Examination of Witnesses (Questions 300-319)
RT HON MR MICHAEL MEACHER MP, MS SUE ELLIS AND MS MARIA NOLAN
MONDAY 15 APRIL 2002
300. Could I just come back to the confusion over the words "if practicable".
(Mr Meacher) Yes.
301. If we assume we are looking at 16.3 not 16.2 as the Regulation that applies.
(Mr Meacher) Yes.
302. It is clear from the evidence we have received from the Commission, and to a certain extent from the evidence given to the Committee by your own Department, that other Member States viewed the words "if practicable" on the basis of if the technology existed or if the technical expertise existed to deal with the foam then that met the definition "if practicable" whereas I get the impression from the paper that your Department sent to the Committee that your Department viewed the words "if practicable" to mean if the capacity existed within the UK to deal with the foam. So it was not a matter of whether it was scientific expertise that existed to deal with whether it was possible, it was whether the investment had taken place in the UK. Would you just clarify that was the nub of the argument that your officials were having? They viewed the words "if practicable" whether the UK had the capacity rather than whether or not the technology actually existed somewhere else in Europe.
(Mr Meacher) Yes. Our view of "if practicable" was based on three criteria. Firstly, the availability of the relevant technologies in the UK; secondly the economic feasibility of introducing such technologies if they were in use elsewhere and thirdly the concept of proportionality. In other words, we did believe that the question of cost versus benefit was relevant here. Indeed at one or both of the meetings of the Management Committee in 1999, the Management Committee did agree that the cost element was relevant. If you say, as indeed you did, that in other Member States they have the technology in place, I think there are four or five—Germany, Austria, Sweden, Netherlands possibly Finland—the reason for that is either that they have a private industry which deals with the particular issue of recovery and private investors in those countries have decided to take a much more proactive view and to invest in technologies in the expectation of their future market or, which I think is the case to a large degree, most of these other Member States have a government backed waste industry. We do not in this country, our industry is entirely private and of course it is a matter for them whether they decide to invest or not. I think one of the lessons I might see coming out of this whole episode is that instead of being over concerned about gold plating, I think the industry ought to understand that there are often opportunities in being able to anticipate future demand and future markets and investing in accordance with it, although they will say certainly that they want to have a measure of certainty before they are going to spend two or three million pounds on investment plants.
303. Can I just come back with one last question. If your Department's definition of the words "if practicable" had been upheld by the Commission, in other words "if practicable" meant whether or not the technical capacity existed in the UK to deal with the foam, if that was finely interpreted as a correct meaning of that Regulation 16.3, would that have meant that so far as your Department was concerned it would have been perfectly reasonable for the UK to have continued to dispose of the foam in the same way from the 1 January this year onwards ad infinitum as it had done up until 31 December last year?
(Mr Meacher) Let me answer that by saying that the Commission's clarification paper early on in 2001 with regard to the question of what is meant by "if practicable" says—and I quote—"the practicability of recovering ozone depleting substances from products, installations and equipment, not referred to in 16.1 and 16.2 should be assessed on a case by case basis". Then they go on "Such assessments need to take account of the costs and benefits of utilising whatever technologies are available." That is the basis on which they thought that "if practicable" should be exercised. I think at that time certainly we accepted that.
Chairman
304. Can I just ask, in an answer to the European Parliament, Commissioner Wallström tells the Parliament in a quote that "At the first meeting with the Management Committee under new Regulation on 4 October 2000 a number of Member States explained the CFC recovery from foam in domestic refrigerators had been practicable for many years in their countries". Did the United Kingdom's officials disagree with that?
(Mr Meacher) No, clearly that is the case.
305. So you knew it was quite practical to do it?
(Mr Meacher) Certainly we knew that it existed in other countries. The question was whether "if practicable" meant that the technology was in use elsewhere or whether it existed in a particular Member State and therefore it was practicable to put it into operation. That was an issue.
306. That statement makes it very clear that others were doing it some time ago so they knew that it was practicable. Why are we arguing so much when it was demonstrable, from other Member States, that they could do it. The implications, as you said in your evidence earlier, were that this Regulation was designed to deal with the CFCs in fridges wherever the CFCs occur. Here it is palpably demonstrated it can be done. The Regulations were agreed to at a political level before so you knew it was going to be implemented. Why are we dancing on the tip of a pin arguing about it when we can see it can be done?
(Mr Meacher) Because we and the Commission believed that the issue of recovery from foam was covered by 16.3 which contains the words "if practicable" and not surprisingly we wanted to know what it meant, partly because this would involve the timescale within which investors—who at that stage did not exist in the UK—would be investing in what were quite expensive plants.
307. It seems as long ago as 26 January 2000 you knew that this thing was coming down the track because in a letter to Mr Davies, a Member of the European Parliament, you signed a letter and wrote "The new EC regulation will make the recovery of used controlled substances from refrigeration and air conditioning equipment mandatory. This requirement does not apply to domestic fridges and freezers until 31 January 2001". As long ago as 26 January you seemed to be anticipating that all of this was going to happen. Why were we arguing about whether it was practical or not when other Member States were actually doing it? It seems to me that you knew we were going to have to do it.
(Mr Meacher) You put it again in an odd way.
308. I put it in using your words. You signed the letter.
(Mr Meacher) I know but the interpretation—dare I say the spin—which you are trying to put on it is not at all appropriate. You seemed to be suggesting that we were both reluctant and perhaps not knowing the full position and therefore did not act in the way which might have been expected. The truth is it was the UK more than any other country in the European Community which was raising the necessary issue as to what the regulation which had been passed by ministers—this issue about foam never having been discussed—what it actually meant. That letter, of course, does not broach upon the issue of the recovery of foam. It just refers to the fact that as from the beginning of 2002 there would be a mandatory recovery of CFCs from fridges, of course that is absolutely the case.
309. Why did the Global Atmosphere Division of the DETR write to Dr Batchelor of the Climate Change Unit at the European Commission in correspondence dated 11 September 2000, which seems to give the indication that they judge that all foams should fall under Article 16.3? Are you aware of this correspondence from DETR?
(Mr Meacher) Exactly. If it falls under Article 16.3 then it only has to be undertaken "if practicable".
310. Yet Member States going back to this Management Committee in October 2000 demonstrate it is practical.
(Mr Meacher) We are back to the issue of what is meant by "if practicable". We have never been in doubt that the technology existed elsewhere. I repeat—as I did in answer to Mr Borrow—that there are three issues when we are talking about practicability. One is the availability of the relevant technologies in the UK. That is what most people would think is meant by practicability otherwise you have to wait to invest before it can be introduced in the UK or you have to export. If you are talking about practicability most people would take that to mean that the technology is available in the UK. That was one issue. Secondly, of course it exists elsewhere, as we well knew, you can either export to that country or you can introduce the technology from that country. The question then is about the economic feasibility and the question of cost, cost as against benefit. Thirdly the issue of proportionality. I accept the issue of proportionality, it is justified for the reasons that you have given yourself, there is significant chlorine loading in the foam and therefore it is justified so long as it is practical. Now it is technically extremely difficult, it is costly also. Those are relevant considerations.
Diana Organ
311. The Regulation of June 2000 that was signed up to by the UK Government obviously has massive implications, not least for local authorities at present who have now got to spend huge amounts of money which has not yet come to them storing fridges and implications for export of fridges and the whole issue has got quite a considerable impact. At the same time there seems to have been in the process leading up to and since then considerable knowledge gaps between Departments, between the industry, between Government. The UK Government signed up to this Regulation in June 2000. Are you satisfied that it was clear about the implications of what it had signed up to when it did?
(Mr Meacher) Of course that is one of the lessons to be learned. We agreed this in the European Council of Ministers, the Environment Council, on 21 December 1998. We reached a common position in February 1999. There was then discussion, as I have indicated, in several Management Committee meetings where for the first time this issue of the application of mandatory recovery from foam was raised and it was never resolved. Clearly that is very unsatisfactory.
312. The question I am asking, Minister, is does the UK Government regularly sign up to Regulations that it is not really aware of what the implication of what it is signing up to is going to be?
(Mr Meacher) Of course we do not.
313. Did you in this case?
(Mr Meacher) Well, in the event it was indeed uncertain as to the application. The matter was never raised with us in our consultation with industry. They were far more concerned about methyl bromide and HCFCs. It was never discussed in the Environment Council. When it came to be discussed by officials in the Management Committee either the matter was repeatedly postponed or there were different interpretations and the matter was never resolved. Obviously that is very unsatisfactory. I cannot think of another precedent where that has happened. Obviously that should not happen and we have to take steps to ensure that does not happen again.
314. Talking about precedents, are you convinced then that we are aware of all the implications of signing up to the Waste Electronic and Electrical Equipment Directive?
(Mr Meacher) That is a very different issue for the simple reason that the Ozone Depleting Substances legislation that we are talking about here today is a Regulation. It is directly applicable in the UK courts. It differs not a jot from its application across the whole Community. There is no discretional flexibility in the manner in which it is applied whereas the Waste Electronic and Electrical Equipment Directive is a Directive. What that does is to set a broad framework with discretion for Member States as to how they apply it. Of course there is absolutely no question of setting requirements so high that no facilities are available to treat electronic and electrical equipment.
315. You are saying we are prepared for that? Better prepared than we were for this?
(Mr Meacher) I am saying we are totally prepared for that not least because the UK already exceeds the draft collection target of four to six kilograms per head of population. That is what is down as the required target, we exceed it already in the UK. I have read, like you, in the press, whether we are talking about the WEEE Directive, whether we are talking End of Life Vehicles, we are going to see mountains in other cases, that is absolutely not the case. The only reason it occurred in the case of fridges was because the interpretation of recovery from foam was left so late that we were not able to put in place the investment which would have it ready for action by 1 January 2002. That is the only thing and frankly this should not have happened. I do not think it is a good idea—I know blame culture is very popular in some quarters—I do not blame anyone but I do think we have to learn lessons. I do think it could have been decided a lot earlier, should have been, and I am sure in future will be.
316. Can I go back to knowledge gaps, if you like, leading up to the Regulation that we are talking about to do with fridges. Dr Batchelor told the Sub-Committee that DEFRA had made it known to the Management Committee in October 2000 that the UK team would be unaware of the UK's "considerable export trade of between one and 1.5 million domestic refrigerators per year".
(Mr Meacher) Yes.
317. Why was DEFRA and the DTI unaware that so many fridges were being exported each year and that with this Regulation, when signed up to by the UK Government, that trade would cease?
(Mr Meacher) I agree. I am as puzzled as you are. Of course, if the industry who are at the sharp end undertaking the export trade do not tell you, you do not know. It is remarkable and I cannot explain why it is that representatives of the waste industry that we were in regular touch with and so were Customs and Excise and so were DTI—
Chairman
318. From when, Minister?
(Mr Meacher) Sorry?
319. When were you in touch with these people? You said "regularly in touch", when did this "in touch with" start?
(Mr Meacher) Our first discussions I think with the recycling industry were in February 2000 about this particular Regulation.
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