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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chair: Mr. George Howarth
Binley, Mr. Brian (Northampton, South) (Con)
Borrow, Mr. David S. (South Ribble) (Lab)
Breed, Mr. Colin (South-East Cornwall) (LD)
Browne, Des (Kilmarnock and Loudoun) (Lab)
Clelland, Mr. David (Tyne Bridge) (Lab)
Farron, Tim (Westmorland and Lonsdale) (LD)
Fitzpatrick, Jim (Minister of State, Department for Environment, Food and Rural Affairs)
Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
Hopkins, Kelvin (Luton, North) (Lab)
Lilley, Mr. Peter (Hitchin and Harpenden) (Con)
Main, Anne (St. Albans) (Con)
Paice, Mr. James (South-East Cambridgeshire) (Con)
Smith, Geraldine (Morecambe and Lunesdale) (Lab)
Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
Watkinson, Angela (Upminster) (Con)
Wright, David (Telford) (Lab)
Joanna Dodd, Committee Clerk
† attended the Committee

Eighth Delegated Legislation Committee

Tuesday 16 March 2010

[Mr. George Howarth in the Chair]

Draft Environmental Civil Sanctions (England) Order 2010
4.30 pm
Mr. James Paice (South-East Cambridgeshire) (Con): On a point of order, Mr. Howarth. You will be aware that the order gives the power of entry to warrant holders from Natural England. In the guide to legislative procedures, the Home Office requires the approval of Home Department Ministers to be given before policy clearance is sought for proposed legislation relating to powers of entry. In a written answer to my hon. Friend the Member for Peterborough (Mr. Jackson) on 24 February, the Minister for Policing, Crime and Counter-Terrorism stated that the order had not been referred to the Home Office. If that is the case, our proceedings are out of order, unless the order has been referred to the Home Office since 24 February.
The Minister of State, Department for Environment, Food and Rural Affairs (Jim Fitzpatrick): Further to that point of order, I am grateful to the hon. Gentleman for his question. My understanding is that the order has been presented to the Home Office for clearance. I am grateful to him for drawing our attention to the latest response to that parliamentary question. If it is acceptable to him, I will urgently write to him after today’s proceedings with confirmation of when the order was sent and the outcome of my Department’s request to the Home Office.
The Chair: I appreciate the precision with which the hon. Member for South-East Cambridgeshire put his point of order, but it is a matter of debate between the two Front-Bench spokesmen as to whether the procedures that he described have been carried out completely. My understanding is that that should not be a point of order for the Chair to determine.
Mr. Paice: Further to that point of order, obviously, I do not want to dispute the view of the Chair, Mr. Howarth, but my point was not a matter of dispute between the Minister and me. In some ways, I would not dream of doubting the Minister’s word, but it is clear that my comments were a complete surprise to him. My suggestion to you, as Chairman of the Committee, was that it would be out of order for us to deliberate on the motion at all if the proper legislative procedures had not been carried out. That was my concern in my point of order.
Jim Fitzpatrick: My understanding is that the order has been referred to the Home Office and that we have approval.
The Chair: I am grateful for that.
4.33 pm
Jim Fitzpatrick: I beg to move,
That the Committee has considered the draft Environmental Civil Sanctions (England) Order 2010.
The Chair: With this it will be convenient to consider the draft Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010.
Jim Fitzpatrick: It is a pleasure to see you presiding over us today, Mr. Howarth. I thank you for your clarification of the points raised by the hon. Member for South-East Cambridgeshire. I apologise for any inconvenience and for anything that has misled him or the Committee in respect of the latest position on the consultation with the Home Office. I will clarify the position for all members of the Committee and write to them after the close of our business.
Most people in businesses set out to comply with the law. Clear regulation, raising awareness and authoritative advice and guidance from regulators are the key to securing compliance. Enforcement is a small but necessary part of effective regulation, but it has relied much on criminal prosecution and fines. Prosecution can sometimes be heavy-handed, but there is often no proportionate alternative. Sometimes enforcement is inadequate because a sanction is necessary, but nothing proportionate is available. The legislation before us will make enforcement fairer, more proportionate and more effective so that it delivers better outcomes.
The Government wish to give the Environment Agency and Natural England the option to use the civil sanctions allowed by the Regulatory Enforcement and Sanctions Act 2008. Civil sanctions may be applied to businesses and others that have a good general approach to compliance, but which may nevertheless have failed in their precautions.
The order contains rules governing the use of civil sanctions. Parts 1 to 4 contain general provisions, including for appeals. Schedules 1 to 4 provide the particular sanctions. Schedule 5 applies selected civil sanctions to particular offences in primary legislation.
For technical legal reasons, the provisions are needed to extend the sanctions to particular offences in secondary legislation. Civil sanctions would carry less stigma than a conviction. The worst offenders, however, will be prosecuted. A conviction for an environmental offence will then carry the opprobrium that it deserves.
The draft legislation introduces no new regulatory requirements. The additional costs of the new system will fall mainly on the non-compliant and most on the least compliant. The benefits will be greater: a more level playing field for compliant businesses and environmental benefits from the discouragement of offending and more direct restoration.
For the first time, a regulator will be able to accept a business’s binding commitment to put right non-compliance and its ill effects, with benefits to business reputation. Such undertakings will streamline enforcement and put compliance and restoration first. For more serious cases in which a civil sanction is still suitable, regulators must be able to impose a proportionate monetary penalty. The variable monetary penalty aims at the minimum amount needed to deter future non-compliance and level the playing field for compliant businesses. The approach to calculation is set out in published Government guidance. Securing compliance, restoring harm and making restitution to affected parties will still take priority over paying the monetary penalty.
In response to business comment, we have capped variable monetary penalties not already capped by the Regulatory Enforcement and Sanctions Act 2008. The £250,000 upper limit for an offence will continue to drive the most serious offences to the criminal courts. The draft legislation also fills important gaps in regulatory enforcement powers. It will introduce compliance, restoration and stop notices and fixed monetary penalties where they are needed. Fixed monetary penalties will be appropriate mainly where lesser non-compliance remains despite regulatory advice and guidance.
The draft legislation also gives the regulators the minimum additional powers to enable effective use of the new sanctions for cases in which the expected co-operation is not forthcoming. Civil sanctions are being phased in, first for the offences listed in the order and regulations and later for breaches of permits. Regulators are engaging with businesses large and small as they consult on their plans for implementing the new system. The regulators have received from the Better Regulation Executive’s independent reviewers positive assessments against the Hampton principles of better regulation.
The Government guidance also sets the framework for proportionate and consistent use of civil sanctions by regulators. No civil sanctions will be imposed without senior manager oversight. We are satisfied that civil sanctions will be used in accordance with better regulation principles.
Business is given the right to make representations and objectives, which the regulator must consider, to a proposed compliance or restoration notice, or fixed or variable monetary penalty. Business may appeal against regulator decisions on civil sanctions to the independent and impartial first-tier tribunal. The new system will be fairer to businesses with a good general approach to compliance, better at securing restoration of environmental harm and better at levelling the playing field for compliant businesses. The improvements have received the overall support of business organisations and others. I commend the order and the regulations to the Committee.
4.38 pm
Mr. Paice: It is a pleasure to be here—albeit, I trust, briefly—under your chairmanship, Mr. Howarth. I do not intend to detain the Committee for long. We entirely support much of the order. As the Minister said, all organisations linked to the environment support its approach. It is novel for them all to agree. The idea of a medium stage between criminal prosecution and no prosecution at all is entirely right, and we support the use of civil sanctions, particularly non-monetary ones, and the remedial approach—I use the word in a generic sense—of putting right what has been done wrong rather than simply fining or, worse, prosecuting. In principle, we support the measures overall.
However, I return to the earlier issue of entry into property, as it is highly emotive and we are concerned about it. In principle, we do not like the idea of extending powers of entry to anybody else. They have already been given to many organisations. In 1980, the then Under-Secretary of State at the Department of Industry carried out a study of the subject, and 700 reasons were found for people being given power of entry. Ever since, Parliament has been careful about extending the power. Certainly, the Opposition are most concerned about it.
The Minister said in answer to my point of order that he would write to me; I am grateful to him. It might help if, before I have finished, he could find out exactly when the consultation with the Home Office took place, so that we can have it on record, bearing in mind that he is obviously able to gather information from his civil servants.
I have a couple of questions about the power of entry. The explanatory memorandum, and indeed the website of the Department for Environment, Food and Rural Affairs relating to enforcement, go quite a lot further than the changes to which the Minister referred. He spoke about the cap on the fine, about the power to allow the regulator to check only whether the sanction was being complied with in a reasonable time, and about domestic premises being excluded. That is all good, but the website goes on to say that
“The government guidance states that regulators should have in place senior level oversight and authorisation of decisions to use the power. This power is necessary to avoid the risk that some recipients of civil sanctions would otherwise feel they could flout the requirements placed on them. Adding this power is in the interests of responsible businesses”.
Nowhere does the legislation refer to requiring “senior level oversight”. Article 15 of the order contains the simple statement that
“Any person authorised in writing to do so by Natural England may, on producing the authorisation if required, enter any premises”.
There is no reference to senior oversight, or anything like it. I would be grateful to hear why that bit of the information that DEFRA got out of the consultation is not included in the legislation, despite it being put on the Department’s website.
Linked to that is the fact that the consultation refers to a “warrant holder” from Natural England. That phrase is not used in the legislation. It states:
“authorised in writing to do so...may, on producing the authorisation if required”.
Is that the same as a warrant holder, or is “warrant holder” the title of an officer of Natural England—or, for that matter, any other body? Those are important questions.
I have a question for the Minister about appeals. I congratulate the Government on the fact that the standard of proof for an offence will be equivalent to that required in a criminal court. That is as it should be. However, I am slightly concerned about the reference in article 10(3), which states:
“In any other case the tribunal must determine the standard of proof.”
I wonder what that means. It seems rather open-ended that the tribunal should be able to decide on the level of proof that it believes to be necessary. I contend that the standard of proof should be clearly stated in writing, so that the person accused and the person doing the accusing both know what level of proof they have to achieve. It is not clear in the order.
In the wider context, those are not big issues. Nevertheless, it is better to get things right at this stage than to proceed with holes in the legislation that could give rise to problems in prosecutions, whether civil or criminal. I would be grateful to hear the Minister’s answers. We support the principle of civil sanctions, especially the non-monetary ones. We support all of that part of the order, there being a question mark only over the matter of appeal. However, I have much greater reservations about article 15 on the power of entry. I should be grateful for any further information that the Minister can give on that.
We do not oppose the order, but I put on record our grave doubts about extending the power of entry. We may wish to return to that subject at a later date.
4.45 pm
Mr. Colin Breed (South-East Cornwall) (LD): I, too, welcome you to the Chair, Mr. Howarth. The Liberal Democrats, too, think that there is a lot of sense in the proposals and will not oppose them. Perhaps some aspects of them could have been introduced before. However, there are some questions to be asked and I very much support the comments of the hon. Member for South-East Cambridgeshire. I am not certain, but we might have served together on the Committee that considered the Animal Welfare Bill. We debated for some time the issue of entry to premises and we tabled between us quite a few amendments not to get round that, but to make the provisions more humane and sensible. I have to say that we were completely unsuccessful, so we ended up with a situation in which a duly authorised officer—whoever that is—could basically enter the premises at any time of day or night with no notice whatever and could require anyone on the premises to do exactly what they said. They could kill everything on the land, except the people—they were exempted, which was rather good. The provisions were unbelievably draconian and we were given the assurance that, of course, such provisions would never be misused in any way. Nevertheless, that is where they are.
That was in the wake of the foot and mouth crisis. Here we are today talking about measures that are perhaps not quite as significant as those for a foot and mouth outbreak, yet there are powers of entry that, if we are not careful, will mirror those that are already in existence and that in my view are way beyond what a civilised society should be looking at. I shall therefore listen with interest to what the Minister says in response to the hon. Gentleman’s questions, which are pertinent. I very much share his view. Added to that—we discussed this in relation to animal welfare—what happens if individuals refuse entry? If people say, “No, I’m not going to allow you to come in,” what will happen to them?
A regulator will be created to draw up and consult on revised enforcement policies and guidance on how they will be determined. It would be interesting to know when it is expected that those revised policies will be published.
I think that the upper limit on the variable monetary penalty is £250,000, which seems quite high. I would appreciate it if the Minister gave us some idea about why the Government picked that figure and whether they have decided on a minimum penalty. Often, smaller penalties are accepted by people who recognise that they are doing something wrong. They treat such a penalty as an inconvenience or a penalty that they are prepared to put up with. There are issues about the way in which people park cars in order to sell them on the highway. I have come across that. The penalty that we can impose on them is so minimal that they are quite happy to pay the fine all the time and just carry on doing what they are doing. We should have some idea that we are not going down that road. Even at the minimum end, the penalty should be significant enough to ensure that people fall into line and do not just pay the penalty and carry on regardless.
The regulations refer specifically to England and Wales. The Minister will know of course that some farms and land straddle the border between England and Scotland. Has consideration been given to that? If an environmental regulation has not been complied with and that happens to be on one side of the border as opposed to the other, how will that be dealt with? With that, I am happy to say that we will support the proposals.
4.49 pm
 
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