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 todays proceedings with
confirmation of when the order was sent and the outcome of my
Departments 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 Ministers 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
businesss 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 Executives 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 herealbeit, I trust,
brieflyunder 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
approachI use the word in a generic senseof 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 Departments 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 Englandor, 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 Ministers
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
officerwhoever that iscould 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 peoplethey 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. Gentlemans questions, which are pertinent.
I very much share his view. Added to thatwe discussed this in
relation to animal welfarewhat happens if individuals refuse
entry? If people say, No, Im 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