The Environment Agency
today became one of the first organisations
to be granted new civil
powers to complement existing regulatory
powers.
Regulation has resulted
in greater environmental protection and
an improving environment in England and
Wales. Water quality, for example, is at
its best for two decades and salmon and
otters have returned to rivers across the
two countries for the first time since the
industrial revolution. Now, to further these
improvements, more flexible powers will
be used that make it easier and more cost
effective for businesses to operate within
environmental laws.
A series of civil sanctions will give the
Environment Agency the discretion to avoid
the time consuming and costly process of
having to take businesses that commit certain
types of offences to court. These will include
monetary penalties, the power to make business
repair environmental damage and the power
to stop businesses from continuing operations
that are damaging the environment. Organisations
will also be given a formal opportunity
to restore voluntarily any damage they cause.
The new powers will not replace the Environment
Agency’s approach of using advice and guidance
and are expected to be used sparingly. The
Environment Agency will still take criminal
cases against business and individuals that
cause deliberate, reckless and grave environmental
damage. Such activities also often undercut
law abiding business.
The Environment Agency
was recently praised during an assessment
by the Better Regulation Executive (BRE)
for reducing its administrative and financial
burden on business. The BRE also applauded
the Agency’s focus on protecting the environment
rather than employing a bureaucratic regime
of regulation. The Environment Agency was
assessed against the Government’s Better
Regulation Principles. Adoption of those
principles reduces the administrative burden
to the minimum while maintaining the UK's
excellent track record of compliance. Independent
auditors on behalf of BRE scrutinised the
Environment Agency’s performance over the
last two years, in particular reviewing
the organisation’s good relationship with
the industries it regulates. Business now
saves £36 million per year of costs
as a result of action the Environment Agency
has taken to improve how it regulates.
Dr Paul Leinster, Chief
Executive of the Environment Agency, said:
‘Having had such a successful
outcome from Government’s review of our
regulation is a great achievement. It allows
us to focus on protecting people and the
environment.
‘This is an ongoing
journey for us. Businesses appreciate the
benefits of a regulatory approach that makes
it easier for them to protect people and
the environment. However we recognise there
is still more we can do to become the best
regulator we can be and to clamp down quickly
and effectively on the few businesses that
cause significant damage to the environment
and harm to people.’
The Environment Agency
will be consulting business from 15 February
2010 to help shape how the new powers will
be implemented. It contains a number of
proposals including:
the methodology for
calculating Variable Monetary Penalties
(VMP)
our revised approach to enforcement and
sanctioning; and
proposals for our governance structures
and monitoring requirements for the use
of civil sanctions.
ENDS
Media enquiries: Environment
Agency National Press Office on 0207 863
8610 or outside normal office hours, please
contact the National Duty Press Officer
on 07798 882 092.
Notes to editors
Civil Sanctions
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; and
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. 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 Welsh Assembly
Government is drawing up co-ordinated secondary
legislation in Wales to extend civil sanctioning
powers to Environment Agency Wales.
3.Defra has plans to
work with the local authority sector, Local
Better Regulation Office, business and other
groups to develop possible proposals for
local authority use of civil sanctions.
This would be subject of a further public
consultation and separate legislation.
4. 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.
5. 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.
6. 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.
Hampton Principles
Sir Philip Hampton’s 2005 review was entitled
“Reducing administrative burdens: effective
inspection and enforcement”. Hampton found
that the current regulatory system imposed
too many forms, duplicate information requests
and multiple inspections on businesses.
He recommended that introducing risk assessment
could reduce inspections by up to a third
and cut the number of forms sent by regulators
by almost 25 per cent.
The report also stated that risk assessment
would help regulators target non-compliant
businesses more effectively, and reduce
the burden on those businesses that comply.
His recommendations included the creation
of a business-led body at the centre of
government to drive implementation of the
recommendations and challenge departments
on their regulatory performance. As a result
the Government created the Better Regulation
Executive (BRE) to oversee the reduction
of regulatory burdens on business, and hold
government departments and regulators to
account.
Along with his specific recommendations
he set out some key principles that should
be consistently applied throughout the regulatory
system:
Regulators, and
the regulatory system as a whole, should
use comprehensive risk assessment to concentrate
resources on the areas that need them most.
Regulators should be accountable for the
efficiency and effectiveness of their activities,
while remaining independent in the decisions
they take.
No inspection should take place without
a reason.
Businesses should not have to give unnecessary
information, nor give the same piece of
information twice.
The few businesses that persistently break
regulations should be identified quickly
and face proportionate and meaningful sanctions.
Regulators should provide authoritative,
accessible advice easily and cheaply.
Regulators should be of the right size and
scope, and no new regulator should be created
where an existing one can do the work.
Regulators should recognize that a key element
of their activity will be to allow, or even
encourage, economic progress and only to
intervene when there is a clear case for
protection.
