DRAFT REGULATIONS: The Offshore Environmental Civil Sanctions Regulations 2018

These Regulations have been drafted to give the Secretary of State the power to impose civil sanctions by way of fixed and variable monetary penalties on persons in respect of certain criminal offences under the following legislation:

the Merchant Shipping (Oil Pollution Preparedness, Response and Co-operation Convention) Regulations 1998 (S.I. 1998/1056);
the Offshore Chemicals Regulations 2002 (S.I. 2002/1355);
the Offshore Installations (Emergency Pollution Control) Regulations 2002 (S.I. 2002/1861);
the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005 (S.I. 2005/2055); and
the Offshore Combustion Installations (Pollution Prevention and Control) Regulations 2013 (S.I. 2013/971).

These Regulations are made by virtue of section 62(2) of the Regulatory Enforcement and Sanctions Act 2008 (c.13) and under Section 2(2) of the European Communities Act 1972 (c.68), rather than being an Order under Part 3 of the Regulatory Enforcement and Sanctions Act 2008.

The key changes and provisions are summarised as follows:

1. Offences are enforced by the Offshore Petroleum Regulator for Environment & Decommissioning of the Department for Business, Energy and Industrial Strategy.
2. For some offences, the Secretary of State may impose either a fixed or a variable monetary penalty; for others, only one of the penalties is available.
3. Fixed and variable monetary penalties may be imposed only if the Secretary of State is satisfied beyond reasonable doubt that an offence has been committed (see regulations 4(1) and 11(1)). A penalty may not be imposed if the Secretary of State is satisfied that the person would not, by reason of any defence, be liable to be convicted of the offence (see regulations 7(3) and 14(2)).
4. Penalties must be paid within 28 days of receipt of the final notice or non-compliance penalty notice (see regulations 7, 14 and 18). The Secretary of State may recover the amount of any unpaid penalty as if payable under a court order. The Regulations make provision to ensure that there is no prospect of multiple sanctions or convictions being imposed in relation to the same offence.
5. The amount of the fixed monetary penalty in relation to an offence is set out in the Schedule. Before imposing a fixed monetary penalty, the Secretary of State must first serve a “notice of intent” (see regulation 5). A person who receives a notice of intent may, within 35 days of receipt, make representations to the Secretary of State or discharge liability for the penalty by paying two-thirds of the amount. A person who discharges liability for a penalty in this way may not be convicted of the offence in relation to which the notice of intent was served in respect of the act or omission constituting the offence (see regulation 10(1)(b)).
6. The Secretary of State must consider any representations made and decide whether or not to impose the fixed monetary penalty (see regulation 7). If the decision is to impose the penalty, a “final notice” must be served.
7. The amount of a variable monetary penalty in relation to an offence is determined by the Secretary of State (see regulation 11). Before imposing a variable monetary penalty, the Secretary of State must first serve a “notice of intent” (see regulation 12) setting out the amount of the penalty. A person who receives a notice of intent may, within 35 days of receipt, make representations to the Secretary of State and offer an undertaking as to action to be taken (including the payment of a sum of money) to benefit persons affected by the offence.
8. The Secretary of State must consider any representations made, decide whether to accept any undertaking offered and decide whether or not to impose the variable monetary penalty or to impose a penalty of a lower amount (see regulation 14). An undertaking may be accepted even if the penalty is not imposed. If the decision is to impose the penalty, a “final notice” must be served.
9. Where a person fails to comply with an undertaking accepted by the Secretary of State, the Secretary of State may impose a monetary penalty (a “non-compliance penalty”) on the person of an amount determined by the Secretary of State by serving a “non-compliance penalty notice” (see regulation 18). Where an undertaking is accepted but no variable monetary penalty is imposed, it is possible for a person who fails to comply with the undertaking to be convicted of the offence in respect of the act or omission giving rise to the undertaking (see regulation 17(2)).
10. A person may appeal to the First-tier Tribunal against the decision to impose fixed and variable monetary penalties and non-compliance penalties (including the amount of a variable monetary penalty or a non-compliance penalty) (see regulations 9, 16 and 19
11. Miscellaneous provisions cover:
    1. The Secretary of State must publish guidance about the use of the powers to impose fixed and variable monetary penalties and non-compliance penalties and must have regard to the guidance in exercising functions under these Regulations (see regulation 20). In addition, Section 64 of the Regulatory Enforcement and Sanctions Act 2008 requires the Secretary of State to publish enforcement guidance.
    2. The Secretary of State must from time to time publish a report specifying the cases in which the civil sanctions have been imposed (see regulation 21).
    3. Section 67 of that Act provides for the Secretary of State to review these Regulations as soon as practicable after these Regulations have been in force for 3 years. In light of this requirement, the Secretary of State has published a statement under section 28(2)(b) of the Small Business, Enterprise and Employment Act 2015 (c.26) that it is not appropriate to make provision for review in these Regulations.

A copy of the draft Offshore Environmental Civil Sanctions Regulations 2018 can be freely downloaded here.