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Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 [Draft]
Under agenda item 2, the committee is to consider the draft Environmental Regulation (Enforcement Measures) (Scotland) Order 2015. It has been laid under affirmative procedure, which means that Parliament must approve it before the provisions can come into force. Following evidence, the committee will, under agenda item 3, be invited to consider the motion to approve the order.
I welcome to the meeting the Minister for Environment, Climate Change and Land Reform, Dr Aileen McLeod, and Scottish Government officials George Burgess, who is deputy director of the environmental quality division, and Bridget Marshall, who is also from the environmental quality division.
I invite the minister to make a short introductory statement.
Good morning, convener. I thank you and the rest of the committee for inviting me here to discuss this important order, which is a key component of our wider better environment programme with the Scottish Environment Protection Agency.
Scotland’s environment is a vital natural asset; protecting it is not just a valuable end in itself but is essential for our economic prosperity and the health and wellbeing of people in Scotland. Although everyone in this country has a part to play in helping to look after our environment, it is essential that bodies that have statutory obligations to protect and improve our environment, such as SEPA, have the powers that they need to do that job effectively.
The vast majority of individuals and businesses in Scotland already comply with the relevant environmental regulations. Indeed, a significant number of them go beyond compliance in recognising that waste reduction, resource efficiency and other good practice are not just beneficial for the environment but make good business sense.
However, when individuals or businesses deliberately or negligently harm Scotland’s environment, it is essential that SEPA has the right tools to protect our environment and communities, and to ensure that legitimate businesses are not undercut by criminals. It is simply unacceptable that anyone should profit by damaging our environment.
The order will implement most aspects of chapter 2 of part 3 of the Regulatory Reform (Scotland) Act 2014 by making provision for a range of new enforcement measures for SEPA, which include fixed and variable monetary penalties, enforcement undertakings, non-compliance penalties and costs recovery notices. Those enforcement measures will provide SEPA with a better range of interventions to tackle poor performance, non-compliance and environmental crime, and will help to create a level playing field for businesses. They will also help SEPA to take a preventative approach by facilitating early engagement and intervention to prevent compliance issues from escalating and becoming prolonged or, through their deterrent effect, by preventing such issues from arising in the first place.
SEPA is well aware of the significance of the additional powers and responsibilities that we propose to give it, and it is committed to ensuring that the measures are used responsibly. In addition to the safeguards in the order, such as the right of individuals to make written representations and to appeal against enforcement decisions, SEPA is putting in place a wider range of safeguards to ensure that the new measures are used proportionately and effectively. Those safeguards include comprehensive training on the intent behind and the use of the new measures for SEPA officers, and the establishment of a robust internal review process that is designed to ensure appropriate and consistent use of the new measures within SEPA.
In addition, SEPA has recently completed a public consultation on its new enforcement policy and revised enforcement guidance. Those key documents provide transparency on the way in which SEPA will make enforcement decisions, and they set out not only what SEPA expects of regulated businesses, but what regulated businesses can expect from SEPA.
It is important to recognise that the new measures are part of a wider framework of environmental protection and that they will not be used in isolation. SEPA will continue to refer significant, persistent and deliberate offending to the Crown Office and Procurator Fiscal Service for consideration of whether to prosecute, and close working between SEPA and the COPFS will be a key aspect of successful operation of the new framework.
The partnership working between SEPA and the COPFS will be underpinned by guidelines from the Lord Advocate, which will be issued shortly. Those guidelines will ensure that the new enforcement measures will be applied consistently and proportionately as part of the range of sanctions that are available, including prosecution.
Stakeholders have played a vital role in helping to develop the new enforcement measures, so I take the opportunity to thank all those who responded to the consultation or engaged through other means. The positive feedback that we have received has been vital in shaping our proposals, and I encourage stakeholders to continue to engage as we deliver the rest of the better environment regulation programme.
I am happy to answer questions.
Thank you very much, minister.
We have a number of questions on the draft order, the first of which will be asked by Graeme Dey.
Good morning, minister. First of all, can you outline for us how restorative action will be monitored in practice? How will SEPA have the physical resources to oversee the restorative action that is being undertaken?
My second question is about the appeals process. I never thought that I would see the day when we would be talking about swift and affordable access to justice and a light-touch approach with reference to the Scottish Land Court, so I would welcome a clearer understanding of how that process will work.
Bridget Marshall will pick up your first question, and I will be happy to respond to your second, about the appeals process.
The measures on restorative action, particularly the enforcement undertaking, are designed to ensure that the focus of enforcement is on restoring the environment. The whole purpose of the tools is to ensure that the environment is restored, but perhaps to ensure that in a more formal manner than is currently the case.
I think that Graeme Dey’s question was about how SEPA will ensure that restorative action is carried out. The enforcement undertaking is perhaps the main vehicle for ensuring restoration of the environment, instead of moneys being taken away through fines that go off to the Scottish consolidated fund. Failure to comply with an enforcement undertaking will mean that SEPA will go back almost to square 1 and issue a fine or refer the offender to the fiscal. It will be part of the process of ensuring that restoration of the environment occurs under an enforcement undertaking; SEPA is structuring itself to ensure that those enforcement undertakings are complied with.
Are you confident that SEPA has on the ground the resources to ensure that restorative action is being taken? After all, someone will have to check that.
SEPA is developing a process whereby it will ensure that it has sufficient resources in place to monitor compliance with the enforcement undertakings.
But does it have the staff to do the job?
That is, indeed, the question, convener.
That is the nub of the matter with enforcement. It is a bit like councils having enough people to ensure that building regulations are complied with.
Surely an offence will have been determined by SEPA staff in the first place, so the matter can be monitored thereafter.
We are just exploring the process.
The initial stages of the process will be the same no matter whether a case is heading towards being reported to the procurator fiscal or being dealt with under one of the new enforcement measures. Reporting a case to the procurator fiscal and then taking it through the courts is quite resource intensive; the order provides an alternative use of SEPA resource—that would otherwise be put into a court procedure—to work with businesses and to concentrate on restoration of the environment. It is about redirecting the resource that SEPA already has towards a better outcome for the environment instead of the matter simply being pursued through the courts.
Thank you.
On Mr Dey’s second question, the order provides for a robust appeals process, making use of the expertise and experience of the Scottish Land Court. The use of that court as the appeals mechanism is a response to stakeholder desire for an appeals route that is independent of Scottish ministers, and it will provide for appellants immediate and affordable access to justice.
After discussions with the Scottish Land Court, we have taken the opportunity in the order to adjust its rules to ensure that cases can be dealt with by written submission and to limit the circumstances in which expenses can be awarded, and we have also adjusted the Scottish Land Court (Fees) Order 1996 to make applications for appeal free. Those amendments will simply ensure that the Scottish Land Court can provide an accessible, swift and low-cost appeals system.
I am very interested in the principle behind the statutory instrument. It makes a huge amount of sense to me. Waste crime is a huge problem not just in my region, but across Scotland. How will the new legislation assist in getting swift action on poor environmental quality and on the damaging waste-crime problems that scar many of our communities?
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In general terms, SEPA currently relies on quite a narrow range of enforcement tools and, ultimately, on referral for prosecution to tackle non-compliance and environmental harm around issues such as waste crime. We want to empower the agency to take a direct but proportionate approach to protecting our environment. The new powers that will be created by the order will certainly play a key role in enabling SEPA to take a preventative approach. The enforcement measures will help to deter non-compliance in the first place, but they will also enable SEPA to intervene much earlier than it could before the order, which will prevent cases of non-compliance escalating or dragging on for months and years.
As the minister said, the order is part of a much wider spectrum of measures. For some of the serious waste crime that I know a number of members have seen in their constituencies, the order will not necessarily provide the solution. That will, instead, come through the other measures that we have implemented in the Regulatory Reform (Scotland) Act 2014. The legislation will give additional powers to the court to ensure that the financial benefit of offending is taken out through any penalty that is imposed. It will also give improved powers of entry, search and seizure for SEPA. At the top end, which is unfortunately where a lot of our waste crime is, other parts of the act will help SEPA to deal with crime. However, as the minister said, at the lower end, where the people who come within SEPA’s compliance spectrum are the chancers rather than the outright criminals, the order will give SEPA a bit more hold on them to guide them back to the straight and narrow, rather than see them head down towards the criminal end of the spectrum.
I welcome that answer. Will the minister commit to there being a review and a monitoring process? Waste crimes are problematic—they are a huge environmental justice problem—so it would be interesting to see how the combination of measures works in practice. I suggest that information be split according to crime type, which would make the process more transparent for everybody, and help to achieve the preventative impact that you are trying to make.
I agree with that; I am happy to do that.
I will just add that the environmental crime task force, which has been running for a couple of years, is looking hard at waste crime. There is also the opportunity for Parliament and the committee to be involved through section 52 of the Regulatory Reform (Scotland) Act 2014, which commits Scottish ministers to providing to Parliament an annual report on the operation of part 3 of the act, including on the measures that are being referred to, on our new authorisation framework and on the new court powers. We will be providing an annual report to Parliament on that whole range of activity.
That is fine. That would give the committee the chance to look at the issue. That is one to write down for next year.
Good morning minister and colleagues. Are you confident that the Scottish Land Court has the capacity to deal with the measures? There have been issues in the past in that regard. My colleague Graeme Dey alluded to the fact that the Scottish Land Court can take a long time to deal with cases.
We are working very closely with and have had many discussions with the Scottish Land Court. It is confident that it has the capacity to deal with cases. We are not expecting a huge volume of appeals. Each year, and particularly at first, we will phase in measures, so the volume of appeals is expected not to be that high. The SLC is confident that it has sufficient resources. As I said, we have worked with it to adjust its procedure in the order so that what is created is a forum that works effectively and is cost effective.
Thank you. I have a couple of other questions. It is good to see in the policy note on the order that the SLC will be able
“to determine on appeals without a formal hearing where appropriate or where both parties agree.”
Is SEPA going to be encouraged to agree to such things? Will there be a presumption in favour of SEPA agreeing not to go through a formal hearing?
Where it is an appropriate case—we have in mind the fixed monetary penalty of, say, £300, where the appeal issues should be relatively straightforward—SEPA will be encouraged to deal with the matter through written submissions. It will not be appropriate to deal with more complicated cases in that way.
I imagine that much of the time the appellants—the businesses—will be happy with a truncated process, but SEPA might think that it is not in its interests to follow that. I just want to get it on the record that there is a presumption that SEPA would, wherever possible, go for the shorter process, which does not involve a formal hearing.
There are benefits for SEPA as well as for businesses in following the truncated procedure in appropriate circumstances; that presumption will be there.
Finally, it is good to see that expenses will not be awarded in relation to an appeal, except in relation to any court fees paid. That is fine, but if it goes to a formal hearing, an appellant may well have to engage lawyers and so on and could run up pretty substantial expenses with no way of getting them back. Will it not discourage a business that SEPA has accused of a crime from engaging in an appeal if its expenses could run into many thousands of pounds?
We considered that issue in detail. There are arguments on both sides, but on balance we decided to create an appeal forum that does not encourage the engagement of expensive Queen’s counsel or lawyers to defend a case where doing so is perhaps not necessary. We felt that removing the usual expenses rule, where expenses follow the event, would create an incentive for people to represent themselves, rather than employing lawyers. That goes for SEPA as well as for businesses.
It might be difficult for a business to represent itself. SEPA has resources and so on. It is fine that the business would not be liable for SEPA’s legal expenses, but if it is a difficult case, the business might need to employ counsel and so on, which could be expensive. That might discourage it from appealing a SEPA decision.
We accept that. The balance to that is that it might be a disincentive for small businesses to appeal if they felt that they may be exposed to the possibility of having to pay SEPA’s expenses. There is a balance—
I was not talking about SEPA’s expenses, but about the expenses of the business—the cost of hiring a QC.
We were of the view that for some appellants, particularly small businesses and sole traders, the potential of being held liable for SEPA’s costs was a disincentive to making an appeal. That is clearly undesirable. Our intention was not to discourage appeals, but to provide an appeals system that offers fair, swift and cost-effective access to justice. The order limits expenses either way to cases in which a party has acted unreasonably in bringing or conducting proceedings. We think that our approach, together with the removal of the requirement for appellants to pay a fee to lodge an appeal, strikes an appropriate balance between affordability and fairness.
I still do not think that you have answered my question. An appellant will still have to pay their own legal fees, which could be substantial.
Yes, an appellant will have to pay their own fees. There is the provision that if there has been a serious failure on the part of SEPA—if it has got the whole thing completely wrong—and the appeal is successful on that basis, the court can award expenses against SEPA. It is worth remembering that the alternative, for the majority of the more serious cases, would be to pursue the case through the criminal courts, where the expenses and what is at stake would be considerably higher than anything that is provided for through the order.
Okay, thank you.
The main points that I wanted to highlight have been raised by other members, so I will not rehearse them. I endorse the comments that have been made. It is important that the issue is revisited, and I hope that we can discuss it in relation to our work programme and our legacy paper.
I am interested in the issue of the partnership working between SEPA and the Crown Office and Procurator Fiscal Service, in view of the fact that the idea is to resolve environmental difficulties rather than getting people into the courts—other than in cases involving, for example, organised waste crime, which would be dealt with differently, as George Burgess has pointed out. Having been on the committee when it dealt with the Regulatory Reform (Scotland) Bill, I hope that such partnership working will be possible.
That is why we are producing the annual report. That will go to the committee, which will be able to scrutinise that issue.
My point on waste crime has already been covered by Sarah Boyack and Claudia Beamish.
From a constituency point of view, I welcome the order. The minister and her officials, including George Burgess, will be aware of instances in the Falkirk district and elsewhere where even licensed waste-management operators have regularly breached environmental regulations, and there have been regular non-compliance issues with certain operators.
Taking on board Mr Burgess’s point that other parts of the legislation will help, it is fair to say that, like me, SEPA officials have been exasperated in dealing with some of the rogue operators. I hope that SEPA will use some of the new monetary penalties and enforcement powers to good effect and will not hesitate when action is required. There have been cases in which there has been a perception that SEPA was reluctant to use its powers. I hope that that will not be the case in the future.
I see that our panel members are nodding in agreement with you on that point.
Politicians are never happier than when they are talking about penalties of one sort of another, which always makes me slightly nervous. I was certainly concerned to hear Mr Burgess use the words “entry, search and seizure”.
I want a reassurance from the minister that SEPA’s success in being proportionate and persuasive with regard to changing its thinking about the environment in Scotland and regulation will remain its primary focus and that the easier approach of simply applying fines and saying to people that they are malefactors and will be punished is not the default option.
SEPA has changed a lot in the past 10 years. That change has been successful because it has changed the climate in which environmental regulation is undertaken and the way in which we all regard the environment. I am seeking reassurance on that. I know that this is out of context in the sense that this is just one item in the armoury. However, I hope that it will not be overemphasised because it is easier to regulate in that way than it is to do so through the very effective approach that SEPA has been using up to now.
I agree and I can reassure you on that point.
My question follows on neatly from Mr Russell’s question. I fully accept that my question is not related to the intention behind the order, but I seek some assurance on this matter. Where will the money go if penalties are imposed?
In order to avoid the extremely low risk of penalties being issued for purely financial reasons, income that arises from monetary penalties that are imposed by SEPA will not be retained by SEPA. Article 12 of the order says that any penalty that is received by SEPA must be paid to Scottish ministers, and Scottish ministers would then pay that money into the Scottish consolidated fund.
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That very nearly completely answers my question. I am grateful that you talked about income arising from the penalties—I would hate there to be any possibility that this could become an income-raising mechanism.
Can you confirm that any money that goes into the Scottish consolidated fund through that mechanism will not be taken into account when the Government determines SEPA’s budget in the following years?
I can confirm that. It will go into the wider Scottish consolidated fund. It will not be attributed to SEPA. We will not be performing any sort of netting-off exercise.
To go back to Dave Thompson’s point, you have clarified that the intention is that, if an appellant is unsuccessful, SEPA would not automatically make an expenses claim against them. However, the order also talks about situations in which the court considers that
“a party ... has acted unreasonably”,
which means that SEPA could try to get its expenses back. Of course, if a person was unsuccessful in their appeal, they would be deemed to have been guilty of causing environmental damage. Would that in itself be deemed to mean that the person had acted unreasonably in lodging the appeal? I just wonder how strong the term is. I also wonder about the likelihood of SEPA seeking costs.
The test of reasonableness is about behaviour—whether the appeal is completely without grounds and whether the appellant has conducted themselves in court in an inappropriate manner. The question is not simply whether someone wins or loses on the merits of an appeal. If someone puts forward a perfectly reasonable appeal but the court decides not to grant that appeal, that is not the sort of case in which SEPA would seek, or the court would grant, expenses.
As there are no further questions, we move to agenda item 3, under which the committee will decide whether to recommend approval of the order. The motion can be discussed for up to 90 minutes, but I think that quite a lot of the questions have been answered. At this point, only the minister, not the officials, can answer any questions.
Motion moved,
That the Rural Affairs, Climate Change and Environment Committee recommends that the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 [draft] be approved.—[Aileen McLeod.]
Motion agreed to.
I thank the minister and her officials. We will have a brief suspension.
10:33 Meeting suspended.Next
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