Environment Bill to extend section 108 powers of entry
On 30th January 2020, the Environment Bill was reintroduced to Parliament for the first time since the general election. The Bill was given an automatic first reading by the House of Commons and will now progress to a second reading.
This reading has been postponed until at least 28th April 2020, due to the COVID-19 outbreak. However, it is still important to understand the potential implications of the Bill, should it pass.
The Bill seeks, amongst other things, to crack down on waste crime and to this end proposes amendments to current environmental legislation. One significant amendment will modify powers of entry under section 108 of the Environment Act 1995 and will make it easier for regulators to enter residential properties which have previously been subject to special protection.
Production of records
Schedule 10 of the Bill sets out the changes which will be made to section 108. Subsection 108(4) of the Environment Act 1995 establishes the powers that may be exercised by those authorised to execute a power of entry under section 108. These include, for example, the power to make any examination or investigation as is necessary, to take measurements, photographs and make recordings, to take samples, to take possession of any article or substance which appears to have caused, or be likely to cause pollution, and to require the production of records. Currently under section 108 regulators are able to require the production of records ‘which are required to be kept under the pollution control enactments for the enforcing authority under whose authorisation he acts’ and any documents ‘which it is necessary for him to see for the purposes of an examination or investigation’.
The legislation states that regulators may inspect and take copies of these records, it does not, however, allow for the seizure of original records. The Environment Bill will add a further power to subsection 108(4) to allow the seizure of original records. The new subsection, subsection 108(4)(ka) will allow regulators to ‘seize and remove documents or anything else found on the premises (other than an article or substance within paragraph (g)’. This expressly widens the scope of the items which may be taken by regulators when they enter a property for the purposes of an investigation. The new subsection will also enable regulators to require information stored in electronic form to be produced in a form in which it can be removed.
Dilute domestic protection
Additionally, the Environment Bill makes a significant change to the requirements to be satisfied before a power of entry is exercised in relation to residential premises. Currently under subsection 108(6)(a) of the Environment Act, in order to exercise a power of entry to a residential premise regulators must provide the occupier with at least seven days’ notice of the proposed entry and must either have the consent of the occupier to enter, or have obtained a warrant.
The requirement for seven days’ notice is an important safeguard which was originally included in the legislation in recognition of a person’s right to privacy and respect for family life. The need to investigate crime was balanced against this right for privacy and the requirement for seven days’ notice was deemed to provide an appropriate meeting point between the two competing interests. It is also worth noting that section 108 already provides an exception to the requirement for seven days’ notice in emergency situations where, for example, immediate entry is necessary to prevent pollution. Although domestic properties have historically always enjoyed special protection, the new Environment Bill crucially seeks to dilute this.
Privacy concerns
The Bill proposes to remove the requirement to provide seven days’ notice, therefore making it easier for regulators to exercise the power of entry. This amendment raises concerns over how the right to privacy will be maintained and how regulators will ensure that the power of entry to residential properties is not overused and abused by its officers. Should the amendment be approved by Parliament, it is essential that guidance be produced setting out strict guidelines as to when exercise of the power of entry is warranted in order to limit the intrusion caused by its use. Currently, under the proposed legislation it will fall to the courts to scrutinise applications for warrants and ensure that they are only granted where it is appropriate and proportionate.
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