1.The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following points:
(i) (a) [Explain] whether part of the motive for replacing criminal sanctions with civil penalties was to increase the deterrent impact, by providing for a maximum penalty in excess of the maximum criminal penalty permitted by paragraph 1 of Schedule 2 to the European Communities Act 1972
2.The Department’s motivation for replacing criminal sanctions with civil penalties was to increase the deterrent impact. This arose from concerns expressed by both businesses and environmental stakeholders about whether the current regime provides sufficient deterrence against non-compliance in England and Scotland. The Department’s view is that civil penalties will enhance deterrence by being simpler to apply and increasing the likelihood of a financial penalty for infringements.
3.The criminal offences in the Fluorinated Greenhouse Gases Regulations 2015 (S.I. 2015/310) (“2015 Regulations”) carry a maximum penalty of an unlimited fine (regulation 31(b)). Under this regime, criminal prosecutions were used relatively infrequently. The usual practice was to take no further action if recipients complied with enforcement notices, which themselves carried no financial penalty. This was in part because criminal prosecutions can be resource-intensive and costly to pursue. This created a concern that some may have felt that there was little risk or little to lose from not complying.
4.Given the substantial penalties already available for criminal prosecutions, the Department’s motivation for moving to civil penalties was less to do with the size of the maximum civil penalties and more to do with the overall effectiveness of having to rely upon bringing criminal prosecutions to provide adequate deterrence. In addition, the Government’s policy is to avoid the creation of unnecessary or disproportionate criminal sanctions when implementing EU obligations. These amendments provided the opportunity for the Department to extend the application of this policy by removing most criminal offences from the 2015 Regulations.
5.It is the Department’s view that civil penalties are not covered by the restriction on the exercise of the use of section 2(2) of the European Communities Act 1972 (“1972 Act”) in paragraph 1(d) of Schedule 2 to that Act. That restriction applies to the creation of new criminal offences.
(b) [Explain] if it is thought that section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 affected the operation of paragraph 1 of Schedule 2 to the 1972 Act in relation to England and Wales, what the effect is.
6.The Department’s view – consistent with that of the rest of Government – is that section 85(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“2012 Act”) has removed the limit for summary convictions in England and Wales in paragraph 1(d) of Schedule 2 to the 1972 Act. This means that summary offences created under section 2(2) can impose a fine of any amount.
7.Various statutory offences were punishable on summary conviction by a fine not exceeding £5,000 or more until section 85 of the 2012 Act came into force. The figure of the fine on summary conviction may have been expressed in an enactment creating the offence in a number of ways, whether as a fixed sum (“£5,000”), or by a form of words such as “the statutory maximum”, “level 5 on the standard scale”, or “the prescribed sum”. Section 85(2) removes these limits where relevant powers can be used to create an offence, however they may be expressed.
8.The restriction on the use of the power in section 2(2) of the 1972 Act, as it currently applies in England and Wales, prevents:
“[the creation of] any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than £100 a day.”.
9.Section 85(2) of the 2012 Act provides that existing powers that could be exercised to create an offence punishable on summary conviction to a maximum fine of £5,000 (however expressed) may, following commencement of the provision, be exercised to create an offence punishable on summary conviction by a fine of any amount. The Department considers the power in section 2(2) of the 1972 Act to be caught by section 85(2) of the 2012 Act.
(ii) Explain why regulation 9 (inserted regulation 8) sub-delegates to the Secretary of State in respect of matters formerly dealt with in the regulations themselves.
10.The amended regulation 8 of the 2015 Regulations provides for the appointment by the Secretary of State of various certification, evaluation and attestation bodies. The appointment of such bodies is required by the directly applicable Commission Regulations set out in the amended regulation 8. This amendment was drawn to the Committee’s attention in the Explanatory Memorandum accompanying the Fluorinated Greenhouse Gases (Amendment) Regulations 2018 (“2018 Regulations”).
11.Prior to the coming into force of the amendment, these appointments were made by naming the certification, attestation and evaluation bodies in the 2015 Regulations. This meant that, in order to appoint a new body or to remove one of the existing bodies, the instrument would have to be amended. An amendment would also have been required if, for example, a company appointed as a certification body underwent a corporate restructure. Bodies are identified by their company number, but if, in this example, functions were moved into another corporate vehicle, the body would be unable to carry out the functions required by the Commission Regulations until the domestic regulations had been amended.
12.The Department considered that this approach created a risk of delays in being able to designate new bodies. In particular, the Department considered that there was a risk associated with being unable to replace bodies no longer able to act as a certification or evaluation body, even where a suitable replacement existed, such that there could for a period be no appointed body able to carry out these functions.
13.The Department does not consider that the appointment of certification, attestation and evaluation bodies needs to be exercised through legislation. The directly applicable Commission Implementing Regulation 2015/2067 provides at Article 7 that:
“A certification body shall be provided for in national law or designated by the competent authority of a Member State or other entities entitled to do so, as being allowed to issue certificates to natural persons or companies involved in one or more of the activities referred to in Article 2.”.
Similarly, Article 8 mentions “An evaluation body designated by the competent authority of a Member State or other entities entitled to do so”.
14.Such appointments are considered by the Department to be administrative in nature, notwithstanding that this used to be provided in legislation. Decisions on who should be appointed as certification, evaluation and attestation bodies will be dependent upon their technical ability to carry out the functions listed in the Commission Regulations, as well as their independence and impartiality. The amendment to regulation 8 of the 2015 Regulations enables changes to be made more quickly, reducing the risk to those who rely on certification, evaluation and attestation bodies that no such body will be in place. It also reduces the potential need to have to frequently amend the legislation every time an appointed body undergoes a corporate restructure or needs to be replaced, or if another entity wishes to become a certification, evaluation or attestation body and is considered suitable for such a role by the Secretary of State.
15.The Department does not consider that the previous inclusion of functions of an administrative nature in legislation precludes those functions from subsequently being exercised administratively, either in terms of vires or what may be considered an expected use of the power. The Department, in consultation with the devolved administrations, reviewed the effectiveness of this legislative regime based on the experience of both the 2015 Regulations and the predecessor legislation, the Fluorinated Greenhouse Gases Regulations 2009 (S.I. 2009/261), and concluded that this change would improve it.
16.The power to make the appointment is now provided in legislation and will consequently be subject to Parliamentary scrutiny, should further amendments be made in the future. The 2018 Regulations also inserted a new regulation 19A requiring more information to be published than was previously included in the 2015 Regulations, namely the postal address, telephone number and email address of the appointed person, as well as their name and company number.
17.The Department does not consider the restriction on the use of section 2(2) of the 1972 Act in paragraph 1(c) of Schedule 2 to that Act to apply because the amended regulation 8 does not purport to “confer any power to legislate”.
Department for Environment, Food and Rural Affairs
27 February 2018
1 Commission Implementing Regulation 2015/2067 establishing, pursuant to Regulation (EU) No 517/2014 of the European Parliament and of the Council, minimum requirements and the conditions for mutual recognition for the certification of natural persons as regards stationary refrigeration, air conditioning and heat pump equipment, and refrigeration units of refrigerated trucks and trailers, containing fluorinated greenhouse gases and for the certification of companies as regards stationary refrigeration, air conditioning and heat pump equipment, containing fluorinated greenhouse gases (OJ No. L 301, 18.11.2015, p. 28).
Published: 7 March 2018