Came into force 1st Jan
The Environment Agency today became one of the first organisations to be granted new civil powers to complement existing regulatory powers.
The Environment Agency today became one of the first organisations to be granted new civil powers to complement existing regulatory powers. This will mean fairer and more effective environmental regulation.
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.
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