Instruments of interest
Draft Environmental Civil Sanctions (England) (Amendment) Order 2023
Draft Environmental Permitting (England and Wales) (Amendment) (England) (No. 2) Regulations 2023
Environmental Offences (Fixed Penalties) (Amendment) (England) Regulations 2023 (SI 2023/770)
4.These three instruments make changes to the environmental protection regime in England to strengthen the penalties and sanctions that may be applied by environmental regulators and local authorities. The two draft Regulations propose to increase the civil sanctions and enforcement powers that are available to Natural England and the Environment Agency to provide a greater deterrent against environmental offences. The instruments would remove the current cap of £250,000 on the amount of penalty that these regulators can impose and enable the Environment Agency to apply variable monetary penalties to offences under the environmental permitting regime.2
5.The Department for Environment, Food and Rural Affairs (Defra) explains that the current cap on penalties means that it may be cheaper for large operators to pay a penalty than to operate lawfully, and that variable monetary penalties are not currently available under the environmental permitting regime, leaving a “justice gap” for offences where criminal prosecution or advice and guidance are not appropriate. According to Defra, the strengthened regime would cover, for example, the breach of a permit condition such as a storm overflow discharge limit, as well as offences such as polluting waters to the extent of harming fish or their spawning grounds. As a result of the proposed changes, illegal discharges of sewage outside of permit conditions by water companies would be eligible for a variable monetary penalty, with each offence being assessed by the regulator on a case-by-case basis and investigated before a decision is taken on which enforcement option is most appropriate. We welcome that the Department is closing what appear to be significant gaps in the current enforcement regime.
6.SI 2023/770 amends the upper fixed penalty notice (FPN) limit for littering, graffiti, flyposting and fly-tipping offences and for breaching the household waste duty of care. Specifically, the upper limit of FPNs for littering, graffiti and fly-posting offences is increased from £150 to £500; for household waste duty of care offences from £400 to £600; and for fly-tipping offences from £400 to £1,000. Defra says that this will allow local authorities greater freedom to set FPN levels in line with their local enforcement strategies and priorities.
Draft Product Security and Telecommunications Infrastructure (Security Requirements for Relevant Connectable Products) Regulations 2023
7.Alongside the Product Security and Telecommunications Infrastructure Act 2022, this instrument would implement a new legislative regime to prevent so-called consumer connectable products from being sold in the UK unless manufacturers comply with key security requirements. Consumer connectable products are products which can connect to networks, such as smartphones and tablets capable of connecting to cellular networks, routers and Wi-Fi access points, connectable TVs and speakers wearable connectable fitness trackers or smart home assistants. According to the Department for Science, Innovation and Technology (DSIT), many of these products contain vulnerabilities that not only pose a threat to individual privacy and security, but also a wider threat if a malicious actor takes control and uses them to attack businesses, government and infrastructure.
8.This instrument proposes three initial security requirements which, according to the National Cyber Security Centre, will make the most fundamental difference to the security of relevant products:
- A ban on universal or easily guessable default passwords which risk allowing malicious actors to compromise devices at scale, giving them significant computing power with which to launch subsequent attacks.
- An obligation on manufacturers to maintain an awareness of security issues for their products by publishing contact information for the reporting of such issues.
- A requirement for manufacturers to be transparent about how long their products will be supported with security updates to enable consumers to make informed decisions when buying relevant products.
9.DSIT says to avoid unnecessary duplication, products that are subject to comparable UK cyber regulation are exempt, such as electric vehicle smart charge points, medical devices and smart meters. Products which the Government have deemed disproportionate to regulate at this stage due to particular challenges in their production or different threats are also exempt. This includes conventional IT products, such as desktop and laptop computers. The Government will work with industry before taking any steps to bring them into scope of the new regime.
Draft Public Charge Point Regulations 2023
10.To achieve the Government’s net zero target of phasing out all petrol and diesel cars and vans from 2030, the UK will need a well-developed public network of charging points for electric vehicles. Department for Transport (DfT) statistics show that provision had increased from 7,211 charge points in 2017 to over 42,250 on 1 May 2023. This has not, however, kept pace with growth in the number of electric vehicles. These Regulations seek to address the main four areas identified as problematic:
- Ease of payment: within one year, all new public charge points of 8kW and above must provide contactless payment and all existing rapid charge points (of 50kW and above) must be converted. Within two years, payment using a third-party card must be possible (rather than the current system of multiple dedicated apps);
- Standard pricing: pence per kilowatt hour (p/kWh) is to be used as the standard pricing metric to be displayed either on the charge point or through a separate device, to make price comparison across different networks easier. Offers, such as combining charging and parking fees, will be permissible if the charging component is also displayed in
p/kWh; - Better information: the instrument requires operators to make their reference data available so that consumers can find out the location of the nearest charge point and whether it is working or in use, before they arrive; and
- Reliability: to assist drivers on long journeys the Regulations require 99% reliability for each operator’s network of rapid charge points, measured as an annual average. A 24/7 free to use, staffed telephone helpline must also be offered to support consumers struggling to charge.
11.We welcome changes to facilitate the use of electric vehicles but note from the Impact Assessment (IA) that the requirement to convert existing chargers above 50kw to contactless payment only applied to 1,769 machines, that was 8.5% of existing charge points in January 2021 when the data used in the IA was collected. At that time 13% of the charge points were below 8kw and therefore outside the scope of these Regulations. These figures are two and a half years out of date in a rapidly changing sector: the House may wish to ask the Minister about the effect of these Regulations on current provision, and about the Department’s long-term plans to improve the charging infrastructure for electric vehicles.
Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Amendment) Regulations 2023 (SI 2023/780)
12.These Regulations make changes to the statutory requirements relating to early years childcare (up to five years old). The reforms include changing the statutory minimum staff:child ratio for two-year-olds from 1:4 to 1:5, and allowing childminders to care for more than three children if those children include either siblings of those already being cared for, or the childminder’s own children. These changes are designed to support the childcare reforms announced in the 2023 budget3—for example, 30 hours of free childcare for every child between nine months and three years old—and the resulting expected “significant increase” in demand. The change in staff ratios for two-year-olds was also announced in the budget.
13.A 2022 public consultation found that only “a very small number” of respondents agreed with the proposals, with “most” respondents disagreeing.4 Concerns included the impact of the reforms on the quality of childcare provision, on staff workloads and on child wellbeing, and that any resulting financial savings would not be passed on to parents. The Department for Education (DfE) says that it is going ahead anyway because the reforms will “provide greater flexibility to providers to utilise their staff in a more efficient and effective way”. We would expect DfE to keep the effect of the changes under review, particularly in the areas where consultation respondents expressed concerns.
2 Under the environmental permitting regime operators of “regulated facilities” have to obtain a permit or register activities, which would otherwise require permits, as “exempt facilities”. This is to ensure ongoing regulatory supervision of activities which could harm the environment.
3 HM Treasury, ‘Spring Budget 2023’ (15 March 2023), para 4.163: https://www.gov.uk/government/publications/spring-budget-2023 [accessed 21 July 2023].
4 Department for Education, ‘Childcare: regulatory changes’ (15 March 2023): https://www.gov.uk/government/consultations/childcare-regulatory-changes [accessed 21 July 2023].