Licensing and Regulation in England and Wales

No Specific Licensing

The vast majority of businesses do not require to be licensed. Generally, it is lawful to conduct a business either in the UK or from Ireland into the UK without a licence unless there is a specific licensing or regulatory scheme in place. Even where there is licensing or regulation in place in the UK, the wording and interpretation of the legislation will determine whether a licence is needed to undertake the business from Ireland and to what extent UK regulatory requirements apply.

Some businesses are regulated in the United Kingdom in much the same way as in Ireland and for much the same reasons. Regulation of industries and businesses comes in different formats.  In some instances, it is necessary to attain a licence to actually conduct the business concerned.  In other instances, regulation may relate to the manner in which the business is conducted.

In some cases, regulation or a licensing requirement is an accident of history. Sometimes, the degree of licensing is very minimal and involves only an annual application to a regulatory authority. In other cases (e.g. financial services), there is more detailed regulation and specific conduct of business rules.

The extent and nature of the regulation will depend on a number of factors.  Much will depend on the age of the regulation.  Many older schemes of regulation provide for licensing from government departments or more commonly, local authorities.  Other schemes of regulation may be enforced by particular agencies. Frequently, particular aspects only of a business may be subject to regulation.

All businesses are subject to regulation in the sense that they must comply with general laws. For example, most businesses are subject to general obligations under company law, income and corporation tax, PAYE, value-added tax obligations, employment law health and safety at work legislation, planning permission and building regulations. There are general consumer protection rules in relation to the sale of goods and supply of services. See our general guides in relation to taxation, employment, health and safety at work environmental legislation, trading and setting up business.

Conduct of Business from Ireland

The degree to which an Irish-based business is subject to UK legislation will depend on the nature of the business and how exactly it is conducted in the United Kingdom.  If a business is merely exporting to the United Kingdom, there may be minimal compliance obligations only, for example, requirements to ensure that the goods comply with consumer protection standards.

An Irish business, which proposes to conduct a trade or business in England and Wales should consider whether it requires a licence or authorisation and whether it is subject to rules in relation to the conduct of its business. There are a wide variety of types of licensing systems. Most businesses do not require to be licensed. The degree of licensing will depend on the nature of the business and a possible public harm that may arise from abuse.

If a branch is established in England, there will be greater obligations and contact with  UK agencies.  There will be general obligations in relation to returns and obligations to the Revenue and Customs (HMRC), obligations in relation to returns to Companies House, health and safety at work requirements, statistical requirements, employment legislation and so on.  These will be broadly similar to the position in Ireland.

Many businesses that have been traditionally regulated by states are subject to detailed harmonisation rules under European Union legislation.  In many cases, there are procedures whereby a qualification in the home country can be recognised in the host country. Standards for most goods have been harmonised.  Many Irish exporters and service providers will be entitled to export goods or provide services in the UK or into the UK in accordance with the EU harmonised Irish standards.

Regulated Service Providers

A range of services providers is subject to schemes of legal regulation. In these cases, the legislation stipulates that only persons properly licensed or qualified can undertake the activities. The nature and degree of regulation will vary, depending on the terms of the legislation. The legislation will reflect the particular need to protect the public in the business concerned and the historical context in which it became law.

Professional services providers such as solicitors, architects, doctors, other medical profession members, veterinary surgeon, dentist, teacher  accountants, building surveyors, engineers are subject to national schemes of registration and licensing. The legislation requires certain qualifications and training. Thee are often continuing development and training requirements.

It is usually unlawful to practise the service, without being registered and having a current membership. The relevant regulatory body publishes standards of conduct which may have the force of law. There are usually complaint mechanisms by which members of the public can seek redress for failures of compliance. The regulator may have a “police” function in investigating and imposing sanctions. Sanctions may range from censure, fines, suspension from practise or expulsion. There may also be a compensation scheme to reimburse members of the public, in lieu of court proceedings.

There is usually a Society, Council or another regulator which may or may not be independent of the members. In some cases,  the Council or body may be both the representative / promotional trade body and also be the regulator. In some case, as with solicitors, the representative function (in this case, the Law Society) has been separated from the regulatory and disciplinary function (now undertaken by the Solicitors Regulatory Authority). There is also a Legal Services Ombudsman who can make awards to compensate for poor service, even where there is no legal liability.

Non-Legal Regulation

There are many areas in which professional bodies regulate members without legislation, putting their role on a legal footing. In these cases, it may effectively be the position, that only members of the relevant body can undertake work in those areas. Membership of the relevant professional body or society is based on the private rules which operate as a contract between the members.

The relevant body is likely to set educational and/or vocational requirements for membership. There may be continuing professional development requirements. The body will usually set standards of conduct with which members must comply. There may be procedures for censure, sanction and expulsion in the case of the failure to meet the required standards.

Local Authority Licensing

Local authorities license a broad range of activities with varying degrees of intensity. These include such matters as charities, the keeping of animals, sale of firearms, fishing, gambling, liquor licensing,  taxi drivers, slaughterhouses, street traders, petroleum sales,  cinemas, game dealers and private security, hairdressers, taxis, theatres caravan sites riding establishment or gambling and food safety.

Local Authority trading standards officers enforce a wide range of legislation in areas such as weights and measures, trade descriptions, consumer credit and product safety. They can inspect trade premises in the local area to ensure compliance. If a customer complains of a breach of trading standards law, the local trading standards service conducts an investigation. Trading standards departments have a range of options ranging from advice or issuing an enforcement notice to prosecution.

Examples of legislation enforced by Local Authority Trading Standards include

• Weights and Measures.  
  Ensuring that scales, petrol pumps and other weighing or measuring equipment is accurate and that consumers receive the correct weight or measure when buying goods.
• Product Safety.
  Making sure that consumer goods, such as toys and electrical equipment, are safe and will not cause injury to users.
• Age-Restricted Products.
  Stopping the sale of cigarettes, fireworks, alcohol and videos to children too young to buy them.
• Food Labelling.
  Quality and Composition. Ensuring that food is properly labelled and is not sold past its “use by” date; making sure that food meets nutritional standards and is not adulterated.
• Trade Descriptions.
  Checking that any statement made by traders about goods and services is correct.
• Counterfeit and pirated products.
  Protecting consumers and honest traders against traders who make and sell illegal copies of branded goods.
• Fair Trading.
  Ensuring that traders act legally and fairly in their dealings with consumers across a wide range of legislation.

Financial Services

A wide variety of activities are licensed by the Financial Conduct Authority, the equivalent of a Financial Regulator in Ireland. They include banks, insurance intermediaries, investment advisers and all manner of activities in the financial services sector.

Most financial services regulation is derived from European Union law.  Once an activity is licensed in Ireland, it can be exercised in the UK subject to the Irish Financial Regulator communicating certain details of the businesses to the FSA and the business complying with the relevant codes of conduct laid down by the FSA.