2.1 Instruments for Change
Overview:
In this section you will learn about Instruments for Change.
We will start with an overview of different types of instruments, including an outline of environmental taxes, financial incentives and the legal framework in Europe and the UK. We will discuss the different types of legal instruments and explore the different types of law.
We shall also introduce the Court Structure. Finally we shall discuss the role of the regulator and introduce the different Enforcing Authorities.
Learning Aims:
At the end of this section you should be able to:
§ Identify types of instruments available to achieve change and the role they play (e.g. information, financial and legislative instruments and voluntary measures).
§ Understand in general terms the UK regulatory framework: relationships between UK, EC and international law, civil and criminal law and the regulators.
Expected study duration:
8 hours.
Index:
1. Instruments for Change
1.1 Financial Instruments
1.2 Legislative Instruments
1.3 Voluntary Measures
1.4 Information
2. Environmental Law
3. EU Regulatory Framework
3.1 The Treaty of Rome
3.2 The European Commission
3.3 Council of the European Union
3.4 European Parliament
3.5 European Court of Justice
3.6 European Union Forum of Judges for the Environment
4. EU Environmental Policy
5. EU Law
6. Types of EU Law
7. European Environment Agency
8. Examples of the Link between EU and UK law
9. The UK Legal System
10. Criminal Law
11. Civil Law
11.1 Negligence
11.2 Nuisance
11.3 Strict Liability
11.4 Rylands vs Fletcher
11.5 Cambridge Water Co v Eastern Counties Leather plc
12. Scottish Legal System
12.1 Civil Courts
12.2 Criminal Courts
13. The Legal System in Northern Ireland
14. The Role of the Regulator
14.1 Environment Agency
14.2 Local Authorities
14.3 Natural England:
14.4 Scottish Environment Protection Agency (SEPA):
14.5 Northern Ireland Environment Agency (NIEA)
14.6 Sewerage Undertakers:
14.7 Internal Drainage Boards
15. Powers of Inspectors:
16. Court Structure
16.1 Civil Courts
16.2 Criminal Courts
1. Instruments for Change
Policy is a way of setting objectives, acting as guideposts for decision making and steering us in the right direction. However, it does not provide all of the answers.
A Policy framework is required to avoid the problems that short-term and ad-hoc decisions cause. An appropriate framework should create coherence and consistency.
The potential consequences of action and inaction must be considered. To be effective, policy must be interpreted into detailed instructions.
There are different ways in which Government can encourage companies to act. These include:
§ Financial Instruments
§ Legislative Instruments
§ Voluntary Measures
§ Information
1.1 Financial Instruments
Financial Instruments may be called taxes, levies or credits. There are different types, but they usually impose a fee of some sort relating to environmental impact. The aim of such instruments is often to encourage organisation to use less of a natural resource. For example, the landfill tax encourages companies to find alternative methods of waste disposal as landfill is now very expensive.
Everyone in the UK is subject to an environmental tax of some sort. Council Tax bills include an amount provided to pay for refuse disposal. This is an example of an instrument with no incentive. At present your Council Tax Bill is the same regardless of how much waste you produce or recycle.
Car Tax is related to vehicle emissions, as is Company Car Tax. Both of these aim to encourage people to drive less polluting cars. The tax on fuel may also encourage people to drive more efficient cars.
However, many consider that for any financial instrument to be effective in meeting an environmental objective, it must be ring-fenced. For example, if revenue obtained from car tax and fuel duty was spent purely on developing the public transport infrastructure, people may be encouraged to leave their cars behind and catch a bus or a train.
Example of environmental financial instruments include:
§ Landfill Tax
§ Aggregates Levy
§ Climate Change Levy
§ Enhanced Capital Allowances
§ Land Remediation Tax Relief
Landfill Tax
Landfill tax is an additional charge that is added to all landfill disposal charges.
There are two rates:
§ Inactive waste (soil and rocks) - £2.50 per tonne.
§ Active waste (all other) - £40 per tonne, rising £8 per year until April 2010.
It is designed to encourage businesses to produce less waste and to use alternative forms of waste management.
Aggregates Levy
The Aggregates Levy is an environmental tax on sand, gravel and rock that is dug from the ground or dredged from the sea in UK waters.
Quarry operators must pay a tax of £2 per tonne of sand, gravel or rock. Importers of these materials must also pay the tax once they are used commercially. All must register with HM Revenue & Customs (HMRC).
The aim is to address the environmental costs associated with aggregates extraction not already covered by regulation and to encourage the use of alternative sources such as recycled materials.
In Northern Ireland operators who join the Scheme are entitled to a reduction of 80% in the Levy, providing they sign a legal agreement undertaking to carry out environmental improvements at their sites on an incremental basis. This was introduced, with European Union (EU) Approval, to overcome some implementation issues the area faced.
The Climate Change Levy
The Climate Change Levy applies to businesses. It does not apply to domestic users or charity use for non-business purposes. It is charged at set rate per unit of energy, which increases in line with inflation each April. It applies to electricity, natural gas, coal and coke. The tax is collect via the energy suppliers.
It is designed to encourage businesses to reduce their energy consumption or use energy from renewable sources.
Enhanced Capital Allowances
Organisations can claim an enhanced capital allowance for 100% of the cost of certain types of equipment. This includes equipment that is energy or water saving and also low carbon-dioxide emission cars.
The allowance allows the organisation to write off the whole cost of these against your taxable profits in the period during which you make the investment. The benefit is that this should help cash flow.
Land Remediation Tax Relief
If a business cleans up contaminated land, it may be able to claim tax relief of up to 150% of the clean up cost. To qualify, the land must be:
§ In the UK.
§ Acquired by the company to carry out its trade or property letting business.
§ Already contaminated at the time it was acquired.
In addition, the contamination must not have been caused by action or inaction of the company (or a person with a relevant connection to the company).
For the purposes of this relief scheme, land is classed as contaminated if there is a chemical substance in, on or under the land that has the potential to inflict harm to humans, ecosystems or water sources.
1.2 Legislative Instruments
Legislative instruments are an essential part of policy. Unfortunately, simply knowing that a course of action is the right thing to do, is not enough encouragement for most organisations. In fact, many organisations do not even know what the right thing to do is in many cases.
Legislation is the way in which the Government instructs people and organisations to act in a certain way, complete certain actions or to prohibit certain actions. Legislation is enforced, in that those who do not comply are punished (through fines or imprisonment).
The legislative system is discussed in more detail in the later part of this Module.
1.3 Voluntary Measures
A voluntary measure requires an organization or an individual to choose to do it. This is easier said than done as people naturally tend to put economic wealth over environmental wealth.
For a voluntary measure to be effective, the intended participants must be fully aware of the implications of their action. A recent example has been that of plastic bags. Many supermarkets have tried to encourage people to re-use bags, purchasing bags made from Jute or long-lasting plastic bags. It seems that this failed for the most part and some supermarkets have therefore resorted to charging for plastic bags, in an attempt to achieve the goal.
Recycling waste is a voluntary measure in domestic circles, but is a financial measure for commerce and industry. Domestic dwellings pay the same for waste disposal whether the produce a full bin every week or every month and whether they recycle their waste or not. Companies are charged and may be subject to landfill tax, resulting in recycling being an economic decision rather than a voluntary one.
1.4 Information
Information is the key to the success of any policy. People must be aware of why they are being asked to do something (whether that is a legislative requirements or a voluntary one).
Organisations such as Greenpeace, the RSPB and local Wildlife trusts all have a very important part to play in this. By increasing environmental awareness amongst the public and industry alike, the general understanding of the importance of environmental issues will be increased. This should lead to acknowledgement of the action that is required an eventually the implementation of required actions.
2. Environmental Law
Many environmental problems affect countries across the globe. Whilst local action can have an effect, issues such as transboundary air pollution requires a more combined effort. For example, countries in one continent can pollute countries in another, as their air emissions are carried across air currents and eventually settle in another country or continent.
This has been increasingly understood and acknowledged and as a result, Internal and European Laws have been passed.
International Law:
International law tends to be classed as ‘hard’ or ‘soft’.
Hard laws are where countries are legally bound to comply. An example is the Montreal Protocol. This covered Substances that Deplete the Ozone Layer and became effective in 1989. Counties are bound to meet the objectives laid out within it.
Soft laws are more principles of agreement. The obligations are not legally enforceable, but recommendations are intended to be agreed objectives for countries to take on board. An example of this is the Earth Summit (the United Nations Conference on Environment and Development) held in Rio de Janeiro in June 1992.
Further information on International agreements and protocols is included in Module 2.2.
International Court of Justice
The International Court of Justice (ICJ) is also referred to as the World Court. It is a permanent court of the United Nations and is based in The Hague.
It began work in 1946, when it replaced the Permanent Court of International Justice that had functioned since 1922. The ICJ fulfils two functions:
§ It makes rulings on disputes, submitted by the states party.
§ It gives non-binding advisory opinions when asked to do so by United Nations (UN) organisations and agencies.
The Court is composed of 15 judges of different nationalities who are elected to nine-year terms of office by the UN General Assembly and Security Council.
The members of the ICJ do not represent their governments, but are independent magistrates.
The judgment is final and without appeal.
3. EU Regulatory Framework
3.1 The Treaty of Rome
The Treaty of Rome was the founding treaty of the European Economic Community (EEC), which later became the European Union (EU). It is also known as the Treaty of the European Community (TEC).
All the subsequent European treaties have built upon or amended the Treaty of Rome and its provisions still form the majority of EU treaty law.
The Treaty of Rome established a common market (based on the 4 freedoms), common policies and a customs union (part of the first of the 3 pillars).
The 4 freedoms are:
§ Capital
§ Goods
§ People
§ Services
The 3 Pillars are:
§ European Communities
o Customs Unions, Agriculture, Structure and Trade Policies.
§ Foreign Policy and Security
o Democracy, Human Rights, Peace, Cooperation, Foreign Aid.
§ Domestic Policy and Justice
o Combating organized crime, drug & weapon trade, terrorism, racism, crimes against children and human trafficking.
o Cooperation between Civil and Criminal judicial authorities and police.
The Treaty was the result of eleven years of attempts to reconstruct the European continent after World War II. It was signed in 1957 by the Heads of Government of France, Belgium, Luxembourg, West Germany, the Netherlands and Italy.
The Treaty established four institutions - a Commission, a Council of Ministers (now known as the Council of the European Union), a European Parliament and a European Court of Justice. These were to be staffed by officials, ministers, judges and parliamentarians from Member States.
3.2 The European Commission
“Promoting the common interest”
The European Commission represents and upholds the interests of Europe as a whole. It’s functions include:
§ Drafting proposals for new European laws, which it presents to the European Parliament and the Council.
§ Managing the day-to-day business of implementing EU policies and spending EU funds.
§ Taking action against rule-breakers, taking them to the European Court of Justice if necessary
The Commission consists of one person from each EU country. They are assisted by around 24,000 civil servants, most of whom work in Brussels.
The President of the Commission is chosen by EU governments and endorsed by the European Parliament. The other commissioners are nominated by their national governments in consultation with the incoming president, and must be approved by the European Parliament. They do not represent the governments of their home countries. Instead, each of them has responsibility for a particular EU policy area.
The President and Members of the Commission are appointed for a period of five years, coinciding with the period for which the European Parliament is elected.
3.3 Council of the European Union
“The Voice of the Member States”
The Council of the European Union was formerly known as the Council of Ministers. It is the EU’s principal decision-taking body. With the European Parliament, it shares the responsibility for passing EU laws. It is also in charge of the EU’s foreign, security and defence policies, and is responsible for key decisions on justice and freedom issues.