The Centre has set out detailed proposals why the HSC should incorporate key aspects of the Environment Agencies Enforcement Policy Statement. This would, crucially, mean that that HSC Enforcement Statement should:

• establish that the powers provided to the HSC be separated into those that that have a primarily preventative purpose from those that are primarily concerned with responding to a criminal offence and
• make clear that inspectors should, in relation to any inspection or investigation
  • consider whether it is appropriate to use one of its preventative powers to ensure that any unsafe practice does not continue or recur, and
  • consider, if a criminal offence has also been committed, whether there should be a criminal justice response and if so whether it is appropriate to issue a written warning, issue a formal caution or lay criminal charges.
    
    

  It is our view that establishing these principles in HSC's Enforcement Policy Statement would bring great clarity to an otherwise very confused enforcement situation, and ensure more consistency.
  

1.5 This argument implies:

(a) the Environment Agency's Enforcement Policy Statement is appropriate to the Environment Agency because of the particular legal regime it enforces, and

(b) that the HSE would enforce the law in a similar way to the Environment Agency if it had a regime, similar to that of the EA, to enforce.(1)

This note argues that although there are indeed some differences between the two legal regimes:

• there are a number of parts of the legal regime which the HSE enforces - known as "permissioning" regimes" - which are very similar to the regimes enforced by the EA. If the proposition set out in paragraph 1.4 was correct, one would imagine that the HSE would enforce this regime in a "stricter" manner - with legal breaches resulting in both preventative and criminal justice responses. However, in fact HSE inspectors enforce this regime in exactly the same way - and perhaps even less strict - than the rest of health and safety law.
  
  
• the differences that do exist between a permissioning/ authorisation regime (whether as part of health and safety or environmental law) and the rest of health and safety law are not ones which justify a different enforcement approach.
  
  
• in any case, whatever differences in the legal regimes, there are two far more important differences between environmental and health and safety law, and between the two enforcing agencies which point to the need for health and safety law to be enforced at least as strictly as environmental law, if not more so. These are:
  
  
  • nature of the harm that is intended to be prevented by environmental law on the one hand and health and safety law on the other;
  • respective ability of the two agencies to detect offences;
    
    

  These differences far outweigh any significance that could ever be given to the differences between the two regimes set out in paragraph 1.4 above