Harriet Harman QC

New Ground 68
Spring 2005

Environmental law enforcement

My involvement with environmental law is through my role as Solicitor General. With the Attorney General, I have professional superintendence of lawyers in government and in national agencies and therefore work with the prosecutors in the Environment Agency.

48,000 members of the public call the Environment Agency every year, alerting the Agency to pollution of air, land and water.

The prosecutors examine the evidence and weigh up the public interest to decide whether to bring the case to court. There are currently 700 environmental prosecutions a year.

Recently I met up with prosecutors from Wales, the South East and the Midlands in Reading. We went out to look at some sites which are the subject of prosecutions.

The criminality of some polluters and the menace caused to people's quality of life and health must not be ignored. Examples abound, such as the mis-management of landfill and subsequent contamination of groundwater or the cottages I saw overlooking an illegal waste site billowing toxic clouds from burning tyres, chemicals and plastics. This isn't honest business inadvertently creating technical breaches of complex regulations. We’re talking about lucrative and criminal environmental offences impoverishing the local environment.

The Environment Agency prosecutors take these cases to court to protect the local community and deter further offences. They are committed and dedicated professionals - but the law could be improved to help them with their important work.

The law should give the local community a voice. The prosecutions for environmental crime are conducted by the Environment Agency prosecutors in the public interest - however, the local community has no direct role in the proceedings. When sentencing in criminal cases such as assault, the courts expect to see and are required to take into account a Victim Impact Statement. In environment cases, there should be a Community Impact Statement presented to the court by the local councillors or the local residents association. Furthermore, the local community could be joined as a party to the proceedings - with the leave of the court; (this would certainly go a good way to fulfilling the obligations under the Aarhus Convention.)

Community engagement is vital to ensure that people are more than just helpless bystanders - or grateful beneficiaries of Environment Agency action. Participation will demonstrate the legitimacy of environmental prosecutions and show them for what they are - not technical over-regulatory action in the cause of an ideological commitment to the environment, but protection for people's most fundamental quality of life. Who cares most about the raw sewage escaping when a water company broke the rules? The family whose chickens were killed as the sewage swept into their garden, of course.

Because of the importance of community engagement in, and transparency of environment proceedings I don't favour moving to new specialist environmental tribunals. The general public have a better understanding of their local magistrates or Crown Court, whereas the proceedings in tribunals are far more remote to most people's understanding.

We can do more to ensure consistency and expertise in courts hearing environment cases. There are 28,000 magistrates and most will only come across one of the 700 environmental prosecutions a year. They are unable to look to specialist advice from Bench Legal Advisors or refer to a guideline case indicating a tariff for environmental offences. There should be special training and accreditation for magistrates, crown court judges or bench legal advisors, and magistrates should be able to sit with specialist advisors on environmental cases.

The law should differentiate between those who commit technical breaches and are not subject to criminal law; and those who knowingly benefit financially whilst severely damaging the environment.

Even for assaults and robberies - fines and imprisonment have long been considered too limited. The court should have a range of penalties for environmental offences.

Courts are often reluctant to impose a fine for the full cost of environmental restoration, since that risks the jobs of innocent employees of the business. Whatever the case, the local community - who are most affected - gain nothing from a fine or imprisonment.

In Scotland, the deferring of sentence affords the environmental authorities the opportunity to engage the offender in positive action to clear up the problem and improve the area. On return to court for sentencing, the prosecution authorities can then explain what the offender has done to help the local environment and ask for an unconditional discharge - there is no such flexibility in the law in England and Wales.

One option is for courts to issue an Environmental Improvement Order in consultation with the local community to identify potential environmental improvements.

But what of those who have breached regulations, who need to clean up their act but who at heart are good corporate citizens? Currently they are either prosecuted or left with just a warning. Regulatory breach could better be dealt with through penalties on the civil standard of proof, and be applied for by the Environment Agency or imposed by the Agency and subject to appeal in the courts.

If we map a way forward, in agreement with those who are subject to regulation, based on a sound critique of the current system with positive proposals for reform - I believe that DEFRA, with the support of the Environment Agency and the environmental movement, can make progress.

Harriet Harman QC