Environmental Sanctions: Where Are We Now?

Environmental regulation in the UK is underpinned by the use or threat of criminal sanctions. Commentators argue that such sanctions are too rigid a tool for all but the most serious environmental offences which leads to the trivialisation of environmental offences and the imposition of inadequate fines. The application of strict liability for many environmental breaches can also seem inappropriate by imposing unwarranted criminal blame.

In March 2004 the Environmental Justice Report was published. The report was the output of a project set up to review the operation of environmental law in England and Wales, to identify inadequacies and make recommendations for change.

The report made key recommendations on the need for an environmental court or tribunal, a programme of training and guidance for the judiciary on environmental matters, guidance on "Wednesbury unreasonableness" as a ground for judicial review in environmental cases, prioritising public funding for public interest environmental cases, the establishment of a national database of civil cases and actions to increase knowledge about environmental rights.

Following this report, in September 2005, Defra commissioned a study to examine the merits of introducing the use of civil penalties in environmental regulation (the Macrory Review).

The aim of the Macrory Review was to bring the penalty system into line with the risk-based proportionality model of regulation laid out in the Hampton Report . It considered an assortment of options that would add to the regulators’ enforcement toolbox, broadening the flexibility available to both regulators and the judiciary.

The key messages from the Macrory Review were:

• Criminal prosecution is too rigid an approach to be used for all but the most serious offences focussing on punishment rather than prevention. A more flexible approach would also allow the regulators to be more efficient and to take account of the financial benefit gained from the breach.

• The level of enforcement should fit the regulatory breach and there should be a greater range of penalties.

Following the conclusion of the Macrory Review, Richard Macrory published, under the auspices of the Cabinet Office, his final report - Regulatory Justice: Making Sanctions Effective (the Macrory Report) in November 2006. The Macrory Report recommends that the Government should initiate a "review of the drafting and formulation of criminal offences relating to regulatory non-compliance".

In September 2005 Defra ministers launched an interdepartmental review of environmental enforcement. The review aimed to develop an effective and flexible system of environmental enforcement which more closely involved the community.

The review proceeded in two stages

1. evidence gathering to define the obstacles to effective environmental enforcement; and
2. identifying possible solutions and working out which could bring the most improvement

The review examined enforcement processes for existing regulation. These ranged from the processes followed by the courts and regulators like the Environment Agency and local authorities to the ways in which the wider community could assist more effective enforcement. The review covered all the major environmental regulatory areas, and has considered particularly pollution prevention and control, waste, water quality, noise, and wildlife and habitats. The final report envisions an enforcement system where businesses are confident that the worst offenders are dealt with through tough sanctions and the good intentions of the responsible majority are recognised. It aims to support work towards a more consistent regulatory approach and to strengthen incentives for operators to comply with their environmental obligations.

Some of the solutions offered by the review are that:

• Sentencing in environmental cases should be more transparently related to the purposes of enforcement – making damage good and making amends to affected communities, removing wrongful economic gain, and exposing moral blame.

• Regulators should have more types of sanction available including variable administrative penalties, so that enforcement action will be more proportionate to the offence.

• Clear enforcement policies and effective data collection would ensure transparency and promote consistency.

• Communities could be further involved in detecting environmental offences and in helping to understand their impact.

The Government is currently considering how best to take forward these ideas and conclusions.

In a step in the right direction the Government has recently (May 2007) published a new draft Regulatory, Enforcement and Sanctions Bill for consultation. The draft Bill proposes more consistency in local authority regulation and enforcement and provides for the regulators to be given additional flexible and proportionate powers to tackle those businesses who put people or the environment at risk and undercut law-abiding businesses.

The Government is also consulting on a draft statutory code of practice to encourage councils to focus enforcement effort on businesses most likely to cause harm, while improving advice and reducing unnecessary burdens for honest businesses.

The Bill will also establish a Local Better Regulation Office (LBRO), with the aim of achieving more effective and less burdensome regulation by authorities.

These changes will not happen overnight. Some of the proposed changes will require legislation, while others will require a shift of long-established culture and practice in regulators and business and an overall commitment to reform. However the publication of the Regulatory, Enforcement and Sanctions Bill for consultation is possibly a sign that the government may be prepared to make legislative changes to improve the approach of regulators to enforcement and to provide them with the necessary tools to adopt a more flexible approach.

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