Environmental Civil Sanctions (England) Order 2010

I thank the Minister for presenting these two companion statutory instruments. I suppose I should say that I am a farmer and grower. I declare that interest because agriculture features in quite a lot of regulatory matters concerning the environment. However, if I may say so, providing for civil sanctions through a regulator tribunal-based system also provides for a much more flexible approach to environmental regulation and control. To the extent that they decriminalise infractions where appropriate and use civil means of redress, they are very welcome. I am pleased that we can use the opportunity of approving these draft orders and regulations to clarify the ways in which the Government intend them to work and the thinking that lies behind them. Therefore, if I appear to be a bit pedantic, it is because I should like to give the Minister the opportunity to clarify certain elements. The miscellaneous amendment regulations allow Natural England and the Environment Agency to apply specified punishments for breaching certain aspects of nine separate regulations laid as far back as 1989 and as recently as 2008. The basic order does the same thing for offences under 13 Acts passed between 1932 and 2003. Both drafts refer throughout to an application in England, whereas in the Explanatory Memorandum—I refer the Minister particularly to pages 10, 11, 12 and 39—reference is made to England and Wales. The evidence base for the impact assessment refers to the Countryside Council for Wales, and therefore I hope I am right in assuming that the quantification of the impact assessment and the cost-benefit analysis on which these proposals are based is found across both countries. It would be useful to have confirmation of that. In the Explanatory Memorandum, the Government are at pains to explain that the idea is to reduce the cost of prosecution while improving the level of discipline. Thus fixed penalties will be levied at £100 for an individual or £300 for a corporate body. The Explanatory Memorandum then states: ""The relatively low level reflects the significant reputational impact expected from the publicly recorded use of a fixed monetary penalty"." My problem is that I cannot find in either draft any reference to the publication of fixed penalties, and I would be grateful if the Minister could enlighten me about the process that will be used to ensure the full reputational impact and the statute under which that process will be invoked. An offence that could be tried in a magistrates’ court or the Crown Court may be subject to a variable penalty of not more than £250,000, above which the regulator would consider prosecution. Does that mean that if the regulator rejects that possibility the offender will get away with £250,000 for an offence that should cost him rather more than that? The regulator may also impose a financial penalty on anyone who fails to comply with a compliance notice. The penalty will be a percentage—perhaps as high as 100 per cent—of the cost of fulfilling the conditions of the compliance notice. Do the Government have in mind a limit above which prosecution will be the preferred option? Is it a monetary question or does it depend on the degree of flagrant abuse of the regulations? What will happen to the financial penalties levied by the regulator? Who takes possession of them? The regulator may impose a restoration notice in the case of offences under regulations covering the use of sludge in agricultural use, the control of pollution from oil storage, the water resources regulations 2003, the hazardous waste regulations 2005 and the nitrate pollution prevention regulations. It seems that the first and last relate to farming in the main and that the scale and scope of the pollution resulting from a farmer's mistake is likely to be of a different order of magnitude, almost by definition, than many other pollution incidents. Do the Government have in mind any guidance to ensure that farmers are not unduly penalised simply because, by the time an error is measurable, it is already serious to severe? In the analysis and evidence at the bottom of page 12 of the Explanatory Memorandum, the letters N/A appear eight times. Do they mean the same thing each time and do they mean "not applicable" or "not available"? Perhaps the Minister will explain. For example, they are used for each type of organisation whether micro, small, medium or large under the heading "annual cost per organisation", yet in response to the question, ""Are any of these organisations exempt?"," we see "No" for micro and small organisations but N/A for medium and large ones. More importantly, N/A appears in response to: ""Will implementation go beyond minimum EU requirements?"." It is important that we have an explanation because it would probably be quite clear if we understood the underlying code. Page 7 of the Explanatory Memorandum states that the legislation applies to small business. Does that mean that it will not apply to big business? If so, how will the two be differentiated? Finally, how many First-tier Tribunals will there be and what will be the maximum distance an appellant will have to travel to have his case heard?