| Summary
The purpose of the Environmental Liability Directive (ELD) is to make those whose activities seriously damage, or threaten seriously to damage, the environment liable for preventing or remedying the damage. It gives European Union Member State governments a wide degree of discretion in implementation. It was adopted in 2004, but formal consultation on the Government's proposals for implementation in England, Northern Ireland and Wales started only at a late stage, in November 2006. The consultation took a substantial amount of respondents' and Defra officials' time. But the Government's attitude to implementing the Directive, set out in the consultation document, appears to have made all this effort practically worthless: the Government's policy is not to go beyond the minimum requirements of a Directive "unless there are exceptional circumstances, justified by a cost benefit analysis and following extensive stakeholder engagement". In the case of the ELD, this has meant that the Government proposes not to go beyond the minimum requirements even when its own analysis found that there would be an overall societal and economic benefit from doing so. The only instances where the Government proposes to exercise the national discretion permitted by the Directive is where this would remove a burden on business.
This 'minimum implementation' approach is a pan-Government one, with the political motive of avoiding accusations of 'gold plating' of EU legislation. But in this case it has meant that the Government has felt able to avoid properly justifying its policy choices, particularly in the cases where its own analysis suggests an overall public benefit from going further than the Directive. In the case of the ELD it also risks creating an unnecessarily complex framework which will provide opportunities for legal dispute but will mean that the country misses out on some of the potential benefits of the Directive. The Government must provide a proper justification of its policy choices that does not rely simply on the blanket approach of avoiding 'gold plating'. It must show that its decisions are reasonable, proportionate and evidence-based. It is surprising that Defra has not been more robust in its defence of the environment; it appears that the DTI 'business-friendly' agenda has been predominant.
The clearest example where the minimum implementation approach is unsatisfactory is the Government's unwillingness to extend the ELD to nationally-protected biodiversity. On this point the Government is at odds with all the environmental organisations, and also with its delivery partners, the Environment Agency and Natural England. We were not satisfied with the Minister's explanation of its policy, and we recommend that the Government uses the discretion it has under the Directive to include nationally-protected biodiversity within the scope of the ELD.
The Government has promised further consultation on the draft regulations once it has finally determined its policy. We will wish to examine those regulations in due course.
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