Examination of Witnesses (Questions 340-359)
RT HON MR MICHAEL MEACHER MP, MS SUE ELLIS AND MS MARIA NOLAN
MONDAY 15 APRIL 2002
340. Can I stop you. You said personally that you wanted it, you welcomed these Regulations, and that is what those Regulations did. Two-thirds of the CFCs were in the foam.
(Mr Meacher) Yes.
341. So why did you not make contingency plans to remove that?
(Mr Meacher) For the reasons that I have given. It is desirable that this is done, I entirely agree. The question is the speed at which it is done and whether it is done in a manner which minimises costs for the industry and whether the industry understands that it is not unilaterally having burdens imposed on it that do not exist anywhere else in the Member States. The way to resolve all this to get certainty from the EU and then we proceed. If we had done this unilaterally, it was not just that I was afraid of the industry, I think we would have had intense difficulties in enforcing it and they would certainly have said—
Mr Mitchell
342. Not more intense than now. Why?
(Mr Meacher) The problems that are occurring now are not problems from the industry but, of course, problems from everyone else, in particular local authorities, questions of cost, which of course Government in the end is now having to bear.
Diana Organ: But you have not paid the money to them yet.
Mr Martlew: Just to jump a question, why did you not then decide instead of spending, and I am not sure how many millions, whether it is going to be 100 or 200 million or less, not just say to the EU "We cannot do it for a year. We cannot implement this Directive, we will do it as soon as we can"? We are all well aware that the French do not allow in British beef, that has been going on for about five years. Why did you not just say that we could not do it for a year? There are other countries in the EU in a similar situation as we are.
Chairman
343. Like the French.
(Mr Meacher) Indeed. I think there are four countries, and maybe more—France, Portugal, Ireland and Greece—who to my knowledge have so far taken no action. Of course, the consequences are that the Commission is considering infraction proceedings, and indeed it would be very surprising if they were not. In other words, they will be forced to do it and they will pay a fine for the period of time since January 2002 when they were not putting it in place. We obviously did consider whether we could postpone it, whether we could get a derogation, the fact is if we were going to go for a derogation, as indeed the French proposed, I think, at the end of 2001, then we would have to get the agreement of the Commission, and I am absolutely certain that would not have been forthcoming, and the agreement of all other Member States, and of course Member States who are sitting pretty because they have already got the technology in place would not agree. The other point, of course, about could we not have more time is if it had been a Directive we would have been in a much easier, more flexible position but this is a Regulation and it becomes applicable in the court of law of each Member State on day one. If on 1 January we had said "Sorry, we are not ready for it, we are going to spend a year", the industry could have taken us to court and said "this applies in this country, the UK Government is failing to take action, we want them to be required to take action and penalised because they are not" and they would have won.
Mr Martlew
344. We are only talking about it because in the written evidence, or especially in the questions you answered in the House, you said that the facilities will be ready by this spring. So it would only have been from the beginning of the year until the spring that we would not have been able to comply. That was not a great deal of time. Surely that was worth the risk instead of having fridge mountains? I am feeling quite annoyed about this because I came out into my street this morning and there was an empty fridge discarded. It was only a matter of months, we would have been complying in a matter of months. Why did you not ask for that time? Would the fine not have been less than what it has cost us already?
(Mr Meacher) As I have said, we were not in a position to get an extension of time because we could have been taken to court immediately by any representative of the industry who stood to gain from this Regulation and they would have won because it is directly applicable, it applies in every country from 1 January. There is no exception to that and there is no provision whereby a Regulation can simply be extended. The only change to European legislation can be made by the Commission and, as I say, there is no question whatsoever that the Commission would not have agreed. Other Member States were happily implementing it who already had the technology and the Council having passed the Regulation is bound to enforce it.
345. So is there any country in the EU that has taken our course of action? You say that four countries are ignoring it and other ones are implementing it, is anybody else doing what we are doing?
(Mr Meacher) My understanding, and I cannot be certain about this, I am obviously dependent on the information we get from our embassies, is that there may be four or five countries that have the technology to deal with all the fridges in their own countries. That leaves ten. There are at least four who, as far as I know, have not done anything. The remainder in the middle, and we are in that area, are doing the best they can now to try and implement. We have had a mobile plant which can process 150,000 units a year in operation in Sussex since 14 March. I hope that there may be another mobile plant, I have reason to think another mobile plant may be operating before long. We expect two fixed plants, each of which can process 300,000 units a year, to be in place by the end of June. I believe we have done everything we can to put it in place. Can I just say one other thing which is quite important. We were informed, and I have an e-mail of a DTI minute which was sent to us, of a DTI meeting, quite properly, with the recycling industry, which I think was in June 2001 or thereabouts, saying that they would be able in the timescale available to produce the plant necessary by the date the Regulation came into operation.
346. And that was not the case.
(Mr Meacher) As we have found out, I am afraid, it was not the case.
Mr Mitchell
347. You are losing me a bit. When you came in with the clarion call "it is all the Commission's fault" that was music to my years, good stuff, but you are now resiling a bit from that because you are saying effectively we were fighting a rearguard action on behalf of an industry which was too mean to spend the money and we thought we had better help them and not make ourselves gold-plating euro fanatics by helping that resistance. You were then saying that mean industry would take you to court if you had not implemented it and would have demanded damages against you for implementing what they opposed. I just do not get that frankly.
(Mr Meacher) There were a number of descriptions there which—
348. Which you need not necessarily agree with.
(Mr Meacher) Whilst I see the thrust of the argument that is not the wording that I would use. The industry wanted certainty about when they would have to do this. For all the reasons I have given repeatedly, I think that was reasonable, we did our very best to secure it. Come 1 January 2002, if we had done nothing those representatives of the industry who already were beginning to put in place investment plans—Investment does not come on stream in a matter of weeks, you get technical standards, you go to tender, you find a plant which meets your specification and you go to the bank, this is a long process of preparing for a major investment. They began that in the second half of 2001. If we had then backtracked at the beginning of 2002 I have no doubt that they would have dealt with us through the courts and, I repeat, there is no question, they would have won.
Mr Mitchell: Okay, that is a tenable position but it brings us back to "if practicable". It is practicable to run the London Marathon wearing a 120lb diving suit but you would be fairly daft to do it. If you are saying that you had to implement this thing in full including foam from 1 January, when it was not practicable in this country, why did you not ask for a delay? Certainly you would have had a strong legal position for saying "it is not practicable"? It is the euro fanatics who are trying to interrupt me again.
The Committee suspended from 4.21pm to 4.33pm for a division in the House.
Chairman: Minister, I know you have got other items in your diary and we would like to make progress. I will now ask Austin Mitchell if he would kindly resume the questioning.
Mr Mitchell
349. It is just a continuation of Eric Martlew's point which is really would it not have been a legally tenable case to ask for some delay on the grounds that practicable has to mean practicable in this country and it was not on 1 January, therefore why not delay it for six months until the machinery was installed?
(Mr Meacher) I entirely agree that that is a reasonable assumption to make.
350. It would have been a tenable legal position.
(Mr Meacher) That is the problem, my advice is that it was not.
351. Oh.
(Mr Meacher) And that once the Regulation has been passed by Council which says that this becomes applicable on 1 January 2002, the only way that can be changed is if the Commission is prepared to accept the proposal and it is also agreed by all the other Member States. I repeat, there was just not a snowball's chance in hell, as they say, of the Commission agreeing.
352. You would have been obeying part of it but you would not have been obeying the part that says "if practicable", because it was not.
(Mr Meacher) I am sorry, the question was?
353. You would have been taking out the coolant, which is the main substance of the Regulation.
(Mr Meacher) Yes. If we had made such a request it would have been on the basis of "if practicable" and that we needed time, which has been our argument all along. We thought about this very carefully and regrettably we decided there was simply no option.
Chairman
354. Was it not the fact that you were a bit taken aback by letters like the one addressed to you on 24 November by Dixons when they said "end of free collection service, end of exports, masses of fridges piling up, please put the brakes on, consult", did that not really drive you forward in terms of your strategy from November 2000?
(Mr Meacher) Chairman, well before November 2000 we had already considered—You are talking about November 2000, sorry, as opposed to 2001.
355. Yes.
(Mr Meacher) As of November 2000 we were beginning to become extremely concerned at the delay in reaching clarification. As I have indicated, at one of the meetings which was in March 2001 just after the date you have indicated we did state explicitly that if we did not receive clarification it would jeopardise UK compliance with the Regulation. All that we then got back was a revised clarification paper which said "this is a grey area". It noted that technologies existed and were being developed to recover controlled substances from foam but that they were not yet widespread throughout the EU. It repeated the Commission's understanding of its interpretation that Article 16.3 covered foam was in line with the Council's intention during their negotiation. It was not for lack of trying on our part to find a way through.
356. It seems that you also had a lot of entreaties from people like Biffa and the waste industry. If you have been reading our evidence as carefully as it is clear you have read some paragraphs of the Commission's evidence you will have no doubt come across what Mr Jones of Biffa said. He was very anxious to know the details, he was very anxious to get on with the job, he could see a big business opportunity out there, he seems to have been somewhat thwarted particularly in his correspondence with your Department, if I recall. There was a long delay in giving any kind of guidelines or indication to the industry about this. Why all this delay when you were getting all these messages from the people affected by it who wanted to get on and do something about it?
(Mr Meacher) I cannot believe, Chairman, that you would listen to, let me be the first to say, my long and tedious recital of what happened over nearly two and a half years and say we were in any sense whatsoever responsible for delay. I totally and utterly refute that charge. We wanted certainty. We returned to it endlessly, repeatedly. I just do not see how we could be accused of delay. We wanted clarification. In the end we accepted a definition of "if practicable", or we accepted a view of the mandatory recovery from foam which was not in accordance with our view but as the only way of finally settling this issue before we actually got to January 2002. We were assured by the industry that that was sufficient time but in the event it has turned out not to be. We did everything possible to try and clarify this and to get clarification. I do not want to go on the attack despite cajoling from Mr Mitchell but—
Mr Mitchell
357. I will not go on.
(Mr Meacher) I do not think fault is on our side.
Chairman: You have roused Mr Mitchell now so I have got to let him have another go.
Mr Mitchell
358. I do not want to have a go at Europe, we are too adult for that on this Committee. Mr Jones at Biffa did write on 19 March 2001 and by that stage Biffa was convinced that the Regulations would apply in full in nine months, in other words they knew something you did not, and he pointed out "fridges will thus inundate city amenity sites from January next year". He was ahead of you.
(Mr Meacher) Not altogether. I have great respect for Mr Jones of Biffa, who I know well. We were doing exactly what he was saying and in the light of the legal advice which we had received, our own legal advice, namely that recovery might come at 16.2, and of the strong arguments which have repeatedly been made in this Committee this afternoon that I entirely understand that some Member States were able to do this perfectly practicably, UK officials at this point, which was early 2000, informed the industry that it was likely that the outcome would be that recovery facilities would be required. We said to them that we expect that this is going to be required and their response to us was to continue to press us strongly for certainty regarding the requirement for extraction from foam as a precondition for securing the funding to invest in facilities. It is not as though we tried to conceal it from them, we did the opposite, we advised them that they probably would have to do it, but they said to us, not wanting to spend the money no doubt, "tell us when we have got to do it".
Chairman
359. That does not quite line up with Mr Jones' letter to Mr Lee of the Environment Agency in correspondence dated 24 May where he says "Personally I believe this nitpicking on the Regulations is a total irrelevance given the overall objective to limit emissions which are contributing to a problem which many believe is far more immediate than that of global warming". He seems to want to get on with the job.
(Mr Meacher) I totally understand that point of view and, indeed, I have a lot of sympathy with it. The problem is I could not, using the EU Regulation, require the industry mandatorily to extract CFCs from foam because that position had not yet been established, the industry would have said "if practicable". We could have put in place, I suppose, a domestic regulation even in the face of the continuing confusion and uncertainty from the EU side and if we were trying to do all that, all I can say is I think there would have been great resistance within Government to forcing industry to do something which they were not required to do at considerable expense as a unilateral burden that trendy Mr Meacher in DEFRA or DETR was imposing on the industry when they did not have to. I think it would have been very strongly resisted and I think the industry would have been up in arms and no doubt making calls to very senior people in Government saying it was unnecessary and would they call him off. That was the situation that we were in.
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