Natural England recently held a consultation on improving Compliance and Enforcement which the NFU had responded to. The consultation, which closed on 30 September, outlined how Natural England proposes to implement civil sanctioning enforcement powers. It included questions relating to both their compliance and enforcement position and also their Enforcement Guidance document.
The civil sanctions that Natural England were consulting on included:
• Compliance notice – a regulator’s written notice requiring actions to comply with the law, or return to compliance, within a specified period;
• Restoration Notice – a regulator’s written notice requiring steps to be taken, within a stated period, to restore harm caused by non-compliance, so far as is possible
• Fixed Monetary Penalty – a low level fine fixed by legislation that the regulator may impose for a specified minor offence
• Enforcement Undertaking – an offer to take steps that would make amends for non-compliance and its effects that is formally accepted by the regulator
• Variable Monetary Penalty – a proportionate monetary penalty which the regulatory may impose for a more serious offence; and
• Stop Notice – a written notice requires an immediate stop to an activity that is causing serious harm or presents significant risk of causing serious harm
Legislation allows access to civil sanctions for offences under the following policy areas:
• Sites of Special Scientific interest
• The Environmental Impact Assessment (agriculture) regulations
• Complaints relating to injurious weeds
• Breaches of species licenses NE issue under the Wildlife and Countryside Act, Destructive Imported Animals Act, Protection of Badgers Act and the Deer Act.
The NFU has welcomed the opportunity to respond to the consultation, however we have some overarching points regarding the implementation of the new enforcement powers and the consultation in general which are summarised below.
- An option for businesses and individuals to go via the criminal courts route: Under the current proposals, it is Natural England who decides at the outset whether to use the prosecution and criminal courts, or whether to use the new civil sanctions (if available in relation to the offence). Although the business against whom a civil sanction is applied has the option of appealing to the First Tier Tribunal, in the current proposals the business does not have the option of having the offence dealt with via the prosecution and criminal courts route. To remove this option from business and individuals, removes a fundamental right of natural justice i.e. the right to be tried by a court for a criminal offence (and with it the further option of being tried by a jury of peers in a criminal court). Therefore, the NFU suggests that, at the point that Natural England suspects an offence is committed, the suspected offender is given the option of the offence being prosecuted by the criminal courts route, or by the civil sanctions route, if Natural England believes the civil sanction route is available and appropriate for the offence in question.
- Draft Enforcement Guidance: While we welcome the draft enforcement guidance the NFU believe that working with business and industry to avoid the need for enforcement action in the first place is always going to be a preferable approach. While the Draft Compliance and Enforcement position does contain content about ‘helping communities and business to comply’ in many ways through advice and guidance, we believe that Natural England also need to recognise here that the need for enforcement can also be a result of a lack of basic understanding of the regulation itself.
- Improving communication of people's obligations: We would like to see Natural England’s analysis of enforcement cases used to identify whether there are regularly occurring / common problems. If this were the case then perhaps Natural England could use this information proactively to target resource towards better communication on people’s obligations.
You can view the full Natural England consultation here: http://www.naturalengland.org.uk/ourwork/consultations/enforcement.aspx
The Full NFU consultation response can be viewed by downloading the file opposite.
No comments have been made.