Reform of Environmental Regulation: Bill Introduced

Scotland

The reform of environmental regulation in Scotland took another step forward recently with the introduction of the Regulatory Reform (Scotland) Bill (the Bill) to the Scottish Parliament.

Part 2 of the Bill deals with reforms to environmental regulation, and these proposed reforms would primarily, if enacted, enable the Scottish Ministers to make secondary legislation to deliver the proposals contained in the Consultation on Proposals for an Integrated Framework of Environmental Regulation (the Consultation). A summary of the key provisions of Part 2 are set out below.

SEPA's General Purpose

The Bill proposes to amend the Environment Act 1995 to add a new section providing that the Scottish Environment Protection Agenncy's (SEPA's) general purpose is to carry out its functions for the purpose of protecting and improving the environment (including managing natural resources in a sustainable way).

In carrying out its functions, SEPA would be required to (except to the extent that that it would be inconsistent with the general purpose) contribute to improving the health and wellbeing of people in Scotland and achieving sustainable economic growth, the Scottish Government's central purpose.

Scottish Ministers' Regulations

If enacted, the Bill would enable the Scottish Ministers to make regulations on any of the specific issues listed in Schedule 2 to the Bill (e.g. emissions, permits, registration and enforcement) for, or in connection with, protecting and improving the environment.

Regulations under these provisions would allow the Scottish Ministers to deliver the key proposals in the Consultation.

SEPA's Enforcement Powers

The Bill also intends to increase the range of enforcement powers available to SEPA, by giving the Scottish Ministers the power to make secondary legislation allowing SEPA to impose fixed and variable monetary penalties for offences to be specified in secondary legislation.

It is also proposed in the Bill that SEPA would be entitled to accept an enforcement undertaking from a person who SEPA reasonably suspects has committed an offence specified in secondary legislation to take specified actions (e.g. to secure that the offence does not continue or recur).

The Scottish Ministers will also be able to make provision in secondary legislation for early payment discounts on penalties, enforcement of penalties, giving SEPA the power to recover costs from a person on whom a variable monetary penalty is imposed and requiring SEPA to publish specified information in respect of any enforcement measure:

It is also proposed that the Lord Advocate would be able to issue guidance to SEPA on the exercise of its functions relating to enforcement measures with which SEPA would be required to comply. SEPA will be required to publish guidance on the use of the enforcement measure.

Court Powers

The Bill also seeks to increase the options for the courts in dealing with environmental offences. It makes provision for Compensation Orders and Publicity Orders of offences which are to be specified in secondary legislation:

Also, where a person is convicted of the offence and the court proposes to impose a fine, the court must have regard to any financial benefit which has accrued, or is likely to accrue, to the person in determining the amount of the fine.

Vicarious Liability

Employers and principals could find themselves liable for specified environmental offences committed by their employees and agents respectively.

Similar provisions are also proposed for situations where a regulated activity is carried out by one person for another under an arrangement.

General Offence of Causing or Permitting Significant Environmental Harm

The Bill also proposes the creation of a new general offence of causing or permitting significant environmental harm. It is proposed that the offence would be committed regardless of whether the person knew or was reckless or careless as to whether significant environmental harm would be caused or would be likely to be caused.

Where a person is convicted of the offence and it appears to the court that it is within the power of the person to remedy or mitigate the significant environmental harm, the court can make a remediation order which orders the person to take such steps as may be specified in the order to remedy or mitigate the harm.