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2. Key issues

Introduction

2.1 Our aim is to reduce environmental crime in Scotland by strengthening the enforcement of environmental law. Our objectives are to render enforcement systems more flexible, responsive, effective, efficient and transparent while also endeavouring to streamline regulatory duties.

2.2 To achieve our aims and objectives we intend to consider key enforcement issues at each level of the pyramid of enforcement strategies (figure 1). This systematic approach will help us to identify problems and solutions in a practical way while also ensuring that change at one level is calibrated with other levels thereby providing for a strong overall framework.

2.3 Section 2 of this paper provides an overview of the key issues related to the enforcement of environmental law and considers the nature of any problems and possible solutions. Where potential changes are discussed, they will tend to fall naturally into 3 broad categories:-

2.4 This is intended to be an open debate and the Scottish Executive welcomes comments not only on the key issues discussed overleaf, but also on any other concerns that you may have in relation to the enforcement of environmental law in Scotland. We look forward to hearing your views.

Compliance assistance for operators

Introduction

2.5 The Scottish Executive acknowledges that Government has a responsibility to assist operators to understand their regulatory duties. Therefore, in this section of the paper we look at ways in which compliance assistance to operators can be improved.

2.6 Compliance assistance is in the forefront of modern thinking in relation to the enforcement of environmental law. This point is emphasised in one of the most recent EC studies "Streamlining and Simplification of Environment Related Regulatory Requirements for Companies" whose recommendations included:-

" Member States should determine the compliance information needs of businesses (especially SMEs) and pursue initiatives that would help businesses meet these needs"¹⁰

Operator awareness

2.7 Influential papers, such as the Hampton Review, acknowledge existing good practice and there is a great deal of educational work being carried out by enforcing authorities, local councils, NGOs and specialist organisations such as

The Scottish Fly Tipping Forum ¹¹ and the Partnership Against Wildlife Crime. ¹²

2.8 However, there still seems to be a low awareness amongst some operators:-

• The Hampton Review - emphasised a need to build compliance through education and advice : - " [there is an] unmet need for advice"¹³
• The Better Regulation Executive Report "Regulatory Justice - Sanctioning in a post-Hampton World", notes that:- "in many instances non-compliance is based not upon intentional recalcitrance but an understandable ignorance"¹⁴
• The 2005 NetRegs Survey of small to medium enterprises also indicated a low level of environmental awareness with only 14% of such respondent businesses in Scotland able to identify a piece of environmental legislation (same as UK average)¹⁵

2.9 The reasons for this lack of awareness amongst operators are unclear. Possible causes may include the complexity of statutory requirements and the nature of advice giving regimes. However, the duty of education does not and should not rest entirely with enforcing authorities and providers of advice/guidance. There is also a need for operators to ensure that they are shouldering their full share of the responsibility for increasing their own understanding of environmental law.

2.10 The relationship between awareness levels and compliance rates is also unclear. While it may be safe to assume that ignorance contributes to non-compliance, it is not clear to what extent increased awareness improves compliance levels. This lack of understanding of exactly how enforcement activities actually improve compliance is noted in the Scottish Executive "Environmental Justice Scoping Study - Prosecution of Environmental Crimes in Scotland":-

"There is a lack of robust evidence on the effectiveness of the various enforcement mechanisms"¹⁶

Conclusions

2.11 Solutions to this reported lack of operator awareness are not clear because we do not have a full understanding of the nature and causes of the problem. However, from the literature and anecdotal evidence, it is clear to us that any solution would be likely to include at least two components:-

• Encouraging more operators to take their full share of the responsibility for their own education;
• Improving our understanding of the relationship between operator awareness and compliance to enable us to make advice giving regimes work better for us.

2.12 The Scottish Executive would welcome your views on this issue (please see below).

Question 1 - compliance assistance - operator awareness

1.1 Do you think that there is a need to improve operator awareness of environmental law?

YES/ NO/ DON'T KNOW/ NO COMMENT

1.2 If you said "YES" to question 1.1, - please give us your views on how improvements can be achieved.

1.3 If you said "NO" to question 1.1, please expand on your answer.

1.4 Do you think that there is a need to evaluate the provision of advice to operators in terms of its impact on compliance rates?

YES/ NO/ DON'T KNOW/ NO COMMENT

1.5 The Scottish Executive would welcome any further views that you may have on operator awareness.

Management systems for improving compliance

Introduction

2.13 Another potential solution to low awareness is the application of more systematic management systems which may be used, not only to raise awareness but to improve management and the securing of compliance within an organisation.

2.14 For the purposes of this paper we are using the term "management systems for improving compliance" to mean formal dedicated plans, procedures and/or targets designed to help secure compliance and/or improve environmental performance.

Background and discussion

Environmental Management Systems ( EMS)

2.15 EMS is a general term that can cover a variety of management systems for improving compliance. Examples include:-

ISO 14000 series

• ISO 14000 is a series of international standards on environmental management, the cornerstone being ISO 14001.
• It provides the framework for an environmental management system and a supporting audit programme enabling operators to measure and monitor their environmental performance/compliance.
• ISO 14001 is internationally recognised and can be used to gain certification by an external certification authority.
• Further information on EMS is available at the website of The Institute of Environmental Management and Assessment - http://www.iema.net/acorn/bs8555

BS 8555

• This standard is particularly aimed at small to medium sized enterprises ( SMEs). It provides a guide to the phased implementation of an EMS and can be a route towards ISO 14001.

EMAS (the Eco-Management and Audit Scheme)

• EMAS is a voluntary EU wide initiative designed to improve companies' environmental performance, established initially by Council Regulation ( EEC) No1836/93, since replaced by Regulation ( EC) 761/2001.
• EMAS embraces continuous improvement of environmental performance- scheme participants produce public reports on environmental performance and these are independently verified.
• Further information EUROPA - EMAS pages & website of the Competent Body

2.16 The NetRegs 2005 survey noted that 35% of Scottish Businesses had an environmental policy - an increase of 15% on 2003 and 10% above the UK average. However, regarding take up of EMS, the 2005 NetRegs survey of SMEs reported that only 5% of respondent businesses have an EMS in place with businesses in Scotland being least likely to own one. ¹⁷ Anecdotal evidence suggests that take up may be low because formal compliance plans are perceived as bureaucratic, burdensome and costly to maintain.

2.17 Results of research carried out by the Environment Agency, working alongside SEPA, the Environmental Protection Agency (Ireland) and the Institute of Environmental Management and Assessment suggest that an accredited environmental management system leads to overall improvement in procedures and process efficiency ( REMAS Project ¹⁸). The report states that there was no evidence to support the hypothesis that these higher levels of operator performance lead to better environmental outcomes in terms of compliance but notes that this may have been due to the methodology used to calculate the compliance measure and recommends that this be reviewed.

2.18 In general, SEPA supports environmental management systems and their position statement on the subject states that EMS can, amongst other things, build understanding of environmental legislation, improve recycling and waste management and reduce the use of energy, water and raw materials.

Drinking Water Safety Plans ( DWSPs)

2.19 DWSPs are another example of formal plans/management systems for improving compliance. DWSPs share some basic principles with EMS in that they take a systematic approach and include continual audit as part of the process for ensuring ongoing compliance. Key points about DWSPs are:-

• The DWSP approach has been developed to organise and systematise management practices to ensure the safety of drinking water through the use of comprehensive risk assessment and risk management. DWSPs encompass all steps in the water supply process from catchment to consumer.
• DWSPs work by systematically identifying risks to compliance, eliminating/reducing/controlling risks and then verifying compliance continually.
• DWSPs may be applied by different types of operator including suppliers of the public water supply and by owners/managers of public buildings.

2.20 DWSPs are promoted by the World Health Organisation. The WHO paper "Water Safety Plans" provides details of how DWSPs are applied and they state that they are:-

"the most effective means of consistently ensuring the safety of a drinking water supply". ¹⁹

2.21 The Drinking Water Quality Regulator for Scotland supports the development of DWSPs and recent research commissioned by the Scottish Executive on the development of DWSPs in Scotland concluded that they are:-

"considered by …… a significant proportion of the world water industry, including regulators, to be the best way forward….."²⁰

2.22 Scottish Water is takings steps towards DWSPs and the Drinking Water Quality Regulator has issued an Information Letter setting out his expectations on production. Scottish Water DWSP work is supported through funding for the Quality and Standards 3 investment period.

Risk assessments for private water supplies ( PWS)

2.23 The WHO Guidelines and Task Force Report stress the benefits of carrying out a thorough risk assessment in a systematic manner to identify non-compliance with the relevant standards and to highlight aspects of a PWS that could benefit from improvement.

2.24 The Scottish Executive endorses the risk assessment approach to PWS management and has made statutory provision for this in The Private Water Supplies (Scotland) Regulations 2006. Comprehensive guidance is available on the Scottish Executive website - www.privatewatersupplies.gov.uk

2.25 Regarding take up of PWS risk assessments - we anticipate that it will be high because the new Regulations place a statutory duty on Local Authorities to perform a risk assessment on every type A supplier (larger PWS & commercial PWS). In addition, local authorities have a duty to provide advice and guidance on risk assessment for type B supplies (smaller PWS).

Management systems for improving compliance

Conclusions

2.26 Evidence such as the REMAS research strongly suggests that a risk based systematic environmental compliance management system will help to improve procedures and processes. There is also evidence to suggest that drinking water safety plans and private water supply risk assessments ( PWS), in particular, can contribute to achievement of standards and compliance. Given that DWSPs are under development within Scottish Water and PWS risk assessments have been provided for in the Private Water Supplies (Scotland) Regulations 2006, we consider that there is no need to make any further recommendations at this time regarding DWSPs or PWS risk assessments

2.27 Regarding EMS, the REMAS Project finds that there is no evidence to support the hypothesis that they improve compliance. However, REMAS notes that this lack of direct evidence may be a consequence of the measuring method and it is reasonable to conclude that it is best to remain open minded on this point until the measuring method is reviewed and further evidence is available.

2.28 We conclude that, in the interests of strengthening enforcement of environmental law, it is worthwhile aiming to improve take up of EMS and we believe that the following action would help to achieve this aim:-

• Promoting the benefits of formal systems, such as EMS, to increase understanding of the process and the benefits;
• Publicising good practice examples of EMS and similar systems;
• Providing practical compliance assistance to operators - ( e.g. to conduct a gap analysis to identify risks to compliance as a first step towards a formal system such as EMS and/or providing step by step guidance);
• Encouraging sharing between operators of the work needed to establish and maintain formal systems such as EMS (to avoid duplication of effort and costs);

2.29 The Scottish Executive would welcome your views on formal management systems for improving compliance plans (please see questions below).

Question 2 - compliance assistance - management systems for improving compliance

2.1 Do you think that the promotion of formal compliance plans and systems, such as EMS, should be increased?

YES/ NO/ DON'T KNOW/ NO COMMENT

2.2 If you said " YES" to question 2.1 - how should EMS be better promoted and by whom?

2.3 If you said "NO" to question 2.1 - please expand on your answer.

2.4 Do you think that, in collaboration with relevant enforcing authorities, the Scottish Executive should explore the possibility of an appropriate body/bodies assisting operators with a formal gap analysis as a first step towards a formal compliance system ( e.g. an environmental management system)?

YES/ NO/ DON'T KNOW/ NO COMMENT

2.5 If assistance with gap analysis was to be provided, which body/bodies should assist and what kind of assistance should be provided?

2.6 Do you think that, in collaboration with appropriate enforcing authorities, the Scottish Executive should explore the possibility of an appropriate body/bodies providing operators with step by step guidance to EMS?

YES/ NO/ DON'T KNOW/ NO COMMENT

2.7 If step by step EMS guidance as to be provided - who should provide it and what type of guidance would be most helpful?

2.8 Do you think that there is a need to identify examples of good practice in the application of formal environmental management systems (such as EMS) in order to utilise them for illustrative and promotion purposes?

YES/ NO/ DON'T KNOW/ NO COMMENT

2.9 If you said "YES" to question 2.8 how should good practice examples be identified/promoted and by whom?

2.10 The Scottish Executive would welcome any further views you may have on formal management systems for improving compliance.

Training and guidance - Enforcing Authorities, Police, Procurators Fiscal, Sheriffs and Judges

Introduction

2.30 For our regulatory and enforcement systems to be effective and efficient, it is essential that those involved are provided with sufficient guidance and training. There are numerous organisations and groups involved in the enforcement of environmental law and there are a variety of bodies responsible for training provision. Given this, and the fact that the Scottish Executive is not responsible for many areas of training ( e.g. the training of Sheriffs and Judges), it cannot, and should not be the purpose of this paper to discuss in detail the internal training provision of all of the relevant organisations. However, given that the topic is directly related to the overall theme of this paper, we considered that it would be helpful to set out a brief overview of how training is organised and to provide an opportunity for general comment.

Enforcing authorities

2.31 We recognise that initiatives such as joint COPFS/ SEPA training events have already contributed greatly to improved communications and skills levels. We encourage and support such training initiatives which are targeted at improving the skills and knowledge needed to enforce environmental law in Scotland and we will continue to ensure that high standards are met via mechanisms such as the Policy and Financial Management Reviews of enforcing authorities such as SEPA and SNH.

Police

2.32 Police work related to wildlife and environmental crime is often carried out in conjunction with other statutory agencies or NGOs allowing their expertise to be utilised and shared during police investigations and educational activities. There are around 100 designated wildlife liaison police officers in Scotland and this has helped to build up expertise. The Scottish Police College runs wildlife crime seminars which highlight issues such as the need to work closely with Procurator Fiscals ( PFs), agencies, NGOs and with the Partnership for Action Against Wildlife Crime ( PAW) to ensure that a strategic approach is taken. The Scottish Executive has worked to ensure that police have sufficient powers to combat environmental crime through new legislation such as the Nature Conservation (Scotland) Act 2004.

Crown Office and Procurator Fiscal Service

2.33 All PFs are provided with the necessary training, development opportunities and guidance to enable them to carry out their wide range of duties and this includes appropriate guidance on dealing with environmental and wildlife crime. In addition, the creation of a network of environment and wildlife Area specialists in COPFS has helped to develop further expertise. COPFS is divided into 11 Areas and, wherever possible, each Area specialist deals with all the environmental and wildlife cases for his/her area and provides specialist advice to colleagues when required.

2.34 Positive feedback has been received in relation to recent joint training and guidance initiatives for the specialist prosecutors in the field of environmental and wildlife law, involving enforcing authorities and other Scottish Executive Departments. The formation of the Wildlife and Habitats Crime Prosecution Forum, chaired by COPFS, has also helped to develop expertise in environment and wildlife law (see section on liaison and partnership working).

Sheriffs and Judges

2.35 The Scottish Executive is not responsible for training Judges and Sheriffs. However, we considered that it would be helpful to include some background information here to help put this section of the consultation paper in the context of the overall training picture.

• The Judicial Studies Committee ( JSC) is the body responsible for judicial induction and training in Scotland.
• The JSC provides support such as a variety of courses and written material. For example, on appointment, every judge receives detailed material which includes Bench books, briefing papers and other guidance to help them to perform their duties. A mentor is also appointed for each new Judge.
• In addition, the JSC maintains a site on the private judicial intranet which Judges use to keep up to date with developments in the law.
• JSC website - http://www.judicialstudies-scotland.org.uk/

Conclusions

2.36 New guidance, protocols and training events have contributed to the consolidation and further development of expertise and communication between the wide variety of organisations involved such as enforcing authorities and COPFS. Such initiatives have been successful and have received positive feedback from participants.

2.37 Given the positive results of recent training initiatives we consider that the Scottish Executive should help to build on that success by continuing to support this work where appropriate.

Question 3 - Advice, guidance and training for Enforcing Authorities, the Police, Procurators Fiscal, Sheriffs and Judges

3.1 The Scottish Executive would welcome any comments you may have on this topic.

Training and guidance - liaison and partnership working

Introduction

2.38 Environmental law is wide ranging and complex involving many distinct specialisms, skills and knowledge, spread across a large number or organisations and individuals. Anecdotal evidence suggests that this can cause problems because it is not always easy to maintain effective communications between all of these organisations and individuals and this can weaken the enforcement of environmental law.

Background

2.39 Clearly, more effective liaison between parties will contribute to solving this apparent communication problem between the many individuals and organisations that have a role to play in strengthening the enforcement of environmental law. A great deal has been done recently to facilitate liaison and the examples below give a flavour of some of the ongoing work:-

• Creation of a network of area environment and wildlife specialists in the Crown Office and Procurator Fiscal Service ( COPFS).
• The Partnership for Action Against Wildlife Crime ( PAW). A multi-agency body comprising representatives of organisations involved in wildlife law enforcement in the UK. It provides opportunities for statutory and non-governmental organisations to work together to combat wildlife crime. Its main objective is to promote the enforcement of wildlife conservation legislation, particularly through supporting the networks of Police Wildlife Crime Officers and HM Revenue and Customs. ²¹
• The Wildlife and Habitats Crime Prosecution Forum, chaired by the Crown Office and Procurator Fiscal Service - this group includes representatives from Scottish Executive Departments, the Police, RSPB, SSPCA and SNH. It aims to contribute to the strengthening of the enforcement of environmental law by considering issues and identifying problems relating to the prosecution of wildlife and habitats crime and working towards bringing about any necessary improvements in law and practice.
• A new protocol between SEPA and COPFS for the submission, processing and monitoring of prosecution reports.
• A dedicated section on the internal COPFS intranet which allows the sharing of useful and relevant environmental and wildlife information and guidance.
• Liaison work carried out by special interest organisations such as the Scottish Fly Tipping Forum ( e.g. liaison with local councils). ²²

Conclusions

2.40 Recent liaison and partnership initiatives have received positive feedback and have addressed issues around expertise levels within, and communication between, the wide variety of organisations involved including enforcing authorities and COPFS.

2.41 We consider that the Scottish Executive should continue to:-

• support specialist partnership and liaison initiatives involving organisations whose work relates to the enforcement of environmental law .

Question 4 - liaison and partnership working

4.1 The Scottish Executive would welcome your views on liaison and partnership working in the field of environmental and wildlife law/crime.

Monitoring compliance - risk based inspection regimes

Introduction

2.42 Inspections by enforcing authorities, such as SEPA and the Drinking Water Quality Regulator, play a key role in the enforcement of environmental law.

2.43 Recent discussion on inspection regimes has placed emphasis on the risk based approach. This involves enforcing authorities targeting inspection activity at high risk areas/operations. For the purposes of this paper, the term "risk based inspection" is taken to mean an approach based on a formal analytical process and a robust risk assessment model.

2.44 This section of the paper considers the role that risk based inspection has to play in improving compliance amongst non-compliant operators and also how it can support the efforts of compliant operators.

Background and discussion

2.45 There is a general consensus amongst enforcing authorities that continuing to place greater emphasis on a risk based approach would render them even more efficient in terms of resources and even more effective in terms of securing compliance.

2.46 Writers such as Hampton view the risk based approach as an essential means of directing resources where they can have maximum impact. ²³

2.47 The EC paper of May 2006, The Final Report of the EC Best Project Expert Group, also supported the risk based approach. In summary, the key lessons that it noted included:-

• risk based regimes are best developed in communication with industry;
• risk assessments have the potential to be robustly determined and based on objective data;
• a critical element is the translation of differential risk into differential regulatory activity ( e.g. what level of risk justifies a doubling of regulatory activity?) .²⁴

2.48 Regulators, such as SEPA and the Drinking Water Quality Regulator, already apply the principles of a risk based approach to inspection and they support the notion that greater emphasis should be placed on risk based regimes. They hold the view that, as well as being formal and analytical, they should continue to embrace the following characteristics to ensure that they provide for the flexible and responsive approach that we seek:-

• continue to allow enforcing authorities to initiate inspections according to their own professional judgement;
• continue to allow enforcing authorities to initiate inspections in response to reports from members of the community.

2.49 Risk based inspection regimes can also benefit business because they have the potential to reduce the regulatory inspection burden on compliant operators. There have been concerns expressed that risk based inspection regimes can be perceived as a "get out clause" by non-compliant operators. The application of a robust model plus retention of professional judgement and community reporting as elements of inspection regimes will help to mitigate against any such tendency.

Conclusions

2.50 Given the general consensus amongst regulators and writers on the subject that more emphasis on formal analytical risk based inspection methods can render regimes more effective and efficient, we consider that the Scottish Executive should:-

• carry out research in communication with enforcing authorities and operators to establish more formal, transparent and analytical models for risk based inspection regimes and then work with enforcing authorities to apply and evaluate these regimes

2.51 The Scottish Executive would welcome your views on inspection regimes and how they can be made to work better for us (please see questions below).

Question 5 - risk based inspection regimes

5.1 Do you think that there is a need to adjust inspection regimes so that they place greater emphasis on a more formal and analytical risk based approach?

YES/ NO/ DON'T KNOW/ NO COMMENT

Further comment………………………….

5.2 If there was to be greater emphasis placed on a more formal and analytical risk based approach -
do you agree that, in communication with relevant enforcing authorities and operators, the Scottish Executive should conduct research into options for risk based inspection models to establish those that may be of most use in environmental enforcement regimes in Scotland?

YES/ NO/ DON'T KNOW/ NO COMMENT

Further comment………………………….

5.3 If there was to be greater emphasis placed on a more formal and analytical risk based approach -
do you agree that there is a need for any risk based models applied by enforcing authorities to be evaluated in terms of their impact on compliance?

YES/ NO/ DON'T KNOW/ NO COMMENT

Further comment………………………….

Penalties

Introduction

2.52 This section explores the potential that new types of penalties/sanctions may have for strengthening the enforcement of environmental law in Scotland.

2.53 The two types of new penalties on which the discussion focuses are:-

1. new financial administrative penalties imposed by a regulator without the intervention of the PF or a court;
2. new court imposed sanctions such as public apology orders and environmental service orders.

2.54 To keep this discussion about penalties in context, it should be remembered that proposed summary justice reforms include considerable changes in procedures relating to existing sanctions such as Fiscal Fines plus the creation of a new "compensation offer" where the PF considers it appropriate (see Scottish Parliament website (The Criminal Proceedings etc. (Reform) (Scotland) Bill)). Given this, the exploration of further sanctions or penalties should be considered in the context of these anticipated changes.

Background and Discussion - financial administrative penalties

2.55 Looking at the pyramid of enforcement strategies again (figure 1) - it is immediately obvious that there is a big step, perhaps too big a step, between enforcement action, such as regulator notices, and the next steps, PF imposed penalties (including Fiscal Fines) and court proceedings.

2.56 Regulators, such as SEPA, and current authors on the subject, including Hampton, ²⁵ Macrory and Woods ²⁶ see this gap in the enforcement tool box as a problem in that it renders the system inflexible and fails to provide authorities with the range of responses they need to enforce environmental law effectively. Enforcing authorities find themselves in a position where, if enforcement notices, or similar action, fail, their only recourse is to report to the PF who will consider actions such as PF imposed penalties (Fiscal Fines) or criminal proceedings.

2.57 A potential solution to this perceived paucity of regulatory tools is the introduction of financial administrative penalties and there has been much discussion about these over recent years.

2.58 By "financial administrative penalties" we mean penalties that are not imposed by a court or the PF but imposed by a Regulator without the intervention of a court.

2.59 The Hampton Review recommends administrative penalties as an extra enforcement tool ²⁷ and international experience is positive. The Scottish Executive study ²⁸ points to Germany and the USA noting that Ogus and Abbot ²⁹ argue that Germany has the most coherent and comprehensive system saying that it employs such penalties on the basis of strict liability with any notion of blame being largely absent from considerations. This increases the perception amongst operators that they will be punished and therefore acts as a more effective and efficient deterrent.

2.60 The Scottish Executive study notes that the USA Environment Protection Agency reports that similar penalties have reduced criminal case work noting that when cases are prosecuted and convicted now, the penalties are significant. ³⁰

2.61 The Macrory Review (Better Regulation Executive) notes that there are important lessons to be learned from Australia where they have extended the Regulators' tool kit to include administrative penalties ³¹.

2.62 SEPA's view is that they would like to have an opportunity, in appropriate cases, to impose financial administrative penalty themselves, without the intervention of a court. This, they believe, would provide for a swift, flexible and proportionate response allowing SEPA to demonstrate to both the offender and the community that action can be taken promptly.

2.63 In addition to financial administrative penalties strengthening enforcement, arguments have also been advanced that they may have benefits for operators. Benefits may include the fact that sanctions can be swifter and that the matter can be disposed of without the stigma of a criminal prosecution.

2.64 If financial administrative penalties were to be introduced, certain principles must underpin any system including a need for transparency and accountability and the protection of Human Rights (including rights of appeal and the avoidance of any risk of double jeopardy arising from the operation of the system).

2.65 Assuming that the principles noted above are underpinning the system, there are three key questions to consider next regarding their operation and basis in law:-

• fixed or variable - should financial administrative penalties be fixed or variable and how should they be calculated?
• to which types of offences should financial administrative penalties apply?
• how do financial administrative penalties fit into enforcement systems?

Should financial administrative penalties be fixed or variable and how should they be calculated?

2.66 There are two main options for the calculation of administrative penalties imposed by a Regulator:-

• fixed penalties; and
• variable penalties.

2.67 The main difference is that fixed penalties are determined in law and the Regulator has no discretion as to the level, while variable administrative penalties are determined at the discretion of the Regulator, usually in accordance with a published scheme.

2.68 Fixed penalties, by their very nature, would not seem to have the potential to achieve the flexible and responsive penalty system that we are setting out to achieve. Variable penalties would allow Regulators to respond with sanctions proportionate to the circumstances of each offence thereby rendering the penalty more responsive and meaningful.

2.69 The variation criteria and the component parts of variable financial administrative penalties are key issues because a sound framework for varying the penalties is needed to ensure that the system is fair, transparent, consistent and proportionate and that it acts as an effective deterrent.

2.70 There are a number of potential component parts to a variable financial administrative penalty. The Hampton Review recommended that administrative penalty powers should be established in such a way that offenders can be deprived of the economic benefits of illegal activity. The securing of restorative justice through the imposition of remediation costs is also often suggested, as is the ability of the operator to pay based on profit/turnover - these being considered features that will help ensure that the penalty represents a credible and meaningful deterrent.

To which offences should financial administrative penalties apply?

2.71 The Scottish Executive's view is that financial administrative penalties imposed by an enforcing authority should not generally apply to the most serious offences because these should be associated with a direct, clear, credible and swift criminal sanction without the possibility of the interim step of a Regulator-imposed penalty. The Scottish Executive believes that to strengthen the enforcement of environmental law relating to the most serious offences, we should make the criminal justice system work better for us, and this paper outlines numerous current and proposed initiatives to achieve that aim.

2.72 Financial administrative penalties may be appropriate for less serious offences where wilful non-compliance does not appear to be a feature, where there is not a persistent history of non-compliance and where the behaviour is not generally perceived as one that should be morally condemned. Having said that, it is not straightforward to categorise "less serious offences" in environmental law - for instance does it depend on the type of offence, the environmental damage caused and/or on whether the act was wilful or accidental?

2.73 The detailed argument as to which offences are appropriate for financial administrative penalties needs careful consideration given the operational and legal complexities. However, it is possible to offer some provisional views and we have set out a list at Annex B.

2.74 A potential alternative to making administrative penalty provision for specific offences is to empower Regulators to determine when such penalties should apply depending not so much on the offence, but on the circumstances. In this model, Regulators must impose administrative penalties in compliance with an agreed set of guidelines or a code to ensure that the penalty system is transparent and that the Regulator is accountable. This is a complex issue which would require further work before specific proposals could be made. However, we consider it a viable enough alternative to be noted here as a possibility for the future.

How do financial administrative penalties fit into the enforcement systems?

2.75 There are different options as to how financial administrative penalties may operate. They can be a complementary component of the criminal justice system in which case, if the penalty is unpaid, the next enforcement level is generally submission to the PF for consideration of criminal proceedings. On the other hand, they may be built into the civil justice system in which case, if the penalty is unpaid recourse is to civil court ( i.e. de-criminalisation of the offence).

2.76 For the regulatory system to function effectively it is essential that any administrative penalty action taken by a Regulator must support the next enforcement level (proceedings) otherwise the credibility of the administrative penalty and any subsequent proceedings could be undermined and the regulatory system may be rendered dysfunctional. This need for a clear working relationship between financial administrative penalties and the next enforcement level raises the question whether that next step should be civil or criminal proceedings.

2.77 Arguments advanced in favour of civil proceedings as the next step after financial administrative sanctions include the belief that recourse to a civil court would be more appropriate and effective because:-

• the burden of proof for the financial administrative penalty (and subsequent proceedings) would be reduced to balance of probabilities;
• the type of monetary recovery or penalty that can be imposed by the civil justice system is perhaps more likely to offer greater flexibility;
• proceedings to impose a civil penalty may be more effective because such a penalty may be able to take into account more readily the cost of damage;
• the credibility of the financial administrative penalty is less likely to be undermined because the next step (civil proceedings) is perhaps more likely to succeed than criminal proceedings.

2.78 Arguments against financial administrative penalties being followed by civil proceedings include the fact that this would require de-criminalisation of some offences. The key argument against this is that of criminality should attach to environmental and wildlife crime offences because they can cause significant harm and can attract a high degree of moral condemnation. This raises the questions as to whether it is right and appropriate to decriminalise and, if so, which offences should be decriminalised. Woods and Macrory note that the difficulty lies in where to draw the line when categorising offences as sufficiently serious and therefore clearly criminal or as minor and deserving of a different and more proportionate response (civil penalties).

2.79 The arguments as to whether civil or criminal proceedings should follow financial administrative penalties are obviously not clear cut involving complex practical considerations and matters of law. Nor are the solutions straightforward. Solutions might include providing for both criminal and civil routes depending on the type of offence or some sort of more complex hybrid system in which the divide between criminal and civil is blurred. Given the complexities, if financial administrative penalties are to be taken forward, a great deal more work is required regarding their basis in law and exactly how they would function.

Conclusion

2.80 Whatever the basis and framework for financial administrative penalties, there is a general consensus amongst Regulators and authors on the subject that they are likely to increase the perceived likelihood of punishment amongst operators, thereby representing a credible deterrent ³².

2.81 Moreover, it has been suggested that financial administrative penalties would speed the process and reduce the complexities and attendant costs of the criminal justice process by introducing an additional tool which can be used before resorting to proceedings. ³³ Given this, benefits may also emerge for operators in that financial administrative penalties can be processed more swiftly and reduce the stigma associated with criminal prosecution.

2.82 Clearly, if administrative penalties were to be taken forward, a great deal more work would be required before specific proposals could be made on exactly how they can best be provided for in law, how they should be administered and by whom. However, given the positive international experience and the general consensus in the literature and amongst Regulators, we have reached the conclusion that:-

• there is a case for exploring financial administrative penalties for environmental and wildlife offences
• the ramifications of discussion around the issue of administrative penalties extend to all areas of regulatory offending - therefore, we note the importance of setting any future exploration of this issue in the wider context and the need for close co-operation with COPFS

2.83 The Scottish Executive would welcome your views on financial administrative penalties in relation to environmental and wildlife offences. (please see questions)

Question 6 - financial administrative penalties (imposed by Regulators)

6.1 Do you think there is a case for exploring the potential of Regulator/enforcing authority imposed financial administrative penalties for environmental and wildlife offences?

YES/ NO/ DON'T KNOW/ NO COMMENT

6.2 If Regulator imposed financial administrative penalties were introduced - do you think it would be best to:-

provide in law that specific offences can attract an administrative penalty

empower Regulators to determine when a financial administrative penalty

should apply in accordance with an agreed code or guidelines

have a hybrid of both of these options

have neither of these options

other (please specify)

6.3 If enforcing authorities and Regulators were to have the facility to impose financial administrative penalties for environmental and wildlife offences - what form should they take:-

fixed

variable

mixture of fixed and variable depending on the offence

other (please specify)

6.4 If financial administrative penalties were to be variable, which of the following components should be factors in determining the level of the penalty (you may tick more than one box):-

6.5 The Scottish Executive would welcome any further views that you may have on financial administrative penalties.

Penalties

New additional sanctions imposed by a criminal court

Introduction

2.84 Regulators such as SEPA, and parties with an interest in reducing wildlife crime, have told us that they feel that current penalties for criminal offences do not always represent an effective deterrent. It is further suggested that traditional penalties, such as fines, can be perceived by some operators as something they can simply thole as a business expense meaning that the fine does not always secure compliant behaviour.

2.85 One potential solution that has been much discussed is provision for new "alternative" court imposed sanctions designed to bolster the deterrent effect of traditional court imposed penalties such as fines. The term "alternative sanctions" may include such sanctions as negative publicity orders, public apology orders, environmental service orders and a corporate equivalent of community service orders. Such sanctions would be imposed on operators instead of, or in addition to, more traditional penalties such as fines and imprisonment. Alternative sanctions of this kind may be imposed within the criminal or civil justice system and here we are considering their role in the criminal justice system.

2.86 International experience suggests that these can be a useful tool for the enforcement of environmental law. The Better Regulation Executive review outlines Australian examples of alternative sanctions and notes that criminal judges can require offending operators to take out a newspaper notice apologising for an offence and explaining their remediation proposals ³⁴. At a time when consumers are becoming more aware of environmental issues, the negative publicity may act as a powerful deterrent as it may raise concerns about loss of customer support. In addition, Australia utilises environmental service orders requiring operators to carry out specific environmental work. Such sanctions focus on remediation but also impose a time and cost penalty on the operator.

Conclusions

2.87 We consider that there is sufficient evidence provided by international examples to suggest that alternative sanctions have the potential to help strengthen the enforcement of environmental law because they represent an additional and credible sanction. We acknowledge that it cannot be a straightforward matter of transplanting international examples into Scotland because of the different legal, cultural and operational contexts and clearly, a great deal of work would be required to develop models suitable for Scotland. However, we are convinced that:-

• there is merit in exploring further, the issue of alternative sanctions for environmental and wildlife offences

2.88 The Scottish Executive would welcome your views on the matter of alternative sanctions for environmental and wildlife crimes.

Question 7 - new additional sanctions imposed by a court

7.1 Do you think that there is a need to explore the potential of alternative court imposed sanctions for environmental and wildlife criminal offences?

YES/ NO/ DON'T KNOW/ NO COMMENT

Further comment …………………………………………………………………...

Specialist Environmental Court

Introduction

2.89 In this next section we consider whether a structural change to our legal machinery, may be necessary - in particular whether there is a need for a specialist environmental court. The importance of giving legal machinery due consideration is emphasised by Macrory and Woods:-

" it is .. important that we have in place the most appropriate legal machinery …..in a way that is fair, attracts public confidence, and provides an authoritative and coherent approach to environmental law"³⁵

2.90 For the purposes of this paper, we are using the term "environmental court" to mean a court of law with a broader jurisdiction than the tribunal discussed in the section on appeals (page 42) with wide ranging powers covering a diversity of environmental law and types of suit. Such a court would sit in criminal cases and perhaps in civil cases depending on the model and the burden of proof required would be the same as at present for criminal and civil cases. Depending on the model, an environmental court may also hear environmental appeals. Alternatively, an environmental court may fit into a hierarchy of tribunals hearing cases referred from existing, or new appellate bodies.

Background

2.91 Before going on to discuss issues around the need for a specialist environmental court it is helpful to remember the role of PFs and the courts:-

PFs and prosecution system in Scotland

• the decision whether to prosecute is for the PF acting in the public interest
• in reaching that decision the PF will have regard to whether there is sufficient evidence and will take account of all the circumstances in deciding what action, if any, is appropriate
• see COPFS website for further information Guide to COPFS , Prosecution CodeSEPA/ COPFS Protocol

Courts and sentencing

• sentencing is a matter for the courts (including the level of fines imposed by the court) and they must address such matters independently of the Scottish Executive.

Sentencing Commission for Scotland

• sentencing is obviously of interest to the Scottish Executive and we are engaged with the Judicial Studies Committee to consider such issues
• in November 2003, the Scottish Executive set up the Sentencing Commission for Scotland - its remit includes reviewing and making recommendations on effectiveness of sentences in reducing re-offending, scope to improve consistency of sentencing and the basis on which fines are determined

• the Sentencing Commission report "Basis on which Fines are Determined" includes recommendations on improving the imposition and enforcement of fines and alternatives to fines - amongst other things, the Commission emphasises the need for better information on the cost of damage or harm caused by the offender.

Discussion

2.92 The issue of structural change, in particular the creation of an environmental court, has been a matter of debate over recent years and it is a measure favoured by some NGOs.

2.93 Arguments that have been advanced in favour of a specialist environmental court include:-

• current prosecution rates are too low;
• current fine levels are not always proportionate and they do not always reflect the damage done to the environment;
• belief that the body of environmental legislation and associated court work is distinct enough and large enough to merit a specialist court;
• the Aarhus Convention.

Discussion - Prosecution rates

2.94 There is a perception, particularly amongst some NGOs and enforcing authorities, that the current prosecution rates are not high enough. However, there are some counter-indications to this. The Scottish Executive Scoping Study (2003) found that around 66% of cases submitted by SEPA to the PF resulted in prosecution ³⁶. More recently, figures for the three year period to end March 2005 show that almost 84% of cases reported to the PF by SEPA resulted in proceedings being taken. ³⁷ This compares with an average prosecution rate of around 60% of all cases reported to the Procurator Fiscal (source - COPFS).

Charges reported to the PF by SEPA (source - COPFS)

Discussion - fine levels

2.95 The Scottish Executive study (2003) ³⁸ reported that there is a great deal of dissatisfaction with the outcomes of court cases for pollution offences. The study noted that there is a feeling amongst enforcing authorities and NGOs that not only are fines low, they also bear no relation to the costs of the offence or damage caused and that, to some operators, they be less than the costs of complying, rendering them a mere business expense which can be tolerated.

2.96 Comprehensive data, particularly regarding trends and whether/how environmental damage was taken into account is difficult to obtain, mainly because of the breadth of environmental law, the fact that much of the data is stored by individual case or by offence (depending on the database) and that it is not always gathered or interpreted in the same way. Therefore, the following tables provide an illustration, rather than a comprehensive analysis and the figures must come with a health warning.

Flytipping data (N/K = data not available)

Historic Environment - offences under the Ancient Monuments and Archaeological Areas Act 1979
(N/K = data not available)

• ¹The EA calculates average fines by dividing total fines by all prosecutions (whether resulting in a conviction or not); SEPA calculates average fines by dividing total fines by total prosecutions resulting in a conviction. Figures for 1999/2000 are approximate, as our data records for that year require some validation.
• ²Two companies in a joint venture each fined £5000 for one offence and £10,000 for another, all reported together to the PF
• ³One company fined £10,000 for each of two offences, reported together to the PF

2.97 There are dangers in drawing firm conclusions on the basis of these raw figures because there are many interpretations which only further research could illuminate. For instance it would be dangerous to draw conclusions about fine levels without knowing a great deal more about individual cases. Having said that, even if it were to be concluded that sentences are not sufficiently robust, it cannot be assumed that the creation of a specialist court would in itself guarantee different sentences. It could be just as easily argued that making the current system work better for us could achieve that same aim with less cultural upheaval and associated costs.

Discussion - belief that the body of environmental legislation and associated court work is distinct enough and large enough to merit a specialist court

2.98 The argument has been advanced that environmental law and associated court work warrants an environmental court because its features are sufficiently distinct and special to merit their own jurisdiction. Macrory and Woods identify a number of distinctive elements. They argue that it is not the existence of one special feature, such as technical complexity, that supports the case for special jurisdiction. Rather, it is the combination of so many special features that is the critical factor in the argument for special jurisdiction:-

• "evidential and judgemental issues involving complex technical/scientific questions usually of quite a different sort to…[other decisions and].. the nature of the science …is often characterised by …uncertainties distinct from those found in other disciplines"
• "challenging legislative and policy base"
• "a powerful and increasing body of EC legislation ….and interpretative judgments of the European Court of Justice"
• "substantial body of …international ..law"
• "fundamental environmental principles such as …polluter pays …[and] the overarching principle of sustainable development"⁴⁰

2.99 We acknowledge the special characteristics listed by Macrory and Woods and accept that they are features of environmental law. However, we are not persuaded that these features, or indeed this combination of features is unique to environmental law and it could be argued that similar statements could be made equally about other areas of law such as health, health & safety and employment none of which have specialist courts/jurisdiction (tribunals are not taken to be "courts" in the context of the definition of an environmental court given in the introduction to this section). Moreover, the fragmenting of the judicial system to accommodate a myriad of specialist courts would seem to put in danger procedural and sentencing consistency. Furthermore, there are counter-indications in other reports, such as those noted overleaf, that incremental or procedural changes would address the issues without the creation of a specialist environmental court.

2.100 Other key papers on the subject include the 23 ^rd Report of the Royal Commission on Environmental Pollution (2002) ⁴¹ ( RCEP) which was of the view that criminal offences are probably better handled by "ordinary courts".

2.101 Another major UK study, the DETR Environmental Court Project, related to England and Wales only, but it provides useful insights which can be transposed to Scotland. This project noted that there is limited experience in Europe with the closest models being in Denmark (The Environmental Appeals Board), Ireland (An Bord Pleanala) and Sweden (new system of environmental courts). The project looked further afield for models and it included a detailed study of four jurisdictions in which various models of environmental courts are in operation (New Zealand, New South Wales, Queensland and South Australia) ⁴².

2.102 The DETR study evaluated a number of existing environmental court systems against 18 criteria. The research concluded that the performance of the Australasian model is impressive in terms of assembling and deploying expertise, rapid turnaround of business, incorporating systems of alternative dispute resolution and in providing an effective mechanism for enforcement. The report found them less impressive in terms of public access and in reducing the formality and costs of litigation. It also noted the challenges associated with translating a model into a different context even where legal structures are similar. The report's conclusions included:-

"The case studies ….used to explore the different jurisdictions demonstrate that their similar legal structures do not necessarily produce similar outcomes".

"We have …… explored alternative, incremental ways in which [improvements] might be achieved through non-structural changes. We have concluded that non-structural change is capable of overcoming some current problems …But to achieve more fundamental reforms …it is necessary to envisage more radical changes [such as a specialist tribunal]" ( DETR report page 451)

2.103 The Scottish Executive "Environmental Justice Scoping Study" reported that:-

" Some of the problems identified relate to the current system not being used as effectively as it could and some measures are already being taken to …..remedy this" (page iii)⁴³

" ..it is also argued that prosecution will never be the most effective way of dealing with environmental crime and that other measures (for example, the introduction of administrative penalties…) could provide a more efficient means of punishment and represent a more effective deterrent for polluters"(page iv)

2.104 Macrory and Woods also raise the questions as to whether there would be a viable jurisdiction/workload. These are important questions because the workload must surely be a factor in deciding whether the costs and benefits of setting up a specialist court can be justified.

Discussion - the Aarhus Convention

2.105 The Aarhus Convention ⁴⁴ has also been advanced to support the argument for a specialist environmental court (for further background and discussion around access to justice issues and the Aarhus convention, please see the "Public Participation" section of this paper)

2.106 The Aarhus Convention makes special provision for access to environmental justice including the provision that review procedures must be " fair, equitable, timely and not prohibitively expensive" and some parties, e.g. some NGOs, argue that this could and should be achieved through the creation of an environmental court.

2.107 We do not believe that it can be assumed that structural changes, such as the creation of a new specialist court, would be the best way to go about securing access to environmental justice. On the contrary, there are clear indications that access issues can be addressed by making the existing system work better for us and/or by making procedural changes (for example see the public participation section of this paper). Therefore, we do not find this argument persuasive because it fails to take into account the access to justice achievements to date and the fact that access concerns can be addressed through procedural rather than structural change.

Specialist Environmental Court

Conclusions

2.108 We have reached the conclusion that the case for a specialist environmental court is not made because:-

• We are not persuaded that the special features listed by Macrory and Woods, or indeed the combination of features, is unique to environmental law - it could be argued that these features could be attributed equally to other areas of law such as health, Health & Safety and employment none of which have specialist courts/jurisdiction (tribunals are not taken to be "courts" in the context of the definition of an environmental court given in the introduction to this section).
• The fragmenting of the judicial system to accommodate a myriad of specialist courts would seem to put in danger procedural and sentencing consistency - furthermore, there are counter-indications suggesting that incremental or procedural changes would address the issues without the creation of a specialist environmental court.
• There is insufficient available evidence to demonstrate clearly that there is a high enough workload in Scotland to render a specialist environmental court a viable option.
• There are counter-indications to concerns about low prosecution rates;
• In relation to concerns regarding fine levels - we find that there is insufficient evidence available to fully support this argument.
• It cannot be assumed that the creation of a specialist environmental court would in itself guarantee higher prosecution rates or more punitive sentences and it could be argued equally that procedural changes could address such concerns just as effectively.
• The argument that an environmental court would provide access to justice as required by the Aarhus Convention fails to take into account the achievements to date and the fact that access concerns can be addressed through procedural rather than structural change.
• There are a large number of other initiatives, underway and proposed, which will address the concerns raised to support the argument for an environmental court - for instance: training initiatives; liaison/partnership working; summary justice reforms; the work of the Sentencing Commission for Scotland; exploration of financial administrative penalties; access to justice work; and new legislation regarding sanctions for environmental offences such as fixed penalties and the possibility of custodial sentences.

2.109 The Scottish Executive would welcome your views on issues relating to specialist environmental courts:-

Question 8 - environmental court

8.1 Do you agree that the case for an environmental court for Scotland is not made out?

YES/ NO/ DON'T KNOW/ NO COMMENT

Further comment…………………………

Dispute Resolution

Introduction

2.110 The Partnership Agreement made a commitment to strengthening the enforcement of environmental law including consideration of options for improving dispute resolution. This section examines environmental appeal mechanisms currently used to resolve environmental disputes and considers options for improving these processes and procedures.

Background

2.111 There is a variety of types of environmental appeals and appeal mechanisms/routes - an overview is provided below and at Annex C.

Appeals to the Scottish Ministers

• Types of appeal - At present, and in addition to those contained within Planning legislation, there are available more than 100 provisions in environmental legislation for appeals to the Scottish Ministers. Two typical examples are given below:-
  • Pollution Prevention and Control (Scotland) Regulations 2000 ( PPC) . Operators whose installations are regulated by SEPA can appeal to the Scottish Ministers against certain decisions made by SEPA. For example, an operator of a landfill site will be issued a PPC permit by SEPA. The permit will include conditions which require to be complied with in operating the site. If the operator of the landfill site is aggrieved by any or all of the conditions they can appeal to the Scottish Ministers.
  • Part II of the Sewerage (Scotland) Act 1968 .
    Any occupier of trade premises has the right to discharge trade effluent into public sewers provided he has the consent of Scottish Water. Scottish Water has the power to refuse consent or give it subject to such conditions as it thinks fit. If Scottish Water refuses to give consent or sets unacceptable conditions then the occupier can appeal to Scottish Ministers.
• Workload - There are, on average, around 30-40 cases per year (this is the net figure and takes into account the 80% that are, on average, withdrawn).
• Process - Most appeals are handled by written submissions, although appellants and enforcing authorities can request a hearing. If the legislation makes provision for a hearing and one is requested, Scottish Executive officials arrange for it to be administered by the Scottish Executive Inquiry Reporters Unit ( SEIRU), the report on the outcome of the hearing being submitted to Scottish Ministers for a final decision. It is also usually open to Scottish Ministers, without a request from the parties, to hold a hearing on an appeal or issue raised in an appeal. Further information is available at:-

http://www.scotland.gov.uk/Topics/Planning/Appeals/Introduction ( SEIRU)
http://www.scotland.gov.uk/Resource/Doc/921/0011689.pdf (Guide to Appeals)

Applications to the Scottish Land Court

• Types of appeal - Appeals against a notice served by the Scottish Ministers in terms of the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003; and appeals against conditions imposed by, or decision made by Scottish Natural Heritage in terms of the Nature Conservation (Scotland) Act 2004 (viz - Nature Conservation Orders and Land Management Orders).
• Workload - At June 2006 there had been no applications in terms of the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003 or the Nature Conservation (Scotland) Act 2004. (source - Scottish Land Court).
• Process - Further information can be obtained in Annex C and from the Scottish Land Court website. ⁴⁵

Appeal by way of summary application to the Sheriff

• Types of appeal - Summary application to the Sheriff ( see Annex C for relevant legislation).
• Workload - There are indications that the workload is not significant - a 2003 ERM report suggested that there had been no such appeals to the Sheriff relating to litter and flytipping provisions under the Environmental Protection Act 1990. ⁴⁶ Further statistics are not currently available. (note that the Scottish Executive Justice Department is reviewing the system by which civil judicial statistics are collected, with a view to ensuring that accurate, relevant and timely statistics are collected in a consistent way across Scotland)
• Process - Further information can be obtained in Annex C.

Appeal to the Office of the Water Industry Commission for Scotland

[This is not a generic appeal model like the other examples. It applies to very particular circumstances. However, it is included here to help provide as full an overview as possible of the various appeals mechanisms]

• Types of appeal - If Scottish Water refuses to connect a potential customer to the public water supply or public sewerage on the grounds that it is "beyond reasonable cost", the customer may appeal to the Office of the Water Industry Commission for Scotland who will make a determination. (Relevant legislation - section 1(4) of the Sewerage (Scotland) Act 1968 and section 6(3) of The Water (Scotland) Act 1980) and The Provision of Water and Sewerage Services (Reasonable Cost) (Scotland) Regulations 2006)
• Workload - The workload is currently included in the Scottish Ministers environmental appeals workload figure given above because up until April 2006 such cases were dealt with by the Scottish Ministers. At July 2006 there had been no such appeals to the Water Industry Commission for Scotland.
• Process - The Office of the Water Industry Commission for Scotland is currently preparing a statement on how they intend dealing with such appeals.

Discussion

2.112 We believe that this overview of the environmental appeals systems raises two key questions:-

• Complexity and diversity - is there a need for simplification, rationalisation and consolidation, if so, what changes are necessary to meet those needs?
• Workload - does the environmental appeals workload justify change and, if so, to what extent?

2.113 Some stakeholders, in particular some NGOs, argue that the environmental appeals systems outlined above need simplification. They feel that systems are too diverse and complex and that rationalisation could have benefits such as improved understanding; ameliorated public access; greater transparency; consolidation of expertise; and swifter resolution of disputes. Some stakeholders believe that structural change would be necessary to achieve these aims.

2.114 The body of literature addressing these issues relates mostly to England and Wales. Of course, there are dangers in making direct comparisons with Scots Law but this literature does, nonetheless, provide us with some useful insights. The 23 ^rd Report of the Royal Commission on Environmental Pollution (2002) ⁴⁷ ( RCEP) recommended the establishment of a new environmental tribunal system to consolidate and rationalise the handling of appeals. Macrory and Woods develop the argument that the appeals systems in England and Wales have developed in a haphazard manner and that they need simplification and rationalisation. They conclude that procedural changes are insufficient and that structural change is the best solution:-

"Existing structures could be adapted but we see considerable benefits in establishing a new system based initially on a single Environmental Tribunal ….[this] would bring a greater consistency of approach to the application and interpretation of environmental law…improvements in authority and specialist knowledge would…foster increased confidence….[and the Tribunal] would substantially improve the application of environmental regulation"⁴⁸

2.115 The environmental tribunal envisaged by Macrory and Woods is different in structure and jurisdiction to the environmental court discussed in the previous section in that its key functions would be appeals rather than criminal or civil proceedings.

2.116 It could be argued that the current systems have evolved over the years in order to utilise specialist expertise within a variety of bodies to ensure that appeals are dealt with appropriately. That notwithstanding, the diversity of procedures outlined at Annex C would suggest that some streamlining, simplification and rationalisation is desirable in the interests of rendering systems more readily understandable and accessible. In principle, therefore, we believe that it is difficult to argue against the view that simplification and rationalisation of some kind is needed. In practical terms, we must consider carefully the most appropriate and effective way to achieve simplification because any costs associated with change must be justified in terms of benefits.

2.117 We agree that simplification of some sort is required. However, it cannot be assumed that structural change is necessarily the best way to go about achieving simplification. A central consideration is the environmental appeals workload which is not significant (see above), and its size would not seem to warrant special jurisdiction and nor would it render a specialist tribunal viable.

2.118 If structural change, such as a specialist environmental appeals tribunal is neither viable nor justifiable in terms of workload or cost/benefits, then procedural and/or functional changes to streamline and simplify systems may be a more appropriate and proportionate solution.

2.119 By procedural change we mean improving procedures and processes in order to rationalise and simplify the systems. By functional change we mean changes to, or consolidation of, the functions performed by existing appellate bodies. Such changes might include anything from something as simple as making forms easier to complete, to more radical adjustments such as standardisation of appeals procedure or some form of statutory mediation prior to formal appeal, facilitated by an existing body. ( NB This type of mediation process, being statutory, would differ significantly from the voluntary mediation discussed later in this paper).

2.120 At the present time, we find that there is insufficient evidence available to discuss procedural and/or functional changes in detail but we consider that these issues do merit further attention.

Dispute resolution - appeal mechanisms - conclusions

2.121 Clearly, there are a number of live issues in relation to the current environmental appeals systems and our conclusions on this topic are:-

• there is some need for rationalisation and simplification of some aspects of the environmental appeals systems;
• a radical structural change cannot be justified in terms of costs and benefits;
• the environmental appeals workload in Scotland is not sufficiently onerous to render a environmental specialist tribunal viable;
• functional and/or procedural change may be more appropriate and justifiable - however, there is insufficient evidence available to make specific proposals as to exactly what possible changes may be required;
• we should carry out additional work to obtain evidence on which to base further considerations regarding any need for procedural or functional changes to the environmental appeals systems in Scotland.

2.122 The Scottish Executive would welcome your views on these matters.

Question 9 - environmental dispute resolution (appeal mechanisms)

9.1 Do you agree that there is a need for simplification and rationalisation of the environmental appeals systems in Scotland?

YES/ NO/ DON'T KNOW/ NO COMMENT

9.2 If simplification/rationalisation was taken forward - do you agree that structural change is not the best way to achieve these aims and that, therefore, the case for a specialist environmental tribunal is not made?

YES/ NO/ DON'T KNOW/ NO COMMENT

9.3 If simplification/rationalisation were to be taken forward - do you agree that procedural and/or functional change is the best way to achieve these aims?

YES/ NO/ DON'T KNOW/ NO COMMENT

9.4 If procedural/function changes were to be considered - what sort of changes would you favour?

9.5 The Scottish Executive would welcome any further view that you may have on the environmental appeals systems in Scotland.

Dispute resolution - alternative techniques

Introduction

2.123 For the purposes of this paper the term "environmental disputes" is given a broad definition meaning disputes between operators and enforcing authorities ranging from general communication problems right through to disputes relating to statutory activities such as licence provisions imposed by Regulators.

Background

2.124 One of the problems reported by enforcing authorities and NGOs is that there are too few techniques available for environmental dispute resolution and that existing methods are largely restricted to very formal appeals procedures such as those listed earlier ( also see Annex C).

1.125 Some NGOs and enforcing authorities feel that the environmental appeals systems could be rendered more efficient and effective if there was an optional mechanism for resolving disputes before resorting to these formal appeal procedures. The Scottish Executive acknowledges these concerns and, in a Partnership for a Better Scotland, we made a commitment to consider options for improving environmental dispute resolution. ⁴⁹

2.126 A range of dispute resolving mechanisms is already in use in other fields and these are generally grouped under the heading, "alternative dispute resolution" or ADR (sometimes referred to as additional dispute resolution or appropriate dispute resolution). ADR enables parties to resolve disputes, either as an alternative to litigation or as an additional option after litigation has begun to help make progress towards a settlement. A number of benefits are claimed for ADR, including:-

• speedier resolution with potential reduction in costs and time;
• reduction in numbers of appeals so reducing the load on the appeals system;
• it is usually a private, confidential process and disputing parties retain control;
• discussions are protected, usually by agreement, from being used in litigation in the event that the dispute is not settled at mediation;
• all legal rights are retained in cases where agreement is not reached.

2.127 In addition to these potential benefits, there are other indications that suggest ADR techniques may be useful in the context of some environmental disputes. 80% of appeals to the Scottish Ministers are withdrawn and this is often after a successful exchange of information between the parties. This would seem to indicate that more informal alternative mechanisms may be preferred in some cases.

2.128 The ADR process which is perhaps used most often is mediation. Generally speaking, mediation is a voluntary, non-binding, without prejudice, and confidential dispute resolution process in which an impartial person assists parties to reach a settlement which is acceptable to all. Mediation is currently used successfully in many fields and is a service offered by a number of local councils to solve problems such as neighbour disputes.

2.129 The predominant approach to mediation in the UK is called "facilitated mediation" where the mediator aids the efforts of the parties to reach their own settlement without suggesting solutions. Sometimes "evaluative mediation" is offered by mediators with a judicial background where the mediator introduces their own view on the options which might lead to settlement. Further background information can be obtained from the Scottish Mediation Network's website at www.scottishmediation.org.uk .

Conclusions

2.130 ADR and, mediation in particular, would appear to have potential for resolving some environmental disputes, given the suggested benefits listed above and the apparent preference for informal resolution in some current appeal cases. However, there are a number of practical questions regarding the operation of mediation that would require careful consideration before deciding how it might be applied in the context of environmental disputes e.g.:-

• mediation is currently most often applied to disputes between individuals - how might it operate in practice when applied to environmental disputes between an enforcing authority and an operator?
• which types of environmental disputes would be most suitable for mediation? (It would be difficult, for example, to envisage ADR being appropriate in cases of serious and repeated criminal activity. However, it may have a role to play in some such circumstance e.g. where the terms of a licence imposed by a Regulator are in dispute)
• would there be a need for the appeals time limits to be suspended during mediation so that appeal rights are not undermined?

2.131 The Scottish Executive would welcome your views in relation to the potential of ADR for the resolution of environmental disputes.

Question 10 - environmental dispute resolution (alternative techniques)

10.1 As a general principle, do you think that mediation has a role to play in the settling of environmental disputes?

YES/ NO/ DON'T KNOW/ NO COMMENT

Further comment …………………………

10.2 If mediation was to be made available - to which types of environmental dispute would it be suited?

10.3 The Scottish Executive would welcome any further views that you may have about alternative dispute resolution techniques in relation to environmental disputes.

Public participation and access to justice

Introduction

2.132 We have already considered access to justice in the context of discussions around structural change and dispute resolution.

2.133 In this next section, we wish to consider further the benefits of public participation and how it can assist in achieving the overall aims of this exercise - i.e. reducing environmental and wildlife crime through the strengthening of enforcement.

2.134 A recent study submitted to SEPA in March 2006 by Macaulay Research Consultancy Services in collaboration with The Department of Law, University of Dundee, summarised the benefits of public involvement as:-

"….leading to better choices; more acceptable solutions and therefore less conflict; an increasing of the capacity and confidence of members of the public to take responsibility for the environment…"⁵⁰

2.135 There are a number of models for public participation in decision making. What the various models have in common is a tendency to set out escalating levels of participation from the relatively passive, such as provision of public information, to the more active, such as consultation and working together with the public to make decisions. In this paper, we want to focus on actively engaging the public in strengthening enforcement and, to that end, we concentrate on three aspects of participation:-

1. Public participation in the recognition and reporting of environmental and wildlife crimes.
2. Public participation in decisions regarding remediation of damage caused by environmental and wildlife crimes.
3. Access to review.

Public participation - recognition and reporting of environmental and wildlife crime

2.136 One way of providing opportunities for community involvement in the recognition and reporting of potential environmental and wildlife crimes is to offer hotlines allowing alleged offences to be reported easily and quickly. The Police, enforcing authorities and many NGOs already provide such services and they publicise the relevant telephone numbers through websites, leaflets and events.

2.137 SEPA provides a dedicated 24 hour hotline which receives around 6000 calls a year reporting pollution incidents and other concerns. A 2004 survey reported that few found it difficult to source the SEPA contact details and that the vast majority of callers said they would use the hotline service again. The research noted that SEPA hotline callers tend to be employed males aged 35-54 and it may be worth looking at ways of encouraging others to utilise the service if we are to make hotlines work even better for us.

2.138 In his 2004 report for SEPA⁵¹ Professor Mark Poustie made a number of recommendations regarding procedural environmental justice and SEPA's licensing and enforcement functions. On the subject of hotlines the report recommended a "single point of contact hotline" [for a wide range of environmental issues] within each local authority area. The rationale being that a central hotline would enable the public to report their concerns and complaints more easily

2.139 Another hotline example is the "Dumb Dumpers Stopline" established by the Scottish Fly Tipping Forum to encourage members of the public to report incidents. ⁵² They report that a survey showed that 90% of the adult population of Scotland had seen the Dumb Dumpers adverts and that many callers have provided information that has given enforcement officers a good line of enquiry.

Public participation - decisions regarding remediation of damage caused by environmental and wildlife crimes

2.140 Another important aspect of the community work stream is the potential for communities to take on a greater role in the remediation of environmental damage and to work with enforcing authorities to ensure that the offender puts right the damage and/or improves the area where damage has occurred. This thinking is a reflection of the Aarhus Convention (see below). It is also seen in EU legislation such as the Environmental Liability Directive ( ELD) which provides that individuals, and others who may be directly affected, may request action by Competent Authorities or seek review of the authority's action or inaction (see section on ELD).

2.141 This level of participation presents much more complex operational and legal challenges than hotline provision (see above). For example, issues requiring illumination might include how "the public" should be defined, questions around participation methods and how parties with a stake in the offence can come together to resolve how to deal with the aftermath of that offence. It is clear, that should such an initiative go ahead, careful consideration, and perhaps pilot work, would be required to establish the most appropriate model for Scotland.

Public participation - access to review

2.142 The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus, Denmark, June 1998' ( UNECE 1998) relates directly to the issues of enforcement and access to justice discussed in this paper. (The Aarhus Convention ⁵³). Much of the foregoing addresses issues around the Aarhus Convention. In this section we give further consideration to Aarhus obligations in the context of our aim to strengthen the enforcement of environmental law.

2.143 Article 9 of the Aarhus Convention contains provisions for the third "pillar" of the Convention, on access to justice. Under the Convention "access to justice" means that members of the public have legal mechanisms that they can use to gain review of potential violations of the access-to-information and public participation provisions of the Convention as well as of domestic environmental law. The rationale behind the access-to-justice pillar of the Convention includes strengthening enforcement by enabling the public to invoke the power of law.

2.144 The following table provides an overview of those obligations under Article 9 of the Aarhus Convention which, in our view, relate most closely to the subject of this paper - strengthening the enforcement of environmental law. The table is taken from " The Aarhus Convention - An Implementation Guide - United Nations 2000" and the implementation elements of the table are taken from the requirements and guidance in the Convention itself. ⁵⁴

Aarhus Convention - Article 9 - overview of those obligations which relate most closely to this paper

2.145 The Aarhus Convention includes a requirement that its provisions on public access should allow for the public to seek review of inadequate application of the Convention by public authorities. Such a review extends to the legality and the procedural accuracy of the application of the Convention. It does not extend to the content or merits of an individual case. In relation to environmental law in Scotland, this would include, for example, aspects of appeals relating to the misapplication of procedures ( see Annex C) and Judicial Review in the Court of Session.

2.146 In Scotland, there was already existing provision for public participation prior to the Aarhus Convention. For instance, many of the enforcement regimes within scope of this paper have featured both statutory and non-statutory access provisions for a number of years including opportunities to challenge or to seek reviews - e.g. various appeal mechanisms (Annex C) and Judicial Review to the Court of Session.

2.147 In the light of the Aarhus Convention, access provisions have been updated in Scotland. This has included transposition of two key EU Directives on Access to Information (2003/4/EC) and on Public Participation in Environmental Matters (2003/35/EC). These Directives include the required 'access to justice' [ie review] provision and the EU has not since found it necessary to do more on access to justice more generally. The UK completed ratification of the Aarhus Convention in May 2005.

2.148 In Scotland, transposition of EC Directive Directives 2003/4/EC and 2003/35/EC have been key to assisting the delivery of the requirements of the Aarhus Convention. Transposition of these Directives has involved work across a number of regimes and is now nearing completion. This work has included updating of some existing statutory procedures ( e.g. Pollution Prevention and Control) and more formal expression in law of some provisions ( e.g. plans on Nitrate Vulnerable Zones).

2.149 Notwithstanding the work that has been done recently regarding access to justice, we are aware from consultations that some stakeholders, particularly NGOs, have lingering concerns regarding access to justice/review in Scotland. Their concerns relate, in the main, to questions of ease of access, consistency of access provisions across regimes and a belief that some aspects of the current provisions, such as Judicial Review to the Court of Sessions may, in some cases, be prohibitively expensive.

2.150 While the Scottish Executive does not necessarily share concerns expressed by some parties regarding access to justice, we acknowledge this point of view and are willing to explore further initiatives. One such initiative which has attracted some attention is the possibility of the Sheriff being given a role to deal with certain additional appeals/reviews - e.g. where there is currently no specific appeal provision and the only option for challenging the decision is by Judicial Review in the Court of Session.

2.151 Clearly, exploring the role of the Sheriff involves complex matters of law and justice procedures and it would not be prudent to make specific proposals without further work. However, we consider that this idea has sufficient potential to warrant further consideration.

Public participation - conclusions

2.152 Regarding issues around public participation and the strengthening of the enforcement of environmental law, our conclusions are:-

• public participation in the recognition, reporting and remediation of environmental and wildlife crimes is clearly important in terms of the Aarhus Convention and the principles of environmental justice and enforcement;
• there are indications that a broader spectrum of the community could be encouraged to participate in the recognition and reporting of environmental and wildlife crimes;
• the notion of involving the community in remediation decisions and activities merits further exploration because we see this as a means of ensuring that people affected adversely by environmental damage have an opportunity to participate directly in ensuring that it is put right;
• the possibility of increasing the role of the Sheriff in reviewing certain decisions relating to environmental law should be explored further.

2.153 The Scottish Executive would welcome your views on public participation and the strengthening of the enforcement of environmental law.

Question 11 - public participation - recognition, reporting and remediation

11.1 Do you think that the level of public participation in the recognition and reporting of environmental and wildlife crime needs to be improved?

YES/ NO/ DON'T KNOW/ NO COMMENT

11.2 If you said " YES", to question 11.1, please give any suggestions you may have for how improvements should be achieved.

11.3 Do you think that the level of public participation in decisions regarding the remediation of environmental damage needs to be improved?

YES/ NO/ DON'T KNOW/ NO COMMENT

11.4 If you said " YES", to question 11.3 please give any suggestions you may have for how improvements should be achieved.

Question 12 - public participation - access to review

12.1 Do you think that the possibility of increasing the role of the Sheriff in reviewing certain decisions relating to environmental law should be explored further?

YES/ NO/ DON'T KNOW/ NO COMMENT

Further comment…………………………..

Question 13 - public participation - any other comments

13.1 The Scottish Executive would welcome any further views that you may have in relation to public participation and the strengthening of the enforcement of environmental law.

The Environmental liability Directive ( ELD)

2.154 Directive 2004/35/EC of the European Parliament and of the Council (The Environmental Liability Directive) is mentioned in this paper because it is another area of work that will support the Partnership Agreement commitment to reduce environmental crime. The Scottish Executive is conducting a separate public consultation on the transposition of this Directive and we do not intend to duplicate that work here. However, we considered that it would be helpful to provide some background information on the Directive within this paper.

2.155 The Environmental Liability Directive is intended to give effect to the "polluter pays" principle for significant environmental damage relating to:-

• any occupational activity in relation to EU-protected species; ⁵⁵
• natural habitats; ⁵⁶
• specified activities relating to water falling within the scope of the Water Framework Directive; ⁵⁷ and
• contamination of land which threatens human health.

2.156 The Directive envisages a relatively high-level regime, requiring preparation by relevant operators to avert significant damage and to repair it where it occurs. Relevant operators must obtain the agreement for their actions of the competent authorities ( CAs) who are to be designated by Member States. Individuals, and others who may be directly affected, may request action by CAs and they may also seek review of the authority's action or inaction. ⁵⁸

2.157 Where liability for environmental damage (or imminent damage) exists in terms of the Directive, the operator is required to take remedial action immediately and, if necessary, in the longer term.

2.158 The full text of the Environmental Liability Directive can be found on the EU website.

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