Chapter 2
Guidance for future pecuniary penalty regimes

Disclosure requirements

2.16Disclosure statements are departmental documents that provide information about the development and content of legislation proposed by the Government. They are intended to assist the parliamentary and public scrutiny of a Bill. Departments are required to answer a range of questions about the policy behind and legislative content of a Bill. Reading the disclosure statement is intended to alert members of Parliament and others to significant or unusual features of legislation that are expected to be used with care. Disclosure is intended to reinforce these expectations and facilitate better scrutiny of legislation, in order to support the production of legislation that is robust and consistent with good legislative practice.

2.17Question 3.4 of a disclosure statement asks:

Does this Bill create, amend, or remove:

(a) offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

2.18In the event that the answer to Question 3.4 is yes, subsidiary Question 3.4.1 asks “Was the Ministry of Justice consulted about these provisions?” In addition, Question 4.4 asks:

Does this Bill:

(a) create or amend a strict or absolute liability offence?
(b) reverse or modify the usual burden of proof for offences, including for civil liability under a civil pecuniary penalty regime?

2.19We have considered whether an additional question could be added that asks:

Were the Guidelines in Appendix A of the Law Commission’s Pecuniary Penalties Report complied with?

If not, describe the departures from the Guidelines and explain why they are necessary.

2.20On balance, we are persuaded that the existing questions referring to pecuniary penalties provide adequate scope for disclosure to be made about their use in a statute. This Report and our Guidelines set out the appropriate design for pecuniary penalty provisions. We describe, for example, what the “usual burden of proof” for pecuniary penalties should be. We expect our Report and Guidelines to form the basis for alerting policymakers to aspects of their draft legislative proposals that should be disclosed. For that reason, we make no recommendation on this point.