Chapter 2
Guidance for future pecuniary penalty regimes

Cabinet endorsement

2.9Adherence to the Guidelines in Appendix A is likely to be assisted by some form of additional authoritative endorsement. One option could be for Cabinet to endorse those Guidelines. This could be achieved by Cabinet or the Cabinet Office issuing a direction that requires that:

(a) submissions to Cabinet with proposals to establish or amend pecuniary penalty regimes note their compliance with the Guidelines; and
(b) submissions justify any departure from the Guidelines.

2.10This direction could be by way of Cabinet Office Circular. The Cabinet Office issues circulars on matters of general interest to ministers and departments. Cabinet Office circulars complement the Cabinet Manual and CabGuide, providing detailed guidance on central government processes. Circulars are incorporated into the Cabinet Manual or the CabGuide when the publications are updated.

2.11An example is the Cabinet Office circular on Disclosure Requirements for Government Legislation.20 It is directed at all ministers, chief executives, the Chief Parliamentary Counsel, Clerk of the House of Representatives, all senior private secretaries, all private secretaries and all officials involved in the preparation of legislation. The circular explains and brings squarely to the attention of all recipients Cabinet’s expectations about disclosures about proposed legislation.

2.12Such an endorsement would help to ensure our Guidelines are given due weight.

2.13The Cabinet Manual already requires that the Ministry of Justice should be consulted on any proposal for pecuniary penalties. Paragraph [7.31] of the Manual states:21

The Ministry of Justice must also be consulted on all proposals to create new criminal offences or penalties or alter existing ones, to ensure that such provisions are consistent and appropriate.

2.14The Ministry of Justice vets new criminal offences with the aim of increasing consistency across the statute book, and to ensure important matters (such as requirements as to intention) are given careful consideration. Our understanding is that it is not standard practice for the Ministry of Justice to be consulted on pecuniary penalties, even though they raise many of the same issues. We recommend that there should be a clear expectation that policy proposals for new pecuniary penalties, or to amend existing ones, should be consulted upon with the Ministry of Justice. In recommending this, we are conscious of the need to avoid the risk of duplicating work or adding unnecessarily to the Ministry’s workload. However, as the lead justice sector agency the Ministry plays a key role in having oversight of the way penalties are imposed in our justice system. A requirement for it to be consulted should reduce the risk of an ad hoc approach and help ensure that an appropriate balance between fairness and regulatory effectiveness is maintained. This is not, however, an invitation for other agencies to ask the Ministry of Justice to do their work for them. Responsibility for the policy development must of course remain with the originating agency.

2.15Proper adherence to this requirement would, we suggest, reduce the need for a Cabinet Office circular, so we make no recommendation on that point.

20Above n 19.
21Cabinet Office Cabinet Manual 2008 at [7.31].