Environment Agency and Natural England Given New Enforcement Powers
Add an article Back to list
Issued 02 February 2010
Embargoed until 00:01 3 February 2010 The Environment Agency and Natural
England today became the first regulators to be given new civil powers that will
give them greater flexibility to enforce environmental law, making the system
more efficient and effective for both regulators and businesses.
The range of new civil powers - which have been welcomed by the NFU and EEF,
the manufacturers’ organisation - given under the Regulatory Enforcement and
Sanctions Act 2008, will increase the options available to regulators and
include fixed and variable monetary penalties and compliance notices.
The sanctions will provide an alternative to criminal prosecutions for
regulators which is more proportionate and reflects the fact that the majority
of non-compliance by businesses is unintentional.
Environment Secretary, Hilary Benn, said:
“These new powers will help make the system fairer for the law-abiding
majority of businesses and will give regulators a practical and effective
alternative to prosecution. The Environment Agency and Natural England, the
first bodies to be given these powers, will have access to flexible and
proportionate sanctions that will strengthen the protection of the environment
and human health when tackling businesses who break the law.”
Ian Lucas, Minister for Business and Regulatory Reform, 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 powers, conceived by Professor Richard Macrory, were designed to create a
modern and targeted system that will give regulators greater flexibility to
impose more appropriate sanctions on non-compliant businesses. The Environment
Agency and Natural England will be able for the first time to accept a voluntary
commitment from a business to remedy non-compliance.
The existing system was considered to be too reliant on costly and time
consuming criminal prosecutions. The new powers will not replace existing
informal methods such as advice and guidance. Businesses and individuals will
have access to an appeals process through an independent and impartial tribunal.
The criminal courts already have substantial powers to impose proportionate
sanctions for environmental offences. The Government also has plans for new
sentencing powers to enable the courts to put restoration ahead of monetary
penalties. Courts would be able to remove the financial benefit from
non-compliance and order environmental restoration and restitution to local
communities.
Gareth Stace, Head of Climate & Environment Policy at the EEF, the
manufacturers’ organisation, said:
“We support the Government’s aims to create a fairer, more effective and more
proportionate enforcement regime. Defra’s Fairer and Better Environmental
Enforcement (FBEE) project has actively engaged with manufacturers on the
introduction of these new civil powers for environmental non-compliance and has
done a successful job in addressing a number of manufacturer concerns. We remain
encouraged that the transition of civil sanctions from legislature to regulator
can now be fairly and equitably applied.”
Andrew Clark, Head of Policy Services, the National Farmers’ Union said:
"We appreciate the work that Defra and its regulators have put in to develop
a more flexible and proportionate approach to environmental enforcement, and for
their having involved us in that work. The availability of sanctions other than
just criminal prosecution in dealing with businesses which do not comply with
the law is long overdue."
Notes
The Regulatory Enforcement and Sanctions Act 2008, part 3, contains the
enabling powers to introduce four new civil sanctions: Fixed monetary penalty (FMP)
notices – under which a regulator will be able to impose a monetary penalty of a
fixed amount;Discretionary requirements – which will enable a regulator to
impose, by notice, one or more of the following:a variable monetary penalty (VMP)
determined by the regulator;a requirement to take specified steps within a
stated period to secure that an offence does not continue or happen again
(compliance notice); anda requirement to take specified steps within a stated
period to secure that the position is restored, so far as possible, to what it
would have been if no offence had been committed (restoration notice);Stop
notices – which will prevent a business from carrying on an activity described
in the notice until it has taken steps to come back into compliance;Enforcement
undertakings – which will enable a business, which a regulator reasonably
suspects of having committed an offence, to give an undertaking to a regulator
to take one or more corrective actions set out in the undertaking.
A 12 week public consultation by Defra and the Welsh Assembly Government on
the proposed use of civil sanctions for environmental offences closed on 14
October 2009. Respondents gave overall support to the proposals. A summary of
respondents’ views and the Government’s response and the Government guidance to
regulators on use of civil sanctions, can be found at http://www.defra.gov.uk/environment/policy/enforcement/project/index.htm
and http://www.defra.gov.uk/environment/policy/enforcement/project/legislation.htm
.
Subject to debate in Parliament, these powers will be made available to the
Environment Agency and Natural England for certain offences through secondary
legislation, (The Environmental Civil Sanctions (England) Order 2010 and The
Environmental Sanctions (Misc. Amendments) (England) Regulations 2010). The
legislation will be laid before Parliament shortly. The Welsh Assembly
Government is drawing up co-ordinated secondary legislation in Wales to extend
civil sanctioning powers to the EA in Wales.
Defra has plans to work with the local authority sector, Local Better
Regulation Office, businesses and other groups to develop possible proposals for
local authority use of civil sanctions. This would be subject to a further
public consultation and separate legislation.
In using the civil sanctions regulators must apply a criminal standard of
proof: i.e. they must be satisfied ‘beyond reasonable doubt’ that an offence has
been committed before imposing any restoration notice, compliance notice, fixed
monetary penalty or variable monetary penalty. Regulators must impose a Notice
of Intent to impose such sanctions so that the recipient can make
representations and objections.
Both the EA and NE are required to carry out a full public consultation on
the details of how they would apply the new powers before the powers can be
used.
A Variable Monetary Penalty (VMP) for an offence that can be tried in the
Crown courts will be no higher than £250,000. VMPs for other offences are capped
at the maximum the magistrates’ courts could impose, which may be £5,000,
£20,000 or £50,000 depending on the offence.
Professor Richard Macrory was commissioned by the Government to examine why
businesses did not comply with the law and what could be done to address the
situation. His report published in November 2006 made a number of
recommendations including a range of civil sanctions that could be made
available to regulators. This report can be found at www.berr.gov.uk/files/file44593.pdf
.
9. Appeals against the new civil sanctions will be made to the General
Regulatory Chamber of the First-tier Tribunal. For further information on the
General Regulatory Chamber see htt p://www.tribunals.gov.uk/Tribunals/Firsttier/generalregulatory.htm
.
© Crown Copyright. Material taken from the Department
for Business, Innovation & Skills. Reproduced under the terms and conditions of
the Click-Use Licence.
