Examination of Witnesses (Questions 80
- 99)
WEDNESDAY 13 JUNE 2007
IAN PEARSON
MP, MR NIGEL
ATKINSON AND
MS CAROLINE
CONNELL
Q80 David Taylor: That phrase "gold
plating" is a substitute for "thought", is it not?
Do you not think so, because it is just bandied around as a means
of shielding a defence from using the flexibility which was incorporated
into the Directive deliberately so that countries like our own
could indeed extend it rather further than they would otherwise
have done.
Ian Pearson: Gold plating is not
a substitute for thought.
Q81 David Taylor: The phrase "gold
plating" is a substitute for thought. It is almost a knee
jerk defence. I am looking at the extent of strict liability as
opposed to fault based liability where a whole plethora of activities,
the so called non-annex three activities, are going to be in the
fault based liability camp, are they not, as opposed to a strict,
automatic liability. That is correct, is it not?
Ian Pearson: I think the term
gold plating is useful as a discipline.
Q82 David Taylor: No. Use an alternative
phrase, not gold plating.
Ian Pearson: What it is essentially
about is the Government's better regulation principles. We think
it is sensible to apply those principles to all EU legislation.
We should not over-implement unless there is a compelling case
to do so.
Q83 David Taylor: You want to minimise
the cost of implementation?
Ian Pearson: That is what gold
plating is about. Where there is a strong case for going further—
Q84 David Taylor: A compelling case,
I think you said.
Ian Pearson:—than the Directive,
that is something we might want to consider as part of implementing
a directive; or we might want to do it through normal, UK legislation,
but we will at least have the options to be able to do that.
Q85 David Taylor: Would you agree
with me that one method of implementing effectively would be to
have a consistent, transparent regime across the piste in how
the ELD is implemented? That would be true, would it not: not
to pick and choose, not to make fish of one and fowl of another,
not to identify the annex three activities as sheep and everything
else as goats, particularly when it is the goats, according to
Natural England, the non-annex three operations, that damage biodiversity
more frequently than the annex three ones where there is a strict
liability? Do you agree with that assessment on that front?
Ian Pearson: Firstly, the Directive
enables Member States to make choices in certain areas. I think
it right that we exercise that right and choice. We have to choose
one thing or the other. When it comes to the issue of fault based
liability, I happen to believe that that is a sensible way forward.
If I am a chemicals company based in Coventry that is fully applying
the PPC regulations that have been imposed on it by the Environment
Agency at some significant cost to it but it is acting—
Q86 David Taylor: In the interests
of the environment, the people who live in and around Coventry
and the workers at that factory?
Ian Pearson: Yes, indeed. It is
acting in a responsible manner and it should be able to rely on
that competent authority. If something goes wrong and it is a
result of negligence or the fault of the company, then rightly
that company should be liable for prosecution and we need to undertake
remediation. If however that company has been fully following
the guidance and working within the PPC regulations and something
happens that was completely beyond its control, I do not think
necessarily we should say that it is the company's failure. I
think we should say it is the failure of the competent authority
and the failure of the regulation. In those circumstances I think
it right to say that the burden of responsibility should fall
with the competent authority.
Q87 David Taylor: You prefer consistency
and transparency to be obtained by levelling down to a fault based
liability for all activities. In other words, the annex three
operations which are linked to strict liability. The inference
I draw from what you say is that you rather regret that they are
being categorised as strict liability operations, where no fault
needs to be demonstrated.
Ian Pearson: There is the ability
in Article 8.4 to have what is called a permit defence or a state
of the art defence. I think that is a very sensible way to go
and that is one of the reasons why we have consulted on that.
Q88 David Taylor: Are we not just
caving in to pressure from the commercial sector? The British
Insurance Brokers' Association, the CBI, the NFU? Are we not just
pandering to them pursuing the standard of living and totally
ignoring the quality of life which can be associated with some
of their harmful operations? That is the reality, is it not?
Ian Pearson: No, it is not the
reality at all. I think you have it completely wrong. If a company
is negligent, if it causes environmental damage, it should be
pursued under legislation, whether it be the Environmental Liability
Directive or whether it be through our own domestic legislation.
Q89 David Taylor: If it is because
of neglect, omission or commission but not strict liability?
Ian Pearson: I use the example
of a chemicals company in Coventry. If it has been completely
fulfilling all the requirements that have been imposed on it by
a competent authority, it should be able to rely on that. If it
has been negligent in any way, it is perfectly legitimate that
it would face prosecution.
Q90 David Taylor: It will have a
strict liability for some activities?
Ian Pearson: If it has not been
negligent in any way, I do not think it reasonable to blame the
company for what is in effect potentially a deficiency in the
PPC regulations. In other cases, you can envisage a farmer spreading
fertilizer as an example, fertilizer which has been approved and
licensed and certified as safe and has gone through all the normal
statutory processes. If you envisage a situation in the future
where the application of that fertilizer suddenly, unexpectedly
caused environmental damage that was significant, I do not think
it right to pursue the farmer.
Q91 Mr Drew: That is exactly what
the Directive says. It is the person who actually applies the
action, if you like, rather than the supply chain who knowingly
may have supplied that farmer with something which could cause
environmental damage.
Ian Pearson: The Directive in
8.4 talks about the ability to apply what we call a permit or
state of the art defence. I think that is a sensible thing to
do. We have to stress here that we are talking about very unlikely
events. I am confident that our PPC regime is robust and that
it is fit for purpose. I am confident that our product licensing
regime that we have in the United Kingdom and throughout Europe
is robust. What we are talking about is the very unlikely cases
where something might happen.
Q92 David Taylor: Natural England
are a creature of your department to an extent but they do argue
that non-annex three operations, the exempt operations if you
like, are the ones which damage biodiversity more frequently.
Should we not be focusing on that in a more effective way?
Ian Pearson: That is true but
they damage it through negligent activity. That is a very different
point to the point about whether it would be right or not to have
a permit or a state of the art defence.
Q93 David Taylor: We are not selling
the environmental pass under pressure from commercial interest
groups then?
Ian Pearson: No, we are not at
all. In those cases where environmental damage is caused—again,
in the overwhelming number of cases my understanding is this will
be as a result of negligence or some other activity—there
are legislative remedies there at the moment under UK law. Permit
and state of the art defences are quite narrow and technical.
Q94 Chairman: We accept the point.
Mr Taylor quoted Natural England. In their evidence to us they
say they want liability to be identical because non-annex three
operations damage biodiversity more frequently. Creating a level
playing field, by applying strict liability to all operations,
would establish a more consistent and transparent regime. Why
does Defra disagree with Natural England on that point?
Ian Pearson: For the reasons that
I have just outlined. I think it right that, where we have the
discretion to exercise a permit or state of the art defence in
those circumstances, it is right to do so. There is probably a
separate point about how the two regimes fit together and how
the Environmental Liability Directive regime would fit with UK
domestic legislation. I have to be honest. This is not a perfect
fit. Frequently our law in the United Kingdom can be a little
bit jumbled and this is one instance where it is not as clear
and transparent as it perhaps could be. Chairman, you will be
aware of some of the company law project and the massive reforms
we undertook there to try and put more company law in one place.
Sometimes these things do not fit together as well as they should
do.
Q95 David Taylor: Your inclination
would be to level down rather than level up?
Ian Pearson: That is not my inclination
at all. What I am explaining to the Committee is why we think,
in the very few cases where it is likely to be exercised, a state
of the art or a permit defence is appropriate and is in the best
interests of everyone.
Q96 Mr Drew: Let us use a specific
area of concern which is obviously going to be GMOs. I know there
is a view that GMOs are protected under a different piece of legislation
but it does seem somewhat unclear as to whether GMOs will be a
key part of a potential liability offence. Is that something that
you welcome or is it something that you are going to serve a pass
to and hope that our existing controls for GMOs are sufficient?
Ian Pearson: We have one crop
trial of a GM product taking place in the UK at the moment and
we will probably have two trials next year. No GM crops are being
grown commercially in the United Kingdom. It does not seem likely
to me that they are going to be for a while. Having said that,
it is right that we look very carefully at the issue of crop separation
distances which is why we have been consulting on that. We want
to move that debate forward. That is why as a Government we should
judge each application for crop trials on its merits and make
decisions about commercial growing based on the scientific evidence.
The licensing of GMOs, whether it be for research or for general
use, is governed by some very strict European legislation at the
moment. Each application for consent to release is judged on its
own merits based on potential risks to the environment. In the
United Kingdom we would not allow a crop trial to take place and
we certainly would not allow commercial growing unless we were
confident, based on all the scientific evidence, that there was
no threat to human or animal health or to the environment. That
remains our position. If we are relating what I have just said
to the discussion we have just been having about permit defences,
if in the future—and this is speculation—we were in
a situation where a farmer was being pursued because a crop did
cause environmental damage and it was directly as a result of
its genetic modification, we do think that permit defence would
be allowed with respect to the farmer. The problem would be with
the company providing the product and with the licensing regime.
We should not be penalising the farmers for doing things that
they have been given explicit approval to do.
Q97 Mr Drew: I go back to my original
perception of this. Unless I have it wrong, the ELD impacts on
the immediate transgressor, even though they may be doing something
in good faith. If they have a permit they are exonerated but up
the line, the supply chain, there is no way that a company that
supplied something that subsequently was proven to be environmentally
damaging would ever be liable, come what may.
Ian Pearson: In the circumstances
you describe, if an individual or company is causing environmental
damage, the immediate responsibility is on that individual or
company to stop it.
Q98 Mr Drew: That is something slightly
different. They have caused the damage. Are they liable for the
damage they have caused?
Ian Pearson: They have caused
the damage. They should stop it immediately and that is what we
would all want to see, regardless of whatever legislation we are
talking about.
Q99 Mr Drew: Who makes good the compensation
in terms of the damage?
Ian Pearson: That is the issue.
If for instance a farmer has been using fertilizer that is an
approved, licensed product that everybody has been happy with
for a number of years or if a farmer is growing a crop where he
has been given explicit approval to be allowed to grow that crop,
I do not think it should be the responsibility of the farmer to
take the remediation activity that is required because it is not
the farmer's fault. That principle of fault based liability is
an important one. We would obviously need to look at avenues to
pursue those whose fault we believe it is. Whether that would
be through the Environmental Liability Directive or through other
routes that might be available we would have to look at.
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