Environmental Enforcement and Sanctions: criteria for civil and criminal actions

The Government has announced that when considering whether to make Orders under the Regulatory Enforcement and Sanctions Act 2008 to provide a regulator with powers to impose certain civil sanctions as an alternative to prosecution the Government will, in general, observe the following principles:

  • Powers to impose Fixed Monetary Penalties, Variable Monetary Penalties and Restoration Notices will, as a general rule, only be granted where their use is restricted to undertakings with more than 250 employees; and
  • Powers to impose Enforcement Undertakings, Stop Notices and Compliance Notices may be granted without restriction as to the size of undertaking against whom they might be used.

The Minister, Oliver Letwin, told a conference on Environmental Enforcement and Sanctions on November 8, that the full range of penalties, civil and criminal, would be used against the “big fish” who had access to lawyers to get off too easily.

Regulatory Enforcement and Sanctions Act 2008 (RESA)

Part 3 of RESA makes an important new addition to the law as it gives power to a minister by order to make provision for the imposition by designated regulators of civil sanctions in respect of offences for which the regulator has enforcement functions. The sanctions are of four types: fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.

Some 27 regulators are designated under the Act–including such widely differing bodies as the Environment Agency, the Financial Services Authority, the Health and Safety Executive, the Information Commissioner, local fisheries committees and the Pensions Regulator–and a large number of enactments, creating offences for which those regulators have enforcement functions, are specified. The concept of these civil sanctions, as an alternative to criminal penalties, will transform the enforcement regimes across a wide range of statutory controls.

An order made under the 2008 Act will provide for appeals against any requirement or notice served by the regulator, and under s.54 such provision must be for an appeal either to the First-tier Tribunal or to another statutory tribunal.

Environmental Civil Sanctions (England) Order 2010 relates to certain offences created under a number of statutes, including the Salmon and Freshwater Fisheries Act 1975, the Wildlife and Countryside Act 1981, the Environmental Protection Act 1990 and the Water Resources Act 1991. Some of the offences are purely procedural in their nature (failure to give information and offences relating powers of entry or powers of search, for example) but among them are substantive environmental offences, for instance those under s.33(6) of the EPA 1990 of depositing waste without a licence and under s.24 and 25 of the WRA 1991 in relation to abstraction and impounding of water.

The Order provides for appeal to the First-tier Tribunal, and the functions are assigned to the General Regulatory Chamber (GRC), with appeal lying to the Administrative Appeals Chamber. Had there been a First Tier Lands Chamber, it is possible that it would have been the recipient of these functions with appeal lying, therefore, to the Upper Tier Lands Chamber. But the range of civil sanctions goes far beyond land-use environmental matters, and it may well be that the most important matters to be decided in the early days of the new provisions will concern general principles on the operation of the new regime rather than its operation specifically in relation to environmental matters.

The part of the GRC that will handle these civil sanctions appeals is being called GRC (Environment), and provides the first example of the assignment of environmental jurisdictions to the First and Upper Tribunals. Indeed it can be said that there is now an Environmental Tribunal, and the way is open for further such transfers to be made so that from this small sapling a mighty tree may yet grow.