Consultation outcome

Summary of responses and government response

Updated 12 July 2023

Introduction

Protecting our natural environment is a government priority. Strengthening regulations that ensure polluters will be held to account is part of our wider plan to reduce pollution to protect biodiversity and the ecology of our rivers and seas, as set out in the Plan for Water.

We know that people across the country want to see more progress in tackling pollution and if operators breach regulations, our environmental regulators need the right powers to impose penalties. These penalties should deter organisations from polluting and increase their incentive to comply with environmental regulations.

This document is a UK government response which summarises the responses received through the consultation on our proposals on strengthening environmental civil sanctions between 4 April 2023 and 15 May 2023.

The consultation covered 2 main areas:

1. Changing the variable monetary penalty cap.
2. Introducing variable monetary penalties to the Environmental Permitting Regulations.

This summary is a high-level overview of the main themes from the consultation responses. It tries to reflect the views offered but, inevitably, it is not possible to describe all the responses in detail. Many respondents provided detailed comments and views, however 30% of respondents simply agreed or disagreed with the questions, without providing detailed comments. A thematic analysis was undertaken to identify the key issues raised.

We also set out the government response and next steps for each area of the consultation.

Executive summary

There were 105 responses to the consultation.

The vast majority of respondents supported changing the £250,000 cap on variable monetary penalties under the Environmental Civil Sanctions (England) Order 2010 and a majority supported removing the cap entirely:

• 88% of responses agreed (9%) or strongly agreed (79%) with changing the cap
• 63% of responses identified the removal of the cap as their preferred option

The vast majority of respondents also supported the introduction of variable monetary penalties to the Environmental Permitting (England and Wales) Regulations 2016:

• 85% of responses agreed (13%) or strongly agreed (72%) with this

Government will amend legislation to remove the caps on variable monetary penalties so that such penalties will be unlimited and introduce them to the Environmental Permitting Regulations.

Summary of consultation responses and government response

Changing the cap

Question: “To what extent do you agree or disagree that the cap on variable monetary penalties under the 2010 Order should be changed from the current cap of £250,000?”

As outlined in Figure 1 below, the majority of respondents (88%) agreed or strongly agreed with the proposal to change the cap. Support was strongest amongst individuals (91%) but remained high amongst organisations (78%). Support was lowest from the waste and resource management and energy sectors.

The majority of respondents (88%) agreed or strongly agreed with the proposal to change the cap. Support was strongest amongst individuals (91%) but remained high amongst organisations (78%). Support was lowest from the waste and resource management and energy sectors.

Figure 1

“To what extent do you agree or disagree that the cap on variable monetary penalties under the 2010 Order should be changed from the current cap of £250,000?”

Response	Percentage of responses
Strongly agree	79%
Agree	9%
Neither agree nor disagree	5%
Disagree	2%
Strongly disagree	5%
N/A	0%
Not answered	1%

Question: “Which option would you prefer to be taken on the variable monetary penalties cap?”

As outlined in Figure 2, the majority of respondents (63%) chose the removal of the cap as their preferred option. Support was strongest amongst individuals (70%) but remained strong amongst organisations (48%) for whom it was still the most preferred option. Support for the removal of the cap was lowest amongst the waste and resource management, energy and mineral products sectors, and water companies.

Figure 2

“Which option would you prefer to be taken on the variable monetary penalties cap?”

Response	Percentage of responses
a. Remove cap entirely (no cap)	63 %
b. Raise the cap to £250 million	16 %
c. Raise the cap to £25 million	5%
d. Leave the cap as it is at £250,000	5 %
e. Raise the cap to another amount	6 %
Not answered	6 %

Question: “If you responded that the cap should be raised to an alternative amount, please specify what you think this amount should be and why:”

45 respondents included a comment in response to this question. One respondent suggested a cap amount of £3 million and one respondent suggested a cap amount of £800 million. Comments often contained multiple themes so the percentages sum to more than 100 percent.

Of the comments:

• 78% mentioned support for increasing or removing the cap on variable monetary penalties to ensure penalties act as an appropriate and proportional punishment to deter for operators from breaching regulations
• 33% mentioned the need for more information or disagreeing with changing the cap
• 20% mentioned the need to protect against environmental harm
• 18% mentioned the need to improve the Environment Agency’s resource and capability to manage variable monetary penalties

Government response

Environmental civil sanctions provide a proportionate alternative to criminal prosecution for businesses and other persons who fail to comply with environmental regulation and risk harming the environment in some cases.

The government’s preferred option is to change the £250,000 cap for variable monetary penalties under the Environmental Civil Sanctions (England) Order 2010 by removing the cap entirely, in line with the views of the majority of respondents. Removal of the cap ensures that the determination of the penalty amount can always follow the guidelines and legal precedents of the day, rather than needing to update legislation again in future should a cap amount be set and require updating.

Some comments suggested that removal of the cap would allow for penalty amounts that are disproportionately high. This is not the case. There is already clear provision in the Sentencing Council guidelines to ensure penalties are proportionate to the size of a company, their ability to pay, their degree of responsibility, and the seriousness of the incident. The Environment Agency use these guidelines to ensure that penalties are proportionate, and the most serious cases will still be taken through criminal proceedings.

Some of the comments from respondents raised the need for further information to be provided on the details of how the removal or changing of the cap would work within the existing enforcement framework of the Environment Agency. The Environment Agency’s Enforcement and Sanctions Policy and associated Annex 1 will be updated to reflect the removal of the cap. This will provide more detail on how variable monetary penalties will operate alongside existing options, and how the amount of any penalty will be calculated. These documents cannot be updated until after the amendments to legislation are made.

Details of the Environment Agency’s current approach to variable monetary penalties can be found online and details of each penalty imposed will be published online. Natural England also has public guidance and published details of any penalties imposed on GOV.UK.

Introducing variable monetary penalties to the Environmental Permitting Regulations

Question: “To what extent do you agree or disagree that variable monetary penalties should be introduced into the Environmental Permitting (England and Wales) Regulations 2016?”

As outlined in Figure 3, the vast majority of respondents (85%) agreed or strongly agreed with the proposal to introduce the variable monetary penalties into the Environmental Permitting (England and Wales) Regulations 2016 (EPR). Support was strongest amongst individuals (93%) but remained high amongst organisations (68%). Support was lowest from the waste and resource management and energy sectors.

Figure 3

Response	Percentage of responses
Strongly agree	72%
Agree	13%
Neither agree nor disagree	4%
Disagree	2%
Strongly disagree	5%
N/A	4%
Not answered	0%

Question: “Please provide details to explain your answer. If this question is not applicable to you, please write N/A.”

65 respondents included a comment in response to this question. Comments often contained multiple themes so the percentages sum to more than 100 percent.

Of the comments:

• 75% mentioned support for introducing variable monetary penalties to the EPR to ensure penalties act as an appropriate and proportional punishment to deter for operators from breaching regulations
• 14% mentioned the need for robust guidance and governance in how the penalties are imposed under the EPR
• 14% mentioned the idea of imposing penalties only on the most serious breaches
• 14% mentioned the need to protect against environmental harm
• 11% comments mentioned the need for more information or disagreeing with introducing the variable monetary penalties
• 9% mentioned the need to improve the Environment Agency’s resource and capability to manage variable monetary penalties

Government response

The government’s preferred option is to introduce variable monetary penalties for all offences under the Environmental Permitting (England and Wales) Regulations 2016 (EPR). Introduction of the penalties ensures that the Environment Agency has the right enforcement tools to address the “justice gap” that exists for moderate-severe offences. Existing levels of penalty are not proving a proportionate deterrent and punishment.

Some of the comments from respondents raised the need for robust guidance and governance in how the penalties are imposed under the EPR. The Environment Agency has well established governance arrangements for its enforcement work, including the imposing of variable monetary penalties since 2010, through oversight and governance both locally and nationally , supported by technical and legal experts. Specifically, compliance with the Code for Crown Prosecutors and the Regulators’ Code was raised. The Environment Agency’s Enforcement and Sanctions Policy sets out their procedural safeguards in relations to these codes including applying the safeguards set out in the Police and Criminal Evidence Act 1984 and following the test laid down in the Code for Crown Prosecutors.

A specific question was raised on compliance with the Criminal Practice Directions 2015. These rules are not applicable to variable monetary penalties as they refer only to criminal court procedures.

Some of the comments from respondents suggested that variable monetary penalties should only be used for the most serious breaches under the EPR. The penalties will be available for the Environment Agency to use for all breaches using their Enforcement and Sanctions Policy and associated Annex 1 to assess what the most appropriate enforcement approach for an offence would be following an investigation. The penalties will not be ‘triggered’ by any particular offence and the Environment Agency will continue to take a proportionate approach to their enforcement activity. If any permit breach is of a severity requiring punishment or deterrence (according to the Enforcement and Sanctions Policy) from the Environment Agency then a variable monetary penalty will be considered. The level of environmental harm is one factor amongst culpability, history of offending and the operator’s response to the breach which will also be taken into account when considering the appropriate enforcement approach. The most serious offences may be more appropriately addressed by criminal prosecution.

Some of the comments from respondents raised the need for further information to be provided on the details of how the introduction of variable monetary penalties to the EPR would work within the existing enforcement framework of the Environment Agency. The EA’s Enforcement and Sanctions Policy and associated Annex 1 will be updated to reflect the changes and provide more detail on how variable monetary penalties will sit alongside existing options and how the amount of any penalty will be calculated.

Details of the Environment Agency’s current use of variable monetary penalties can be found online and details of each penalty imposed is publicly published. The amended legislation laid before Parliament will also provide details of how penalty notices will be served to operators and the appeals process.

Specific questions were raised about the impact of variable monetary penalties on Environment Agency permit subsistence scores. The imposition of a variable monetary penalty will not affect the subsistence score.

Next steps

We will proceed to amend the relevant legislation: the Environmental Civil Sanctions (England) Order 2010 and the Environmental Permitting (England and Wales) Regulations 2016. The amendments will:

• remove the current £250,000 cap under the Environmental Civil Sanctions (England) Order 2010 for variable monetary penalties to make the amount unlimited
• introduce variable monetary penalties as a civil sanction in the Environmental Permitting (England and Wales) Regulations 2016

Whilst the Environmental Permitting (England and Wales) Regulations 2016 apply to both countries, these changes will only apply to England as per the consultation.

The changes will apply to all operators who commit offences under either piece of legislation after the changes come into force in winter 2023. Further details will be provided in the amended legislation that will be laid before Parliament in due course and the proposed amendments will be subject to Parliamentary scrutiny and approval.

Defra will work with the Environment Agency and Natural England to ensure that their public enforcement guidance is updated as appropriate when the legislation has been amended. Variable monetary penalties using the amended legislation will not be imposed by regulators until their guidance has been updated. Once guidance has been updated, variable monetary penalties will be available to the Environment Agency under the Environmental Permitting (England and Wales) Regulations 2016. Variable monetary penalties will continue to be available to the Environment Agency and Natural England under the Environmental Civil Sanctions (England) Order 2010 but with the £250,000 penalty cap removed.

Money from the variable monetary penalties imposed on water companies will fund the new Water Restoration Fund.

Analysis of responses

In total there were 105 responses to the consultation, including:

• 96 responses received through Citizen Space
• 9 responses received by email

Question: “Are you responding on behalf of an organisation or as an individual?”

Question: “If you are responding on behalf of an organisation, what type of organisation to you represent? Water company, ENGO, other (please specify).”

The split of respondents was 70% individuals and 30% organisations. The organisations who responded represent a number of the sectors which would be impacted by the introduction of variable monetary penalties to the Environmental Permitting (England and Wales) Regulations 2016. Of these organisations the largest number of responses were received from water companies (19%), resource and waste management firms (16%), and trade associations, eNGOs, and “other” (all 13%). Responses were also received from angling or fishing groups (9%) and charities (9%), environmental research organisations (6%), and energy companies (3%). Organisations under the “other” category included a project that engages primary school students to gather their views to input into the parliamentary process.

Annex 1 holds a list of organisations that took part in the consultation. Respondents who asked for their contributions to be anonymous or those that did not respond to the question have been removed from this list.

Question: “Where are you located? (Note that this consultation is for regulations that apply only in England).”

The proposed changes in the consultation only cover England where the vast majority of respondents (95%) were based. A small number of respondents (3%) specified the United Kingdom and 2% specified Wales, Scotland, or Northern Ireland.

Annex 1

List of organisations that took part in the consultation :

• Blueprint for Water
• Clean Rivers Trust
• Cockburn House
• Energy UK
• Environmental Services Association
• FCC Environment
• Friends of River Crane Environment
• Group from Institute for Environmental Futures, University of Leicester
• Landmarc Support Solutions
• Mineral Products Association Ltd
• Nipak (Scotland) Ltd
• Pennon Group Plc/South West Water Limited
• Plymouth and District Freshwater Angling Association
• Pupils 2 Parliament project
• River Action
• River Otter Fisheries Association (ROFA)
• River Thames Boat Project
• Severn Trent Water Limited
• Southern Water
• SSE
• Sustainable Morchard
• UK Environmental Law Association
• United Utilities Water Limited
• Valpak Ltd
• Veolia
• Waterscan
• Wessex Water
• Westcountry Rivers Trust
• Wye Local Fishery Group
• Yorkshire Water