The Scottish Government

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1. Introduction

Contact point

The contact point for further information and for submitting responses is:-

Elaine McCall

Tel: 0131 244 1704
Email elaine.mccall2@scotland.gsi.gov.uk

1.2 For full details on how to submit responses, please see Annex A.

Purpose of this paper

1.3 The publication of this discussion paper reflects our strong commitment in the Partnership Agreement to reduce environmental crime. ² Although a lot has been achieved already, we believe that there is still more to be done. We understand that our conviction is in tune with current studies and reports and that it is shared by non-governmental organisations ( NGOs) and enforcing authorities who have concerns about enforcement issues such as lack of operator awareness, level of fines, a paucity of regulatory enforcement tools and a need for a more consistent approach across environmental enforcement regimes.

1.4 The key purpose of this discussion paper is threefold:-

1. To provide an overview of the key issues relating to the enforcement of environmental law in Scotland.
2. To consider the action we will take in relation to these issues in order to strengthen the enforcement of environmental law in Scotland.
3. To seek views on these matters.

Scope of this paper

Within Scope

1.5 To encourage a wide ranging debate, this paper encompasses a wide variety of diverse areas and enforcement regimes including:-

• pollution (incl. water, air and land);
• waste;
• wildlife crime;
• contaminated land;
• drinking water;
• the historic environment (scheduled ancient monuments).

1.6 This broad based approach will help to ensure that the exercise includes a wide range of enforcing authorities such as the Police, Scottish Environment Protection Agency ( SEPA), Scottish Natural Heritage ( SNH), the Drinking Water Quality Regulator, Local Councils and the Scottish Ministers. Although they are diverse, these enforcing authorities and their regimes have in common many of the processes and issues discussed in this paper.

1.7 The lower level details relating to how potential changes may impact on particular enforcement regimes will be developed as we proceed. This will help to ensure that any proposals are realistic and workable.

Outwith scope

1.8 The following areas are outwith the scope of this exercise:-

• planning;
• the listed building regime (closely related to planning system);
• agriculture;
• sea fisheries;
• marine issues.

1.9 These areas are outwith the scope of this exercise because their enforcement regimes have characteristics distinct from those which we are exploring. Furthermore, both Planning and Sea Fisheries have already carried out their own separate consultations on matters similar to those raised in this paper and we do not wish to duplicate that work ( e.g. there has already been a Sea Fisheries consultation on administrative penalties).

1.10 On wider marine issues, the Scottish Executive is currently taking forward "Seas the Opportunity", a strategy for the long term sustainability of Scotland's coasts and seas. An advisory group, chaired by the Minister for Environment and Rural Development, is informing this work and, amongst other things, it is considering whether there is a need for structural and/or legislative change in respect of the marine environment in Scotland. It is prudent for this wider marine work to be conducted separately from the environmental law issues discussed in this paper because marine issues and timescales are significantly different and distinct.

What we have already done

1.11 To put this exercise into its proper context, and to avoid duplication with other initiatives, it is important to bear in mind other current and anticipated changes which will contribute to the strengthening of the enforcement of environmental law. These include:-

• new legislation such as the Criminal Justice (Scotland) Act 2003, the Nature Conservation (Scotland) Act 2004, the Environmental Assessment (Scotland) Act 2005 and the Water Environment (Controlled Activities) (Scotland) Regulations 2005;
• fixed penalty notices in relation to disposal of waste and doubling of the fines for a wide range of environmental offences;
• the creation of a network of environment and wildlife area specialists in the Crown Office and Procurator Fiscal Service;
• a programme of joint training events in relation to environmental and wildlife law involving the Scottish Executive, SNH, SEPA and Crown Office Procurator Fiscal Service specialists;
• enhanced partnership working exemplified by the recently formed Wildlife and Habitats Crime Prosecution Forum, chaired by the Crown Office and Procurator Fiscal Service - this group sets out to achieve the effective enforcement of wildlife and habitats policy and includes the Scottish Executive, the Police, Royal Society for Protection of Birds ( RSPB), Scottish Society for Protection of Cruelty to Animals ( SSPCA) and SNH;
• summary justice reforms anticipated towards the end of 2007, designed to address a number of issues including fines and procedural efficiency:-
  • the increased maximum level of fiscal fine that will be available to prosecutors (£500) could be used in respect of alleged breaches of environmental law, providing a swift effective remedy and deterrent without the need for a lengthy court case;
  • improved fine enforcement procedures and the Executive's overall drive to improve the speed of the court system at summary level;
  • introduction of fiscal compensation offers for prosecutors with a proposed limit of £5,000 - alleged offenders will be given an opportunity to right their wrongdoing through payment of compensation direct to those adversely affected.
• The Sentencing Commission for Scotland Report "Basis on which Fines are Determined" (May 2006).

1.12 Positive results are already emerging from these initiatives including:-

• First custodial sentence in Scotland for pollution offence
  Pollution (Diesel) occurred when a coastguard tug crashed into rocks near Cheynies, Shetland. Lerwick Sheriff Court heard that the vessel repair and clean up costs were more than £3m. The Master of the vessel, whose alcohol levels exceeded the prescribed limit, was charged with 3 offences including one under the Control of Pollution Act 1974 Section 30F(1) (as amended), for which he received a 2 month custodial sentence at Lerwick Sheriff Court.
• First fine imposed in Scotland under the Protection of Badgers Act 1992 (as amended)
  In 2005 an individual pumped slurry into a badger sett and was charged with two offences under section 1 and section 3(e) of the Protection of Badgers Act 1992 which was amended and clarified by the Nature Conservation (Scotland) Act 2004. The individual was fined £800.
• First custodial sentence in Scotland for stealing wild birds' eggs (Wildlife and Countryside Act 1981 (as amended))
  It is an offence to intentionally or recklessly take, destroy or posses any wild bird's egg (Section 1(1)(c) and 1(2)(b) of Part 1 of the Wildlife and Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004). In December 2004 an individual received a fine of £5,000 plus a custodial sentence of four months for taking eggs. The Sheriff pointed out that the Wildlife and Countryside Act 1981 had been amended by the Criminal Justice (Scotland) Act 2003 to allow a custodial sentence "possibly because of concerns that people like [this offender] are prepared to take the law into their own hands".

How we propose to proceed

1.13 In driving policy forward we intend to take into account stakeholder views, available evidence relating to Scotland and work on the subject such as the Scottish Executive study "Prosecution of Environmental Crime in Scotland" ³, the Hampton Review ⁴, the Macrory Review (Better Regulation Executive), ⁵ papers from Macrory & Woods ⁶ and the EC Report "Streamlining and Simplification of Environment Related Regulatory Requirements for Companies" ⁷ Some of these papers relate, in the main, to England and Wales. However, much of what they say can be translated easily to the Scottish context and, indeed, they are already having an impact in Scotland.

1.14 To ensure that our exploration of the many wide ranging issues remains focused we intend to adopt a practical model which will allow us to analyse problems and identify potential solutions in a systematic and consistent way.

1.15 Aspects of the responsive approach to regulation and enforcement may serve our purpose because it embraces the adoption of a flexible set of enforcement responses ⁸.

1.16 The responsive approach to regulation is often represented by a pyramid of enforcement strategies with credible and strong criminal sanctions/licence revocation generally being reserved for the most serious cases. Calibration is key to this model and actions at one level must work effectively with other levels otherwise there is a risk of rendering the overall system dysfunctional.

1.17 In taking forward this systematic approach to the exploration of environmental enforcement issues we will adopt 10 sets of principles:-

1. Examine each level of the enforcement pyramid systematically to fully understand any problems and reasons for non-compliant behaviour in order to inform consideration of potential solutions.
2. Adopt a more responsive approach to enforcement in order to produce a strategy in which responses to non-compliance are proportionate and meaningful.
3. Embrace flexibility while also ensuring that there is consistency and predictability in terms of enforcement action and penalties so that everyone is clear what sanctions they risk.
4. Continue to ensure that the workings of the regulatory system are transparent, that enforcing authorities continue to be able to justify decisions and that they are subject to public scrutiny.
5. Endeavour to streamline regulatory duties placed on operators (without compromising compliance or environmental protection).
6. Endorse a risk based approach to enforcement activities.
7. Ensure that comprehensive regulatory impact assessments are built into the policy development process as early as possible.
8. Communicate continually with stakeholders, including the business sector, when developing proposals .
9. Be mindful of Human Rights (including the risk of double jeopardy); environmental justice;⁹access to justice; EC, or other international obligations regarding enforcement and the securing of compliance.
10. Continue to ensure the quality of the transposition of European Directives.

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