The EA criticises ‘really expensive lawyers’ who challenge enforcement action

In recent months the EA has stated that it has been forced to stop or cut certain activities due to budget cuts. The claim was made by Ms Howard Boyd in a letter to the Environment Secretary, George Eustace, in August of last year. The letter was subsequently disclosed after a Freedom of Information request was made. It comes as no surprise, then, that the subject of resources and its impact on the EA’s enforcement activities was a strong theme throughout the meeting. Perhaps less expected, however, were some of the comments made by the EA with regards to the reasons for the decline in prosecutions.

Legal activity

One of the questions posed to the EA was why enforcement actions have declined over the years. EFRA Committee member, Robbie Moore, noted that in 2013 the EA issued 109 cautions, 200 enforcement notices and carried out 130 prosecutions. In 2019, however, the combined figure for all three categories was 100. In response, Sir James Bevan pointed out the range of actions available to the EA when regulating sites, including site inspections, guidance and advice.

Sir James Bevan has previously emphasised the importance of regulating in the right way and the importance of proportionate enforcement. His response appeared to be consistent with this principle. He did, however, acknowledge that the decline of enforcement activity has significantly dropped and that this is “largely because the resources” that the EA needs to carry out this work “have been dropping.” He reminded the committee that the Treasury does not allow the EA to “use income that we get in charges from those we regulate for enforcement of those regulations” and that the only funding it receives for prosecutions and enforcement “comes in the form of a grant from Government.” This overlooks the one third share the EA receives from any confiscation order imposed by the courts, which can be significant. For example, in December 2020, following a successful EA prosecution, a confiscation order in the sum of £2,101,708 was made by Worcester Crown Court.

Ms Boyd Howard advanced another reason for the decline. Whilst she conceded that resources were an issue, she intimated that continuity of enforcement is “partly about monitoring” but “it is also about our legal activity.” Ms Howard Boyd went on to elaborate on this point. She stated:

"the companies that are challenging that enforcement throw really expensive lawyers at us too, challenging us all the way through the court. Again, that has meant that we have not been able to take as many prosecutions as we would like to court. Our legal department is full of heroes and sheroes working on the environmental agenda. This is an area that I just feel needs putting in the right place in terms of people understanding how much the environment is of value to the country as a whole."

This position is disconcerting. Our legal system is adversarial; both the prosecution and the defence conduct their own investigations and have the opportunity to present their evidence before the court. The cornerstone of the British justice system is the founding principle that the accused is innocent until proven guilty beyond all reasonable doubt. Those accused of offences have the right to seek legal representation and to have their legal rights protected in a public and fair hearing. This necessarily entails lawyers testing the regulator’s evidence and arguments and ensuring that it has investigated and carried out enforcement action in accordance with the law and the EA’s own guidance.

Whether that legal representation is provided by a legal aid lawyer or a ‘really expensive lawyer’ should not be relevant but is in any event misleading because the EA can recover the reasonable and proportionate costs of any investigation and prosecution following conviction. This is in stark contrast to what happens if they lose; they pay nothing because defendant companies cannot recover their costs through a defence costs order. The EA would only be liable for an acquitted company’s costs if the Court made a wasted costs order where the EA has acted negligently or in bad faith. This happens infrequently.

It follows that regulators should not be bringing prosecutions where a case cannot withstand this scrutiny. If enforcement action undertaken by the EA cannot be justified and is undermined by a defence lawyer to the extent that action must be discontinued, then there is a strong argument that the case should not have been pursued in the first place. The only occasion when the EA might have to shoulder the costs of defence lawyers, is if the court makes an order for wasted costs on the basis the EA has acted negligently or in bad faith. Good defence solicitors and barristers are integral to the effective operation of our legal system, not least because they ensure that regulators and prosecuting bodies such as the EA are held accountable and prosecuting in accordance with their own policy and guidance.

This is particularly important when the regulator is playing, as in the case of the EA, the dual role of investigator and prosecutor. That Ms Howard Boyd feels that this is something which “needs putting in the right place” is a cause for concern for operators and lawyers on both sides, alike. The EA cannot be permitted, as Ms Howard Boyd puts it “to take as many prosecutions as we would like to court”. The EA, like every other regulatory body, should only prosecute where such action is proportionate, in the public interest and the evidence is strong enough to justify it. To do otherwise would be in breach of the EA’s own Enforcement and sanctions policy.

Divisive rhetoric

Over the last year, we have seen an increase in harmful rhetoric employed by politicians and Government bodies which suggests that defence lawyers who are simply doing their job have set out to unfairly thwart the Government. The branding of immigration lawyers as ‘do-gooder’ ‘lefty’ lawyers has reverberated particularly loudly. It is disappointing to see the EA partake in this type of discourse. Ms Howard Boyd’s statement positions the EA’s “legal department…full of heroes and sheroes working on the environmental agenda” against the “really expensive lawyers” who unhelpfully “challenge” them “all the way through the courts”. The framing of defence lawyers in this way is divisive and creates a ‘goodies v baddies’ binary. This simply does not reflect the true position.

If the EA does its job, the cases it brings will be strong and will not be capable of being picked apart by a defence solicitor or barrister. Frequently the problem in court is the inadequate quality of the evidence because officers are poorly trained or systemic failures in the disclosure regime. To suggest that the EA has been forced to discontinue cases and this is the fault of lawyers is wholly inaccurate and shows a misunderstanding of the legal framework in which it operates. The EA has repeatedly stated that it works with operators to resolve issues. The inference that operators who rightly seek legal advice from specialist lawyers are somehow hampering the EA’s ability to protect the environment, entirely undermines that sentiment.

Mixed messages

Whilst Ms Howard Boyd suggested to the committee that cases prosecuted by the EA are impacted by the “really expensive lawyers” employed by companies, Sir James Bevan confidently asserted that when it prosecutes, the EA will “normally win and…press for the strongest penalties”. There is, then, some contradiction in what the EA is asserting. Sir James Bevan adds that the increased use enforcement undertakings may account for the decline in prosecutions. He described them as an agreement between the Agency and a given company that where in return for not prosecuting, they commit to remedying the damage done. He notes that enforcement undertakings are rising and the more of them the EA can do, the better.

It is possible to infer from Ms Howard Boyd’s remarks that she is of the view that the practice of companies using lawyers who challenge the EA should be reviewed. Although Sir James Bevan did not directly comment on this issue at the meeting, his contributions to the discussion suggest that he understands the benefits and value of the EA being challenged by defence lawyers.

Addressing the EA’s use of powers under the Cover Human Intelligence Sources Bill (CHIS), he remarked that the EA has some “very specific structures and guidance” to ensure that it acts within the law “because we care about that and because we are often challenged”. There is, then, some acknowledgment by Sir James Bevan that challenges to its actions can have positive outcomes, namely that such actions ensure that the EA complies with the law. This principle applies across the board in relation to all actions undertaken by the EA, from the advice and guidance it issues to operators, through to the enforcement action it takes, including prosecution.

The way forward

Although made during the course of giving evidence, Ms Howard Boyd’s comments may have been made off the cuff, without thought of how they could be interpreted. If this is the case, the EA should clarify its meaning. If the EA is truly of the view that the companies it regulates should not be able to use lawyers of their choice to protect their legal interests, then this is a problem which needs to be urgently addressed. No regulator has the right to undermine the rule of law, regardless of how noble their intentions are. The positioning of those who challenge the EA and hold it to account as obstructing the EA’s ‘environmental agenda’, is inflammatory and wrong. If the EA wishes to give those it regulates confidence in its work, it must accept that a fundamental part of that is a willingness to be scrutinised and held to account.

This article was written by The Environment Practice, in conjunction with Samantha Riggs of 25 Bedford Row