Consultation on the revised guidance on the use of enforcement action

Overview

In 2014, the Regulatory Reform (Scotland) Act was passed, giving SEPA its statutory purpose to protect and improve the environment in ways that, as far as possible, create health and well-being benefits and sustainable economic growth. One Planet Prosperity is our regulatory strategy for tackling the challenges of the 21st Century facing Scotland’s environment. We want to ensure that every regulated business fully meets their compliance obligations. Non-compliance with environmental regulations and obligations is non-negotiable. We also want to support businesses to innovate to go beyond compliance standards in a way that delivers economic and social success.

As a regulator, enforcement is an essential part of our toolkit. Following the 2014 act, the 2015 Environmental Regulation (Enforcement Measures) (Scotland) Order gave us the power to impose variable monetary penalties (VMPs) as well as giving us the power to use other enforcement measures, all where a relevant offence has been committed.

In 2016, the Lord Advocate released guidelines to us on the use of enforcement measures and the material factors to consider for each offence. The 2014 act enabled the single largest ever expansion to SEPA’s set of enforcement powers, so we have taken a staged approach to their implementation to make sure we use them effectively and appropriately. Since 2016, we have been working to further develop our approach to enforcement. This has included creating a dedicated enforcement function and phasing in the implementation of new powers to agree enforcement undertakings and issue fixed monetary penalties. Having successfully completed these steps, we now want to move ahead to implement VMPs.

A VMP is a discretionary financial penalty that we can impose. VMPs are not available for all offences. The maximum penalty amount is set out in the legislation creating that offence, and is not the same for all environmental offences. The minimum VMP we will impose is £1,000.

VMPs are an important enforcement tool for non-compliance with environmental obligations and responsibilities. Through this consultation, we are inviting comments on our proposals so that we are able to finalise preparations to use VMPs as a form of enforcement action.

As a regulator, we take very seriously the responsibility that comes with having enforcement powers and the use of new enforcement tools. We recognise the need to be proportionate, consistent, accountable and transparent. We will ensure there is strong governance in place, as outlined in this consultation document, and we will review our use of VMPs, including the way we calculate penalties, in the future.

Why your views matter

We have revised our Guidance on the use of enforcement action and have a statutory duty to consult on any revision. One of the major changes is our proposed process for determining VMPs and we would like to draw your attention to this section of the guidance and hear your views.

In 2016, SEPA published a consultation on proposed guidance on determining the amount of VMPs. We received a number of responses from different sectors and we have listened to your comments. We will discuss these in this consultation. 

VMPs are a very important and useful addition to enhance our enforcement toolkit to tackle non-compliance with environmental obligations. Not having VMPs as part of our current toolkit is a gap that we are addressing with this consultation.

We have developed a new approach to calculating penalties, which incorporates aspects from the previous proposal and takes account of the responses to the previous consultation in 2016. Please read the Proposed Guidance on how SEPA will determine a Variable Monetary Penalty.

With this consultation, we want to get your views on the proposed changes and how the new process addresses the comments made in 2016. Your feedback is important to us. If you feel we have not addressed those comments, this is your opportunity to tell us.

The other changes can be summarised as follows: 

• We want you to understand when we may use a combination of enforcement measures.
• We want you to understand the various enforcement factors, such as foreseeability and previous compliance history.
• We want you to understand our approach to assessing Enforcement Undertaking (EU) offers, in light of experience.
• We want to ensure greater consistency between our approach to different kinds of undertakings.
• We want you to understand the circumstances where Fixed Monetary Penalties (FMP) might be appropriate, with examples in light of experience.
• We want you to understand how we can take account of financial hardship in relation to penalties.
• Explaining to you when we will provide information about costs incurred by us prior to seeking to recover those costs.

The changes are highlighted in the revised Guidance on the use of enforcement action.

What happens next

We acknowledge and thank you for the responses we've received in relation to our revised guidance on the use of enforcement action consultation, which closed in December 2020. Following a cyber-attack in December 2020, we've not been able to respond as quickly as we would normally. We are working through the responses and will be able to provide you with further information in due course.