Powers of entry, etc.
article 40(4) of The Greenhouse Gas Emissions Trading Scheme Order 2020
- Status not determined
- Strict liability
- Either way
- Health and safety, environment, waste and fisheries
This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.
What the provision says
4 It is an offence for
a person—
a to fail to comply with
a requirement imposed pursuant to this article; or
b to prevent any other person from—
i appearing before the regulator or an authorised person; or
ii answering
a question to which the regulator or authorised person requires an answer.
Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.
Who it binds, and what has to be proved
- Binds
- a person
- Conduct
- failing to comply with a notice or direction
- Fault element
- Strict liability
- Burden of proof
- No statutory defence — prosecution proves everything
The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.
Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.
The provision states no defence, so the prosecution bears the burden on every element of the offence.
Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.
What would breach article 40(4)?
These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.
- Being served with a notice under the Greenhouse Gas Emissions Trading Scheme Order 2020 and doing nothing by the date it specifies.
- Doing part of what the notice requires, where it required all of it.
- Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.
Penalty
- Mode of trial
- Either way — magistrates’ court or Crown Court
- Maximum fine
- Unlimited
- Maximum prison (summary)
- Not determined
'to a fine' with no stated maximum.
Sentencing
Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.
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Sentencing organisations: fines and the means of a corporate defendant
All courts in England and Wales
How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.
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Environmental offences: definitive guideline
Magistrates' courts and the Crown Court in England and Wales · in force from 1 July 2014
Covers unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and the equivalent offences committed by organisations. It is the guideline that introduced turnover bands for corporate fines, so the size of the defendant company is a starting point rather than a mitigating detail.
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Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline
Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016
Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.
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Imposition of community and custodial sentences: definitive guideline
All courts in England and Wales
When a community order or custody is justified at all, and the presumption against short custodial sentences.
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Reduction in sentence for a guilty plea: definitive guideline
All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
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General guideline: overarching principles
All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
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Totality: definitive guideline
All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.
Prosecution figures
No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.
Status and lifecycle
- Current status
- Status not determined
- Made
- 11 November 2020
- In force from
- Not determined
- Extent
- E+W+S+NI
How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.
What the instrument is for
(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.
This Order establishes a new emissions trading scheme covering greenhouse gas emissions from power and heat generation, energy intensive industries and aviation. The scheme will be called the UK Emissions Trading Scheme or UK ETS (see article 16). It is the successor, in the UK, to the EU Emissions Trading System (established by Directive 2003/87/EC). Part 1 contains definitions that are used throughout the Order, including key concepts such as the “trading period” (1 January 2021 to 31 December 2030 – see article 4) the activities covered by the scheme (“regulated activity”, defined in article 4 and Schedule 2, and “aviation activity”, defined in article 4 and Schedule 1), the different greenhouse gases covered by the scheme (see article 4 and Schedule 2 for installations and the definition of “aviation emissions” for aircraft), the participants in the scheme (“operators” of installations, defined in article 5, and “aircraft operators”, defined in articles 6 to 8) and who the scheme’s “regulator” is for different purposes (articles 9 to 13). Article 15 introduces Schedule 3 which contains provision about applications, notices, etc. Part 2, after introducing the scheme and establishing a review requirement (articles 16 and 17), sets out other elements of the scheme relevant to both operators of installations and aircraft operators. The basic proposition of the scheme is that, for each year, participants have to surrender “allowances” equivalent to their greenhouse gas emissions within the scope of the scheme. So article 18 sets out what an allowance is and articles 19 to 22 set out rules limiting the number of allowances that can be issued. Article 23 permits allowances to be traded except where this is prohibited by other legislation. The rules on how allowances are to be issued do not, however, appear in this Order and will be the subject of separate legislation on free allocation of allowances and auctioning. Articles 24 and 25 introduce Schedules 4 and 5 which adapt existing EU legislation on monitoring and reporting of greenhouse gas emissions, and how reports of emissions are verified, for the purposes of the UK ETS. Parts 3 and 4 contain provisions specific (respectively) to operators of installations and aircraft operators. The scheme has slightly different rules for these different types of participants. For operators of installations there is a general rule that they need a permit (article 26(1)) and need to surrender allowances to account for emissions (article 27). From the general rule, there are different levels of derogation for hospitals and small emitters and for ultra-small emitters. Detailed provision in respect of each category of operator is set out in Schedules 6 to 8, although for operators subject to the general rule, and for hospitals and small emitters, many of the rules take the form of specified contents of permits. For aircraft operators, there is no need for a permit as such. However, aircraft operators must apply for emissions monitoring plans which fulfil some of the same functions (article 28). For aircraft operators, provisions about reporting emissions and surrendering allowances are in articles 33 and 34. Part 5 contains provision allowing the regulators to charge for the performance of their regulatory functions under the Order. Part 6 contains provision allowing the regulators to monitor compliance with the Order, including through inspections of premises and exercising powers of entry. Part 7 contains provision about enforcement, including a range of civil penalties (articles 50 to 68) that may be imposed in respect of specified breaches of the Order or of permit conditions. General provision about civil penalties is in articles 47 and 48. In addition, article 44 makes provision about enforcement notices and article 45 about circumstances where a regulator can determine the greenhouse gas emissions of a participant in the UK ETS. Part 8, which is supplemented by Schedules 9 and 10, contains provision about appeals from decisions made by the regulator about applications and appeals in respect of a number of notices (specified in article 70(2)) that may be given under the Order. Part 9 brings together provisions without a natural home elsewhere in the Order, covering information notices (article 75), Crown application (article 76) and transitional provisions (article 77 with Schedule 11). A regulatory impact assessment of the effect that the UK ETS will have on the costs of business, the voluntary sector and the public sector is available from the Industrial Energy Directorate, Department for Business, Energy and Industrial Strategy, 1 Victoria Street, London SW1H 0ET and is available alongside the instrument on www.legislation.gov.uk.
Read the full note and every offence in this instrument
What Parliament said
Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.
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Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2026
Lords · 28 January 2026 · The Minister of State, Department for Energy Security and Net Zero (Lord Whitehead) (Lab)
My Lords, this order was laid before Parliament on 16 December 2025. The UK Emissions Trading Scheme, or UK ETS, was established—perhaps I should say “re-established”—under the Climate Change Act 2008 by the Greenhouse Gas Emissions Trading Scheme Order 2020 as a UK-wide greenhouse gas emissions trading scheme, contributing to the UK’s emissions reduction targets and net-zero goal. The scheme is run by the UK ETS…
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Draft Greenhouse Gas Emissions Trading Scheme (Amendment) (Extension to Maritime Activities) Order 2026
Commons · 3 February 2026 · Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
It is an absolute pleasure to serve under your chairmanship this morning, Sir Jeremy. The draft order affects the implementation of the UK emissions trading scheme, which replaced our participation in the EU ETS from 2021. As the Minister set out, the scheme was established under the Climate Change Act 2008 by the Greenhouse Gas Emissions Trading Scheme Order 2020. In the draft order, the Department seeks to expand…
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Draft Greenhouse Gas Emissions Trading Scheme (Amendment) (Extension to Maritime Activities) Order 2026
Commons · 3 February 2026 · The Parliamentary Under-Secretary of State for Energy Security and Net Zero (Chris McDonald)
I beg to move, That the Committee has considered the draft Greenhouse Gas Emissions Trading Scheme (Amendment) (Extension to Maritime Activities) Order 2026. I am grateful to you, Sir Jeremy, and to the Committee for its consideration of the draft order, which was laid before Parliament on 13 January 2026. The UK ETS was established under the Climate Change Act 2008 by the Greenhouse Gas Emissions Trading Scheme…
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Greenhouse Gas Emissions Trading Scheme (Amendment) (Extension to Maritime Activities) Order 2026
Lords · 12 March 2026 · The Minister of State, Department for Energy Security and Net Zero (Lord Whitehead) (Lab)
My Lords, I thank the House for its consideration of this draft order, which was laid before the House on 13 January. The UK Emissions Trading Scheme was established under the Climate Change Act 2008 by the Greenhouse Gas Emissions Trading Scheme Order 2020 as a UK-wide greenhouse gas emissions trading scheme contributing to the UK’s emissions reduction targets and net-zero goal. The scheme was established to…
How this was identified as an offence
Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.90.
- Basis
- the provision says “it is an offence”; the provision says an offence is committed “if” something happens
- Confidence
- 0.90 of 1.00
A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.
Check the source
- This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
- The Greenhouse Gas Emissions Trading Scheme Order 2020 Every offence this instrument creates, and its explanatory note
- Health and safety, environment, waste and fisheriesOther offences on the same subject
- Offences created in 2020