Environmental Enforcement: Implementing new civil sanctions for local authority regulators Laura Rose, Policy Officer

Conclusions from Macrory: Regulatory Justice Consultation 2006 Penalties Principles Sanctions should… change behaviour; ensure that there is no financial benefit from non-compliance; be responsive & consider what is appropriate to particular offender and particular regulatory issue; be proportionate to nature of offence and harm caused; restore the harm caused; aim to deter future non-compliance Concerns about current system Regulators lack a flexible enforcement toolkit resulting in… Reliance on criminal sanctions resulting in… Lack of differentiation between how businesses who commit a strict liability offence with no fault or intent present, and those who deliberately flout the law are treated and therefore… Criminal convictions have lost their stigma and no longer sufficient to deter truly criminal/rogue operators Criminal prosecution may not be proportionate response and may not address needs of victim

Macrory’s ‘Compliance Deficit’ Moreover Macrory talked of a ‘compliance deficit’: “where non-compliance exists and is identified but no enforcement action is taken because the regulator lacks the appropriate tools to effectively sanction” Spectrum of existing enforcement tools Warning letters & enforcement notices Criminal Prosecution

Macrory’s Vision for the Future

Introducing the new civil sanctions: The Regulatory Enforcement & Sanctions Act 2008 Key RES Act sanctions Fixed Monetary Penalty (FMP) Variable Monetary Penalty (VMP) Restoration notice Compliance notice Stop notice Enforcement Undertaking Supplementary provisions Non-compliance Penalty (NCP) Restoration Cost Notice (RCN) Regulatory Cost Recovery Notice (RCRN)

Group exercise: Find the Gap Think about the full range of environmental offences for which you are the regulator. Each group needs to identify at least two areas where a ‘compliance deficit’ exists, i.e. where is there a gap in your enforcement toolkit that prevents you from ‘effectively’ responding to non-compliance? At the end of this session you will need to present your groups findings to everyone for discussion so examples from your work would be useful to illustrate why this gap is particularly problematic.

Group exercise: Mind the Gap Reflecting on the gaps you’ve identified in the first exercise, are there any particular new sanctions that you feel would fill these gaps? Don’t forget that some of the sanctions can be used in combination! Again you’ll be asked to feed this back to the whole group shortly so think about why you feel this sanction would be more ‘effective’? Do you have any caveats or concerns about their introduction?

Implementing civil sanctions: Defra’s Fairer and Better Environmental Enforcement Project LACORS representing councils on Defra project board First consultation: principally for EA, NE & CCW but lays out general principles & guidance for all LBRO leading on assessment of local authority Hampton Compliance, in a particular regulatory field, in order to award new sanctioning powers Second consultation: for local authorities Already raised concerns over (i) how new powers would fit with existing LA notice powers (for example abatement notices) & (ii) lack of a central intelligence/enforcement database for factoring in history of offending

Beyond civil sanctions: Strengthening the criminal courts Defra (FBEE project) suggest courts need following powers, via primary legislation, to: Order restoration of environment if not already adequately secured; Require alternative forms of restoration, where particular harm cannot be secured (“flexible restoration”); Allow magistrates to confiscate financial benefit from non-compliance; Order the offender to publicise their offence and sanctions imposed (“publicity order”); Order offender to pay regulator’s costs or estimated costs of restoration; Allow magistrates to order an offender to pay compensation up to higher £50,000 level. Other related issues are: Ensuring the Sentencing Guidelines Council provide guidelines for environmental and regulatory sentencing. Securing adequate national training not only for judges but for magistrates, magistrates clerks, and, if civil sanctions are introduced, training for members of the First Tier Tribunal. Conditional cautions for local authorities? Increasing LA use of Proceeds of Crime Act BUT…

What really do you want to make environmental enforcement effective? …if everything on the latter slide was achieved in relation to criminal sanctions would you still want alternative civil sanctions on the basis of Defra’s rationale, drawn from Macrory, that an alternative to criminal sanctions would: (a) avoid those with a good general approach to compliance being stigmatised by criminal sanctions whilst (b) maintaining criminal sanctions that are reliably tougher punishment for real rogues who commit the worst environmental offences, deliberately, recklessly & negligently?