September 11th, 2018
by Peter Jones
Plenty of legislation is poorly written. Some is badly thought out, or pursues objectionable goals. But I’m only aware of one instance of legislation that is untrue.
Laws rarely make statements of fact of the kind that can be true or false. For the most part, legislation:
- directs or forbids actions;
- grants or limits powers; or
- defines offences and imposes penalties for them.
However, the Waste (England and Wales) Regulations 2011, which includes examples of all of these typical features of legislation generally does, also contains the very odd regulation 37:
“The Environment Agency enforces Part 5 and regulation 25.”
This appears to be a statement of fact, not a direction. And to all practical purposes, it simply isn’t correct.
A man of letters…
It seems that, on occasion, the Environment Agency takes some action on regulation 25, which requires waste carriers and brokers to be registered – at least, when the police catch someone operating without a licence. However, Eunomia has previously demonstrated that for the most part enforcement is pretty lax, and the recent Tip of the Binberg report suggests that unregistered waste carriers are operating with near impunity. There were just 12 prosecutions for breaches of duty of care requirements in 2017, which seems low in proportion to the scale of the issue.
But when it comes to enforcement of Part 5 of the Regulations, covering regulations 12-15, there’s even less evidence of action. Regulation 12 contains the waste hierarchy. It has now been obligatory for more than seven years for anyone that “imports, produces, collects, transports, recovers or disposes of waste, or which as a dealer or broker has control of waste” to follow the priority order it establishes. And in all that time, the Environment Agency has taken no action of any kind to even check that anyone is following it – let alone to require them to do so.
I know this because the Agency has recently responded to two environmental information requests I made. In the first, I asked how many potential breaches of the waste hierarchy the Agency has investigated, and what the outcome had been. Their response wasn’t very helpful – but confirmed that no civil sanctions (compliance notices or stop notices) had been issued in respect of people who had failed to follow the waste hierarchy, and so no investigations or prosecutions had taken place for breaches of these notices.
This was not a surprise; but my real interest was whether the Agency had ever investigated whether a breach of the duty to apply the waste hierarchy had occurred. The answer was straightforward: no.
I also asked about enforcement of regulation 13, which concerns the requirement to source separate waste. Here the Agency hasn’t been totally inactive – it has surveyed local authorities, met with some waste companies, and undertaken a site visit to a shopping centre to do a trial audit. But, three and a half years after the deadline for all waste carriers to comply with the separate collection rules, the Agency is still only “in the process of following up” with the 38 authorities that didn’t respond to its survey, and a further 84 authorities whose responses they appear to believe require further examination. No real audits of commercial premises have been carried out.
The Agency also says that it has not assessed whether any organisation has changed its practices as a result of the waste hierarchy (or, indeed, the separate collection requirements). With no real prospect of enforcement, the likelihood that substantial changes have occurred is low. It seems that the regulations have had a negligible effect.
We can’t assume that no change was necessary in order to achieve compliance. One prominent example of apparent failure to apply the waste hierarchy, amongst many that could be cited, is Burberry’s decision to burn surplus stock that could have been sold at a discount, donated or recycled. I asked the Agency to investigate whether Burberry’s actions breach the law – which would apparently be the first such assessment! It took almost six weeks to get a response; again, it was “no”:
“We don’t think it would be the best use of our limited resources to undertake a formal investigation at this time, as we are confident that companies such as Burberry will review their practices to avoid having their good name damaged by such allegations.”
It’s an odd position for a regulator to take: if clear breaches of the waste hierarchy come to light, they don’t need investigating; if they don’t come to light, they can’t be investigated. It seems that Regulation 37 would be more accurate if it said “The Environment Agency does not enforce Part 5 and regulation 25”.
In this instance, it appears that the Environment Agency’s confidence was well founded – Burberry has announced that it will change its practices. But this doesn’t give other companies much reason to act. Burberry’s adverse publicity arose because it voluntarily disclosed that it was burning unsold products; and the company acted because it was keen to protect its environmental credentials. Other companies, who place less emphasis on being green, may be less likely to make such disclosures, and more willing to ride out bad publicity.
Sense of directive
The apparent ineffectiveness of the waste regulations led me to wonder whether the UK is compliant with the EU Waste Framework Directive, from which their requirements derive. I asked Defra whether any compliance assessment had been made. After many weeks, the department responded by sending me their 2013 and 2016 implementation reports to the EU regarding the Waste Framework Directive, confirming that no other assessment had been made.
Both of the implementation reports contain very similar language, suggesting that not much changed in the years between them. They explain how the requirements of the Directive have been written into law and guidance in the UK – but say nothing about how that law has been enforced, or the extent to which any change has resulted.
Since it seems the waste hierarchy is routinely being ignored, it’s questionable whether the UK is currently compliant with Article 4 of the Waste Framework Directive. Of course, with Brexit looming, one might consider this something of a moot point. From April 2019, even if the UK continues to apply EU waste laws – and it seems likely that the waste hierarchy will remain part of UK law – the Commission is unlikely to retain powers to bring infringement proceedings where they are breached.
However, the Government has decided that a new environmental watchdog will take over the monitoring and enforcement role the EU plays. Once it is created, the waste regulations pose an interesting test of how this new body’s role is defined. Will it merely check that the right legislation is on the books? Or will it also hold the government to account over whether the legislation is proving effective? Whether it is willing to act in cases of this kind will be a good indicator of whether it has any teeth. In the meantime, though, I will continue to try to spur the Environment Agency into action. Wish me luck…