Download Peter Kellett #envucc 2016

Balancing the Stick and Carrot in
Securing Compliance and
Enforcement in England
21 April 2016
Peter Kellett, Director of Legal Services
Environment Agency for England
Outline
The Environment Agency
Developments in sanctions
Outcome based enforcement
Sentencing Council Guidelines
Enforcement Undertakings
Balancing the stick and the carrot
Environment Agency for England
What we do
Environmental regulator
• Compliance, Enforcement and Prosecution
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Industrial Emissions Directive
Waste Directives and Regulations
Water Directives
Emissions Trading
Radioactive Substances
Contaminated land
Environmental operator
Environmental advisor
Environment Agency for England
What we are
Non Departmental Public Body (NDPB)
Established by Environment Act 1995
Independent but Secretary of State:
• Appoints the Board
• Can give Statutory Guidance and Directions
• Sets budget
Appeals to the Secretary of State
ACCEPTABLE COMPLIANCE RANGE
UNACCEPTABLE COMPLIANCE RANGE
LEVEL OF COMPLIANCE
Proactive ownership
Step back and allow
ownership
Positive(constructive) ownership
Support towards full
compliance
Generally non-compliant
Criminals
No intention
of complying
Trail-blazers
Go beyond
compliance
Generally compliant
Unaware or obstructive
Inform and educate –
backed up by enforcement
Total disregard
Investigate, prosecute and
disrupt to stop this activity
Developments in Sanctions
1 - Outcome Focussed Regulation
A. To stop offending –
aim to stop an illegal
activity from
continuing/occurring.
B. To restore and/or
remediate – aim to put
right environmental
harm or damage.
“Level Playing Field”
C. To bring under
regulatory control –
aim to bring an illegal
activity into
compliance with the
law.
D. Punish and/or deter
– to punish an
offender and/or deter
future offending.
Other Factors That May Affect the Picture
Earlier interventions / T-Junction conversations
Enhanced powers for enforcement
Compliance move to self-monitoring
Inspections and audits
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Increased litigation from regulatory
decisions
Live Appeals and Judicial Reviews
Financial Yrs: Q1 2011-Q1 2015
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48
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32
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0
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2011-Q1 2011-Q2 2011-Q3 2011-Q4 2012-Q1 2012-Q2 2012-Q3 2012-Q4 2013-Q1 2013-Q2 2013-Q3 2013-Q4 2014-Q1 2014-Q2 2014-Q3 2014-Q4 2015-Q1
Developments
in Sanctions
2 - Sentencing
Council
Guidelines
Sentencing Council Guidelines 2014
Range £450,000 - £3m
category 1 incident, major harm
large company (£50m turnover)
deliberate
Range £400 - £3,500
category 4 incident, risk of localised harm
small company (£2-10m turnover)
low or no culpability
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Sentencing Council - features
Applies to Individuals (18+) and Organisations sentenced on or
after 1 July 2014
Every court must follow the guidelines (unless contrary to
interests of justice)
Penalties based on
Culpability
Harm
Organisation (Turnover)
Specify Offence Ranges and Starting Points
Twelve Steps
Sentencing Council Guidelines - ranges
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Developments in Sanctions
3 - New civil sanctions
Regulatory Enforcement & Sanctions Act 2008
In use partially since 2011
EUs available for the main Permitting Regime from
April 2015.
Civil Sanctions
Regulatory Enforcement and Sanctions Act 2008
Order or Regulations Give Access to Some / All Civil
Sanctions
Fixed
Monetary
Penalties
(FMPs)
Variable Monetary
Penalties (VMPs)
Compliance Notice (CNs)
Restoration Notice (RNs)
Stop
Notices
(SNs)
Enforcement
Undertakings (EUs)
Variable Monetary Penalties
Capped at £250,000
Complex Guidance from Government
Limited offences (not permitting)
S4 Salmon and Freshwater Fisheries Act 75
25 Aug 2015, Cumbria County Council £63,958
and costs recovery of £5,564
No appeals yet to First Tier Tribunal
Enforcement Undertakings (EUs)
Relevant Offence
Voluntary
Proactive or reactive
Accept or reject
Legally binding
EU Offer form template
EUs – What must they contain?
Actions:
- to stop offending and prevent
a recurrence
- to ensure the position is
restored
- to benefit any person affected
- where restoration is not
possible, actions to secure
equivalent benefit/improvement
Terms of the undertaking
Completion Date
Completion Criteria
Why is this important?
EU Acceptance Letter
EUs – Factors in favour of acceptance
Early Offer
Environment & Community
Good compliance history
More appropriate response based on the nature of
the offence and the regulatory impact
Timely and satisfactory environmental outcome, in
the public interest
Offering more than the bare minimum
EUs – Factors in favour of rejection
Legal proceedings have commenced
Category 1 offence
Intent
Bad Faith
Clauses denying liability or sets up a defence for
possible non-compliance
Benefits of EUs
Can be used to achieve desired outcomes, such as:
Relevant permit, registration or authorisation
Staff Training
Responsible person
New or improved management systems
New or improved site infrastructure
Cost Recovery
Financial contribution to legitimate environmental
organisation or project
Combined trends in enforcement
More refusals, revocations and litigation
More enforcement undertaking offers
Lower inspection rates
Fewer prosecutions
Higher fines
…leading to greater compliance?
Gaps because VMPs limited to a narrow range of
offences and EUs to a slightly wider range
Striking the Balance
Stick - Sentencing Council Guidelines
Driving improvement at previously impracticable sites
Attracting the attention of senior managers of vary large
companies
Much higher incentives
Carrot - Enforcement Undertakings
Ability to put things right quickly
Behavioural change
Potential restoration of natural capital
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