- remit for a fresh decision (generally or in accordance with a

finding of fact or law)

- no power on determining a reference

Assets of Community Value

- not specified

Collective Management of Copyright (EU Directive) Regs 2016

- any such order as it considers appropriate

Transparency of Lobbying, Non-Party Campaigning and Trade Union Admin Act 2014

- not specified

Legal Services Act

- Affirm, quash or substitute the General Council of the Bar’s

decision in whole or in part;, substitute for all or part of the

General Council of the Bar’s decision another decision of a kind

that the General Council of the Bar could have made, or remit a

matter to the General Council of the Bar (generally, or for

determination in accordance with a finding made or direction

given by the First-tier Tribunal).

Legal Services Act No 2

- The Tribunal may hear and determine appeals from licensing

decisions. The Tribunal may make such order as it thinks fit as

to the payment by any party of costs.

Regulation of Investigatory Powers Regs 2011

- allow the appeal or substitute such other monetary penalty notice

as could have been served by the Commissioner

- review any determination of fact

Ecodesign for Energy-Using Regs 2010

- withdraw the notice, confirm the notice, vary the notice, remit

the decision to the Regulator.

Emissions Performance Standard Regs 2015

54

- affirm the notice, direct the Regulator to vary or withdraw the

notice or impose such other notice as it thinks fit.

Environmental Protection Act 1990, s46D

- withdraw or confirm the requirement to pay the fixed penalty

Climate Change Agreements (Administration) Regulations 2012

- Reg 23: Tribunal must either confirm, reduce or quash the

penalty

- may extend time for payment of the penalty.

- on determining an appeal under regulation 20(2) against the

termination of the agreement the Tribunal must either confirm

the termination; permit an extension of time to remedy the

failure that led to the termination; or quash the termination.

- On determining an appeal under regulation 20(3) against a

decision of the administrator the Tribunal must either affirm the

decision, quash the decision; or vary the decision.

Energy Information Regulations 2011, Sch 4 Pt 6

- determine the standard of proof

- withdraw, confirm or vary the requirement or notice; take such

steps as the Regulator could take in relation to the act or

omission giving rise to the requirement or notice; remit the

decision whether to confirm the requirement or notice or any

matter relating to that decision to the Regulator.

Energy Savings Opportunity Scheme Regulations 2014, Pt 9

- cancel, affirm, or modify the determination or enforcement or

penalty notice

- instruct the Regulator to do, or not to do anything which is

within the power of the Regulator.

Reservoir Act 1975

- Cancel the designation (ie not vary or approve?)

Flood and Coastal Erosion Risk Management Information Appeal (Wales) Regs 2011

- Confirm, reduce or quash the penalty

Greenhouse Gas Emissions Trading Schemes (Amendment) and National Emissions

Inventory Regs 2005

- The First-tier Tribunal may—(a) in relation to a determination

to refuse an application under regulation 5—(i) affirm the

determination; (ii) quash the determination and remit it to the

55

Environment Agency; (b) in relation to a determination to

attach a condition to an approval or authorisation notified under

regulation 7—(i) affirm or vary the determination; (ii) quash

the determination and remit it to the Environment Agency.

Marine Licensing (Civil Sanctions) (Wales) Order 2011

- Withdraw, confirm or vary the requirement or notice

- take such steps as the enforcement authority could take in

relation to the act or omission giving rise to the requirement or

notice

- remit the decision whether to confirm the requirement or

notice, or any matter relating to that decision, to the

enforcement authority.

Single Use Carrier Bags (Northern Ireland) Regulations 2013

- withdraw or confirm the requirement or notice

- take such steps as the Administrator could take in relation to the

act or omission giving rise to the requirement or notice

- remit the decision whether to confirm the requirement or notice,

or any matter relating to that decision, to the Administrator.

Single Use Carrier Bags Charge (Wales) Regs 2010

- withdraw or confirm the requirement or notice

- take such steps as the Administrator could take in relation to the

act or omission giving rise to the requirement or notice

- remit the decision whether to confirm the requirement or notice,

or any matter relating to that decision, to the Administrator.

Single Use Carrier Bags Charge (England) Order 2015

- withdraw or confirm the requirement or notice

- take such steps as the Administrator could take in relation to the

act or omission giving rise to the requirement or notice

- remit the decision whether to confirm the requirement or notice,

or any matter relating to that decision, to the Administrator

Control of Mercury (Enforcement) Regs 2017

- cancel, vary or confirm the notice issued under

regulation 8(8), 10(11) or 13(11)

- take any action which the enforcing authority is empowered to

take in relation to the failure referred to in the notice

- remit any decision relating to the notice to the enforcing

authority.

Wildlife and Countryside Act 1981

56

- affirm the order, revoke or amend it,

- in the case of an order under paragraph 10(2)(c) (emergency),

suspend the order, or

- make such other order as the Tribunal thinks fit.

Greenhouse Gas Emissions Trading Scheme Regulations 2012, Reg 77

- affirm or quash the decision or vary any of its terms;

- substitute a deemed refusal with a decision of the appeal body;

- give directions to the Regulator as to the exercise of the

Regulator’s functions under the Regulations.

- In determining an appeal under regulation 74 the appeal body

may give directions to the registry administrator as to the

exercise of its functions under the Registries Regulation 2011,

or the KP administrator as to the exercise of its functions under

the Registries Regulation 2010.

- The appeal body may not make a determination that would

result in a decision which could not otherwise have been made

under these Regulations or under the Registries Regulation

2010 or 2011

CRC Energy Efficiency Scheme Order 2013, Pt 14

- in respect of a determination, enforcement notice or penalty—

(i) cancel or affirm it; and (ii) if it affirms it, do so in its

original form or with such modification as it sees fit

- instruct the administrator to do or not to do anything which is

within the power of the administrator

Marine Licensing (Notices Appeals) (Wales) Regulations 2011

- withdraw, confirm, vary the notice or any requirement

contained in it

- take such steps as the licensing authority or enforcement

authority (as appropriate) could take in relation to the act or

omission giving rise to the notice

- remit the decision whether to confirm the notice, or any matter

relating to that decision, to the licensing authority or

enforcement authority (as appropriate)

- Suspend a remediation, stop or an emergency safety notice

wholly or in part and/or suspend any other notice issued under s

72 of the 2009 Act, wholly or in part, pending determination of

the appeal

Nagoya Protocol (Compliance) Regulations 2015, Sch

- Determine the standard of proof

- May suspend or vary a stop notice

- Withdraw, confirm or vary the requirements of the notice

appealed

57

- take such steps as the Secretary of State could take in relation

to the act or omission giving rise to the requirement or notice

- remit the decision to confirm the requirement or notice, or any

matter relating to that decision, to the Secretary of State

Environmental Protection (Microbeads)(Wales) Regs 2018

- withdraw, confirm, vary the requirement or notice

- take such steps as the regulator could have taken in relation to

the act or omission giving rise to the requirement or notice

- remit the decision whether to confirm the requirement or

notice, or any matter relating to that decision, to the regulator

Environmental Protection (Microbeads)(England) Regs 2017

- withdraw, confirm, vary the requirement or notice

- take such steps as the regulator could have taken in relation to

the act or omission giving rise to the requirement or notice

- remit the decision whether to confirm the requirement or

notice, or any matter relating to that decision, to the regulator

Energy Act 2016

- On an appeal against a decision made in relation to an

enforcement notice, the Tribunal may—the Tribunal may—

(a)confirm or quash the decision, in the case of a decision as

mentioned in subsection (3)(a)(i) (remedial action), or

(b)confirm or vary the decision, in the case of a decision as

mentioned in subsection (3)(a)(ii) (period for compliance), and

confirm, vary or cancel the enforcement notice accordingly

- On an appeal made in relation to a financial penalty notice, the

Tribunal may— (a)confirm or quash the decision, in the case of

a decision as mentioned in subsection (3)(b)(i) (imposition of

penalty), or (b)confirm or vary the decision, in the case of a

decision as mentioned in subsection (3)(b)(ii) (amount of

penalty) and confirm, vary or cancel the financial penalty

notice accordingly

- On an appeal against a decision to revoke a licence or to require

the removal of an operator the Tribunal may— (a)confirm the

decision, (b)vary the decision by changing the revocation date

or the removal date, as the case may be, or (c) quash the

decision, and confirm, vary or cancel the sanction notice in

question accordingly.

- Where a decision is quashed under subsection (5)(a), (6)(a) or

(8), the Tribunal may remit the decision to the Oil and Gas

Authority for reconsideration with such directions (if any) as

the Tribunal considers appropriate.

- s36: substitute its own decision for the decision under appeal.

Environmental Civil Sanctions (England) Order 2010

58

- determine the standard of proof

- withdraw, confirm or vary the requirement or notice

- take such steps as the Regulator could take in relation to the act

or omission giving rise to the requirement or notice

- remit the decision whether to confirm the requirement or notice

or any matter relating to that decision to the Regulator.

- Suspend or vary a stop notice

Environmental Civil Sanctions (Wales) Order 2010

- determine the standard of proof

- withdraw, confirm or vary the requirement or notice

- take such steps as the Regulator could take in relation to the act

or omission giving rise to the requirement or notice

- remit the decision whether to confirm the requirement or notice

or any matter relating to that decision to the Regulator.

- Suspend or vary a stop notice

Energy Information Regulations 2011

- withdraw, confirm or vary the requirements of the notice

- determine the standard of proof

- take such steps as the market surveillance authority could take

in relation to the act or omission giving rise to the requirement

or notice

- remit the decision whether to confirm the requirement or

notice, or any matter relating to that decision, to the market

surveillance authority.

Waste (England and Wales) Regulations 2011

- withdraw, confirm or vary the notice

- take such steps as the Regulator could take in relation to the act

or omission giving rise to the notice

- remit the matter to the Regulator

Designation of Features (Appeals) (England) Regs 2012

- confirm or cancel a designation

- confirm or cancel a decision or substitute it

- confirm the refusal or cancel the designation

- confirm the enforcement notice

- determine the notice is to cease to have effect

Designation of Features (Appeals) (Wales) Regs 2012

- confirm or cancel a designation

- confirm or cancel a decision or substitute it

- confirm the refusal or cancel the designation

- confirm the enforcement notice

59

- determine the notice is to cease to have effect

Green Deal Framework (Disclosure, Acknowledgement, Redress etc) Regs 2012

- determine the standard of proof

- may suspend the decision pending the appeal

- withdraw, confirm, vary the decision or remit to the Secretary

of State

- in relation to a decision whether to impose a sanction under

Part 8, impose a different sanction or take different action.

Greater London Authority Act 1999

- uphold or quash the decision

- substitute another decision as it sees fit (provided in

Regulator’s power to make such decision)

Road Traffic Act 1988

- Order the grant or refusal of the application

- order the removal or the retention of the name in the register, or

the revocation or continuation of the licence

- remit the matter to the Registrar for him to reconsider the

decision

Gambling Act 2005

- affirm the Commission's decision or action

- quash the Commission's decision or action in whole or in part

- substitute for all or part of the Commission's decision or action

another decision or action of a kind that the Commission could

have taken

- add to the Commission's decision or action a decision or action

of a kind that the Commission could have taken

- remit a matter to the Commission (generally, or for

determination in accordance with a finding made or direction

given by the Tribunal)

- reinstate a lapsed or revoked licence.

Redress Schemes for Lettings Agency Work and Property Management Work Order 2014

- Quash, confirm or vary the final notice appealed

Microchipping of Dogs

- cancel, confirm or vary the notice appealed

Pensions Act 2008

- determine the reference

60

- remit to the Regulator

- other directions that give effect to the determination

Pension Schemes Act 2017

- determine the reference

- remit to the Regulator

- other directions that give effect to the determination

Consumer Rights Act 2015

- may quash, confirm or vary the final notice

Animal Welfare (Licensing of Activities involving Animals) (England) Regs 2018

- Tribunal can overturn or confirm the Regulator’s decision with

or without modification

Apprenticeships, Skills, Children and Learning Act 2009, Section 151C (inserted by

Education Act 2011, Section 23)

- withdraw, confirm or vary the requirement to pay the penalty

- take such steps as Ofqual could take in relation to the failure to

comply giving rise to the decision to impose the requirement

- remit the decision whether to confirm the requirement to pay

the penalty, or any matter relating to that decision, to Ofqual

Estate Agents Act 1979, s 7

- give such directions for disposing of the appeal as thinks just.

Nitrate Vulnerable Zones

- If the First-tier Tribunal upholds an appeal under paragraph

(2)(a), the Secretary of State, when acting under regulation 4(5),

must treat the relevant holding (or the part of it in respect of

which the appeal was upheld) as not draining into the water

concerned.

- (4) If the First-tier Tribunal upholds an appeal under paragraph

(2)(b), the Secretary of State, when acting under regulation 4(5),

must—

- (a)treat the water concerned as water which should not be

identified, or should not continue to be identified, as polluted,

and

- (b)treat any holding (or part of any holding) which drains into

that water accordingly (regardless of whether the owner or

occupier of the relevant holding appealed under this regulation)

61

Immigration and Asylum 1999

- direct the Commissioner— to register the applicant or to

continue the applicant’s registration; to make or vary the

applicant’s registration so as to have limited effect in any of the

ways mentioned in paragraph 2(2) of Schedule 6; to quash a

decision recorded under paragraph 9(1)(a) of Schedule 5 and

the record of that decision

- regarding a disciplinary charge the Tribunal may direct the

Commissioner— to record the charge and the First-tier

Tribunal's decision on it for consideration in connection with

that person's next application for continued registration; to

cancel that person's registration

- If the registered person mentioned in subsection (2) is no longer

registered, the First-tier Tribunal may direct the Commissioner

to record the charge and the First-tier Tribunal's decision on it

for consideration in connection with any application by that

person for registration

- If the person charged is found to have charged unreasonable

fees for immigration advice or immigration services, the

Tribunal may direct him to repay to the clients concerned such

portion of those fees as it may determine.

- The Tribunal may direct the person charged to pay a penalty to

the Commissioner of such sum as it considers appropriate

- may direct that the person charged or any person acting on his

behalf or under his supervision is to be—(a) subject to such

restrictions on the provision of immigration advice or

immigration services as the Tribunal considers appropriate; (b)

suspended from providing immigration advice or immigration

services for such period as the Tribunal may determine; or (c)

prohibited from providing immigration advice or immigration

services indefinitely.

Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regs 2011

- allow the appeal or substitute such other monetary penalty

notice as could have been served by the Commissioner if the

Tribunal considers—(a) that the notice concerned is not in

accordance with the law, or (b) to the extent that the notice

involved an exercise of discretion by the Commissioner, that

the Commissioner ought to have exercised the discretion

differently

- dismiss the appeal

- direct the Commissioner to issue, on such terms as the Tribunal

considers appropriate, a notice of variation or cancellation in

relation to the monetary penalty notice if the Tribunal considers

that the monetary penalty notice ought to be varied or cancelled

on those terms

62

- review any determination of fact on which the refusal to issue

the notice of variation or cancellation was based.

Freedom of Information Act 2000

- allow the appeal or substitute such other notice as could have

been served by the Commissioner (“or” interpreted to mean

and/or in Malnick)

- dismiss the appeal.

Data Protection Act 2018

- set aside or confirm or vary the enforcement notice and

assessment notice and penalty notice

- s166: make a case progression order against the Information

Commissioner’s Office

Reservoir Act 1975, s2E

- cancel the designation

Welfare of Animals at the Time of Killing (England) Regs 2015

- overturn or confirm the decision with or without modification

Welfare of Animals at the Time of Killing (Wales) Regs 2014

- overturn or confirm the decision with or without modification

Equine Identification (England) Regs 2018

- cancel, confirm or vary the notice

Equine Identification (Wales) Regs 2019

- cancel, confirm or vary the notice

Mandatory Use of Closed Circuit TV in Slaughterhouses Regs 2018

- cancel or confirm the notice with or without modification

- make such order as it thinks fit with regards to the decision not

to serve or issue a completion notice

63

h) Effect of Appeal on Regulator’s decision

Automatic suspension:

1. Collective Management of Copyright (EU Directive) Regulations 2016 Reg 41 (2)

suspends requirement to pay penalty

2. Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for

Interceptions) Regulations 2011 Sch 1, Pt 1, para 5 (2) suspends effect of notice

pending appeal.

3. Ecodesign for Energy-Using Products Regulations 2010, Sch 4 para10 (3) suspends

effect of decision pending appeal

4. Emissions Performance Standard Regulations 2015, reg 17 (3) but NB, England only!

5. Environmental Protection Act 1990 s46D

6. Climate Change Agreements (Administration) Reg 2012, reg 22

7. Energy Information Regulations 2011, sch 4 pt 6 para 27

8. Energy Savings Opportunity Scheme Regs 2014 suspends effect of notice

9. Reservoir Act 1975 s2E

10. Flood and Coastal Erosion Risk Management Information Appeal (Wales) Reg 2011

11. Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions

Inventory Regs 2005 reg 9(2) – bringing an appeal against a condition, automatically

suspends the approval or authorisation to participate in the scheme

12. Marine Licensing (Civil Sanctions) (Wales) Order 2011 - A notice which is the

subject of an appeal, and any requirement in such a notice, is suspended pending

determination of that appeal

13. Single Use Carrier Bags Charge (NI) Reg 2013, Reg 20

14. Single Use Carrier Bags Charge (Wales) Reg 2010, Reg 21

15. Single Use Carrier Bags Charge (England) Reg 2015

16. Control of Mercury (Enforcement) Regulations 2017

17. Environmental Protection (Microbeads)(Wales) Regs 2018: All notices (other than

stop notices) are suspended pending the determination or withdrawal of the appeal.

18. Environmental Protection (Microbeads)(England) Regs 2017: All notices (other than

stop notices) are suspended pending the determination or withdrawal of the appeal.

19. Energy Act 2016

20. Environmental Civil Sanctions (England) Order 2010 reg 10

21. Environmental Civil Sanctions (Wales) Order 2010 reg 10

22. Designation of Features Appeal (Wales) Regs 2012 - s 151C(3)

23. Green Deal Framework (Disclosure…) Regs 2012- s 152B(3)

24. Sea Fish (Marketing Standards Regs 2018 – by s39(3) Food Safety Act 1990

25. Offshore Environmental Civil Sanctions Regs – by s39(3) Food Safety Act 1990

26. Control of Trade in Endangered Species Regs 2018 – by s39(3) Food Safety Act 1990

27. Fluorinated Greenhouse Gases Regs 2015 – by s39(3) Food Safety Act 1990

28. EU Reg 19097/2006 REACH – by s39(3) Food Safety Act 1990

29. Nitrate Pollution Prevention Regs 2015 – by s39(3) Food Safety Act 1990

30. Apprenticeships, Skills, Children and Learning Act 2009- by Reg 15(3) and s 145

31. Food Safety Act 1990 (as amended by the Honey Regs 2015)

32. Food Safety Act 1990 (as amended by Food for specific groups Regs 2016) – by Reg

32ZG(2)

33. Food Safety Act 1990 (as amended by Natural Mineral Water Regs 2007)- by s 40(7)

64

34. Olive Oil (Marketing Standards) Regs 2014 - by s 41B(1)

35. Quality Scheme (Ag Products…) Regs 2018 – by s 43(4)

36. Gambling Act 2005 – by s 44(5)

37. Immigration and Asylum Act 1999 – by Sch 16 para 9(1)(b)

38. Environmental Information Regs 2004 - effect suspended as FOI Act 2000 s 50(6)

applies.

39. Freedom of Information Act 2000 – by s50(6), 51(4), 52(3)

40. Re-use of Public Sector Information Regs 2015 - effect suspended as FOI Act 2000 s

50(6) applies.

41. Pensions Act 2008 – payment suspended by s 44(3)

42. Pensions Schemes Act 2017 - payment suspended by s 44(3) of Pensions Act 2008

43. Consumer Rights Act 2015 – by Sch 10 para 5(3)

44. Redress Scheme for Lettings Agency Work …Order 2014 – by art 9(3)

45. Transparency of Lobbying…admin Act 2014 – by s 17(2)

46. Greater London Authority Act 1999 – by s 190(2)(b)

47. Rehabilitation Courses…. Regs 2012-by Reg 7(3)

48. Rehabilitations Courses (Relevant…Wales) 2013-by Reg 7(3)

49. Road Traffic Act 1988 - licence continues to be in force per s 129(6)

50. Microchipping of Dogs (England) Regulations 2015 – by s 14(4)

51. Microchipping of Dogs (Wales) Regulations 2015 - by s 14(4)

52. Equine Identification (England) Regs 2018 – by Reg 45(4)

53. Equine Identification (Wales) Regs 2019

54. Data Protection Act enforcement/assessment/penalty

Decision not automatically suspended:

1. Community Right to Bid

2. Wildlife and Countryside Act 1981

3. Greenhouse Gas Emissions Trading Scheme Regs 2012

4. Marine Licensing (Notices Appeals) (Wales) Regs 2011

5. Marine Licensing (Notices Appeals) Regs 2011

6. Food Safety Act 1990 (Fish Labelling Regs 2013)

7. Police Reform Act 2002

8. Privacy and Electronic Communications (EC Directive) Regs 2003

9. Electronic Identification and Trust Services for Electronic Transactions Reg 2016

10. Vehicle Driver (Certificates…) Regs 2007

11. Welfare of Animals at the Time of killing (England) Regs 2015

12. Welfare of Animals at the Time of killing (Wales) Regs 2014

13. Mandatory Use of Closed Circuit TV in Slaughterhouse Regs 2018

14. Animal Welfare (Licensing of Activities Involving Animals)

Discretionary/Mixed Effect of Appeal:

1. Energy Savings Opportunity Scheme Regs - Emergency control order not suspended

pending appeal however, Species control order must provide that operations will not

be carried out pending appeal.

2. Reservoir Act 1975 – Reg 76 (2) lists what is not suspended pending appeal

65

3. Flood and Coastal Erosion Risk Management Information Appeal (Wales) Reg-

Determinations are not suspended but some civil penalties are (see Article 30).

4. Greenhouse Gas Emission Trading Scheme (Amendment) Regs 2005-some notices

suspended

5. Marine Licensing (Civil Sanctions) (Wales) Order 2011-some notices are suspended

6. Single Use Carrier Bags Charge (NI) Regs 2013 – Stop notices are not suspended but

all other notices are.

7. Single Use Carrier Bags (Wales) Regs 2010 – Stop notices are not suspended but all

other notices are.

8. Single Use Carriers Bags (England) Order 2015 – Stop notices are not suspended, all

other notices are.

9. Control of Mercury (Enforcement) Regs 2017 – Sanction notice suspended (s 50(2)).

10. Wildlife and Countryside Act 1981 Sch 9A - in the case of an order under paragraph

10(2)(c) (emergency), the order is suspended

11. Greenhouse Gas Emissions Trading Scheme Regs 2012, Reg 76 – some notices

suspended, not decision refusing an application or a deemed refusal.

12. CRC Energy Efficiency Scheme Order 2013 - suspends enforcement notice, financial

penalty or publication taking effect but does not suspend a determination referred to

in article 57(1) or a civil penalty not described in sub-paragraph (a) taking effect.

13. Marine Licensing (Notices Appeals) (Wales) Regs 2011 – A compliance notice and

any requirement in any such notice, is suspended pending determination of an appeal

against the notice but the Tribunal may (ie discretion) suspend a remediation notice, a

stop notice or an emergency safety notice, wholly or in part, pending determination of

the appeal.

14. Nagoya Protocol (Compliance) Regs 2015 – stop notices may be suspended by the

Tribunal, but all other notices are suspended.

15. Environmental Civil Sanctions (Wales) Order 2010 – Tribunal may suspend or vary a

stop notice, all other notices are suspended.

16. Environmental Civil Sanctions (England) Order 2010 – Tribunal may suspend or vary

a stop notice all other notices are suspended.

17. Energy Information Regs 2011, Sch 4, Pt 6 – All notices except stop notices are

suspended

18. Waste (England and Wales) Regs 2011- notices are not suspended, unless Tribuanl

directs otherwise.

19. Designation of Features (Appeals)(England) Regs 2012 – usually suspends

20. Green Deal Framework (Disclosure…) Regs 2012 –Tribunal may suspend decision

21. Immigration and Asylum Act – effect of decision usually suspended by s 142 (6), s

146 (7), s 150(7) unless exemptions apply (see s 142 (8), 146(8) and s 150(8).

22. Data Protection Act 1998- s 41A, 43, 44 decision suspended by s 41B(1), 43(4), 44(5)

and s 155 by Sch 16 para 9(1)(b) but s 142, 146, 149 decision while normally

suspended are subject to exemptions provided for in s 142(8), 146(8), 146(9) 150(8)

AND s55A and s 55B (re monetary penalty notice) are not suspended.

23. Legal Services Act 2007 – tribunal may suspend the decision: see Art 3(2)

24. Road Traffic Act 1988 – s 128(6A) suspends removal from register…but only if

bought within 14 days…but note s 128(7) which provides that a person’s name

remains on the register despite suspension

25. Welfare of Animals at the Time of Killing (Wales) Regs 2014 - Tribunal may suspend

the Regulator’s decision and the appellant must make an application

26. Welfare of Animals at the Time of Killing (England) Regs 2015 - Tribunal may

suspend the Regulator’s decision and the appellant must make an application

66

27. Mandatory Use of Closed Circuit TV in Slaughterhouse Regs 2018 - Tribunal may

suspend the Regulator’s decision and the appellant must make an application

67

Suggested Model Legislation:

- Charities Act 2011 – clearly sets out what matters are appeals, what are

review, who has standing and the nature of the appeal. It is also clear

regarding the powers exercisable by the tribunal if it allows an appeal or

review

- CRC Energy Efficiency Scheme Order 2013 – uses headings and a systematic

approach. See: http://www.legislation.gov.uk/uksi/2013/1119/part/14/made

- Emissions Performance Standard Regulations 2015

- Environmental Civil Sanctions (England) Order 2010

- Flood and Coastal Erosion Risk Management Information Appeal (Wales)

Regs 2011

- Marine Licensing (Civil Sanctions) (Wales) Order 2011 – differentiates

between fixed and variable monetary penalties

- Redress Schemes for Lettings Agency Work and Property Management Work

Order 2014

Problematic Legislation:

1. Community Right to Bid- does not specific whether rehearing or review

2. Road Traffic Act 1988 – s 128(6A) suspends removal from register…but

only if brought within 14 days…but note s 128(7) which provides that a

person’s name remains on the register despite suspension.

3. Greenhouse Gas Emissions Trading Scheme (Amendment) and National

Emissions Inventory Regs 2005

Does not say who has standing.

4. Environmental Civil Sanctions (England) Order 2010

5. Reservoir Act 1975

6. Single Use Carrier Bags Charge (NI) Regs 2013

7. Single Use Carrier Bags Charge (Wales) Regs 2010

8. Climate Change Agreements (Administration) Regulations 2012,

Regulation 21

Does not say whether Regulator’s decision stands/suspended

9. Great London Authority Act 1999