Environment watchdog to gain new enforcement powers
The aim of the new powers is to give the regulator greater flexibility to enforce environmental law. The existing system was considered to be too reliant on costly and time-consuming criminal prosecutions.
The range of new powers includes fixed and variable monetary penalties, and stop notices to prevent a business from continuing to carry out an activity until steps have been taken to ensure compliance.
Other options include: compliance notices – a requirement to take steps within a stated period to ensure that an offence doesn’t continue, or reoccur; restoration notices – a requirement to take steps within a stated period to ensure that a situation is restored, so far as possible, to what it would have been if no offence had been committed; and enforcement undertakings – which will allow businesses to take corrective action quickly without the fear of further sanction for that offence.
The new powers will not replace existing informal methods, such as advice and guidance, and businesses and individuals will have access to an appeals process through an independent tribunal.
A spokesperson for the Agency told stated: “Civil sanctions will be introduced for some but not all of the regimes that we enforce, and so, initially, will have a limited effect on those we regulate.
“Fixed monetary penalties will be used sparingly to tackle the more minor offences, such as paperwork and administration offences. Variable monetary penalties will allow us to address more serious offences while seeking to ensure that restoration is carried out, and any financial gains or savings are removed without using the criminal system.”
However, he emphasised that criminal prosecutions would still normally occur in instances “where there is deliberate, reckless activity, or grave effects”.
Ian Lucas, business and regulatory reform minister, said: “Creating a more flexible and proportionate regulatory system is at the heart of the Government’s ‘better regulation’ agenda. The award of these new powers is a significant step forward that will provide an alternative to costly and time-consuming criminal proceedings. It will mean businesses will benefit from a more straightforward process with sanctions that better fit their non-compliance, and send a clear signal that the worst offenders should receive the toughest criminal penalties.”
The Environment Agency will be consulting business from 15 February to help shape how the new powers will be implemented. It will include proposals on: the methodology for calculating Variable monetary penalties; the Agency’s revised approach to enforcement and sanctioning; and details on its governance structures and monitoring requirements for the use of civil sanctions.
Gareth Stace, head of climate and environment policy at EEF, the manufacturers’ organisation, welcomed the intention “to create a fairer, more effective and more proportionate enforcement regime”, adding: “We remain encouraged that the transition of civil sanctions from legislature to regulator can now be fairly and equitably applied.”
However, Peter Newport, director of the Chemical Business Association, expressed some concern that there may be “a fear of the new and unknown” among businesses, and suggested that the Environment Agency had been very inconsistent in its enforcement approach in the past.
He stressed the need for “clear and transparent central guidance” to clarify how the new powers will be implemented, and suggested the Agency “police the activities of its inspectors” to ensure consistent enforcement.
On this issue, the Environment Agency spokesperson said: “We understand the importance of consistency of approach across our organisation and will put appropriate checks, balances and monitoring in place to deliver this. We will maintain consistency through a combination of new training and appropriate governance.”
He clarified that the Government has decided, for the time being, not to give the Agency civil sanctions in certain areas where it is a co-regulator, e.g. with local authorities and the HSE. He added: “A Government review of the use of civil sanctions is planned to take place two years after their introduction, and will consider this issue further.”
The HSE decided in 2008 not to apply for the new sanctions after concluding there was no ‘enforcement gap’ in health and safety regulation, either for itself or for local authorities.