PRIMARY AUTHORITY

1. PRIMARY AUTHORITY Operating as an Enforcing Authority Updated October 2014

2. CONTENT When and how does Primary Authority affect how you do your job? What is Primary Authority? Inspection plans Primary Authority Advice Notifications of enforcement action The Primary Authority Register How is it working in practice?

3. WHEN DO YOU NEED TO THINK ABOUT PRIMARY AUTHORITY?

4. FOUR KEY STAGES When you are planning or programming proactive regulatory interventions, including inspections, sampling visits, test purchases, other checks on compliance or advisory visits When you are carrying out proactive visits or other checks on business compliance When you receive a complaint or enquiry about a business When you are considering how to deal with non-compliance by a business

5. FOUR KEY QUESTIONS Is the business in Primary Authority? Check the Primary Authority Register IF SO, What must I do to comply with the law? How can the primary authority help me to do what I need to do more efficiently and effectively? How can I support the primary authority in ensuring the business is regulated effectively?

6. PRIMARY AUTHORITY REGISTER A secure database holding details of all nominated partnerships Can be accessed only by registered users Available to: local authority officers regulating businesses national regulators businesses in direct partnerships New users can be set up by any officer registered as an ‘Administrator’ Operated by BRDO

7. WHAT IS PRIMARY AUTHORITY?

8. STATUTORY BASIS OF THE SCHEME A statutory scheme established by the Regulatory Enforcement and Sanctions Act 2008 (‘RES Act’) The scheme provides for a partnership between a business and a single local authority - its ‘primary authority’, in a specified area of regulation Partnerships are formed through nomination by the Secretary of State, following consultation with relevant national regulators A primary authority is entitled to recover its costs for providing primary authority services The Act creates a number of statutory duties for ‘enforcing authorities’

9. KEY ASPECTS OF PRIMARY AUTHORITY About regulation by ‘local authorities’, in specified regulatory areas The primary authority provides advice and guidance which is assured through a statutory mechanism The primary authority can guide local checks on the business, for example by publishing an inspection plan The primary authority shares information and intelligence, guiding consistent and proportionate regulation A primary authority is entitled to recover its costs from a partner business

10. PRIMARY AUTHORITY SCOPE Regulatory scope is defined under section 4 and schedule 3 of the RES Act Recent extensions to: fire safety age restrictions in relation to alcohol, gambling and sunbed use; the Housing Health and Safety Rating System; Welsh regulations in relation to sunbeds, single use carrier bag charges and mobile home licensing List of Primary Authority Categories Devolution – limited scope in Scotland and Northern Ireland

11. BUSINESS ELIGIBILITY (1) A business regulated by more than one local authority Premises in multiple local authority areas eg. retail chains, hotel, restaurant and pub chains Products marketed or sold in multiple local authority areas eg. manufacturers, producers Now described in the statutory guidance as a ‘direct partnership’

12. DIRECT PARTNERSHIPS Enforcing Authority Enforcing Authority Business Enforcing Authority Nominated partnership Primary Authority

13. BUSINESS ELIGIBILITY (2) A business that is part of a group of businesses collectively regulated by more than one local authority, where these businesses ‘share an approach to compliance’: Members of a trade association that provides regulatory guidance on which the businesses rely; Franchisees following compliance controls specified by the franchisor; A group of related companies following the same compliance controls. Described in the statutory guidance as a ‘co-ordinated partnership’

14. CO-ORDINATED PARTNERSHIPS Business 1 Nominated partnerships Business 2 Shared approach to compliance Primary Authority Co-ordinator Business 3 Business 4

15. FEATURES OF PRIMARY AUTHORITY The scheme encourages a flow of information, and the use of that information to drive improvements in compliance to target enforcement resources where they are most needed to inform consistent and proportionate responses to non-compliance The primary authority has three statutory ‘tools’ it can use: An inspection plan Primary Authority Advice to the business Primary Authority Advice to Local Authorities Primary Authority Advice is underpinned by the statutory requirement for notifications of proposed enforcement action

16. INSPECTION PLANS (1) A primary authority is able to produce an inspection plan to guide enforcing authorities to enable the primary authority to build a detailed picture of where the business is getting it right and where there are problems Can address programmed, planned or proactive interventions Can’t make requirements in respect of reactive interventions in relation to matters of specific concern about the business

17. INSPECTION PLAN PROCESS Developed by the primary authority, in consultation with the business and any relevant national regulator(s) Must meet the requirements of the statutory guidance Takes effect only when it is consented to by the Secretary of State and published via the Primary Authority Register

18. NATURE OF INSPECTION PLANS Setting out requirements that enforcing authorities must follow National inspection strategy co-ordinated by the primary authority Activities not to be undertaken locally Policies/ procedures not to be reviewed Targeting local inspection activity Providing information to assist enforcing authorities Gathering feedback

19. INSPECTION PLANS – STATUTORY DUTIES An enforcing authority must follow any requirements of a published inspection plan when: planning proactive work; and carrying out proactive interventions The enforcing authority can request agreement from the primary authority to an alternative approach The request should be submitted via the secure area of the Primary Authority Register, setting out the alternative approach and the reasons for it Where an inspection plan requires feedback, this must be provided

20. PRIMARY AUTHORITY ADVICE Primary Authority Advice can be issued by the primary authority to: a business ie. advice on compliance to local authorities ie. advice on how to exercise their regulatory function in relation to the business Primary Authority Advice is issued directly to the business, in the case of a ‘direct partnership’ via the co-ordinator, in the case of ‘co-ordinated partnerships’

21. PRIMARY AUTHORITY ADVICE Primary Authority Advice to a business may: address questions of interpretation or applicability of the law address the suitability of a business’ control systems eg. procedures that set out the precautions that a business will take to avoid breaches Primary Authority Advice is described as providing ‘assurance’ to the business because a primary authority is able to direct against enforcement action proposed by the enforcing authority that would be inconsistent with the advice

22. THE NOTIFICATION PROCESS (1) The legislation requires enforcing authorities to notify all enforcement action to the primary authority. This is done via the secure area of the Primary Authority Register Notification is usually required prior to taking the action In limited, specified circumstances notification may be retrospective eg. Emergency prohibition notices (food hygiene) Emergency remedial action notices and emergency prohibition orders (housing) Abatement notices (environmental protection) Action that is urgently require to avoid a significant risk of harm...

23. THE NOTIFICATION PROCESS (2) Notification of proposed action provides the primary authority with an opportunity to consider the enforcement action, and to direct against it where it is inconsistent with Primary Authority Advice given Where the primary authority doesn’t direct against the proposed enforcement action, the enforcing authority, if it wishes to proceed, must first notify the business via the secure area of the Primary Authority Register

24. STATUTORY DETERMINATION PROCESS Only applies once proposed enforcement action is notified Referrals to determination can only be made with consent from the Secretary of State Referral is a measure of last resort where there is disagreement as to whether Primary Authority Advice: was ‘correct’ was ‘properly given’ is ‘inconsistent’ with proposed enforcement action Application to Secretary of State may be made by any of the 3 parties, in specified circumstances

25. HOW IS PRIMARY AUTHORITY WORKING IN PRACTICE? UPDATE (as at September 2014) Over 1900 businesses in partnerships 136 local authorities and fire and rescue authorities providing partnerships A variety of business sizes, from micro businesses to multi-national manufacturers and retailers A wide range of business types and sectors

26. EXAMPLES OF GOOD PRACTICE Helping businesses to comply and grow Providing assurance Reducing compliance costs Reducing ‘gold plating’ Using feedback from enforcing authorities Sharing specialist knowledge

27. KEY MESSAGES TO TAKE AWAY Primary Authority is there to help local regulators to do their job Primary Authority is statutory – you, as an officer of the enforcing authority, must meet the requirements of the scheme when dealing with businesses that have a primary authority The number of businesses that are participating in the scheme is growing fast in a wider range of sectors – they will be in your area The Primary Authority Register holds all of the information you need, so use it – if you aren’t registered yet then make sure you do register

28. FURTHER INFORMATION BRDO operates the scheme and provides information and training Website: www.primaryauthorityregister.info Email: pa@brdo.bis.gsi.gov.uk Tel: 0121 345 1201 Resources for enforcing authorities: https://primaryauthorityregister.info/par/index.php/regulator-support/enforcing-authorities Follow@BRDOregulation on Twitter or our LinkedIn groups: Better Regulation and Primary Authority Network