The duty of care enshrined in Section 34 of the Environmental Protection Act 1990 is one of the key aspects of waste management law in UK. In a nutshell, the duty of care requires any person in the waste chain, from production to disposal, to prevent any other person in the chain committing a waste management offence, to prevent the escape of waste from their control and to ensure that waste is transferred to a properly licensed person. Section 34 also requires the Secretary of State to prepare and issue a code of practice “for the purpose of providing to persons practical guidance” on how to discharge the duty of care. The Secretary of State also has the power to revise the code of practice from time to time by “revoking, amending or adding to the provisions of the code”.
The code of practice is an important document. In any prosecution for a breach of Section 34, the code of practice is admissible in evidence and, if any provision of the code appears to the court to be relevant to any question arising in the proceedings, it must be taken into account in determining that question. It is therefore vital that the code of practice provides those persons subject to the duty of care with clear guidance on what they have to do to comply with the duty of care, as well as providing magistrates, judges and juries with clear guidance on the key questions they may have to determine when dealing with prosecutions for breaches of Section 34.
Background
The current code of practice dates from March 1996. It is a comprehensive document, running to 66 pages. However, since its publication in 1996 there have been a number of changes to waste management legislation, both at European level and domestically, which mean that the code of practice is now in need of updating. With that in mind, Defra is consulting on a revised code of practice.
The consultation draft of the code of practice is somewhat different to the current code of practice. For a start, it is only 11 pages long. This reflects the government’s drive for shorter, more concise guidance documents. However, while clearer, more accessible guidance that is easily understood by the layman is to be welcomed, at the same time guidance also needs to be usable by professional users. The consultation draft code of practice seems to fail on both counts. It is too complicated for those unfamiliar with waste management legislation (which would include many waste producers), but too basic for professional users such as waste management companies and their advisers, who require clear guidance on the interpretation of the duty of care and what they need to do to comply with the duty of care in different circumstances.
Why does this matter? First, as mentioned above, the code of practice is admissible in evidence in prosecutions for breach of Section 34. Any person at risk of prosecution for breaching Section 34 needs clear guidance on how to comply with the law. Second, it is likely that anyone wanting to ensure they comply with the proposed new code of practice will need to engage professional advisers to help them to do so, thereby resulting in increased compliance costs. Finally, as noted in the consultation document itself, compliance with the duty of care helps to prevent waste crime and fly-tipping. If it is not clear how to comply with the duty of care, then there will be an increased risk of waste crime and fly-tipping, with prosecutions for breaches of the duty of care being more problematic because of the lack of clear guidance.
The consultation closes on 21 September 2015.
Angus Evers is a Partner in King & Wood Mallesons’ Planning & Environment Group and is one of the co-convenors of the UK Environmental Law Association’s Waste Working Party
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