Examination of Witnesses (Questions 40
- 59)
WEDNESDAY 13 JUNE 2007
IAN PEARSON
MP, MR NIGEL
ATKINSON AND
MS CAROLINE
CONNELL
Q40 Mr Drew: If we could move on from
that to the issue which, to me, is really again at the kernel
of whether this is going to make a real difference to wildlife
sites, and that is about enforcement. As I say, it is interesting
the allegations made that the Environment Agency was not present
at stakeholder discussions. Certainly the Environment Agency has
a view, if it becomes one of the competent authorities in terms
of enforcement, whether it does that wholly or it does that in
partnership with Natural England, and maybe other equivalent bodies.
That is presumably something that you are looking to make a decision
on following the consultation. What the Environment Agency certainly
has said is that this is going to be an expensive occupation.
They mentioned that they expect it to be about £700,000 per
annum, assuming 15 cases a year, which does not sound like many
cases. It is going to be at the front end of what the UK, playing
its part within Europe, is actually introducing and that sounds
like a very limited number of cases. Notwithstanding that, if
those are the sorts of monies we are talking about presumably
you are already engaged with the Environment Agency and Natural
England to make sure that there is a funding mechanism, and presumably
that there is a mechanism whereby those who transgress and cause
the environmental damage will be paying for that damage, not only
in terms of putting right the damage but also funding the policing
of this particular operation. Is that something that you are engaged
with in terms of those discussions?
Ian Pearson: Firstly on the number
of cases, clearly we do not know how many cases there are likely
to be in any given year, but our best estimates are that these
cases will be relatively few and far between because as I explained
we are talking about significant adverse effects. So these will
be important cases of environmental damage and it will be right
that they are addressed in a sufficiently robust way. That is
why £700,000 for 15 cases maybe sounds like it is not a great
amount of money, but when you compare that sum with the total
Environment Agency budget, which is around about £1 billion
a year, I think you can see that we are only talking about a relatively
small fraction of EA's budget overall.
Q41 Mr Drew: Are you not a wee bit
worried that if the allegation is true that they did not attend
the stakeholder meetings that they are saying that they anticipate—
Ian Pearson: I have to say I think
that is something I think you can take up with the Environment
Agency—
Q42 Mr Drew: We certainly will.
Ian Pearson: Certainly in all
my dealings with the Environment Agency—and I meet them
on a very regular basis—the Environment Agency is a very
professional, competent body, and I have no doubt that it will
want to discharge its responsibilities as a competent authority
fully. It does so at the moment when it comes to the issue of
environmental damage and it will do so under the ELD as well in
the future, I have no doubt about that.
Q43 Mr Drew: So they have not expressed
any reservations to you at all about the new responsibilities
they will get under the ELD?
Ian Pearson: I have had no conversations
with the Environment Agency where they have raised any significant
problems with the role that they will be expected to fulfil as
part of the ELD. Clearly they will make representations about
the size of their budget as part of the Comprehensive Spending
Review settlement; but this is in the general scheme of things,
when you look at the size of the EA's budget, a relatively modest
amount of expenditure that is going to be required in the future.
Q44 Chairman: I am glad that everything
is sweetness and light with the Environment Agency and we will
explore that a bit further when we come on to asking some questions
about the scope in the United Kingdom, the application of this,
because some of the evidence submitted by the Environment Agency
tells a slightly different story—it goes into the depths
of what they are told.
Ian Pearson: It is not a different
story because we are talking about completely different questions.
If you are asking did the Environment Agency have concerns about
their ability to competently carry out their role then the answer
is clearly no, they have not—I am sure they are completely
confident in their ability to do that role. Do we have some policy
disagreements with the Environment Agency from time to time on
certain issues, including a few parts of the Environmental Liability
Directive, yes, we have, and I am happy to discuss those with
you.
Q45 Chairman: Excellent.
Ian Pearson: Particularly you
will want to focus on SSSIs no doubt!
Q46 Mr Rogerson: I think we have
begun to establish, given that there are some fairly crucial issues,
such as who will be responsible for the dealing with areas of
enforcement and so on, what the problems are that you are trying
to eliminate.
Ian Pearson: Some limited areas
but in lots of areas there is clear and common agreement.
Q47 Mr Rogerson: These no doubt have
contributed to the fact that we have passed the April 30 deadline
and have not reached implementation—and obviously you said
a number of States were in the same position. Have you yet had
any formal contact with the Commission about late transposition
and what action they might want to take on that?
Ian Pearson: I have not as a Minister
but I would not be surprised if officials have.
Ms Connell: As you probably know
the Commission start automatic infraction proceedings when you
do not notify your implementing measures on time.
Q48 Mr Rogerson: What sort of measures
do you think the Commission would be considering? Have they given
any indication of how they would react?
Ms Connell: Yes, automatic infraction
proceedings; that is what they do when you do not notify them
on time.
Q49 Mr Rogerson: What would be the
result of those infraction proceedings? What sort of penalties
can they impose?
Ms Connell: The way it goes is
that first of all they invite you to explain what the state of
play is. Then in due course they will take a decision on whether
the case ought to be referred to the European Court for a judgment,
as to whether you are in breach, and if that happens then ultimately
there might be a judgment and then if that happens the Commission
could take it further. But we do not anticipate that we will get
to that stage.
Ian Pearson: That is the standard
process, that every Member State that is late in transposing a
Directive rule will go through and it does take, in many cases,
a number of years, and certainly our anticipation at the moment
is that we will have full implementation by May 2008, which will
be a year late but I do not anticipate that we are going to have
proceedings that will lead to fines or anything like that at all.
Q50 Mr Rogerson: The City of London
Law Society have raised the issue that we have this interim period
now between passing that deadline on 30 April to transposition
and the ultimate implementation, which you are saying might be
a year. What would happen to those who had been breaking the regulation
in that period? The City of London Law Society seemed to be of
the opinion that having passed that deadline that we should really
be enforcing. So what sort of arrangements will apply in that
interim period?
Ian Pearson: I am certainly aware
of their opinion and I am aware of a number of different legal
opinions in this area. I would like to say that my preference
is for applying the obligations of the Environmental Liability
Directive to incidents which occur after the regulations come
into force, not before. I think this is simpler for everyone concerned.
In the meantime, I am content that remediation can be delivered
through our existing legislation, which is already strong; although
I appreciate that it is not an exact fit with the requirements
of the Environmental Liability Directive.
Q51 Mr Rogerson: There are a number
of legal opinions out there and you have just referred to one
of them. Will Defra be issuing clarification to all the stakeholders
along the lines that you have set out, about how you intend to
handle it?
Ian Pearson: I have stated my
preference, that we should not be retrospective and we should
not be applying this to incidents that occur before the regulations
come into force, and I am happy to make that clear today, and
my anticipation is that we would make this clear in the regulations.
Q52 Chairman: One of the things that
I was not clear about on this particular point was, say a factory
had been continuously polluting some area of land through some
deposit or other that it was pumping out through a chimney and
it was causing damage, and it was not until after the ELD came
into force that somebody noticed it and said, "Look, there
is a problem," how do you handle the apportionment between
what happened after implementation and what happened before? Is
there a mechanism for doing that?
Ian Pearson: The first thing to
say is that if a factory is polluting now then it is likely that
it is committing an offence under existing environmental protection
laws in the United Kingdom, and I would expect to see that those
laws are exercised. When you look at the financial penalty regime
and the remediation requirements they are likely to be pretty
much the same in the case that you are talking about, with existing
law as it stands at the moment, and with the likely requirements
of the Environmental Liability Directive. I think it is only in
some other more specific cases where other remediation options
are required that we are likely to see differences. As I say,
overall we expect relatively few cases in a year, and it seems
to me to be the simplest to make sure that it is only once the
regulations come in place that we will enforce them.
Q53 David Lepper: On this question
of implementation you made it clear in the consultation document
that it is the Government's policy not to go beyond the minimum
requirements of the Directive unless there are exceptional circumstances
justified by cost benefit analysis and following extensive stakeholder
engagement. Yet you still consulted on the discretionary elements
which would allow you to go beyond that bare minimum. Why did
you do that if you had no intention of pursuing any of them?
Ian Pearson: What we wanted to
do as a Government is to be open and transparent about some serious
policy choices that we have, and that is why you will find that
when you look at the benefit costs assessment there is a case
in some instances for actually going beyond the legal minimum
implementation requirement. We think overall that is a marginal
case and we do not think that there is strong and compelling evidence
to go beyond it. Our policy right across Government that we do
not believe in gold plating we believe is an important one, and
that is why we took the decision that it should stand in this
case, but we should give people an opportunity to express an alternative
view.
Q54 David Lepper: Many of them have
expressed alternative views but you will not take any notice of
them.
Ian Pearson: We are fully assessing
all the consultation and responses as part of this. I am not aware
that there has come out of the consultation exercise major additional
evidence that suggests there are significantly greater benefits
than we have suggested as part of our draft regulatory impact
assessment, that would make us want to change our mind. As we
have said, yes, there is a case in some areas that you might want
to go further, but it is not a very strong one. My understanding
is that there were not any responses at all to the draft regulatory
impact assessment, and so I think that people accept there is
a marginal case for going it further. When you set that against
Government policy overall of being against gold plating I do not
think that that case is strong enough for us to say that we should
go further and over implement, and that remains our position.
Q55 David Lepper: You say there has
been no case made in the responses to the consultation, except
of a very marginal nature—
Ian Pearson: No, just to be clear,
I was saying that they have not disputed the benefit costs calculations
of actually implementing on a sort of gold plated basis.
Q56 David Lepper: If I am right the
regulatory impact assessment did say that if the Government went
beyond the minimum certainly there would be more cases to deal
with and could be additional benefits of some £4 million
to £5 million.
Ian Pearson: Yes, it is pretty
marginal overall, is it not? I do not think it justifies gold
plating.
Q57 David Lepper: In the light of
all that could you give us some idea of what would constitute
exceptional circumstances in this case? You say that you do not
go beyond the minimum except in exceptional circumstances, so
there must be some notion behind that of what exceptional circumstances
might be.
Ian Pearson: I think the notion
would be that there would be very high benefits compared with
the costs and that does not seem to be the case. We consulted
and we gave people all our best views about benefits and costs
and those figures have not been challenged. That is why I am saying
that I do not think there is a compelling case for going further
than minimum implementation of the Directive as it stands at the
moment. I could conceive of other examples where it might make
law fit together better, where you would potentially over implement,
but we see that the Environmental Liability Directive has very
much been supplementary and sitting alongside some very good environmental
protection laws that we have in the United Kingdom.
Q58 David Lepper: I think others
might want to explore whether it might not give rise to some loopholes
in the law, but I will leave that to other people.
Ian Pearson: Can I be clear on
this? We are not changing any of our existing law at the moment,
and this is in addition to it. So if there are any loopholes there
they exist already.
Q59 Lynne Jones: Should you not want
to close loopholes and use this opportunity to do so?
Ian Pearson: I am very interested
if you want to tell me what you think the loopholes are and then
I will tell you whether I think they exist.
Chairman: We are just the humble questioners;
it is other people who tell us about loopholes.
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