Examination of witnesses (Questions 340
- 359)
TUESDAY 7 DECEMBER 1999
MS JANET
ASHERSON, MR
DOUG RODGER,
MR DAI
HAYWARD and PROFESSOR
PHIL ROBERTS
340. You would like to see some of the others
not up to the same level or same consistency being brought up
to our level?
(Mr Hayward) Yes.
Christine Butler
341. There is a question of competitiveness
of British industry creeping into this. Notwithstanding the fact
that you have talked already about SEPA and noted some of your
comments there, broadly do you think the Environment Agency compares
less favourably or favourably with other main regulators such
as the Health and Safety Executive?
(Ms Asherson) I think you have to recognise that the
Health and Safety Executive have an enforcement responsibility
that is not quite so wide ranging so that the challenges they
have are so different. Also they are a much more mature organisation.
They are 25 years down the road. They have legal structures that
are different, very, very different from those of the Environment
Agency. They have a very clear legal objective that underpins
their enforcement activities. Also one of the great differences
is that they have a legal requirement to consult their stakeholders.
I think in that respect there is more buy in by businesses and
employees to the decisions that are taken whereas there is not
that level of communication, discussion and systems that are driving
the Environment Agency work.
342. Given what you have been talking about,
you have been talking about a more rounded holistic approach,
perhaps more flexibility, better dialogue with the Environment
Agency, how does that comment, your comment just now, square with
previous ones? Are you saying that it would be a better thing
if there was that kind of regime, if it was clearer, if you knew
the rules better with the Environment Agency as a regulator or
not? Are these two such different beasts that you cannot compare
them?
(Ms Asherson) No, I think there are good examples
and good systems that the Environment Agency can take on board.
343. From HSE?
(Ms Asherson) From the Health and Safety Executive.
They should not just take on board blindly, they must adapt them
to the overall and much more wide ranging and sustainable development
debate that is emerging now.
344. Take a hazardous industry such as petro-chemicals,
an oil refinery for example, given that as an example, do you
think that the Environment Agency should be co-operating better
with the Health and Safety Executive?
(Ms Asherson) Our members have said yes in very, very
loud voices in respect of that. There are many systems where the
management issues, the technical issues that are applied at the
refinery relate to both sets of regulators and the information
is there in one piece. If there was more joint inspection, joint
appreciation, then certainly industry would find it easier to
give one message to both enforcers at the same time rather than
having to duplicate it.
(Mr Hayward) That applies also to the smaller company
as well, it is not just limited to the refinery. There are the
160 strong companies.
345. Would this become part of a better strategy
based on risk assessment in these sorts of circumstances? It could
be rivers, you do not necessarily have to keep to oil refineries,
it is just that the oil refinery is a very good example. Do you
think that the Environment Agency has a close enough inspection
regime with the petro-chemical industry's oil refineries and so
on, or are they just too reactive?
(Professor Roberts) If I could comment and perhaps
help you by saying we have common safety, health and environment
management systems. For example, just picking one out of the air,
if we were developing a control of modification process, within
that you would look at all aspects—safety, health and the
environment. We would audit against those standards on a broad
spectrum. We have seen it as very helpful where the Agency and
the HSE have together come in and looked at procedures or come
in and audited procedures. There are enormous gains in looking
at the broad spectrum both, I believe, for the regulators and
also for the operators, you do not end up doing things twice.
346. How can the Agency ensure that it always
acts in the best interest of the environment?
(Ms Asherson) I think in this area it is quite a complex
question. I think there are legal barriers. There are certain
elements of legislation that have been developed to answer issues
that were relevant many years ago and may not be the same issues
now. That legislation is still there and sometimes distorts the
ability of an inspector to take a more distant view of what the
solution should be for optimal environmental improvements.
347. Do you sense frustration within the Agency
about this?
(Ms Asherson) The only experience that I have is when
our survey was published I had many individual members of the
Agency phoning me and saying that the concerns about looking more
holistically at issues were echoed within the Agency.
Mr Brake
348. What do you think about the Environment
Agency's Hall of Fame initiative where they have highlighted the
companies that have cut pollution by the greatest amount?
(Mr Rodger) We applaud the Environment Agency for
doing this. As we said earlier, we think that their main focus
should be on achieving improvements to the environment. It is
up to them to demonstrate by information that is available the
extent to which that is now happening. In point of fact, it is
happening over a wide front of industry so we were pleased to
see that given some recognition through the Hall of Fame.
349. That is a view that is generally held.
What about the Hall of Shame initiative?
(Mr Rodger) That is a rather different matter. We
were very unhappy about the way in which the Agency publicised
the Hall of Shame. If you try to think what it was seeking to
achieve by doing this, it got some headlines in the media for
perhaps a day and probably received some plaudits from the environmental
groups but one thing we are quite sure about is that it did not
do anything to encourage companies to greater environmental performance.
On balance we were not at all happy with that particular exercise.
350. I must say I have some difficulty with
you being in favour of the Hall of Fame which highlights good
performance and against the Hall of Shame which highlights bad
performance.
(Ms Asherson) We have always encouraged all of our
members to report very openly and frankly about their environmental
performance. Certainly we get environmental reports that sometimes
are quite stunning in their frankness. I think this has taken
the debate about openness on environmental performance right away.
I think you have to consider the motives of the Environment Agency.
They are a regulator and it is the courts that adjudicate on performance.
I think we have to be clear about what messages we are giving
from aggregating or even disaggregating information that is available
from the courts and quite openly available in the public domain.
They are a regulator who needs to report factually. We try very
hard as business to report factually on our environmental performance
without a spin.
(Professor Roberts) One thing I think the Agency did
do well was the Pollution Inventory which is actually a far better
reflection of environmental performance and performance change
and improvement of the regulated industries. A step forward was
taken in putting it on a common basis. One year's data is far
from sufficient to judge anything but when you have two or three
years' data on a common basis it is very valuable. It also needs
putting in perspective in terms of what is the total environmental
situation of the country because it is only limited to the regulated
industries. It will show us real change over a period of time
but, like all league tables, it needs to be looked at with caution
because you will have to look at things like the state of the
economy, etc., how much production is being made in total and
index them in some way to get meaningful, valuable long-term trend
data out of that. It should show environmental improvement.
351. Would you believe there is any role for
a naming and shaming approach if you were happier with the data
perhaps?
(Mr Rodger) I think we would prefer to see the Agency
presenting the information in a straight forward way so that people
can make their own judgments about that. It was more the tone
of the Hall of Shame than anything else that we took exception
to.
(Ms Asherson) I think we have to appreciate a free
market in information. If the Environment Agency did not present
a slant then other organisations would analyse the information
and present a slant. Business accepts that, it is the world we
live in.
(Professor Roberts) The same data has been presented
for several years by some of the more reputable environmental
journalists without a spin.
352. How effective do you think the Agency's
prosecution policy is?
(Ms Asherson) I think we ask a lot of all our regulators.
They have to satisfy at one swing of the pendulum the issue that
prosecution is the appropriate view of society for retribution,
and at the other swing of the pendulum a failure of the enforcers
and others to influence the regulated industries to take appropriate
action. Those issues will remain whatever their policy is. I think
the fact that they have published a policy and have that structure
is useful for business because at least we have a framework within
which we feel we are operating, but we have to recognise that
depending on the incident, its position in history in relation
to perhaps other recent incidents, the media push, then very often
the Agency will have to respond and that response will be taken
and interpreted by the public as anywhere on that pendulum swing.
Again, we recognise the legitimate views of both the society and
the Agency within that.
353. So you seem to be fairly comfortable that
they are doing what they are required to do?
(Ms Asherson) It is something that is ongoing and
we will analyse it and we will see if we are picking up variations
from their framework.
Chairman
354. Do you think the fines are adequate that
the courts are imposing?
(Ms Asherson) I think this is a matter where you have
to look within the context of other crimes. We have not necessarily
got a view of the inadequacy of environmental crimes per se,
or the adequacy of them, but I think we have to look at the structure
of fines and offences in relation to environment issues with other
crimes.
355. In a limited company the people who have
failed to take the right decisions are not affected by the fine,
are they? Should there be something much more personal to the
people who have made the mistakes within the company that has
led to the pollution incident?
(Mr Hayward) As a director of the company I am on
the line.
356. Sufficiently?
(Mr Hayward) I have personal liability. I have personal
responsibility. I do not seek to avoid it.
357. How far do the courts impose personal penalties?
(Mr Hayward) That I cannot comment on because I have
no experience of being in front of the courts on such a matter
but I know that should I be negligent, should I be derelict in
my duties, I would expect to be in front of the courts and expect
to be punished for it.
358. Do you think that is general across industry?
(Mr Hayward) I think across boards of companies there
is recognition of a whole range of responsibilities under various
Statutory Instruments, including Environmental Instruments.
Mr Donohoe
359. If it is serious enough, do you think you
should go to jail?
(Mr Hayward) There is that provision today. I certainly
know that as the director of a business, I have no question about
that.
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