Embargoed until
00:01 3 February 2010
Environment Agency and Natural England given new
enforcement powers
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 to Editors
1. 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); and
- a 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.
2. 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
.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8.
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 http://www.tribunals.gov.uk/Tribunals/Firsttier/generalregulatory.htm
.
Contacts:
Defra Press Office
Phone: 020 7238 6600
NDS.DEFRA@coi.gsi.gov.uk