House of Commons - Environment, Food and Rural Affairs

Select Committee on Environment, Food and Rural Affairs Sixth Report

3 DEFRA'S CONSULTATION AND POLICY APPROACH

The consultation process and the timetable for implementation

27. The Directive was adopted on 30 April 2004. It obliged Member States to transpose it into domestic law by 30 April 2007. At the moment the Government is reaching conclusions on its policy. There will then follow a further consultation in the second half of this year on the precise form of the regulations required to implement whatever policy is chosen.[18] Defra has explained the delay as arising from the need for:

28. Of the EU's 27 member states only Italy, Latvia and Lithuania have reported full or partial transposition of the law to the European Commission. Others, including Spain, Germany, Poland, Austria, France and the UK, are at various stages of adoption. EU Environment Commissioner Stavros Dimas was reported recently as having warned that he would begin infringement proceedings against tardy Member States "very soon": "I am very concerned that only three Member States have transposed this vital legislation so far".[20] The Department told us that its late transposition would automatically lead to the Commission starting infraction proceedings, but did not expect that this would lead to fines from the Commission.[21] We express our disappointment that the Government is vulnerable to further infraction proceedings from the European Commission in addition to those already pending.

29. The Association of British Insurers believed that Defra has carried out the transposition process in a "considered and responsive manner".[22] Water UK thought that "the Government's consultation paper does an excellent job in explaining the issues and the options available. We have also found helpful the open and thorough manner in which Government officials have consulted and considered the views of different stakeholders".[23] Wildlife and Countryside Link regarded the meetings with Defra informative, but said "it has not been possible for the Government to give due weight to the views of environmental NGOs because of its narrow interpretation of the 'minimum' implementation approach".[24] The CBI thought that Defra relations with stakeholders before the Directive was agreed had been "excellent", but that following agreement to the Directive there was very little contact with stakeholders until late 2005. Based on the Defra implementation strategy set out for stakeholders following the adoption of the ELD, the CBI was unclear why the transposition process had taken so long and why the UK would be late in implementing the ELD.[25] We are aware that a number of critics of the Government have claimed that they had not been properly consulted and that hard copies of the consultation document had not been made available to them.

30. The Government consultation document was published in November 2006 and responses were required to be in by 16 February (although Defra later extended this to the end of February). The British Insurance Brokers' Association complained about the timing, as it included Christmas. It also complained about a lack of publicity by Defra.[26] The Institute of Ecology and Environmental Management (IEEM) believed that in early discussions it did have the chance to make its views felt, but that:

31. The Institute of Biology said that:

32. According to Defra's website, consultation periods normally last a minimum of 12 weeks "although there are circumstances in which shorter consultations will be unavoidable".[29] The Minister told us that in retrospect "the consultation period could have been longer", but added that ever since the Directive had been agreed Defra had been in close touch with interested parties about implementation. He had not, however, had any such meetings with stakeholders himself. He confirmed that there would also be a further consultation in the autumn of 2007 on the form of the implementing regulations themselves.[30]

33. The formal consultation process began more than two years after the Directive was agreed. We accept that informal discussions were being held before November 2006, and that the implications of the Directive are complex. But the timetable for formal consultation appears to us to have been somewhat rushed. In addition, the Minister has not been personally involved in the consultation process with external stakeholders, and gave the impression that he was very much relying on officials to carry this work forward. We recommend that before final decisions are taken on the policies to be adopted in transposing the Directive, the new Minister hold an open meeting with stakeholders at which they can discuss the key policy choices face to face. It is important that the list of those stakeholders consulted in this way is representative, and is published.

34. It is not clear how much notice the Government took of those who were critical of its 'light touch' approach and this needs to be rectified when it goes out to consultation again so that it takes a balanced view of what needs to be done. The consultation must properly reflect opinion on the Directive and its implementation.

Were there defects with the consultation?

35. The UK Environmental Law Association (UKELA) believed that "Defra has failed to consult either appropriately or lawfully on the ELD" owing to the omission of certain questions. Referring to Articles 12 and 13, UKELA said that there was "no detailed discussion about: (a) implementation of the access to justice provisions; (b) how they will work in practice; or (c) provisions for access to a court/tribunal to review any decision by the competent authority following a request for action. The only discussion in the consultation focuses on whether the 'request for action' provisions should be extended to cases of imminent threats of environmental damage". It continued:

UKELA is of the view that the Government must consult on its proposals for implementing the request for action procedure and the provisions for access to a court/tribunal and that it must do so before it issues draft regulations. If it does not do so, it will be acting unlawfully. See the recent case of R (on the application of Greenpeace) v Secretary of State for Trade and Industry about the legality of the Government's consultation process on new nuclear build and in particular the references to the Aarhus Convention on access to information and participation in environmental decision making.[

UKELA pointed out that Article 13 of the Directive says that interested parties "shall have access to a court or other independent and impartial public body" to review the actions of competent authorities. But it believed that the implications of the Consultation Document are that the status quo will continue as regards access to justice. The Association believes that there remain significant barriers to justice, including the prohibitive costs of bringing a case.[32]

36. The City of London Law Society (CLLS) regarded Defra's consultation document as "fatally flawed due to its omission of many key issues". It too drew attention to the Greenpeace case, where it was decided that "a consultation process which fails to provide sufficient information to enable consultees to make an intelligent response is manifestly inadequate and fatally flawed". The Society felt that "Defra has failed to provide any information on the Government's proposed mechanism for ensuring access to a court or tribunal in order to seek review of the procedural or substantive legality of a competent authority's decisions, acts or failure to act, as directed by Articles 12 and 13 of the ELD".[33]

37. The Minister did not think that another consultation exercise was necessary before the planned consultation on the form of the regulations.[34] The Head of Defra's Environmental Liability Team sought to distinguish between this and the Greenpeace case:

She added that the costs of a judicial review case were a wider matter than just for the ELD, but said that the Government was actively considering measures to protect applicants in such cases who feared the cost implications of bringing an action.[36]

38. The City of London Law Society also considered that Defra had failed to consult on:

immediately

operators' duty under article 5 (1) to take, "without delay", the necessary preventive measures when there is an imminent danger of environmental damage.

The CLLS pointed out that Defra proposed thresholds for damage that would involve such lengthy and detailed scientific study that they would "necessarily result" in operators failing to comply with their duty under the ELD to take immediate action to control or prevent environmental damage.[37]

39. The Marine Conservation Society (MCS) raised two matters that were omitted from the consultation document: it believed that activities covered by the Common Fisheries Policy (CFP) had a special derogation in respect of damage to marine biodiversity; and it pointed out that the ELD covers marine environment up to 200 nautical miles offshore, while the Environment Agency's jurisdiction ends at one nautical mile offshore.[38]

40. The Department was not able to give a definitive view on the interaction between the CFP and the ELD, as this would have to be "ironed out at Community level […] we are in the hands of Community law".[39] Nor was it yet able to say what would be the competent authority from between one and two hundred miles offshore: there was "a dearth of candidates", and until the new marine management organisation was created by the proposed future Marine Bill, Defra suggested that Natural England might take responsibility for assessing environmental damage, with the assistance of other organisations (for example the Marine Fisheries Authority) with the ability to operate at sea and do searching or sampling work.[40]

41. We were disappointed that the Government was unable to provide complete clarity as to how the ELD will apply in the marine environment, including the distances from shore to which it will apply, or what the competent authority will be. The Department must provide that clarity in time for the next round of consultation on the draft regulations. It must also commit itself to resolving the question of how the ELD and the Common Fisheries Policy will interact.

'Temporal application'

42. Article 17 of the ELD provides that the Directive does not apply to:

damage caused by an emission, event or incident that took place before [30 April 2007]; and/or

damage caused by an emission, event or incident which takes place subsequent to [30 April 2007] when it derives from a specific activity that took place and finished before [30 April 2007].

43. The City of London Law Society considered that "Article 17 strongly implies that the ELD applies to any damage caused by an emission, event or incident that takes place after 30 April 2007 even in the absence of domestic legislation transposing it", and that

Defra's failure to lay regulations to transpose the ELD before Parliament so that Parliament may bring the ELD into force by 30 April 2007 will prejudice operators. If, for example, an operator causes environmental damage subject to the ELD after 30 April 2007 but before domestic law on the ELD has entered into force, the operator will have no guidance on its duty to remediate the damage or otherwise comply with the ELD. In particular, operators will be liable for interim losses from the date that their activity caused environmental damage (Annex II, para 1(d)).[

The same concern was raised by the British Insurance Brokers' Association [ELD 07, first page], the Association of British Insurers, who called for Defra to set out the interim measures that will apply between 30 April 2007 and actual transposition "to give certainty to all stakeholders",[42] and the CBI.[43]

44. The Minister's clear preference was for applying the obligations of the ELD to incidents which occurred after the regulations came into force not before. In the meantime existing environmental legislation would apply. This, he said, would be simpler for all concerned.[44] In order to give complete clarity to interested parties, we recommend that the draft regulations for consultation this autumn make it clear that the ELD will only apply to incidents which occur after the regulations come into force.

The Government's approach to implementation

45. The Consultation Paper says that:

The Government intends to transpose the ELD in a way consistent with its wider approach to environmental protection and enforcement. In particular, it wishes:

i. to encourage a change in behaviours so as to bring about a reduction in the risk of serious environmental damage occurring, and more effective application of the "polluter pays" principle where such damage does occur; and

ii. to secure this change in a way which imposes minimum burdens upon business, including by having regard to the coherence and simplicity of the overall environmental protection framework taking account of the requirements of ELD.

In furthering these objectives through the transposition of ELD, the Government wishes to ensure that environmental protection standards are not undermined and that its approach to transposition is proportionate to the problems requiring to be addressed.[

46. Defra told consultees that "it is the Government's policy 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".[46] In some cases the Consultation Paper's Partial Regulatory Impact Assessment indicated likely benefits from going beyond the minimum implementation approach, but the Government did not propose to depart from that approach.[47]

47. The RSPB said that "The Government intends to exercise Member State discretion where this favours business and goes against the environment, but not vice versa", and in its opinion "the Government's 'minimum' implementation approach … has meant that the views of 'green' stakeholders have not been given due consideration. It was the RSPB's view that the strength of environmental arguments has not been examined simply because they do not accord with the Government's narrow interpretation of the minimum implementation approach, rather than being tested against a true 'better regulation' approach".[48] Wildlife and Countryside Link condemned the approach adopted, arguing that:

48. The Agricultural Biotechnology Council on the other hand supported "the Government's science-based and proportionate approach to the implementation of the ELD, which looks to avoid gold-plating existing legislation and ensure that the UK's agricultural sector remains progressive, profitable and sustainable".[50] The Association of British Insurers believed that the Government's decision "to maintain the Directive as it stands is correct. The ELD is already strong and comprehensive, and further regulation in this area could seriously harm the ability of companies to get insurance against their potential liabilities".[51] The CBI supported "the decisions that the Government has taken on areas where discretion has been left to Member States as the best option to maintain UK competitiveness".[52] The NFU also supported the Government in not going further than the Directive required given the potential impact on the farming sector.[53]

49. The Minister told us that, even though the Government "do not believe in gold plating", it was worth consulting in an open and transparent way and "give people an opportunity to express a view". He added that Defra had not received additional evidence during the consultation that challenged the cost and benefit estimates in the Partial RIA, although we know from seeing the RSPB response to the consultation that they at least did take issue with the RIA calculations. He believed that the additional benefits in some cases from going beyond the minimum requirements were "pretty marginal" and so did not justify "gold plating". Although he conceded that going beyond the minimum might sometimes make the law fit together better, he saw the ELD as supplementary to the "very good" environmental protection laws that the country already had in place.[54] However the Minister was unable to give us a clear indication of the sort of result from a cost-benefit analysis that would lead him to go beyond the minimum transposition requirements of the Directive, other than to say that it would be a matter of judgement and would vary from policy area to policy area.[55]

50. Defra's 'minimum implementation' approach is a pan-Government one, designed to avoid accusations of 'gold plating' of EU legislation.[56] But in the case of the ELD 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's minimum requirements. Because it sees the ELD as a supplement to domestic law, it will not be integrated with that law. The Government therefore risks creating an unnecessarily complex framework which will provide many opportunities for legal dispute, and the country may miss out on some of the potential benefits of the Directive. We discuss some particular cases below. The Government must, in the cases where its own analysis show that there would be overall benefits from going beyond the minimum implementation requirement, properly explain the reasons for its policy choices. It should also make clear what sort of results a cost benefit analysis would have to show in order to justify it going beyond the minimum requirements of the Directive.

Extent of strict liability

51. The Government discussed in the Consultation Document the interaction with existing environmental legislation, and the possible costs and benefits of extending the scope of strict liability under the ELD so that it matches the liability provided for in those rules.[57] The Partial RIA estimated that there would be a net benefit from extending strict liability for biodiversity damage to non-Annex III activities,[58] and that a further five cases a year would be covered as a result..[59] Nevertheless the Government's stated approach is to "limit the application of strict liability in line with the provisions of the Directive".[60]

52. Natural England did not agree with the Government's approach not to extend strict liability to non-Annex III operations. It wanted liability to be identical, because "non-[A]nnex 3 operations damage biodiversity more frequently; and creating a 'level playing field' by applying strict liability to all operations would establish a more consistent and transparent regime".[61] Genewatch favoured strict liability:

The RSPB wished to see strict liability extended,[63] as did the Institute of Ecology and Environmental Management.[64] 53% of respondents to the Government's consultation argued for extending strict liability to non-Annex III operations.[65]

53. According to the British Insurance Brokers' Association "the insurance market would prefer the minimum of strict liability options as opposed to fault based ones".[66] The CBI also supported the Government's approach: "proportionate liability is the most equitable means of dealing with multi-party cases and non-Annex III damage".[67] The NFU believed that the ELD's fault-based/strict liability distinction would provide the greatest certainty for farmers and growers.[68]

54. Our impression is that little attempt has been made to provide for a consensual atmosphere to allow a proper discussion to take place among stakeholders. We questioned the Minister as to the reasons for his policy preference, but we did not receive a clear answer as to why biodiversity damage from non-Annex III activities should be treated differently, other than the Minister's general preference not to over-implement "unless there is a compelling case to do so"^.[69] The consultation document merely set out a number of pros and cons of applying strict liability in this case.[70]The Government has also provided insufficient evidence to back up its assurance that existing controls are sufficient to protect against GM damage. In its response the Government must explain the reason for its choice not to extend strict liability for biodiversity damage to non-Annex III activities.

The 'permit' and 'state of knowledge' defences

55. As mentioned in paragraph 21, Member States may choose to implement the so-called 'permit' and 'state of knowledge' defences in law. Where they apply, these defences allow operators not to bear the cost of remedial measures. The Partial RIA showed a slight benefit from adopting the permit defence but could not arrive at figures in the case of the state of knowledge defence.[71] Defra's memorandum said that:

56. The Marine Conservation Society believed that these defences "will weaken the Water Resources Act (1991), the Merchant Shipping & Maritime Security Act (1997) and the Food & Environment Protection Act (1985), and detract from UK obligations to the OSPAR and London Conventions on the prevention of marine pollution from dumping and land-based sources", and that the defences ran counter to the 'polluter pays principle', placing an added burden on the permitting authority to ensure that consented activities do not threaten the environment. This was because in a case where the consenting process was flawed, and damage occurred, it would be the taxpayer not the operator who will bear the cost of remediation. The MCS further believed that immunity from liability for selected activities was inconsistent with the ELD's general principle of environmental responsibility.[73] The RSPB too believed that they undermined the 'polluter pays' principle and the principle of strict liability upon which the ELD was based, as did Wildlife and Countryside Link.[74]

57. The Association of British Insurers supported the defences, noting that they were not 'defences' but "mitigation factors that excuse liability". They provided, the ABI said, "clarity and certainty, and therefore contribute to an environment in which financial security instruments are more likely to develop".[75] The CBI believed that the permit defence for Annex III activities were particularly important for UK firms as permits were more costly here than in other Member States.[76] Water UK also supported the defences.[77]

The NFU said that:

To disapply the permit defence would undermine the confidence in the permit authorisation system and approvals process and introduce a great deal of uncertainty for operators and competent authorities.

GENETICALLY MODIFIED ORGANISMS

58. Genewatch opposes the defence as undermining the 'polluter pays' principle. But it stressed that there were additional reasons related to GMOs that make these defences particularly unsuitable:

GMO authorisations are very wide, covering the whole of the EU, and are irrespective of the different conditions in different Member States or the location of the activity: "a GM company could cause environmental damage, but be protected by a licence which did not and was never intended to deal with the type of damage caused".

Use of GMOs and GM crops is new and limited and EU risk assessments contain uncertainties and assumptions. Permits have been granted in spite of objections from some Member States about harm to environment or health, and the state of knowledge includes some opinions which predict harm from GMO release, so the extent to which such a defence could be relied on is unclear.

In addition the state of knowledge defence might reduce incentives for research into potential harm from GMOs.[

59. The Agricultural Biotechnology Council strongly supported the two defences:

60. The Welsh Assembly Government is proposing to disapply the permit defence for GMO-related activities in order to protect the environment.[81] Defra confirmed that the National Assembly was, in its opinion, entitled to do this under devolution arrangements.[82]

61. Natural England supported the Government's proposal to apply the defences, but not its proposal to introduce the defences before remediation is undertaken by the operator because this could result in remedial measures not being undertaken at all.[83] The Partial RIA showed a slight public benefit from applying the defences after rather than before remediation.[84] The Association of British Insurers, however, "believed very firmly that they must be invoked before remediation. This would avoid lengthy legal disputes during, or after, remediation work".[85]

62. In oral evidence the Minister continued to support the permit and state of knowledge defences, although he conceded that this would not fit perfectly with existing environmental legislation.[86] For instance it is unclear what would happen if an individual small farmer were found guilty of major environmental damage and who would pay to try to rectify matters. The Minister failed to provide a clear reasoning of the Government's preference for the way it has chosen to apply the 'permit' and 'state of knowledge' defences. Defra must do so by the time it embarks on its second round of consultation on the form of the regulations to implement the Directive.

63. There remains an issue that where a supplier to an operator provides a product or a service which causes an environmental problem in the knowledge of the risk that is involved that operator will not be subject to any responsibility for that action. This needs to be looked at again on the grounds of fairness and justice.

Financial security

64. Article 14.1 of the ELD states that:

Member States shall take measures to encourage the development of financial security instruments and markets by the appropriate economic and financial operators, including financial mechanisms in case of insolvency, with the aim of enabling operators to use financial guarantees to cover their responsibilities under this Directive.

65. The Consultation document says that the Government "is in discussion with the financial security industry to fulfil this provision and potential measures are being explored". However it adds that "[t]he Government is not proposing to require operators to hold financial security in order to meet any liabilities that may arise under the ELD. The Government believes that businesses are best place to take decisions about all aspects of their operations, including the optimum means of covering liabilities."[87] The Minister confirmed that the Directive placed no obligation on the state to remedy damage in cases of default, but suggested that this was something that could be left to the competent authorities to do if they saw fit.[88] However he had earlier said that "[i]f there is environmental damage caused but nobody was at fault, it is incumbent on government to look at the potential liability".[89]

66. The Government must make clear in the regulations how it will give effect to the Minister's undertaking that the Government would be the first point of recourse for remediation in cases where the operator is not liable for any reason, and what role it will require the competent authorities to play. It must also make clear what resources will be made available to competent authorities to carry out this role, especially in the light of the expectation of a tight Comprehensive Spending Review for 2008-11.

Whether the ELD should be extended to apply to nationally protected biodiversity

67. The Government calculated that there would be a net benefit to extending the ELD to habitats and species for which SSSIs are designated.[90] The Defra memorandum says that:

the relevant species and habitats are protected wherever they are found

68. Natural England did not support the Government's approach of limiting the scope of the ELD to EU-protected biodiversity in order to avoid 'gold-plating': "we strongly believe that nationally protected biodiversity should be afforded the same level of protection as internationally protected biodiversity, and that creating a level playing field for all protected biodiversity would establish a more consistent and transparent regime".[92] The Environment Agency said it had told Defra that the ELD "should be implemented to include species and habitats for which any Site of Special Scientific Interest is designated. We also said that Ramsar sites (which cover wetlands of international importance) should be included as this is in line with the Government's policy to deal with these sites in the same manner as the European sites"[93] The EA adds that:

69. The RSPB said that it:

70. RSPB and Genewatch's parliamentary briefing paper of 20 March 2007 gave the following example of the effects of the Government's minimal transposition approach:

In January this year, the MSC Napoli, a 62,000-tonne container ship, was grounded a mile off Lyme Bay in Devon, a World Heritage Coast site. More than 200-tonnes of oil leaked into the sea, leading to estimates of up to 10,000 killed birds, with gannets and the critically endangered Balearic shearwater at risk.

The wreck also threatened to affect as many as 28 SSSIs, including the Exe Estuary, and Chesil Beach and the Fleet SSSI. The Fleet SSSI and Branscombe Bay are two of only three sites where the rare scaly cricket is found, while Berry Head SSSI, Brixham, hosts 400 breeding pairs of guillemots, the largest colony in the south-west. Some damage caused by this accident is expected to be paid for by the shipping company who caused it. However, public funds will be used for much of the clean-up costs, rather than the full cost being met by the polluter.

The ELD could cover such an incident, but the Government's minimal transposition plans mean that damage to SSSIs would be exempt, leaving the public to pay for the clean up, and allowing the loss of scarce species like the scaly cricket to continue.

71. Wildlife and Countryside Link (representing 37 voluntary conservation societies) criticised the Government for excluding from the consultation process the question of including UK Biodiversity Action Plan (BAP) habitats and species (the Government refers to SSSI habitats and species).[96] It strongly recommended:

the inclusion of SSSIs and Ramsar [wetland] sites in the implementing legislation. We would also like to see BAP habitats and species included within the next five years. We believe the omission of nationally protected wildlife would result in a complex, confusing, economically inefficient and unfair system.

72. The Institute of Ecology and Environmental Management (IEEM) also did not want the ELD's provisions limited to EU-protected biodiversity. In view of the small proportion of England that has protected status:

Similarly, the Institute of Biology:

73. The Marine Conservation Society (MCS) notes that there are no marine SSSIs, and that just 1.4% of UK waters within the 200 mile limit are designated as Natura 2000 sites. In order to meet the 2010 Biodiversity Action Plan (BAP), the MCS "strongly supports the inclusion of UK BAP species and habitats, OSPAR Marine Protected Areas, Nationally Important Marine Sites, Highly Protected Marine Reserves, and Ramsar sites within the UK provisions for the ELD".[100]

74. The CBI, on the other hand:

101

75. The NFU also wanted the Directive's provisions restricted to EU-protected biodiversity, as extension of the scope of the ELD would add "very significant burdens to agricultural businesses".[102]

76. The responses to the consultation on this subject were set out on pages 21-24 of the Defra summary of responses. All NGOs, private individuals and all but one local authority opposed the Government proposal. Most businesses supported it.

77. The Minister told us that the ELD would apply to only a few cases of biodiversity damage in practice, and that the main benefit from extending it to cover nationally-protected biodiversity would be to apply the provisions for complementary and compensatory remediation (see para 17 above).[103] He also reminded us that the ELD protected EU-designated habitats and species wherever they were found, and that in practice a large number—he claimed some 90%—of SSSIs would thereby also receive protection.[104] Sandy Luk, however, told us that this 90% figure was apparently a new one and that the Defra consultation referred to a 70% overlap by area.[105] We question the Minister's claim that 90% of SSSIs will enjoy protection under the ELD and ask Defra to demonstrate how it reached this figure. He admitted that if the ELD were extended to include nationally-protected species and habitats, those species and habitats would be protected outside designated Natura 2000 sites or SSSIs. This is because the ELD protects species and habitats, not sites as such.[106] But in the end the Government had decided not to extend the scope of the ELD because "we did not think there was a strong enough case to go beyond our normal better regulation principles […] We should not get ourselves into a position of saying that there is a great deal of extra benefit here". His assessment was that extending the ELD to cover SSSIs would be likely to add one percentage point to the proportion of SSSIs in favourable or recovering condition by 2010.[107] He admitted that he had concerns that there might be opportunities for lawyers to test how the ELD applied in the case of the protection of biodiversity, and that "we have potentially a directive that could be neater". But the minister did not think that there was a "significant benefit" in rewriting existing environmental protection legislation so that it was consistent with the ELD.[108]

78. The Minister confirmed that that all the 77 Ramsar sites would be covered by the ELD: all but three were Natura 2000 sites, and the other three had either habitats or species of Community interest.[109]

79. We are extremely disappointed that the Government still wishes to restrict the scope of the ELD to EU-protected biodiversity. It is setting its face against the unanimous advice of environmental NGOs, Natural England and the Environment Agency in its unwillingness to extend the ELD to cover nationally-protected biodiversity. Once again, the Government's minimum implementation policy appears to be the reason why it is unwilling to obtain these benefits. Although its own Partial Regulatory Impact Assessment estimated an overall benefit from such a course, it does not believe it "worth the effort" because the it would not offer "significant benefit". We contest the implication of his view that a potential one percentage point improvement in the proportion of SSSIs in favourable or recovering condition is not significant: Defra's Departmental Annual Report 2007 shows that this PSA target is showing 'slippage', with only 75.4% of SSSIs in such condition. Defra cannot afford to overlook measures that would help it achieve its PSA target and which it estimates would be of overall benefit.

80. The result of Defra's attitude is that it risks missing a unique opportunity to extend and unify the system of protection afforded to the country's natural habitats and biodiversity. It also risks creating legal uncertainty and expense, not least for Natural England and the Environment Agency, as courts determine how to treat cases where different pieces of legislation may apply to instances of biodiversity damage that affect both an SSSI and a Natura 2000 site. The Minister failed to make a convincing case for not extending the scope of the ELD so that, as well as protecting EU-protected biodiversity, it covers nationally-protected species and habitats too. We recommend that the Government should exercise its discretion to include nationally-protected species and habitats within the scope of the Environmental Liability Directive. In so doing it would be able to trade off any criticism of 'gold plating' against the gains arising from a better and more consistent implementation of the Directive.

18 Ev 2 Back

19 Ev 1 Back

20 Quoted in ENDS Europe Daily, 30 April. Back

21 QQ 48-9 Back

22 Ev 36 Back

23 Ev 48 Back

24 Ev 37 Back

25 Ev 39 Back

26 Ev 33 Back

27 Ev 41 Back

28 Ev 43 Back

29 http://www.defra.gov.uk/corporate/consult/default.asp Back