High Court ruling on Section 108 powers

Several cases have come to our attention in recent years of regulatory bodies seeking to obtain information through this subsection, without having entered premises. In these cases, authorities have requested information from individuals or companies in writing citing section 108(4)(j). On the 18th March 2020, a judgement was handed down by the High Court in the case of Walker v Chelmsford City Council [2020] EWHC 635 (Admin) which clarifies the position.

Walker v Chelmsford City Council [2020] EWHC 635 (Admin)

In his judgement, Lord Justice Fulford confirmed that whilst some of the powers contained within subsection 108(4) can be exercised independent of a power of entry, this is not the case in relation to subsection 108(4)(j). Emphasising the importance of the legislative history of the powers, the judge commented that the power to ask questions under section 108 had replaced the now repealed section 69 of the Environmental Protection Act 1990. The wording of subsection 108(4)(j) is similar to that in section 69(3)(i), with the latter giving the power to inspectors to enter premises and ask questions. Fulford LJ affirmed that case law had established that the power to ask questions under section 69 applied only where an inspector had entered a premises and was asking questions of persons on site. It was also noted by the judge that section 108 had originally come under a part of the legislation sub-headed ‘powers of entry’. This, he suggested, was relevant and acts as an aid to construction.

In light of this, the judge confirmed that the wording of subsection 108(4)(j) in the context of the legislation, ‘supports the interpretation that it only applies to a face-to-face request for information.’ Additional reasons were advanced by Fulford LJ in support of this conclusion. Firstly, the wording of the subsection 108(4)(j) makes it clear that a regulator can require a person to answer questions in the presence of a limited number of other individuals after which they must sign a declaration of truth as to the answers given. The provision, then, does not cover situations where written questions are sent to a person in writing. Secondly, Fulford LJ suggested that there are other pieces of legislation under which regulators can gain information. The example given by the judge was section 71 of the EPA 1990 which allows authorities to request information in relation to the power to search and seize vehicles. Thirdly, the judge determined that unlike other legislation dealing with the request for information, section 108 does not have a ‘catch-all’ or ‘sweep-up clause’ which allows regulators to exercise ‘any other powers that are necessary’ to carry out their functions. The lack of such a clause, the judge suggested, indicates that it was not Parliament’s intention to give regulators such broad powers.

Impact on enforcing authorities

The judgment makes it clear that regulators cannot use subsection 108(4)(j) to require people to answer questions unless it is used whilst the regulator is on the premises. Enforcing authorities cannot send such requests in writing as this is simply not permitted under the legislation. In his judgment, Fulford LJ acknowledged that the ruling may make it more difficult for local authorities to investigate environmental issues by requiring regulators to enter premises before they can use the provision. If this restriction proves too much of an impediment, the judge suggested that it is open to the Secretary of State to grant the power to request information without having to exercise a power of entry.

It is our view that the restrictions placed upon the use of subsection 108(4)(j) are appropriate and proportionate. If regulators want to question individuals, they have the power to do so under the Police and Criminal Evidence Act 1984. Furthermore, section 108 provides that any information acquired under subsection 108(4)(j) cannot be used in criminal proceedings against the person answering the questions in order to protect individuals from self-incrimination.

It has been suggested that local authorities may lobby the Secretary of State to empower regulators to exercise subsection 108(4)(j) without having to effect a power of entry. It is our view that this is unnecessary given the existing powers under PACE and the fact that any answers given by those responding to a section 108 request, cannot be used in evidence.

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