Guidance for future pecuniary penalty regimes
2.7A number of options could be used to achieve endorsement and implementation of our guidance. They are:
1. A Cabinet or Cabinet Office direction that any proposal for a new pecuniary penalty regime must follow the Guidelines set out in Appendix A of this Report; that departures from the Guidelines need to be justified; and that the Ministry of Justice should be consulted at the policy development stage on all proposals for pecuniary penalties.
2. The addition of a subsidiary question under Question 3.4 of Cabinet’s disclosure requirements for government legislation. A new Question 3.4.2 could ask whether the Guidelines set out in Appendix A of this Report were complied with and, if not, why any departures from the Guidelines are necessary.
3. Inclusion of guidance on the circumstances when pecuniary penalties should be considered for inclusion in legislation and on features of their design in the Legislation Advisory Committee’s (LAC) Guidelines on Process and Content of Legislation.
4. Model provisions drafted by the PCO for frequently used pecuniary penalty provisions.
5. Review of existing pecuniary statutes in light of our Guidelines.
6. A pecuniary penalty statute that provides for common features of their design.
2.8At this point in time, we recommend that options three, four and five should be implemented. We also recommend that the Ministry of Justice should be consulted on proposals for new or revised pecuniary penalty statutes. On balance we are not persuaded that arguments for a stand-alone statute are strong enough to justify new legislation now. However, we suggest that the remaining option be revisited in three to five years’ time. To assist, below we set out the arguments for and against a statute.