Environmental Civil Sanctions (England) Order 2010

My Lords, in moving this Motion, I shall speak also to the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010. Most people and businesses set out to comply with the law. Clear regulation, raising awareness, and authoritative advice and guidance from regulators remain the key to securing compliance. Enforcement is a small but necessary part of effective regulation. Following the report on regulatory sanctions by Professor Richard Macrory, it is clear that enforcement has relied too much on criminal prosecution and fines. Prosecution is sometimes heavy-handed, but there is often no proportionate alternative. Sometimes enforcement is inadequate because a sanction is necessary but nothing proportionate is available. The Government wish to give the Environment Agency and Natural England the option to use the civil sanctions allowed by the Regulatory Enforcement and Sanctions Act 2008. The order and regulations, which introduce these civil sanctions in England, are a first crucial step in creating a system of enforcement across environmental regulation in England and Wales. The system will be fairer, more proportionate, and more effective, so it delivers better outcomes. This intermediate tier of civil sanctions may be applied to businesses and others with a good general approach to compliance who have nevertheless failed in their precautions. Of course, in many cases, as now, sanctions are not needed; I should emphasise that regulator advice and guidance will remain the foundation of environmental enforcement. Civil sanctions would carry less stigma than a conviction. The worst offenders will be prosecuted; a conviction for an environmental offence will then carry the opprobrium that it deserves and be a stronger incentive to compliance in the future. The Government plan to bring forward legislation to give the courts additional sentencing powers in environmental cases to assist them in proportionate sentencing of the worst offenders. This would include a power for the courts generally to be able to order restoration of environmental harm or restitution to adversely affected third parties. The Government plan a further consultation on the details of the proposed powers. With the order and regulations we are taking a big step towards an improved environment-wide enforcement system, first, for the offences listed in the order and regulations, and in further planned legislation, for breaches of permits in particular. The order contains rules governing use of the civil sanctions. Parts 1 to 4 contain general provisions, such as for appeals. Schedules 1 to 4 provide for the particular sanctions. Schedule 5 applies selected civil sanctions to particular offences in primary legislation. For technical legal reasons, the regulations are needed to extend the sanctions to particular offences in secondary legislation. This legislation introduces no new regulatory requirements. Additional costs of the new system will fall mainly on the non-compliant, and most on the least compliant. The benefits will be greater: a more level playing-field for compliant businesses and environmental benefits from discouraging offending and more direct restoration. For the first time, a regulator will be able to accept a business’s binding commitment to remedy non-compliance and its ill effects, with benefits to the business’s reputation. These enforcement undertakings will streamline enforcement, put compliance and restoration first and encourage dialogue between the regulator and business. For the more serious cases that are still suitable for civil sanctions, regulators must be able to impose a proportionate monetary penalty. The variable monetary penalty aims to be the minimum economic deterrent to future non-compliance. It aims to level the playing field for compliant businesses. The approach to calculation is set out in published government guidance. Securing compliance, restoring harm and restitution to affected parties will still take priority over paying the monetary penalty. Responding to business comment, we have kept those variable monetary penalties not already kept by the Regulatory Enforcement and Sanctions Act. The £250,000 upper limit for an offence will continue to drive the most serious offences to the criminal courts. This legislation also fills important gaps in regulator enforcement powers. It will introduce compliance, restoration and stop notices and fixed monetary penalties where they are needed. Fixed monetary penalties will be appropriate mainly where lesser non-compliance remains, despite regulator advice and guidance. The order also gives the regulators the minimum additional powers to enable effective use of the new sanctions for cases where the expected co-operation is not forthcoming. Regulators are engaging with businesses, large and small, as they consult on their plans for implementing the new system. The Better Regulation Executive’s independent reviewers have given the regulators positive assessments against the Hampton principles of good regulation. The government guidance also sets the framework for proportionate and consistent regulator use of civil sanctions, for government monitoring, and for review after two years. No civil sanction will be imposed without senior manager oversight. I am satisfied that civil sanctions will be used in accordance with better regulation principles. Business is given the right to make representations and objections, which the regulator must consider, to a proposed compliance or restoration notice or fixed or variable monetary penalty. Business may appeal against regulator decisions on civil sanctions to the independent and impartial First-tier Tribunal. The new system will be fairer to businesses with a good general approach to compliance; it will be better at securing restoration of environmental harm and better at levelling the playing field for compliant business. These improvements have received overall support from business organisations as well as others. I beg to move.