Contents

Recommendations

R1 The Ministry of Justice should be consulted on all proposals for pecuniary penalties at the policy development stage, in the same manner as for criminal offences, as directed by Cabinet and paragraph 7.31 of the Cabinet Manual.

R2 The Legislation Advisory Committee should draft a section of its Guidelines on Process and Content of Legislation on best legislative practice for pecuniary penalty regimes. The section should refer to and build on the Guidelines in Appendix A of this Report.

R3 The Parliamentary Counsel Office should draft model provisions for common pecuniary penalty provisions.

R4 When existing pecuniary penalty statutes come up for review their pecuniary penalty provisions should be re-evaluated in light of the Guidelines in Appendix A of this report.

R5 The Evidence Act 2006 should be amended:
(a) To provide for a privilege against self-exposure to a pecuniary penalty. The scope of the privilege should be the same as the scope of the privilege against self-incrimination.
(b) To make it clear that an enactment can remove the privilege either expressly or by necessary implication.
(c) To provide that defendants in pecuniary penalty proceedings can, when giving evidence in court, refuse to answer questions on the grounds of the privilege against self-exposure to a pecuniary penalty.

R6 If the limitation or removal of the penalty privilege can be justified under any of the existing pecuniary penalty statutes, those statutes should be amended to give effect to that limitation at the same time that the Evidence Act 2006 is amended.

R7 The Government should instigate a review of how maximum criminal and pecuniary penalties should be set in legislation.

R8 Cabinet should consider supplementing the current requirements in Cabinet Office Circular CO (02) 4 (“Acts binding the Crown: procedures for cabinet decisions”) relating to the impact of legislative proposals on the criminal liability of the Crown, to require departmental analysis of the impact on the liability of the Crown of legislative proposals to introduce pecuniary penalty regimes.

R9 Enforcement agencies with the power to commence pecuniary penalty proceedings should develop and publish enforcement policies.