Examination of Witnesses (Questions 20
- 39)
WEDNESDAY 13 JUNE 2007
IAN PEARSON
MP, MR NIGEL
ATKINSON AND
MS CAROLINE
CONNELL
Q20 Chairman: Do you think Article
13 was drafted for those countries which may not have as well
developed a legal approach for redressing challenge as we have
at the moment through Judicial Review? In other words, I wonder
if there are any Member States who have expressly said, "No,
we cannot challenge this in the courts"? You do not know?
Ian Pearson: I do not know.
Q21 Mr Drew: Perhaps you could write
to us when you get a legal opinion on that because that would
be quite interesting.
Ian Pearson: I want to point out
again that pages 46 and 47 of the consultation document specifically
refer to Article 12 and question 4.4 is specifically on applying
paragraphs 1 and 4 of Article 12 to cases of imminent threat and
damage. So it is not as if we have failed to consult in this respect,
which is the impression that is given in UKELA's letter of 17
April.
Q22 Mr Drew: If we could look at
another aspect of this, which is obviously timing. If this Directive
is going to be effective there is a belief that of course it has
to be capable of preventing environmental damage, but again in
terms of the consultation—and we will see this later in
terms of what we understand by "strict liability"—the
argument could go that in a sense you can take action subsequently
or consequently on the basis of what damage has occurred, but
there does not seem to be much evidence of how you would prevent
environmental damage. What is your response to that assertion,
which is made by a number of NGOs?
Ian Pearson: My understanding
is that the Directive is concerned with both prevention and remedying
of environmental damage and that is why there are provisions in
when it comes to requests for action, that when there is information
saying that there is imminent threat that should be investigated
by the competent authority concerned. So I think that is important.
I think it is also important to think about how this will be implemented
in the real world. If we think that there is an imminent threat
of a significant adverse environmental impact and damage being
caused then I would imagine that the competent authorities will
want to take urgent and immediate action. They will do that now
in the United Kingdom and they will do it after the Environmental
Liability Directive is implemented.
Q23 Mr Drew: Let us use a real example
here; what about Lyme Bay? Would Lyme Bay have been prevented
in terms of some of the damage that has taken place due to the
activity of fishing where it led to the considerable deterioration
in the bed and the scallop population. Is this something that,
if the ELD had been in place, there could have been strong, preventative
action?
Ian Pearson: I do not have sufficient
specific knowledge of the Lyme Bay case to be able to comment
on that.
Q24 Mr Drew: It has been—I
will not say around the shores—something that NGOs have
been lobbying on very strongly over the last six months or so.
Ian Pearson: The Directive is
aimed at imminent threats, it is not aimed at something that has
been occurring over a long period of time.
Q25 Mr Drew: It has not been occurring
over a long period of time—and other colleagues may want
to jump in—my understanding is that it is a fairly recent
phenomena and it is, in a sense, where there have been weaknesses
in our protection of our shoreline. My next question was going
to go on to the derogation from the Common Fisheries Policy, where
we have almost again got the pre-eminence of European law which
says that we would not in any way want to interfere with the Common
Fisheries Policy, even though this may have a huge impact on marine
diversity, and I use Lyme Bay as a classic example of that.
Ian Pearson: As I say, I do not
feel able to comment other than to say that my understanding of
this Directive is that it is talking about imminent threats, so
imminent threats of potentially major environmental damage events.
That is what the Directive is about and I think you are trying
to widen the scope for the Directive beyond that which is my understanding
of what it is currently.
Q26 Mr Drew: In terms of the derogation,
and it may be this will help in terms of the Lyme Bay case, but
certainly again it would appear that it has no impact at all on
the Common Fisheries Policy where you are between one and 200
miles offshore, and we have sought this derogation. Is that not
something that the Government could have fought a stronger case
to say that given that we will want to bring forward the Marine
Bill—and again this has an impact on the potential Marine
Bill—is this not something on which we actually have some
views when the Directive was being progressed with Europe?
Ian Pearson: I am not particularly
sighted on that aspect of the issue, I do not know if my officials
are.
Ms Connell: Yes, could I ask to
which derogation you are referring?
Q27 Mr Drew: I am talking about the
derogation whereby if we are looking at the Common Fisheries Policy
it would seem to have pre-eminence to allow people to fish regardless
of whether that has an impact on the biodiversity, and I am questioning
that. It may be that I am confusing two things because obviously
one would appear to have greater clarification and protection
over inshore activity, but of course if we are looking at the
marine environment that will go considerably offshore.
Ms Connell: I am not sure I can
be completely as helpful as you would like. Certainly our interpretation
is that this Directive will extend offshore. There have been recent
judgments in the context of the Habitats Directive to the effect
that that legislation applies offshore. As a result there are
imminent—if they have not already been made—regulations
to extend the implementation of the Habitats Directive offshore,
and in the context of that there has been quite a bit of discussion,
I think, at the Community level, the interaction between Common
Fisheries and environmental protection. It is not specifically
my field but I think the difficulty is that where you have a European
regime like the Common Fisheries Policy, which purports to deal
with everything to do with fisheries, including the environmental
consequences of that, then it is really something that has to
be ironed out at Community level as to what the interaction is
between that Community regime and this Community regime. So I
think that the most I can probably say is that that is certainly
an issue that has had to be considered in the context of the Habitats
Directive implementation and, to some extent, we are in the hands
of Community law on that.
Q28 Chairman: How are you going to
deal with the implementation issues of that because as you were
speaking the issue of the Water Framework Directive came into
my mind because there is a debate about how far offshore that
will apply. My last memory of it was a mile, but then there is
another 199 miles of economic zone to go and if one also takes
the aspirations of the Marine White Paper in terms of providing
additional perspective in the near shore areas there seem to be
a number of potential bits of marine legislation or policy in
the case of the Common Fisheries Policy, all of which potentially
could conflict with each other. One of the questions that I wanted
to know, following on from Mr Drew's argument, was whether over
fishing, damaging the marine environment, spawning stock, biomass,
these types of issues, the marine bed thing, all of these factors
and types of fishing, whether in fact they would become subject
to the Environmental Liability Directive? In other words, could
somebody bring an action saying, "You are damaging this bit
of the marine environment" and somebody else saying, "No,
this is covered by other parts of the Common Fisheries Policy
and therefore it does not apply." If you are going to be
drafting regulations how are you going to give clarity to consultees
about the application of this, given that area of conflict?
Ms Connell: I think we are going
to have to follow the lead that has already been set in the context
of habitats and they are the experts on the potential conflict
between common fisheries and habitats' protection, and to a very
large extent ELD follows the Habitats and Birds Directive, as
you know, so whatever resolution they come to we will, I imagine,
be following very closely on that.
Q29 Chairman: When you say habitats,
is that going to be a piece of community clarification that will
guide us nationally?
Ms Connell: There has already
been because with the Habitats Directive there has already been
litigation in front of the European Court considering the implementation
of the Habitats Directive. As a result of that certain things
became clear, for example that the Habitats Directive applies
out 200 miles and as a result of that there are going to have
to be new regulations, which is imminent, as I understand it.
Ian Pearson: I am keen here, chairman,
to make sure that we do not get any unnecessary hares—or
I should say fish—running on this. This Directive is about
favourable conservation status of species and habitats obviously,
and the Common Fisheries Policies and the decisions that are taken
at Fisheries Council annually on TACs (total allowable catches)
and quotas and other things are based on the science and based
on wanting to ensure conservation as well, so I do not think there
is necessarily any major asymmetry between the objectives and
the Common Fisheries Policy, which is a sustainable fishery, and
the objectives of this Directive.
Q30 Chairman: But it is very important,
part of the implementation process is designed to bring clarity
so that everybody understands what this thing covers and how it
will cover it and because it is a set of words drafted in the
usual fairly broad brush European terms there will be plenty of
people who will want to probe and test the way it is applied.
So we were trying to get a little clarity—not set hares
running—to find out what the interaction is between these
various policies, all of which have a common protection theme
running through them. But in the case of ELD it is a bit more
than a theme, it is a series of actions.
Ian Pearson: As I think has been
clear from what Caroline has said, my officials are aware of this
as an issue and this will be an area where we will need clarity,
you are absolutely right, and we will need for that to be part
of the regulations.
Q31 Chairman: So who is going to
be the competent authority for the marine environment?
Ian Pearson: We are still discussing
these issues at the moment.
Q32 Chairman: Who are the runners
and riders? Who is qualified to do the other 199 miles? There
are not too many choices on this.
Ian Pearson: I do not necessarily
accept that the issue will be up to 200 miles and to be a UK competency;
it might well lay elsewhere—I do not have any information
to give to you.
Q33 Chairman: I am getting a bit
confused here. Let us ask a simple question: do we have to have
a competent authority to handle the issues which arise from one
mile out to 200 miles out?
Ian Pearson: Yes, we do.
Q34 Chairman: We have to have one;
right. Question two: does it have to be a UK-based body?
Ian Pearson: I do not know the
answer to that.
Q35 Chairman: Could somebody supply
it because it is quite important?
Ian Pearson: We are debating some
of these issues, from my understanding, at the moment.
Q36 Chairman: If the answer to question
two is yes, we do have to have a UK-based body, there are only
a limited number of statutory bodies who have the capability of
dealing with these issues, and what we are asking is, if you cannot
tell us who—and I appreciate you may still be debating who
gets it—but who is in the frame? Can you tell us that? You
do not want to phone a friend and consult?
Ian Pearson: I will be more than
happy to write to you about it, if that would be helpful.
Ms Connell: There is a dearth
of candidates at the moment.
Q37 Chairman: Right, I think we are
with you there!
Ms Connell: We are exploring at
the moment who will take it on board because obviously there is
a plan for a new marine management organisation in a new Marine
Bill, but that timing does not help us very much because we do
not have a Bill yet. In the meantime we need to consider and we
have not yet been able to fully consider this; we need to consider
whether Natural England, Marine Fisheries Authority, Cefas—there
are various organisations with responsibility—plainly most
of those are fisheries based. It may be a combination of Natural
England with the overview of what would qualify as environmental
damage using other organisations for the boarding boats, searching,
sampling type of on the ground enforcement. I am afraid we just
do not quite know yet and I appreciate that that is not very helpful.
Chairman: It actually gives us a picture
which sketches in a bit more of the background to it. David Lepper.
Q38 David Lepper: Chairman, having
listened to what has been said so far, I am a bit concerned that
we have established—and there is no disagreement about it—that
the Directive was signed up to in 2004 and we left it until the
last six months of the period leading up to the deadline, which
has now passed, for its transposition into UK law, and in all
that period of time so little thought seems to have been given
to who the competent authorities might be, who would be responsible
for different bits of this Directive. Natural England has said
that you should have consulted already on competent authority
allocations—it sounds as if you have not. Everything has
moved up to this last six-month period and beyond the six-month
period leading up to 2007. Then we have more consultation to come.
Ian Pearson: I do not think you
should be that concerned about this as a matter. I think in a
significant number of areas it is pretty clear who the competent
authority is likely to be. There is an issue on land contamination,
as to who the competent authority might be, and that clearly came
out of the consultation exercise. There is, as you have just heard,
very clearly a dearth of candidates when it comes to the marine
environment. But it is not as if in the other areas it is not
pretty clear who the competent authority is likely to be. If I
may just say something on speed of implementation as well—because
as you will be aware we were required to implement the Directive
by April 2007—like other EU Member States we found this
a complex piece of legislation, which is difficult to implement
according to the timetable envisaged when the Directive was originally
passed. It is my understanding that it is claimed that four countries
out of the EU 27 have so far either implemented or partially implemented,
or claimed to have implemented or partially implemented the ELD,
and those are Latvia, Lithuania, Hungary and Italy. It is not
as if we are well behind the pack here when it comes to implementation,
but there are some very real challenges in getting this legislation
in the best possible form.
Q39 Mr Drew: If we can get back on
land and away from water. We were a bit surprised that in its
evidence the CBI said that the Environment Agency had not been
present at the stakeholder discussions. Is that because the Environment
Agency did not have people or it has misgivings about whether
it is going to become one of the competent authorities? What is
your view on that?
Ian Pearson: I do not know why
the Environment Agency was not present, or even whether the CBI
is factually correct in stating that. Maybe that is something
you will want to take up with the Environment Agency?[1]
I do not see any reluctance on the Environment Agency's part when
it comes to be a competent authority in the areas where it believes
that it has competence. As I say, we are still debating the issue
when it comes to land contamination, but you were referring specifically
to water and the Environment Agency clearly believes that it is
a competent authority and will want to play its full part in that
particular element of the Directive.
1 Note from the Environment Agency: It is correct
that the Environment Agency was not present at the workshops that
were held by Defra to discuss implementation of the ELD with specific
groups of stakeholders. However, the Environment Agency has been
involved in discussions on the implementation of the ELD through
a number of separate meetings with Defra on a range of specific
issues. These included meetings to discuss the role of the Environment
Agency as a competent authority under the ELD, at which other
relevant bodies such as Natural England were also present. Back
| 
