APPENDIX 9
Memorandum from the Law Society
I write on behalf of the Law Society's Planning
and Environmental Law Committee in response to the request to
submit views on the subject of the investigation by the Sub-Committee
into corporate environmental crime. The Law Society is the body
that regulates and represents the 100,000 solicitors practising
in England and Wales. The Committee is formed of 20 practitioners
expert in these areas of the law.
1. Do the bodies responsible for investigating
and prosecuting corporate environmental crime have sufficient
powers and resources to do so? Are they able to conduct robust
and effective investigations into the source of the crime and
mount effective prosecutions that target those who are responsible
for the crime, as well as the person actually committing it?
No. The Environment Agency's Spotlight on Business
Performance in 2003 indicates that the Agency prosecuted 266 companies
in that year and that the courts convicted 11 company directors
for environmental crimes. 266 is manifestly not an accurate reflection
of the number of companies committing environmental offences.
The resources available to the Agency in monitoring, investigating
and prosecuting companies are clearly inadequate. The absence
of resources at the Environmental Agency and local authorities
means that "offences" are going undetected or are being
ignored.
The number of individuals prosecuted for environmental
offences is complicated by the difficulty of identifying the person
liable for the crime within the statutory definition of the offence.
The directors who do receive convictions tend to be from smaller
companies where the connection between the offence and the decision
making within the company can be readily established. With larger
companies the connection between the offence and an individual
director is almost always impossible to establish.
2. Are the penalties for corporate environmental
offences adequate? If not, how can penalties and punishments be
better targeted to ensure that the criminal justice system is
effective in acting as a deterrent?
No. Again the Environment Agency's review of
2003 indicates that the average fine imposed by the courts on
companies for environmental crimes was £8,412 which was £210
less than in 2002. As the Environmental Audit Committee's recent
reports on environmental crime and on fly-tipping, fly-posting,
litter, graffiti and noise have shown, the current level of penalties
is failing to act as a deterrent. All too many companies regard
the possibility of fines for environmental offences as an incidental
operational expense. Magistrates and judges need to have a greater
awareness of the seriousness of environmental crime. All too often
the absence of an individual who has suffered direct injury as
a result of an environmental crime, means that there is a lack
of appreciation as to the seriousness of damage to the environment.
3. What alternatives, outside the criminal
justice system, should be considered for dealing with corporate
environmental offences in order to reduce environmental harm by
business? Should there be greater use of alternative means of
punishment, such as the use of prohibition notices, civil penalties
and the confiscation of company assets?
Innovative thinking by authorities is necessary.
The London Borough of Camden has recently had significant success
in obtaining Anti-Social Behaviour Orders against the named directors
of entertainment companies to stop fly-posting for events and
musical releases. The prospect of a personal conviction has proved
far more influential than the occasional fine of the company concerned
as the company can all too easily claim that the actual posting
of their flyers is the responsibility of intermediate publicity
companies rather than the company itself.
More creative use of civil penalties in this
fashion is a real possibility. DEFRA is currently consulting on
a range of further initiatives and offences to achieve "clean
neighbourhoods" and amongst these is the proposal for powers
to confiscate the vehicles responsible for fly-tipping. We would
also recommend that, as a general principle, companies who offend
should be required to pay for the remedial cost of repairing the
damage they have caused to the environment. This would accord
with and give real meaning to the "polluter pays" principle.
4. Are there too many environmental duties
and responsibilities on corporate bodies which serve only to stifle
their ability to compete in the market place? Are the laws and
regulations applied uniformly across the business sector?
The CBI has recently complained about environmental
legislation. However, its criticism is not of legislation as such,
but the fact that the UK goes beyond the requirements of EU legislation
when implementing into domestic legislation. Environmental legislation
is intended to protect the environment and citizens. While there
are undoubted costs for the business sector, there are also business
opportunities. For example, companies can no longer dispose of
waste into water courses without a licence. That provides an incentive
for companies to minimise waste in the course of their operations
and generates business opportunities for others in safe waste
disposal.
The complaints against red tape and over-regulation
tend to emanate from the small and medium enterprise sector. However,
unless their activity has a serious environmental impact, the
burden of environmental legislation should be less burdensome
for those companies. Law and regulation applies equally to the
business community as a whole, but regulators tend to monitor
larger companies both because of their potential impact on the
environment and because they tend to be the companies which hold
licences of, for example, the Environment Agency.
5. Is the Government doing enough to educate
the business sector in terms of their legal obligations with regard
to environmental issues which impact on their business? Is there
sufficient dialogue and co-operation across Government and the
business community to ensure that best practice, for example,
can be shared?
In general Central Government has been deficient
in not providing sufficient information for companies on environmental
issues and, in particular, the matter of regulation. The Government
tends to be slow in appreciating the practical implications of
environmental legislation and regulation. The most obvious example
is the failure to alert manufacturers, consumers and the waste
disposal industry of new restrictions on the disposal of domestic
refrigerators. The result initially was stockpiles of old fridges
but in the longer term the industry has adapted and the problem
has dissipated. Earlier action on the part of the Government in
this instance would have avoided the problem.
The Environment Agency has a much better record
with regard to those sectors and activities which it regulates
in providing information on the "best available techniques"
and making that information widely available. Being ultimately
responsible for legislation and regulation, the Government should
accept its responsibility for explaining to the business community
the implications of new environmental legislation and regulation
and providing far more assistance to companies in the form of
guidance on how they should be able to achieve compliance.
September 2004
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