| 1. | We express our disappointment that the Government is vulnerable to further infraction proceedings from the European Commission in addition to those already pending. (Paragraph 28)
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| 2. | 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. (Paragraph 33)
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| 3. | 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. (Paragraph 41)
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| 4. | 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. (Paragraph 44)
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| 5. | 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. (Paragraph 50)
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| 6. | 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". The consultation document merely set out a number of pros and cons of applying strict liability in this case. 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. (Paragraph 54)
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| 7. | 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. (Paragraph 62)
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| 8. | 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. (Paragraph 66)
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| 9. | 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. (Paragraph 77)
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| 10. | 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. (Paragraph 80)
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