text:
Title and commencement
1
These Regulations may be cited as the Spirit Drinks Regulations 2008 and come into force on 16 th January 2009.
Revocations
2
The secondary legislation mentioned in Schedule 1 is revoked.
Interpretation
3
1
In these Regulations —
“authorised officer” means any person appointed by an enforcement authority under regulation 8 ;
“Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;
“enforcement authority” means an authority exercising a function conferred on it by regulation 7 ;
“food authority” —
in relation to England, means —
a county council;
a metropolitan district council;
a non-metropolitan district council for an area for which there is no county council;
a London borough council;
the Common Council of the City of London (in their capacity as a local authority); and
the Council of the Isles of Scilly;
in relation to Northern Ireland, means a district council;
in relation to Scotland, means a council constituted under section 2(1) of the Local Government etc. (Scotland) Act 1994 ; and
in relation to Wales, means a county council or a county borough council;
“officer” —
in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body; and
in relation to an unincorporated body, means any member of its governing body or a chief executive, manager or other similar officer of the body;
“penalty” means the amount specified in a penalty notice;
“penalty notice” means a notice offering the opportunity, by payment, in accordance with these Regulations, of a specified amount, to discharge any liability to be convicted of the penalty offence to which the notice relates;
“penalty offence” means an offence for which a penalty notice may be given under regulation 22 ;
“port health authority” means —
in relation to the London port health district (within the meaning given by section 7(1) of the Public Health (Control of Disease) Act 1984 ), the Common Council of the City of London; and
in relation to any port health district constituted by order under section 2(3) of that Act, the port health authority for that district;
“premises” includes any place, vehicle or trailer, shipping container (whether used for transporting cargo or for storage), stall or moveable structure, and ship or aircraft;
“registered Annex III geographical indication” means a geographical indication registered in Annex III to Regulation (EC) No 110/2008 ;
“Regulation (EC) No 110/2008 ” means Regulation (EC) No 110/2008 of the European Parliament and of the Council on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 , as amended from time to time;
“relevant court” means —
in relation to England, Northern Ireland and Wales, a magistrates’ court; and
in relation to Scotland, a sheriff; and
“spirit drink” has the meaning given in paragraph (1) of Article 2 of Regulation (EC) No 110/2008 as read with paragraphs (2) and (3) of that Article.
2
Other expressions used in these Regulations and Regulation (EC) No 110/2008 have their meaning in Regulation (EC) No 110/2008 .
3
Part 1 of Schedule 2 applies to the interpretation of Part 2 of that Schedule.
Compliance with Community provisions
4
1
A person is guilty of an offence if they contravene, or fail to comply with, any provision of Regulation (EC) No 110/2008 mentioned in column 1 of Part 2 of Schedule 2, as read with any provision mentioned in any corresponding entry in column 2 of that Part of that Schedule.
2
A person is guilty of an offence if they —
a
directly or indirectly make commercial use of a registered Annex III geographical indication in a way mentioned in Article 16(a) of Regulation (EC) No 110/2008 ;
b
misuse, imitate or evoke a registered Annex III geographical indication, even if the true origin of the product is indicated or the geographical indication is used in translation or accompanied by an expression such as “like”, “type”, “style”, “made”, “flavour” or any other similar term;
c
use any other false or misleading indication as to the provenance, origin, nature or essential qualities on the description, presentation or labelling of a product that is liable to convey a false impression that the product is a registered Annex III product; or
d
use any other practice that is liable to mislead the consumer into thinking that the product is a registered Annex III product.
3
But paragraphs (1) and (2) do not apply —
a
to the production of a spirit drink that is produced on or before 19 th May 2009 in accordance with the requirements of —
i
Council Regulation (EEC) No 1576/89 laying down general rules on the definition, description and presentation of spirit drinks; and
ii
Commission Regulation (EEC) No 1014/90 laying down detailed implementing rules on the definition, description and presentation of spirit drinks; or
b
to the marketing of a spirit drink produced in accordance with the requirements of Council Regulation (EEC) No 1576/89 and Commission Regulation (EEC) No 1014/90 on or before 19 th May 2009 and marketed in accordance with the requirements of those Regulations.
4
In this regulation “registered Annex III product” means a spirit drink for which a registered Annex III geographical indication may be used in accordance with Regulation (EC) No 110/2008 .
Verification under Article 22 of Regulation (EC) No 110/2008
5
1
The Commissioners are designated as the authority responsible for verifying that a relevant spirit drink that is to be placed on the market using a geographical indication registered in Annex III to Regulation (EC) No 110/2008 complies with the specifications in the technical file (if any) relating to that geographical indication before it is placed on the market.
2
A spirit drink is a relevant spirit drink if —
a
it is a spirit drink produced in the United Kingdom that uses a geographical indication registered in Annex III to Regulation (EC) No 110/2008 to identify the drink as originating in the territory of a country, region or locality in the United Kingdom; or
b
it is a whisky produced in Northern Ireland that uses the geographical indication “Irish Whiskey”, “Uisce Beatha Eireannach” or “Irish Whisky”.
Designation under Article 24 of Regulation (EC) No 110/2008
6
1
Each food authority is designated as the competent authority for the purpose of Article 24(1) of Regulation (EC) No 110/2008 for the control of spirit drinks in its area except to the extent that a port health authority is designated as the competent authority within any part of that area under paragraph (2) .
2
Each port health authority is designated as the competent authority for the purpose of Article 24(1) of Regulation (EC) No 110/2008 for the control of spirit drinks in its district for drinks being imported into or exported from the United Kingdom.
Enforcement
7
1
Each food authority must enforce the provisions of these Regulations within its area except to the extent that these Regulations fall to be enforced by a port health authority within its district.
2
Each port health authority must enforce the provisions of these Regulations in its district in respect of drinks being imported into or exported from the United Kingdom.
Appointment of officers
8
Each food authority and port health authority must appoint officers for the purposes of the enforcement of these Regulations.
Duty to give assistance and provide information
9
1
Each competent and enforcement authority must give such assistance and information to any other competent or enforcement authority as it may reasonably require for the purpose of its duties under these Regulations.
2
The Commissioners may disclose any information in their possession to a competent or enforcement authority for the purposes of these Regulations.
3
No person, including a servant of the Crown, may disclose any information received from the Commissioners under paragraph (2) if —
a
the information relates to a person whose identity —
i
is specified in the disclosure; or
ii
can be deduced from the disclosure;
b
the disclosure is for a purpose other than the purposes specified in paragraph (2) ; and
c
the Commissioners have not given their prior consent to the disclosure.
4
Any person who contravenes paragraph (3) is guilty of an offence.
Powers of entry
10
1
An authorised officer may enter any premises at any reasonable hour for the purpose of ensuring that the provisions of these Regulations are being complied with.
2
The authorised officer may take with them —
a
such other persons as they consider necessary; and
b
any representative of the European Commission.
3
An authorised officer must not exercise the powers under paragraph (1) or (2) except on the production, if so required, of a duly authenticated document showing their authority.
4
Admission to any premises used only as a private dwellinghouse may not be demanded as of right unless 24 hours notice of the intended entry has been given to the occupier or the entry is in accordance with a warrant granted under this regulation.
5
If a justice of the peace, on sworn information in writing, is satisfied of the matters mentioned in paragraph (6) , they may sign a warrant permitting an authorised officer to enter any premises, if needs be by reasonable force.
6
The matters are that —
a
there are reasonable grounds for believing that Condition A or B is met; and
b
Condition C, D or E is met.
7
Condition A is that on the premises there are items or products of the type mentioned in regulation 11(1) (a) or documents or records of the type mentioned in regulation 11(1)(e) and that their inspection is likely to disclose evidence of a contravention of, or failure to comply with, these Regulations.
8
Condition B is that a contravention of, or failure to comply with, these Regulations has occurred, is occurring or is about to occur on those premises.
9
Condition C is that admission to the premises has been, or is likely to be, refused, and that the occupier has been informed (whether orally or in writing) that a warrant may be applied for.
10
Condition D is that an asking for admission to the premises has been, or is likely to be, refused, and informing the occupier that a warrant under this regulation may be applied for may defeat the object of the entry.
11
Condition E is that the premises are unoccupied or that the occupier is temporarily absent and it may defeat the object of the entry to await their return.
12
A warrant granted under paragraph (5) —
a
is valid for one month, beginning with the day on which it is granted; and
b
must be produced for inspection to the person (if there is one) who appears to the officer to be the occupier of the premises.
13
An authorised officer who enters any premises that are unoccupied or where the occupier is temporarily absent must leave the premises as effectively secured against unauthorised entry as when they found them.
14
An authorised officer may carry out an inspection at the request of another member State or the European Commission.
15
In this regulation, a reference to a justice of the peace —
a
in Scotland includes a reference to the sheriff; and
b
in Northern Ireland is a reference to a lay magistrate.
Powers of an authorised officer
11
1
An authorised officer (“O”) entering premises under regulation 10 may —
a
inspect the premises, and any still and any other plant, machinery or equipment on those premises, and any of the following items found on those premises —
i
any spirit drink partly or fully packaged ready for sale;
ii
any product purporting to be a spirit drink partly or fully packaged ready for sale;
iii
any other liquid that the officer has reasonable grounds for believing is a distillate or drink (including any vessel in which the liquid is found);
iv
any raw material or ingredients that may be used to produce any distillate or drink, including colourings and flavourings;
v
any mash;
vi
any empty container;
vii
any label;
viii
any packaging;
ix
any advertising or promotional materials relating to a drink, or other documentation relating to a distillate or to a drink;
b
search the premises;
c
take samples;
d
carry out any inquiries, examinations or tests;
e
have access to, and inspect and copy, any documents or records (in whatever form they are held) relating to matters covered by these Regulations, and remove them to enable them to be copied;
f
have access to, and inspect and check the data on, and operation of, any computer, and any associated electronic storage device or apparatus (“computer equipment”) that is, or has been in use in connection with, the documents or records mentioned in sub-paragraph (e) , including data relating to deleted files and activity logs; and for this purpose O may require any person having charge of, or otherwise concerned with the operation of, the computer equipment to afford to O such assistance (including the provision of passwords) as O may reasonably require, and, during the course of the checks, O may recover data held on the computer equipment; and
g
where a document or record mentioned in sub-paragraph (e) is kept by means of a computer, require the record to be produced in a form in which it may be taken away.
2
O may direct a person that the following must be left undisturbed for as long as is reasonably necessary for the purpose of any examination or investigation —
a
any one or more of the items mentioned in paragraph (1) (a) (i) to (ix) ; and
b
any premises on or in which any of those items are found.
3
A person is guilty of an offence if they fail to comply with a direction given to them by O under paragraph (2) .
4
O may seize and detain any item of the type mentioned in paragraph (1) (a) (i) to (ix) that O has reason to believe may be required as evidence in proceedings under these Regulations.
5
O may seize as liable to destruction any product of the type mentioned in paragraph (1) (a) (i) or (ii) —
a
that O reasonably believes contravenes any provision of Regulation (EC) No 110/2008 mentioned in column 1 of Part 2 of Schedule 2, as read with any provision mentioned in any corresponding entry in column 2 of that Part of that Schedule; or
b
in respect of which O reasonably believes that an offence has been committed under regulation 4(2) .
6
O may seize any computer equipment for the purpose of copying documents or records of the type mentioned in paragraph (1) (e) , and for checking the data on, and operation of, any computer equipment that is, or has been, in use in connection with, those documents or records (and in doing so may recover data), provided it is returned as soon as practicable and, in any event, within 28 days, beginning with the day on which the equipment is seized.
7
If O is not able to remove an item, product or computer equipment seized under paragraph (4) , (5) or (6) immediately, they may —
a
mark it in any way that they see fit; and
b
give the person appearing to them to be in charge of the item, product or computer equipment a notice —
i
identifying it; and
ii
prohibiting the removal of the item, product or computer equipment from the premises on which it was found until it is collected by an authorised officer.
8
Any person, other than an authorised officer, who removes any item or product identified under paragraph (7) from the premises on which it was found is guilty of an offence.
9
O must not exercise the powers under this regulation except on the production, if so required, of a duly authenticated document showing their authority.
Procedure on seizure
12
1
An authorised officer (“O”) must follow the procedures set out in this regulation if they seize anything under regulation 11 (4) , (5) or (6) .
2
O must give to the person appearing to O to be in charge of the premises from which the seized item, product or computer equipment is seized (“the premises”) a notice that must state —
a
what O has seized;
b
when O seized it;
c
the grounds for the seizure of the item, product or equipment; and
d
the address to which, and the period during which, a claim may be made for the return of the item, product or equipment.
3
But where the premises are unoccupied, or no-one appears to O to be in charge of the premises, O must attach a notice to a conspicuous part of the premises, or to some conspicuous object on the premises, containing the information mentioned in sub-paragraphs (a) to (d) of paragraph (2) .
4
A person having a proprietary interest in the seized item, product or computer equipment (including a creditor who has a debt secured on the item, product or computer equipment) may notify the enforcement authority of any claim that the seized item, product or equipment was not liable to seizure, setting out the grounds for the claim in full.
5
The claim must be made within 28 days of the seizure, beginning on the day on which the seized item, product or computer equipment is seized, to the address specified in the seizure notice.
6
If a notification of a claim is not received within 28 days in respect of an item seized under regulation 11(4) , the enforcement authority may retain the seized item for as long as necessary while it is being held for the purpose of any criminal investigation or proceedings or for use as evidence at a trial.
7
If a notification of a claim is received within 28 days in respect of an item seized under regulation 11(4) , the enforcement authority must —
a
return the seized item within 28 days, beginning with the day on which the claim is received; or
b
retain the seized item or product for as long as necessary while it is being held for the purpose of any criminal investigation or proceedings, or for use as evidence at a trial, but it must notify the claimant that the seized item is being retained, and of the reason why it is being retained within 28 days, beginning with the day on which the claim is received.
8
If a notification of a claim is not received within 28 days in respect of a product seized under regulation 11(5) , the enforcement authority may —
a
if a decision is taken by the enforcement authority not to destroy the seized product but to retain it for the purpose of any criminal investigation or proceedings, or for use as evidence at a trial, retain the seized product for as long as necessary for one of those purposes, but the enforcement authority must —
i
notify the relevant person that the seized product is being retained, and of the reason why it is being retained, within 28 days of the expiry of the claim period, beginning with the day after the claim period expires; or
ii
where the enforcement authority does not know who the relevant person is, and this cannot be ascertained after reasonable enquiries have been made by the enforcement authority, attach a notice to a conspicuous part of the premises, or a conspicuous object on those premises, within 28 days of the expiry of the claim period, beginning with the day after the claim period expires, stating that the seized product is being retained, and the reason why it is being retained; or
b
destroy the seized product within 28 days, beginning with the day after the 28 day claim period expires, if it reasonably believes that the product contravenes these Regulations, and —
i
notify the relevant person that the seized product has been destroyed within 10 days of its destruction, beginning with the day on which the product is destroyed (or the last day of destruction where the destruction of the product takes place on more than one day); or
ii
where the enforcement authority does not know who the relevant person is, and this cannot be ascertained after reasonable enquiries have been made by the enforcement authority, attach a notice to a conspicuous part of the premises, or to a conspicuous object on those premises, within 10 days of the destruction of the product, beginning with the day on which the product is destroyed (or the last day of destruction where the destruction of the product takes place on more than one day) stating that the seized product has been destroyed.
9
In paragraph (8) the “relevant person” means —
a
if the enforcement authority knows the identity of a person with a proprietary interest in the seized product, that person or (where more they know the identity of more than one person with a proprietary interest in the seized property) each of those persons; or
b
if the enforcement authority does not know the identity of a person with a proprietary interest in the seized product, the person appearing to them to be in charge of the premises.
10
In the case of any product destroyed under paragraph (8) (b) , the enforcement authority may recover the following costs as a debt from any person who had a proprietary interest in the product immediately before its destruction (apart from a creditor who has a debt secured on the product) —
a
the costs of the removal and transport of the product from the premises to the place at which it is stored;
b
the costs of the storage of the product for up to 28 days;
c
any costs for the removal and transport of the product if it is moved from one place of storage to another place of storage;
d
the costs of the transport of the product from the place of storage to the place of destruction; and
e
the costs of the destruction of the product.
11
If a notification of a claim is received within 28 days in respect of an item seized under regulation 11(5) , the enforcement authority must —
a
return the seized product within 28 days, beginning with the day on which the claim is received;
b
if a decision is taken by the enforcement authority not to destroy the seized product but to retain it for the purpose of any criminal investigation or proceedings or for use as evidence at a trial, retain the product for as long as necessary for one of those purposes but the enforcement authority must notify the claimant that the seized product is being retained, and of the reason why it is being retained, within 28 days of the claim, beginning with the day on which the claim is received; or
c
within 28 days of the claim, beginning with the day on which the claim is received, take proceedings (“paragraph (11) (c) proceedings”) in a relevant court for an order giving them authority to destroy the product.
12
In paragraph (11) (c) proceedings the relevant court may —
a
authorise the enforcement authority to destroy the seized product;
b
authorise the enforcement authority to retain the product for the purpose of any criminal investigation or proceedings, or for use as evidence at a trial, for as long as necessary for one of those purposes; or
c
require the enforcement authority to return the product to the claimant and impose a deadline by which this must be done.
13
If, in paragraph (11) (c) proceedings, the relevant court authorises the enforcement authority to destroy the seized product, it may also make an order requiring the claimant (but not a claimant who is a creditor with a debt secured on the product) to pay such of the following costs as the court may specify —
a
the costs of the removal and transport of the product from the premises to the place at which it is stored;
b
the costs of the storage of the product for up to 28 days;
c
any costs for the removal and transport of the product if it is moved from one place of storage to another place of storage;
d
the costs of the transport of the product from the place of storage to the place of destruction; and
e
the costs of the destruction of the product.
14
If a notification of a claim is received within 28 days in the case of any computer equipment seized under regulation 11(6) , the enforcement authority must —
a
return the seized computer equipment within 7 days of the claim, beginning with the day on which the claim is received, or, if shorter, within the remainder of the maximum 28 day period provided for in regulation 11(6) ; or
b
take proceedings in a relevant court within 7 days of the claim, beginning with the day on which the claim is received unless there are 7 days or less remaining before the expiry of the maximum 28 day period provided for in regulation 11(6) , for an order authorising the enforcement authority to retain the seized computer equipment in accordance with the requirements laid down in regulation 11(6) .
15
If, in the case of any computer equipment seized under regulation 11(6) , the relevant court authorises the enforcement authority to retain the seized computer equipment, they may impose conditions as to the basis on which the equipment may continue to be retained, including the imposition of a deadline by which the equipment must be returned that is shorter than the 28 day maximum period provided for in regulation 11(6) .
16
The procedure in a magistrates’ court under this regulation is by way of complaint, and —
a
in England and Wales, the Magistrates’ Courts Act 1980 applies to the proceedings; and
b
in Northern Ireland, the Magistrates’ Courts (Northern Ireland) Order 1981 applies to the proceedings.
17
The procedure before the sheriff under this regulation is by way of summary application.
Improvement notices
13
1
If an authorised officer (“O”) has reasonable grounds for believing that any person (“P”) is failing to comply with these Regulations O may give P a notice (“an improvement notice”) that —
a
states O’s grounds for believing this;
b
specifies the matter that constitutes the failure to comply with these Regulations;
c
specifies what P must stop doing, or the measures that, in O’s opinion, P must take in order to comply with these Regulations;
d
require P to stop doing the action specified in the notice, or take the measures specified in the notice, or measures at least equivalent to them, within the period (being not less than 14 days) specified in the notice;
e
informs P of the right of appeal to a relevant court conferred by regulation 14 ; and
f
informs P of the period within which such an appeal may be brought.
2
A person is guilty of an offence if they contravene or fail to comply with an improvement notice.
Appeals against improvement notices
14
1
Any person who is aggrieved about an improvement notice may appeal against that notice to the relevant court.
2
The procedure on an appeal to a magistrates’ court under paragraph (1) is by way of complaint, and —
a
in England and Wales, the Magistrates’ Courts Act 1980 applies to the proceedings; and
b
in Northern Ireland, the Magistrates’ Courts (Northern Ireland) Order 1981 applies to the proceedings.
3
An appeal to the sheriff under paragraph (1) is by summary application.
4
The period within which an appeal may be brought is 28 days, beginning with the day on which the improvement notice is given.
5
The relevant court may suspend an improvement notice pending an appeal.
Powers of a relevant court on appeal
15
On an appeal against an improvement notice the relevant court may either cancel the notice or confirm it, with or without modification.
Publication of notices
16
1
An enforcement authority must publicise the destruction of any product seized under regulation 11(5) in such manner as it sees fit.
2
But an enforcement authority must not publicise the destruction of any item seized under regulation 11(5) where it considers that it would be inappropriate to do so.
3
An enforcement authority must publicise any improvement notice given by it under regulation 13 in such manner as it sees fit.
4
But an enforcement authority must not publicise an improvement notice given by it under regulation 13 —
a
until the time for appealing against the imposition of the improvement notice has passed;
b
during the period that any appeal against the imposition of the improvement notice is ongoing; or
c
in any other case where the enforcement authority considers that it would be inappropriate to do so.
Obstruction
17
A person (“P”) is guilty of an offence if they —
a
obstruct any person (“O”) acting in the execution of these Regulations;
b
fail to give to O any assistance or information that O may reasonably require of P for the performance of O’s functions under these Regulations;
c
furnish any false or misleading information to O; or
d
fail to produce a record when required to do so by O.
Criminal offences: punishment
18
1
A person guilty of any offence under regulation 4(1) or (2) , 11 (3) or (8) , 13(2) or 17 , is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum; and
b
on conviction on indictment, to a fine.
2
A person guilty of an offence under regulation 9(4) is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum, to imprisonment for a term not exceeding three months, or to both; and
b
on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine, or to both.
Offences by bodies corporate etc.
19
1
Where an offence committed by a body corporate (other than a limited liability partnership or a Scottish partnership) is proved to have been committed with the consent or connivance of, or is attributable to the neglect of, an officer of the body corporate, or a person purporting to act in such a capacity, that officer or person (as well as the body corporate) is guilty of the offence and is liable to be proceeded against and punished accordingly.
2
Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member, and a person purporting to act in such a capacity, in connection with the member’s functions of management as it applies to an officer of a body corporate.
3
Where an offence committed by an unincorporated body (other than an unincorporated partnership) is proved to have been committed with the consent or connivance of, or is attributable to the neglect on the part of, any officer of that body or a person purporting to act in such a capacity, that officer or person (as well as the unincorporated body) is guilty of the offence and liable to be proceeded against and punished accordingly.
4
Where an offence committed by a partnership (including a limited liability partnership and a Scottish partnership) is proved to have been committed with the consent or connivance of, or is attributable to the neglect of a partner, or a person purporting to act in such a capacity, the partner or person (as well as the partnership) is guilty of the offence and liable to be proceeded against and punished accordingly.
5
In this regulation “offence” means an offence under these Regulations.
Default of third person
20
Where the commission by one person (“A”) of an offence under these Regulations is due to the act or default of another (“B”), B also commits the offence, and B may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against A.
Defences
21
1
It is a defence for a person charged with an offence under these Regulations to prove that they took all reasonable steps and exercised all due diligence to avoid committing the offence.
2
A may not rely on a defence that involves an allegation that the commission of the offence was due to the act or default of B unless —
a
at least seven clear days before the hearing A has given to the prosecutor a notice in writing giving such information identifying or assisting in the identification of B as was then in their possession; or
b
the court grants them leave.
3
In proceedings for an offence under regulation 4(1) as read with the provisions of Regulation 110/2008 mentioned in Part 2 of Schedule 2 insofar as they apply to the advertisement of spirit drinks, or an offence under regulation 4(2) committed by the way in which a spirit drink is advertised, it is a defence for the person charged with the offence to prove that —
a
at the time of the alleged offence they were a person whose business it was to publish or arrange for the publication of advertisements;
b
they received the advertisement for publication in the ordinary course of business; and
c
they did not know, and had no reason to suspect, that publication of the advertisement would constitute an offence under these Regulations.
4
It is a defence for a person charged with an offence under regulation 9(4) to prove that they reasonably believed —
a
that it was lawful to disclose the information disclosed; or
b
that the information disclosed had already and lawfully been made available to the public.
Giving of penalty notice for penalty offence
22
An enforcement authority may give a penalty notice to a person (“P”) where the authority has reason to believe that P has —
a
committed an offence under regulation 4(1) by contravening or failing to comply with a provision of Regulation (EC) No 110/2008 mentioned in Schedule 3; or
b
committed an offence under regulation 4(2) .
Contents of penalty notice
23
A penalty notice given by an enforcement authority must —
a
give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information about the offence;
b
state the amount of the penalty;
c
state the period during which, by virtue of regulation 25 , proceedings will not be taken for the offence;
d
state the person to whom, and the address at which, the penalty may be paid, and the ways in which the penalty may be paid; and
e
state that payment must not be made in cash.
Amount of penalty
24
1
The amount of the penalty must be determined by the enforcement authority and must not be less than £1,000 or more than £4,000.
2
The factors to be taken into account by the enforcement authority in determining the amount of the penalty may include the factors mentioned in Schedule 4.
Restriction on proceedings for penalty offence
25
1
Where a person is given a penalty notice —
a
no proceedings may be brought against them for the penalty offence to which that notice relates before the end of the period of 28 days, beginning with the day on which they were given the notice; and
b
that person may not be convicted of the offence if the penalty is paid in accordance with regulation 26 before the end of that period.
2
Paragraph (1) does not apply if the penalty notice is withdrawn in accordance with regulation 29 .
Payment of penalty
26
1
Payment of any penalty must be made to the person specified in the penalty notice by sending it by post or by such method as may be specified in the notice.
2
Payment of any penalty may not be made in cash.
Certificate of payment or non-payment of a penalty
27
In any proceedings a certificate purporting to be signed by or on behalf of the enforcement authority, stating that payment in respect of a penalty notice was or was not received on or before a date specified in the certificate is evidence of the facts stated.
Penalty receipts
28
Penalties paid to an enforcement authority must be paid into the Consolidated Fund.
Withdrawal of penalty notice
29
1
A penalty notice may be withdrawn by an enforcement authority which has reason to believe that it ought not to have been given (whether to the person named in the penalty notice or otherwise).
2
A penalty notice may be withdrawn by the enforcement authority giving written notice to the person named in the penalty notice before or after payment of the penalty.
3
Where an enforcement authority withdraws a penalty notice it must repay any penalty paid under the penalty notice to the person named in the penalty notice within 28 days, beginning with the day on which the notice of the withdrawal of the penalty notice is given.
Giving of notices
30
1
Any notice required to be given under these Regulations to any person may be given to them by —
a
delivering it to them;
b
leaving it at their proper address; or
c
sending it to them by post at that address.
2
The notice may be given to a body corporate by being given to an officer of that body.
3
The notice may be given to a limited liability partnership, Scottish partnership or unincorporated partnership by being given to a partner or a person having control or management of the partnership business.
4
The notice may be given to any other unincorporated body by being given to an officer of that body.
5
For the purposes of this regulation and section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this regulation, the proper address of any person to whom a notice is to be given is —
a
in the case of a body corporate, the address of the registered or principal office of the body;
b
in the case of a limited liability partnership or a Scottish partnership, the address of the registered or principal office of the partnership;
c
in the case of an unincorporated partnership or any other unincorporated body, the address of the principal office of the partnership or body;
d
in the case of a person to whom the notice is given in reliance of any of paragraph (2) , (3) or (4) , the proper address of the body corporate, partnership or other unincorporated body in question; and
e
in any other case, the last known address of the person in question.
6
For the purposes of paragraph (5) the references to “the principal office” in relation to a company which is registered outside the United Kingdom, a partnership which is carrying on business outside the United Kingdom and any other unincorporated body which has its principal office outside the United Kingdom, include a reference, in each case, to their principal office within the United Kingdom (if any).
7
Paragraph (8) applies if a person to be given a notice under these Regulations has specified an address (“the specified address”) within the United Kingdom other than their proper address (as decided under paragraph (5) ) as the one at which they, or someone on their behalf, will accept documents of the same description as a notice given under these Regulations.
8
The specified address is also to be treated for the purposes of this regulation and section 7 of the Interpretation Act 1978 in its application to this regulation as the person’s proper address.
9
In relation to Wales, any notice required to be given under these Regulations to any person must be in English and Welsh.
10
In this regulation “body corporate” does not include a limited liability partnership or a Scottish partnership.
Jane Kennedy
Minister of State
Department for Environment, Food and Rural Affairs
15th December 2008


type: legislation

jurisdiction: UK

text:
Citation, commencement and application
1
1
This Order may be cited as the Town and Country Planning (Mayor of London) Order 2008 and shall come into force on 6th April 2008.
2
Subject to paragraph (3), this Order applies in relation to an application for planning permission, or for planning permission without complying with conditions subject to which a previous planning permission was granted (“a section 73 application”) —
a
which is a PSI application; and
b
which is received by a local planning authority for a London borough on or after 6th April 2008.
3
This Order does not apply to a section 73 application where the previous planning permission was granted on an application received by the local planning authority before 6 April 2008.
Interpretation
2
1
In this Order —
“the 1990 Act ” means the Town and Country Planning Act 1990;
“the Use Classes Order ” means the Town and Country Planning (Use Classes) Order 1987 ;
“the GDPO ” means the Town and Country Planning (General Development Procedure) Order 1995 ;
“a PSI application” means an application of potential strategic importance as defined in the Schedule; and
“ Mayor ” means the Mayor of London.
2
For the purposes of this Order the date of receipt of a PSI application shall be determined in accordance with article 20(3) (time periods for decision) of the GDPO.
Land excluded from the application of section 2A
3
Section 2A of the 1990 Act does not apply to a PSI application which relates to land that is in the following areas —
a
the planning functions area referred to in article 3(1) of the London Thames Gateway Development Corporation (Planning Functions) Order 2005 ; or
b
the development area referred to in article 3(1) of the Olympic Delivery Authority (Planning Functions) Order 2006 .
Notification to the Mayor of applications of potential strategic importance
4
1
The local planning authority must, as soon as reasonably practicable after receiving a PSI application, send to the Mayor at his principal office —
a
a copy of the application;
b
a copy of any connected application; and
c
a copy of any plans, drawings or other documents submitted by the applicant in support of the PSI application and any connected application.
2
The Mayor must, within six weeks of receiving the documents referred to in paragraph (1), provide the local planning authority with a statement setting out —
a
whether he considers that the PSI application complies with the spatial development strategy; and
b
his reasons for taking that view.
Determination of PSI applications
5
1
Subject to paragraph (2), the local planning authority must not determine a PSI application unless —
a
the authority has sent to the Mayor —
i
a copy of any representations made to the authority in respect of the application;
ii
a copy of any report on the application prepared by an officer of the authority;
iii
a statement of the decision the authority proposes to make; and
iv
where the authority proposes to grant permission, a statement of any conditions it proposes to impose and a draft of any planning obligation it proposes to enter into and details of any proposed planning contribution; and
b
either —
i
a period of 14 days has elapsed beginning with the date notified in writing by the Mayor to the authority as the date on which he received the documents referred to in article 5(1)(a); or
ii
the Mayor has notified the local planning authority in writing that he is content for the authority to determine the application in accordance with the statement referred to in sub-paragraph (a)(iii) and, if applicable, the matters referred to in sub-paragraph (a)(iv).
2
Paragraph (1) shall not apply with respect to a particular PSI application where the Mayor has notified the local planning authority in writing that he does not wish to be consulted pursuant to this article in relation to that application.
3
The local planning authority must, at the time that it gives notice to an applicant of a determination on an application, send to the Mayor a copy of that notice.
Mayor’s power to direct refusal of a PSI application
6
1
If the Mayor considers that to grant permission on a PSI application would be —
a
contrary to the spatial development strategy or prejudicial to its implementation; or
b
otherwise contrary to good strategic planning in Greater London,
he may, within the period specified in article 5(1)(b)(i), direct the local planning authority to refuse the application.
2
Before giving a direction under paragraph (1) on the ground specified in sub-paragraph (b), the Mayor must have regard to the following matters so far as material to the application —
a
the principal purposes of the Greater London Authority;
b
the effect that permission would have on —
i
the health of persons in Greater London;
ii
the achievement of sustainable development in the United Kingdom;
c
national policies and such international obligations as the Secretary of State may notify to the Mayor for the purposes of section 41(5)(a) of the Greater London Authority Act 1999 (matters to which the Mayor is to have regard in preparing or revising his strategies);
d
the spatial development strategy and any guidance issued by the Secretary of State so far as it relates to Greater London;
e
any regional spatial strategy relating to areas which adjoin Greater London;
f
the desirability of promoting and encouraging the use of the River Thames safely, in particular for the provision of passenger transport services and for the transportation of freight;
g
any statement under section 44A (National Waste Strategy: England and Wales) of the Environmental Protection Act 1990 of the Secretary of State’s policies in relation to the recovery and disposal of waste in England;
h
the objectives of the prevention and limitation of the consequences of major accidents; and
i
the need —
i
in the long term, to maintain appropriate distances between establishments and residential areas, areas of public use and areas of particular natural sensitivity or interest; and
ii
in the case of existing establishments, for additional technical measures in accordance with Article 5 of Council Directive 96/82/ EC on the control of major-accident hazards involving dangerous substances so as not to increase the risks to people.
3
Expressions appearing both in paragraph (2) and in Council Directive 96/82/EC have the same meaning in that paragraph as in that Directive.
4
Any direction given under paragraph (1) must set out the Mayor’s reasons for that direction.
5
At any time before the local planning authority have determined the application the Mayor may by a further direction cancel a direction given under paragraph (1).
6
The Mayor must, at the time that he gives a direction to a local planning authority under paragraph (1) or (5), send a copy of it to the Secretary of State.
7
Subject to any direction given under paragraph (8), the local planning authority must as soon as reasonably practicable after receiving a direction under paragraph (1) —
a
refuse the application; and
b
include with the notice given in accordance with article 20(1) of the GDPO (time periods for decision) a copy of the direction given under paragraph (1).
8
The Secretary of State may give a direction prohibiting a local planning authority to which a direction is given under paragraph (1) from implementing that direction during such period as is specified in the Secretary of State’s direction.
9
The Secretary of State must, at the time that he gives a direction to a local planning authority under paragraph (8), send a copy of it to the Mayor.
10
A local planning authority must place on Part 2 of the register required to be kept by article 25 of the GDPO (register of applications) a copy of any direction it receives under this article within 14 days of receiving it.
11
For the purposes of paragraph (2), “regional spatial strategy” has the same meaning as in section 1 of the Planning and Compulsory Purchase Act 2004 .
Direction that the Mayor is to be the local planning authority
7
1
Subject to paragraphs (4) and (5), the Mayor may give to the local planning authority a direction under section 2A of the 1990 Act if he considers that —
a
the development or any of the issues raised by the development to which the PSI application relates is of such a nature or scale that it would have a significant impact on the implementation of the spatial development strategy;
b
the development or any of the issues raised by the development to which the application relates has significant effects that are likely to affect more than one London Borough; and
c
there are sound planning reasons for issuing a direction.
2
The direction must state that the Mayor is to act as the local planning authority for the purpose of —
a
determining the application; and
b
where relevant, determining any connected application.
3
In deciding whether to give a direction the Mayor must take account –
a
where the application relates to development which falls within Category 1A of the Schedule, of the extent to which the council of the London Borough in which the development is or is to be situated is achieving, and has achieved the applicable development plan targets for new housing, including affordable housing;
b
in relation to all applications, of the extent to which the council of the London Borough is achieving, and has achieved any other targets set out in the development plan which are relevant to the subject matter of the application.
4
Where an application for development which falls within Category 1A of the Schedule is referred to the Mayor, paragraph (1)(b) does not apply.
5
A direction must be given either —
a
within the period referred to in article 5(1)(b)(i); or
b
where paragraph (6) applies, within 14 days of receiving the applicant’s request .
6
This paragraph applies where —
a
the authority has failed to provide the statement referred to in article 5(1)(a)(iii) within the relevant period specified in article 20(2) of the GDPO; and
b
the applicant has requested the Mayor in writing to give a direction under section 2A of the 1990 Act.
7
In giving reasons for making a direction the Mayor must specify how the matters set out in paragraph (3) have affected his decision.
8
A local planning authority must place on Part 2 of the register required to be kept by article 25 of the GDPO (register of applications) a copy of any direction it receives under this article within 14 days of receiving it.
Provision of information where the Mayor has given a direction
8
Where the Mayor has given a direction under section 2A of the 1990 Act, the local planning authority must provide to the Mayor, as soon as reasonably practicable, any information relevant to the application and to any connected application which it has not already provided.
Access to representation hearings and documents
9
1
Subject to paragraphs (2) to (8), Part 5A of the Local Government Act 1972 (access to meetings and documents of certain authorities, committees and sub-committees) shall apply to–
a
a representation hearing as it applies to a meeting of a principal council, and
b
the Mayor in the conduct of a representation hearing as it applies to a principal council in the conduct of a meeting of that council.
2
Sections 100E, 100F, 100G (1) and (2) and 100J do not apply.
3
Section 100A (admission to meetings of principal councils) shall have effect–
a
as if subsection (4) were omitted;
b
if the Mayor excludes the public under subsection (2), as if subsections 5(a) and (b) apply to the Mayor;
c
as if, in subsection (6)(a), the number of days for public notice of the time and place of the hearing were seven clear days.
4
Section 100B (access to agenda and connected reports), shall have effect as if the number of days referred to in subsections (3) and (4)(a) for inspection of documents were seven clear days.
5
Section 100G (principal councils to publish additional information) shall have effect as if–
a
for the purposes of subsection (3) (summary of the rights to attend meetings and inspect documents), the reference to the offices of every principal council were a reference to the principal office of the Mayor; and
b
subsection (4) applied only in respect of the summary kept under subsection (3).
6
Section 100H(3) (acts which infringe copyright) shall have effect as if the Mayor were a principal council.
7
Section 100K(1) shall have effect, in relation to the Mayor’s conduct of representation hearings, only for the purpose of the interpretation of, the expressions “copy”; “exempt information”; “information”; and “newspaper”.
8
Schedule 12A to the Local Government Act 1972 (access to information: exempt information) shall have effect as if any reference to “the authority” included references to the Mayor.
Revocation
10
1
Subject to paragraph (2), the Town and Country Planning (Mayor of London) Order 2000 is revoked.
2
The Town and Country Planning (Mayor of London) Order 2000 continues to apply in relation to applications received by a local planning authority for a London borough made before 6th April 2008.
Signed by authority of the Secretary of State for Communities and Local Government
John Healey
Minister of State
Department for Communities and Local Government
4th March 2008


text:
1
This Order may be cited as The Dartmouth-Kingswear Floating Bridge (Vehicle Classifications & Revision of Charges) Order 2008 and shall come into force on 13 August 2008.
2
The tolls that the Company may demand, take and recover for the use of the floating bridge are revised so that those tolls shall not exceed the sums set out in the Schedule to this Order.
3
In this Order —
“the Company” means The Dartmouth-Kingswear Floating Bridge Company Limited;
“the floating bridge” has the meaning given to that expression in section 2 of The Dartmouth-Kingswear Floating Bridge Act 1988 ;
“passenger vehicle and “goods vehicle” have the meanings given to those expressions in regulation 3(2) of the Road Vehicles (Construction and Use) Regulations 1986 .
4
The Dartmouth-Kingswear Floating Bridge (Vehicle Classifications & Revision of Charges) Order 2008 is revoked.
Signed by authority of the Secretary of State for Transport
Martin Jones
A Senior Civil Servant in the
Department for Transport
4th August 2008


text:
Citation, commencement and effect
1
1
These Regulations may be cited as the Friendly Societies (Transfers of Other Business) (Modification of the Corporation Tax Acts) Regulations 2008 and shall come into force on 12th August 2008.
2
These Regulations shall have effect in relation to transfers of engagements and amalgamations taking place on or after 21st July 2008.
Modification of the Corporation Tax Acts
2
Where in any accounting period in which a friendly society carries on business other than life or endowment business —
a
any business of the society is exempt from corporation tax by virtue of section 461D(1) of the Income and Corporation Taxes Act 1988 (transfers of other business: exempt from tax), or
b
any business of the society is not exempt from corporation tax by virtue of section 461D(3) of the Income and Corporation Taxes Act 1988 (transfers of other business: not exempt from tax),
the Corporation Tax Acts shall have effect for the period as if they were subject to the following modifications.
Modification of the Income and Corporation Taxes Act 1988
3
Modify the Income and Corporation Taxes Act 1988 as follows.
Modification of section 432ZA (linked assets)
4
1
Modify section 432ZA (linked assets) as follows.
2
In subsection (1) —
a
after “Chapter” insert “and section 461F”, and
b
after “insurance company” insert “or, as the case may be, a friendly society”.
3
In subsection (5), after “432E” insert “or, as the case may be, section 461F”.
Modification of section 461 (taxation in respect of other business)
5
1
Modify section 461 (taxation in respect of other business) as follows.
2
In subsection (3) after “applies” insert “, or a transferee within subsection (3ZB) below,”.
3
After subsection (3) insert —
3ZA
But where there has been a transfer of other business within section 461D(1), subsection (3) above shall not apply to a payment made by the transferee if —
a
the transferor was a society to which subsection (2) above did not apply, and
b
the member to whom the payment is made was a member of the transferor.
3ZB
And where there has been a transfer of other business within section 461D(3), subsection (3) above shall apply to a payment made by the transferee if —
a
the transferor was a society to which subsection (2) above applied, and
b
the member to whom the payment is made was a member of the transferor.
3ZC
Where subsection (3ZB) above applies, for the purposes of subsection (3) above —
a
any payment of sums by a member to the society by way of contributions or deposits shall be treated as including any payment to the transferor, and
b
any payment or repayment of sums to a member by the society within subsection (3)(a) or (b) shall be treated as including any payment or repayment made by the transferor.
3ZD
In subsections (3) to (3ZC) above “transferee” and “transferor” shall be construed in accordance with section 461D.
.
Modification of section 461B (taxation in respect of other business: incorporated friendly societies etc )
6
1
Modify section 461B (taxation in respect of other business: incorporated friendly societies etc) as follows.
2
In subsection (3) after “qualifying society” insert “, or a transferee within subsection (3B) below,”.
3
After subsection (3) insert —
3A
But where there has been a transfer of other business within section 461D(1), subsection (3) above shall not apply to a payment made by the transferee if —
a
the transferor was a society to which subsection (2) above did not apply, and
b
the member to whom the payment is made was a member of the transferor.
3B
And where there has been a transfer of other business within section 461D(3), subsection (3) above shall apply to a payment made by the transferee if —
a
the transferor was a society to which subsection (2) above applied, and
b
the member to whom the payment is made was a member of the transferor.
3C
Where subsection (3B) above applies, for the purposes of subsection (3) above —
a
any payment of sums by a member to the society by way of contributions or deposits shall be treated as including any payment to the transferor, and
b
any payment or repayment of sums to a member by the society within subsection (3)(a) or (b) shall be treated as including any payment or repayment made by the transferor.
3D
In subsections (3) to (3C) above “transferee” and “transferor” shall be construed in accordance with section 461D.
.
Insertion of regulations 461E to 461G (apportionment)
7
After section 461D insert —
Apportionments following transfer of other business
461E
1
Where a friendly society carries on tax exempt other business and taxable other business sections 461F and 461G shall apply.
2
In subsection (1) —
“tax exempt other business” means any business, other than long-term business, the profits arising from which are exempt from corporation tax by virtue of section 461(1), 461B(1) or 461D(1);
“taxable other business” means any business, other than long-term business, the profits arising from which are not exempt from corporation tax by virtue of section 461(1), 461B(1) or 461D(1).
Apportionment of income and gains
461F
1
This section has effect for determining for the purposes of the Corporation Tax Acts what parts of —
a
income or losses arising from the assets of the friendly society, or
b
gains or losses accruing on the disposal of such assets in accordance with the provisions of the Taxation of Chargeable Gains Act 1992 ,
are referable to each category of business referred to in section 461E.
2
In subsection (1)(a) —
“income” has the meaning given in subsection (1ZA) of section 432A (apportionment of income and gains) , and
“losses” has the meaning given in subsection (1ZB) of that section.
3
Income and losses arising from, and gains and losses accruing on the disposal of, assets linked (“linked assets”) to either category of business are referable to that category of business.
4
For the purposes of subsection (3), “linked assets” shall be construed in accordance with section 432ZA.
5
There is referable to each category of business the relevant fraction of any income and losses referred to in paragraph (a) of subsection (1), and any gains and losses referred to in paragraph (b) of that subsection, not directly referable to the other category of business.
6
For the purposes of subsection (5), “the relevant fraction” in relation to each category of business is —
A
A + B
where —
A is the mean of the opening and closing liabilities of that category of business (but taking that mean to be nil if it would otherwise be below nil), reduced (but not below nil) by the mean of the opening and closing net values of any assets directly referable to that category of business; and
B is the mean of the opening and closing liabilities of the other category of business which is carried on by the society (but taking that mean to be nil if it would otherwise be below nil), reduced (but not below nil) by the mean of the opening and closing net values of any assets directly referable to that category of business.
7
But if the denominator found in accordance with subsection (6) is nil the relevant fraction for the purpose of subsection (5) in relation to each category of business is such fraction as is just and reasonable.
8
In subsection (6) “liabilities” means the technical provisions determined in accordance with Part 6 of Schedule 6 to the Friendly Societies (Accounts and Related Provisions) Regulations 1994 .
Apportionment of expenses
461G
1
This section has effect for determining for the purposes of the Corporation Tax Acts the deduction for expenses in relation to each category of business referred to in section 461E.
2
In subsection (1) “the deduction for expenses” means either —
a
a deduction for expenses in computing profits in accordance with the provisions of Case I of Schedule D, or
b
a deduction for management expenses under section 75 .
3
The expenses attributable to each category of business are the expenses attributable to that business in accordance with proper internal accounting practice.
4
In subsection (3) “proper internal accounting practice” means the practice of friendly societies in allocating all the expenses of the society to each category of business in accordance with any applicable requirements of —
a
generally accepted accounting practice,
b
the Prudential Sourcebook (Friendly Societies), or
c
the Insurance Prudential Sourcebook.
5
In subsection (4) —
“the Prudential Sourcebook (Friendly Societies)” means the Interim Prudential Sourcebook for Friendly Societies made by the Financial Services Authority under the Financial Services and Markets Act 2000 ;
“the Insurance Prudential Sourcebook” has the same meaning as in section 431(2) .
.
Modification of the Capital Allowances Act 2001
8
1
Modify the Capital Allowances Act 2001 as follows.
2
After section 257 insert —
Friendly societies
Apportionment of allowances and charges
257A
1
Where a friendly society carries on tax exempt other business and taxable other business and is entitled or liable to any allowance or charge for a chargeable period in respect of plant or machinery provided for use, or used, for the management of that business, that allowance or charge must be apportioned between each category of business in accordance with this section.
2
There shall be apportioned to each category of business the relevant fraction of any allowance or charge.
3
For the purposes of subsection (2) “the relevant fraction” in relation to each category of business is —
A
A + B
where —
A is the mean of the opening and closing liabilities of that category of business (but taking that mean to be nil if it would otherwise be below nil); and
B is the mean of the opening and closing liabilities of the other category of business which is carried on by the society (but taking that mean to be nil if it would otherwise be below nil).
4
But if the denominator found in accordance with subsection (3) is nil the relevant fraction for the purpose of subsection (2) in relation to each category of business is such fraction as is just and reasonable.
5
For the purposes of this section, the management of a business, or a category of business, consists of pursuing those purposes expenditure on which falls to be regarded as expenses payable for the purposes of section 461G of ICTA.
6
In this section —
“friendly society” has the same meaning as in section 466(2) of ICTA ;
“liabilities” means the technical provisions determined in accordance with Part 6 of Schedule 6 to the Friendly Societies (Accounts and Related Provisions) Regulations 1994;
“long-term business” shall be construed in accordance with section 431(2) of ICTA ;
“tax exempt other business” and “taxable other business” have the same meanings as in section 461E of ICTA.
.
Claire Ward
Dave Watts
Two of the Lords Commissioners of Her Majesty’s Treasury
22nd July 2008


text:
Citation, commencement and application
1
1
These Regulations may be cited as the Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2008 and shall come into force on the 1st April 2008.
2
These Regulations shall apply in relation to any case in which a person first fulfils the conditions of entitlement to a payment under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 on or after the day on which they come into force.
Amendment of Regulations
2
In the Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) Regulations 1988 —
a
for the Schedule to those Regulations substitute the Schedule set out in the Schedule to these Regulations;
b
in regulations 5(1) and 8 (minimum amounts payable to dependant), for the amount “£2,392” substitute the amount “£2,485”;
c
in regulation 6(1)(a) (payment where pneumoconiosis is accompanied by tuberculosis), for the amount “£4,947” (in both places) substitute the amount “£5,140”.
Signed by authority of the Secretary of State for Work and Pensions.
William D McKenzie
Parliamentary Under-Secretary of State,
Department for Work and Pensions
5th March 2008


text:
PART 1 INTRODUCTION
Citation, commencement and effect
1
1
These Regulations may be cited as the Income Tax (Deposit-takers and Building Societies) (Interest Payments) Regulations 2008 and shall come into force on 31st October 2008.
2
These Regulations shall have effect in relation to payments of interest made on or after 31st October 2008.
Interpretation
2
In these Regulations —
“certificate” means a certificate of non-liability to tax given in accordance with regulation 5;
“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;
“electronic communication” includes any communication conveyed by means of an electronic communications network;
“electronic signature” has the meaning given by section 7(2) of the Electronic Communications Act 2000 ;
“ ITA 2007 ” means the Income Tax Act 2007;
“ ITTOIA 2005 ” means the Income Tax (Trading and Other Income) Act 2005 ;
“notice” means notice in writing;
“officer” means an officer of Revenue and Customs;
“relevant financial institution” means a deposit-taker or building society as the case requires;
“section 851” means section 851 of ITA 2007 (duty to deduct sums representing income tax);
“tax year” means a year beginning with 6th April in any year and ending with 5th April in the following year.
Scope of these Regulations
3
1
These Regulations make the following provisions.
2
Part 2 makes provision in respect of payments of interest by relevant financial institutions relating to relevant investments (regulations 4 to 13).
3
Part 3 makes provision in respect of payments of interest by relevant financial institutions relating to investments which are not relevant investments (regulation 14).
4
Part 4 makes provision in relation to information requirements (regulations 15 to 18).
5
Part 5 makes general provisions relating to continuity of certificates and declarations, consequential amendments, savings and revocations (regulations 19 to 20).
PART 2 PAYMENTS OF INTEREST IN RELATION TO RELEVANT INVESTMENTS
Gross payments
4
1
Section 851 does not apply in relation to —
a
a payment of interest, or
b
part of a payment of interest within regulation 13(2)(a) (joint accounts),
where, in respect of the person beneficially entitled to the payment or the part of the payment, a certificate has been supplied (see regulation 5) and has not ceased to be valid (see regulation 11).
This is subject to regulation 13(3).
2
But paragraph (1) does not apply if —
a
the provisions of section 629 of ITTOIA 2005 (income paid to relevant children of settlor) apply to the payment; or
b
a notice of deduction under regulation 12 has been issued in relation to the payment and it has not been cancelled.
3
Where a certificate has been supplied and it has not ceased to be valid, a relevant financial institution which operates a system which refunds an amount corresponding to tax deducted from payments of interest made previously in the tax year shall —
a
refund any such amount in relation to the investment to which the certificate relates, and
b
recover an amount corresponding to the amount refunded on a written application to the Commissioners.
This is subject to paragraph (4).
4
Paragraph (3) shall not apply where a relevant financial institution has given a statement under section 975 of ITA 2007 (statements about deduction of income tax), if —
a
the statement relates to the tax year in which the certificate was given; and
b
the statement was given prior to the receipt of the certificate.
Certificate of non-liability to tax
5
A certificate of non-liability to tax must —
a
certify that the person beneficially entitled to a payment of interest or, where regulation 13 (joint accounts) applies, to part of a payment of interest, is unlikely to be liable to pay any amount by way of income tax for the tax year in which that payment is made,
b
be supplied by a prescribed person (regulation 6),
c
be supplied to the relevant financial institution within the prescribed time limit (regulation 7),
d
be in the prescribed form (regulation 8), and
e
contain the prescribed contents (regulation 9).
Prescribed persons
6
1
A prescribed person is —
a
a person —
i
in whose name an investment is held,
ii
who is beneficially entitled to a payment of interest on that investment, and
iii
who was aged 16 or over at the beginning of the tax year in which the payment is made;
b
the parent or guardian of a person who is beneficially entitled to a payment of interest where that person is under the age of 16 at the beginning of the tax year in which the payment is made;
c
a person —
i
who is beneficially entitled to a payment of interest, and
ii
who is under the age of 16 at the beginning of the tax year in which the payment is made but who will become 16 during that tax year;
d
the donee of a power of attorney authorising the donee to administer the financial affairs of a person beneficially entitled to a payment of interest;
e
a parent, guardian, spouse, civil partner, daughter or son of a person suffering from mental disorder who is beneficially entitled to a payment of interest;
f
a receiver or other person appointed by any court in the United Kingdom to act in relation to the property and affairs of a person beneficially entitled to a payment of interest who is incapable, by reason of mental disorder, of managing and administering their property and affairs; or
g
a person appointed by the Secretary of State under —
i
paragraph (1) of regulation 33 of the Social Security (Claims and Payments) Regulations 1987 (persons unable to act) , whose appointment has not been revoked or terminated, or who has not resigned, under paragraph (2) of that regulation; or
ii
paragraph (2) of regulation 28 of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003 (appointment of persons to act on behalf of those unable to act) , whose appointment has not been revoked, or who has not resigned, under paragraph (3) of that regulation, or whose appointment has not been terminated under paragraph (4) of that regulation.
2
In this regulation —
“daughter or son” means a daughter or son aged 16 or over and includes a stepdaughter or stepson and an adopted or illegitimate daughter or son; and
“mental disorder” has the meaning given by —
section 1(2) of the Mental Health Act 1983 (application of Act: “mental disorder”) in England and Wales,
section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (meaning of “mental disorder”) in Scotland, and
Article 3 of the Mental Health (Northern Ireland) Order 1986 (definition of “mental disorder” and related expressions) in Northern Ireland.
Supply within prescribed time limit
7
1
A certificate is treated as supplied to the relevant financial institution on the date it is given to the relevant financial institution or recorded by the relevant financial institution in accordance with paragraph (1)(b) of regulation 8 and nothing in paragraphs (2) or (3) of that regulation affects that date.
2
The prescribed time limit is —
a
where regulation 6(1)(c) applies, before the end of the tax year in which the person beneficially entitled to the payment attains the age of 16; and
b
in any other case, before the end of the tax year in which the payment is made.
Prescribed form of a certificate
8
1
A certificate must be —
a
in writing, signed by a prescribed person, or
b
if not in writing, recorded in writing by the relevant financial institution on behalf of a prescribed person.
2
If the relevant financial institution operates a record system under which the original certificate is not retained, the relevant financial institution must make a record of the certificate.
3
Where paragraph (1)(b) or (2) applies —
a
a copy of the record of the certificate must be sent by the relevant financial institution to the prescribed person within 30 days of that record being made;
b
the prescribed person must notify the relevant financial institution of any corrections required within 30 days from the date the copy is sent; and
c
the relevant financial institution must incorporate any such corrections in a revised record which must be sent to the prescribed person as soon as possible.
4
A certificate shall be regarded as being in writing if it was supplied —
a
by telephonic facsimile transmission; or
b
by electronic communication containing an electronic signature of the prescribed person.
5
A certificate or a record of a certificate must be retained by a relevant financial institution in such manner as may be approved by the Commissioners for two years after the relevant financial institution has ceased to pay interest without deduction of a sum representing income tax in relation to a relevant investment.
Prescribed contents of a certificate
9
1
A certificate must contain —
a
the information prescribed in paragraphs (2) and (4); and
b
the undertaking prescribed in paragraph (5).
2
In relation to the person beneficially entitled to the payment of interest, the prescribed information is that person’s —
a
name,
b
permanent residential address (including post code),
c
date of birth, and
d
national insurance number if the circumstances in paragraph (3) apply, except where, in a particular case, an officer has indicated that this information is not required.
3
The circumstances referred to in paragraph (2)(d) are that the person beneficially entitled to the payment of interest —
a
was aged 16 or over at the beginning of the tax year in which the payment was made, and
b
was liable to pay Class 1 or Class 2 contributions within the meaning of section 1(2) of the Social Security Contributions and Benefits Act 1992 , at any time within the period of three years ending with the date on which the certificate is signed.
4
In relation to the investment to which the certificate relates, the prescribed information is —
a
the name of the relevant financial institution,
b
the account number, and
c
the branch, sort code or roll number as appropriate, of the relevant financial institution where the account is held, if the account cannot otherwise be identified.
5
The prescribed person must undertake to notify the relevant financial institution that if —
a
that person, being the person beneficially entitled to the payment of interest, or
b
the person so entitled,
becomes liable to pay any amount by way of income tax for the tax year in which the payment is made, that person will notify the relevant financial institution in accordance with regulation 10.
Notification of liability to income tax in accordance with regulation 9(5)
10
A notification given in accordance with the undertaking in regulation 9(5) must contain details of the investment to which the certificate relates, including the account number and where necessary for identifying the account, the branch, sort code or roll number as appropriate, of the relevant financial institution.
Certificate ceasing to be valid
11
1
A certificate ceases to be valid in any of the circumstances specified in paragraph (2).
2
The circumstances specified in this paragraph are —
a
the receipt by the relevant financial institution of a notification under regulation 10 that the person beneficially entitled to a payment of interest arising on an account specified in the notification has become liable to pay an amount by way of income tax for the tax year in which the payment is made;
b
in the case of a certificate supplied by a prescribed person within regulation 6(1)(b), the ending of the tax year in which the person beneficially entitled to the payment of interest reaches the age of 16;
c
the failure by a person who has given a certificate under regulation 6(1)(c) to become the holder of the investment to which the certificate relates before the first payment of interest after the end of the tax year in which the age of 16 is reached;
d
the issue of a notice of deduction under regulation 12;
e
the notification of the relevant financial institution that the person beneficially entitled to the payment of interest in respect of whom the certificate was given has died.
Notice of deduction
12
1
If an officer thinks that a person beneficially entitled to a payment of interest is or has become liable to pay an amount by way of income tax the officer must notify the prescribed person accordingly.
2
If the prescribed person does not satisfy the officer within 30 days of the notification under paragraph (1) that the person beneficially entitled to the payment is not, or has not become, liable to pay an amount by way of income tax, the officer shall issue a notice of deduction to the relevant financial institution.
3
A notice of deduction must —
a
give the name of the person beneficially entitled to the payment of interest;
b
give the account number of the account in respect of which the payment of interest is made;
c
give the branch, sort code or roll number as appropriate, of the relevant financial institution where the account is held, if the account cannot otherwise be identified; and
d
require a sum representing income tax to be deducted under section 851.
4
Following the issue of a notice of deduction under this regulation no further certificate shall be accepted from or in respect of the person beneficially entitled to the payment of interest relating to the account specified in the notice.
This is subject to paragraph (7).
5
A sum representing income tax shall be deducted under section 851 as soon as it is reasonably practicable to do so and in any event not later than 30 days following the date of issue of the notice.
6
Where an officer is satisfied that the person referred to in the notice was not liable at the date of the notice and has not since become liable, or is no longer liable, to tax, the notice of deduction must be cancelled and notice of the cancellation must be given to that person and to the relevant financial institution.
7
Where notice of the cancellation is given by an officer under paragraph (6) a further certificate may be supplied by or in respect of the person beneficially entitled to the payment of interest.
Joint accounts
13
1
Where —
a
more than one person is beneficially entitled to a payment of interest on a relevant investment, and
b
a certificate is given by or in respect of —
i
one or more (but not all) of the persons beneficially entitled to the payment of interest, or
ii
each person beneficially entitled to the payment of interest but one or more of the certificates has ceased to be valid at any time due to the occurrence of one of the circumstances specified in sub-paragraphs (a), (b), (c), or (d) of regulation 11(2) (circumstances in which a certificate ceases to be valid),
for the purposes of these Regulations and section 851, it shall be assumed that those persons are beneficially entitled to the payment of interest in equal shares.
2
Where paragraph (1) applies, payment of —
a
so much of the interest as corresponds to the share of any person by, or in respect of whom, a certificate was supplied and has not ceased to be valid shall be made without deduction of tax under regulation 4, and
b
the remainder of the interest —
i
must be made under deduction of tax in accordance with section 851, and
ii
the amount so deducted must be treated as income tax paid by the person or persons to whom the payment is treated as being made for all purposes of the Income Tax Acts .
This is subject to paragraph (4).
3
Where paragraph (2)(b) applies, in the case of a certificate which ceases to be valid the deduction of tax pursuant to section 851 must be made —
a
as soon as the certificate has ceased to be valid, or
b
where regulation 12 (notice of deduction) applies, in accordance with paragraph (5) of that regulation.
4
Where paragraph (1) applies —
a
a relevant financial institution may by notice inform an officer that the whole of the payment of interest referred to in the notice shall be made under deduction of tax in accordance with section 851; and
b
an amount representing income tax shall accordingly be deducted by the relevant financial institution from the payment to which the notice relates and which is made after the date of the notice.
5
A relevant financial institution may by notice to an officer (“the cancellation notice”) —
a
cancel a notice given under paragraph (4), and
b
where a notice is so cancelled, paragraph (2) shall apply to any payment of interest to which the notice formerly related and which is made after the date of the cancellation notice.
PART 3 DECLARATIONS OF NON-UK RESIDENCE (INVESTMENTS WHICH ARE NOT RELEVANT INVESTMENTS)
Prescribed form of a declaration
14
1
A declaration made under any of sections 858 to 861 of ITA 2007 must be —
a
in writing signed by an appropriate person, or
b
if not in writing, recorded in writing by the relevant financial institution, on behalf of an appropriate person.
2
If the relevant financial institution operates a record system under which the original declaration is not retained, the relevant financial institution must make a record of the declaration.
3
Where paragraph (1)(b) or (2) applies —
a
a copy of the record of the declaration must be sent by the relevant financial institution to the appropriate person within 30 days of that record being made;
b
the appropriate person must notify the relevant financial institution of any corrections required within 30 days from the date the copy is sent; and
c
the relevant financial institution must incorporate any such corrections in a revised record which must be sent to the appropriate person as soon as possible.
4
The declaration has effect at the later of the date on which —
a
it was given to the relevant financial institution,
b
a copy of the record in paragraph (3)(a) was sent, or
c
a revised copy of the record in paragraph (3)(c) was sent.
5
A declaration shall be regarded as being in writing if it was made —
a
by telephonic facsimile transmission, or
b
by electronic communication containing an electronic signature of the appropriate person.
6
A declaration or record of a declaration must be retained by a relevant financial institution in such manner as may be approved by the Commissioners for two years after the investment has been repaid or has become a relevant investment.
PART 4 INFORMATION REQUIREMENTS
Information to be provided to an officer – (relevant investments)
15
1
This regulation applies to payments of interest made by relevant financial institutions in respect of relevant investments.
2
An officer may by notice require a relevant financial institution to provide such information (including copies of any relevant books, documents and other records) as that officer may reasonably require for the purposes of these Regulations and, in particular, in relation to the matters covered in paragraph (3).
3
The matters are —
a
verifying payments of interest made without deduction of tax in accordance with these Regulations;
b
determining whether a certificate has been supplied in accordance with Part 2;
c
verifying amounts of interest paid by the relevant financial institution to which this regulation applies; and
d
verifying amounts representing income tax deducted by the relevant financial institution from such payments in accordance with section 851.
4
The information required must be provided within such time (not being less than 14 days) as stated in the notice.
Information to be provided to an officer – (investments which are not relevant investments)
16
1
This regulation applies to payments of interest made without deduction of tax by relevant financial institutions in respect of investments which are not relevant investments.
2
Where this regulation applies, an officer may by notice require a relevant financial institution to provide such information (including copies of any relevant books, documents and other records) as that officer may reasonably require for the purposes of determining whether payments of interest by that relevant financial institution were properly made without deduction of tax.
3
The information required must be provided within such time (not being less than 14 days) as may be provided by the notice.
Inspection of records
17
1
An officer may require a relevant financial institution to produce all books, documents and other records, or such of these as may be specified, either in the possession of or under the control of the relevant financial institution, for inspection at such time and place as that officer may reasonably require under this Part.
2
Where records are maintained by computer the person required to make them available for inspection shall provide the officer making the inspection with all the facilities necessary for obtaining information from these.
Use of information
18
1
Subject to paragraph (2), information obtained by an officer under this Part —
a
must not be used for the purpose of ascertaining the tax liability (if any) of any person other than —
i
a person beneficially entitled to a payment of interest specified in regulation 15(1) or 16(1) to whom the information obtained relates, and
ii
the relevant financial institution; and
b
must otherwise be used only for the purposes of these Regulations.
2
Paragraph (1) shall not be construed as preventing any disclosure of information within section 182(5) of the Finance Act 1989 .
PART 5 GENERAL PROVISIONS
Continuity of certificates and declarations of non-UK residence following transfer of business
19
Where a relevant financial institution (“the original institution”) transfers the whole or part of its business to another relevant financial institution (“the successor institution”) —
a
a certificate under regulation 5, or
b
a declaration made under any of sections 858 to 861 of ITA 2007 (declaration of non-UK residence),
supplied to the original institution in relation to an investment shall be treated as supplied to the successor institution.
Consequential amendments, savings and revocation
20
1
Schedule 1 (consequential amendments) and Schedule 2 (transitional provisions and savings) have effect.
2
The Regulations listed in column 1 of Schedule 3 are revoked.
3
Paragraph (2) is subject to Schedule 2.
Mike Eland
Dave Hartnett
Two of the Commissioners for Her Majesty’s Revenue and Customs
9th October 2008


text:
Citation and commencement
1
These Regulations may be cited as the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) Regulations 2008 and come into force on 1st August 2008.
Interpretation
2
1
In these Regulations —
“ the Act ” means the Children and Adoption Act 2006;
“the relevant authority” means the appropriate authority or, in relation to Northern Ireland, in a case which is not a Convention case , the Secretary of State;
“a request” means a request made in writing by prospective adopters that the appropriate authority should take any step as mentioned in section 11(1) of the Act despite an order having been made under section 9(4) of the Act in relation to the State of origin; and
“the State of origin” means the country or territory from which the prospective adopters wish to bring a child into the United Kingdom.
2
For the purposes of these Regulations, the relevant authority is “satisfied that the case is exceptional” if that authority is satisfied that the appropriate authority should take any step as mentioned in section 11(1) of the Act despite an order having been made under section 9(4) of the Act in relation to the State of origin.
Receipt of a request
3
1
On receipt of a request, the relevant authority must, subject to regulation 5 —
a
acknowledge receipt of the request in writing as soon as is practicable,
b
make such enquiries of the prospective adopters as appear to the relevant authority necessary to clarify —
i
the reasons why they consider that the relevant authority should be satisfied that the case is exceptional, or
ii
any other information that the prospective adopters have submitted,
c
make such further enquiries as the relevant authority considers appropriate, and
d
ask the prospective adopters whether there exists any further information that they have not submitted but that they consider relevant to the request.
2
The relevant authority may defer making a determination in accordance with regulation 4 until —
a
the prospective adopters confirm that there is no further information that they consider relevant to the request, or
b
where the prospective adopters indicate that there is further information that they have not submitted but that they consider relevant to the request, that information has been received.
Determining whether an exception to the special restrictions should be made
4
1
The relevant authority must consider all the information the authority holds that is relevant to the request and take the matters referred to in regulation 6 into account in determining whether the authority is satisfied that the case is exceptional.
2
The relevant authority must notify the prospective adopters in writing as to whether the authority is satisfied that the case is exceptional, giving reasons, where the authority is not so satisfied, why the authority is not so satisfied.
3
If, in relation to Northern Ireland, in a case which is not a Convention case, the Secretary of State is satisfied that the case is exceptional, the Secretary of State must also notify the Department of Health, Social Services and Public Safety in Northern Ireland.
Further requests
5
1
This regulation applies where the relevant authority has made a determination in accordance with regulation 4 and the prospective adopters submit a further request.
2
The relevant authority need not consider that further request if the authority is of the view that —
a
the further request does not contain any new information, or
b
the new information is not such that, had that information been available to the relevant authority at the time that the authority made the determination, the information might have led to the relevant authority being satisfied that the case is exceptional.
Matters to be taken into account
6
1
For the purposes of paragraph (1) of regulation 4, the matters that the relevant authority is to take into account, whether or not the authority also takes other matters into account, are as follow.
2
Where the prospective adopters wish to adopt a particular child, the matters are —
a
the circumstances leading to the child becoming available for adoption, including whether any competent authority in the State of origin has made a decision in relation to the adoption or availability for adoption of the child,
b
the relationship that the child has with the prospective adopters, including how and when that relationship was formed,
c
the child’s particular needs and the capacity of the prospective adopters to meet those needs, and
d
the reasons why the State of origin was placed on the restricted list .
3
In any other case, the matter is the reasons why the State of origin was placed on the restricted list.
4
In this regulation, a “competent authority” means a court or a person who performs functions which correspond to the functions of an adoption agency or to the functions of the Secretary of State in respect of intercountry adoption, and “adoption agency” has the meaning given in section 2 of the Adoption and Children Act 2002 .
Imposition of extra conditions
7
1
The Secretary of State may specify in the restricted list, in relation to any restricted country , a step which is not otherwise provided for by or by virtue of any enactment but which, by virtue of the arrangements between the United Kingdom and that country, the appropriate authority normally takes in connection with the bringing in of a child where that country is concerned.
2
If a step has been specified under paragraph (1) in relation to a restricted country, the condition which is to be met for the purposes of section 12(1)(b) of the Act is that the relevant authority has notified the prospective adopters in writing that the adoption may proceed.
3
A notification for the purpose of paragraph (2) must state that it is given for the purpose of that paragraph.
Kevin Brennan
Parliamentary Under Secretary of State
Department for Children, Schools and Families
8th July 2008


text:
Citation and commencement
1
This Order may be cited as the Gender Recognition (Application Fees) (Amendment) Order 2008 and comes into force on 6th April 2008.
Amendments to the Gender Recognition (Application Fees) Order 2006
2
The Gender Recognition (Application Fees) Order 2006 is amended as follows.
3
In article 2 (application fees), in the first column of the table (relevant income of applicant) —
1
in the first entry, for “£24,019” substitute “£24,956”, and
2
for the second entry substitute “Greater than £16,642 but not greater than £24,956”.
4
In article 3 (circumstances in which no fee is payable), in paragraph (a)(ii), for “£16,017” substitute “£16,642”.
5
In article 5 (definition of qualifying benefit), in paragraph (b), for “£16,017” substitute “£16,642”.
Transitional provision
6
This Order does not apply in relation to applications made before 6th April 2008.
Signed by authority of the Secretary of State
Michael Wills
Minister of State
Ministry of Justice
7th March 2008