Examination of Witnesses (Questions 120
- 135)
WEDNESDAY 13 JUNE 2007
IAN PEARSON
MP, MR NIGEL
ATKINSON AND
MS CAROLINE
CONNELL
Q120 Chairman: Those examples of
habitats or species in the areas not covered: if a catastrophic
event were to occur, the message I am getting if I have understood
it correctly is that there is no requirement for some kind of
remedial action to take place. In other words, the event occurs.
There is a loss of biodiversity in a location unprotected by the
ELD, so that is a consequence and we just sit back and say—
Ian Pearson: Who caused the event
to occur?
Q121 Chairman: It would be the same
argument that a polluter would cause an event to occur. I am trying
to be clear in my mind. You made it clear in your exposition—I
apologise if I am cutting across your thinking—and you said
that in the event of an SSSI for example being part of a Natura
2000 site there would be a liability on remedial activity if environmental
damage took place. I adduced from that—tell me if I have
it wrong because it is quite complicated—that if the damage
occurred outwith an area protected by the Environmental Liability
Directive there was no liability for anybody to do anything about
it. In other words, the event occurred; the damage occurs and
that is it.
Ian Pearson: Are you talking specifically
with reference to the ELD now?
Q122 Chairman: With reference to
areas that are not protected by the ELD. You gave me the impression
that the plus point for the ELD was the obligation for remedial
activity if there had been environmental damage. It appeared,
in the way you explained it to me, that that was different from
the consequences of something that was simply protected by existing
UK law.
Ian Pearson: The plus points for
the ELD are that there is protection if there are significant,
adverse effects on the conservation status of species that are
outside Natura 2000 sites or outside SSSIs. The other plus points
are with regard to complementary and compensatory remediation.
Q123 Mrs Moon: Can I come back to
the response I had to my question about why did you consult on
the test for biodiversity damage restricting itself to Natura
2000 sites? The response was, "It was not a site based test."
If it was not a site based test, why did you consult on it?
Ian Pearson: The consultation
has been about implementation according to sites and species.
The sites are those that are in the Birds and Habitats Directive,
which are principally if not exclusively Natura 2000 sites. There
was consultation on that because we are required to do that under
the Directive. As part of the consultation exercise, there has
been this debate that we have been having about whether it should
be extended to SSSIs that are not Natura 2000 sites. Obviously
there is quite a strong degree of debate at the moment. Our best
estimate is that about 90% of SSSIs will have some sort of environmental
component anyway because they will have a species probably that
is covered by the Directive's requirements. What happens in those
other cases where they might be governed, the debate is around:
should you go beyond minimum transposition and put these SSSIs
into the same regime as the Environmental Liability Directive
or not? Our argument has been that we did not think there was
a strong enough case to go beyond our normal better regulation
principles. I admit it is very much a matter of debate and other
people can and have come to other conclusions on this.
Q124 Mrs Moon: I still struggle to
see why you reached that decision. You say that 98% of SSSIs would
be covered. If you are talking about those figures and you are
saying that in less than 1% of cases the ELD would be implemented,
why would you not want to seek to give the best protection possible
to the widest range of sites of habitats and species that we possibly
could? We have a good record in this country of protection. Why
are we not maintaining that? Why are we creating a field day for
lawyers to argue that that is covered but that is not? It seems
to me that what we are going to do is create a huge potential
to spend large sums of money for lawyers—and in particular
lawyers who are going to have to be employed by Natural England
and the Environment Agencies—to argue, where there are cases
covered by the Environmental Liability Directive, as to who is
responsible for what. Why are we doing this? Why are we not protecting
and giving the highest, simplest level of protection for our enforcement
agencies to enforce? I still do not understand the reasons for
this.
Ian Pearson: We are giving a high
level of protection now and have been for a considerable period
of time. The regime that we have through our own domestic legislation
is very strong indeed. We then face the situation where the Environmental
Liability Directive comes along and cuts across in a little way
some of what we do in the United Kingdom already. When it comes
down to it, you look at the requirements of the ELD and, in a
lot of cases, they are no different to the regime that we have
at the moment. There are potentially some additional biodiversity
benefits and there are issues about complementary and compensatory
remediation. We welcome the Directive and what it does on that.
When, for instance, you look at the penalties under the ELD regulations,
they are talking about a £5,000 fine and/or three months'
imprisonment in the magistrates' court. Under the Water Resources
Act, it is £20,000 in the magistrates' court or three months'
imprisonment. The Wildlife and Countryside Act as well has a similar
sort of regime when it comes to penalties. We should not get ourselves
into a position of saying that there is a great deal of extra
benefit here when it comes to implementing the Environmental Liability
Directive. As we have shown in Regulatory Impact Assessment, there
are some additional benefits but I do not think we should over
egg the pudding here. My assessment of this is that, because this
is at such a high level, we have yet to see how lawyers—you
are right to raise the point about lawyers; that concerns me as
well—will interpret significant, adverse effects and favourable
conservation status. I would imagine that the burden of proof
here is going to be quite high. In those circumstances, the situation
is that we have potentially a directive that could be neater.
We could try and rewrite all our existing environmental protection
legislation so it is completely consistent with the ELD. We do
not really think that that is worth the effort at the moment.
We do not think that going beyond the minimum implementation really
offers a significant benefit. That goes back to a definition of
what is "significant".
Q125 Chairman: What is the definition
of the word "significant" in all this?
Ian Pearson: I do not have my
dictionary in front of me.
Q126 Chairman: I know what the dictionary
definition is. All of the terminology is about significant levels
of damage. I was interested as to how the judgment was made between
damage and significant damage. In other words, is it a statistical
assessment of a loss of species in biodiversity on a piece of
land that is damaged, or what? How do you determine the meaning,
within ELD terms, of "significant"?
Ian Pearson: I would defer to
the lawyers as to how they are going to interpret this. You are
right to say that when it comes to the Directive itself it is
talking about significant effects on maintaining conservation
status, on ecological or chemical status of water bodies and it
is talking about land contamination that has a significant effect
on human health.
Q127 Chairman: In your consultation
you asked about this significant issue. How do we define "significant"
in this?
Ms Connell: I do not think it
is a legal question. I think it is a scientific question. The
question of significance of damage arises in the context of contaminated
land already under the Environmental Protection Act. It is already
something that local authorities have to grapple with and it is
not easy. Somebody is going to have to take a value judgment in
an individual case. At the end of the day, you can write all the
guidance you want but some individual is going to have to take
a view whether the impacts that they have found, compared with
the background information that they have, are significant in
their opinion. I do not think that is going to be an easy thing
to do. Once that judgment has been made, it seems entirely possible
that people will then want to challenge that judgment, but it
is the kind of judgment that we have already.
Q128 Mrs Moon: Are you going to include
the RAMSAR wetland sites within the ELD?
Ian Pearson: 74 out of 77 in England
and Wales are already Natura 2000 sites. For those that are not—
Q129 Chairman: That is three, is
it?
Ian Pearson: Yes. They are Rosburnmere,
Esthwaite Water and the Pevensey Levels. I am told that they will
host either habitats or species of community interest so therefore
they will be covered by the ELD.
Q130 Mrs Moon: You said that the
Habitats Directive is to be implemented offshore, up to 200 miles.
Is there therefore going to be ELD protection for nationally protected
marine biodiversity?
Ian Pearson: This is an area that
I am not familiar with. I am happy to write to the Committee.
Ms Connell: At the moment, if
one takes a minimum implementation stance, the biodiversity which
is protected is the biodiversity that is listed in the Directive,
whether that finds itself on land or out to sea. To the extent
that it is not listed in the Habitats or Birds Directives, on
the minimum implementation stance, it would fall outside ELD protection.
The same goes for marine habitat and species as for land based.
It is the same issue.
Q131 Mrs Moon: There will be no protection
under the ELD for our marine nature reserves?
Ms Connell: Not unless they are
European listed or unless a decision is made to extend protection.
Q132 Chairman: You have made it clear
that the Government is not proposing to require operators to hold
financial securities in order to meet liabilities that may arise.
They may want to cover those risks by other instruments but you
are not going to specify how they do that. Have you identified
any potential unfunded liabilities—in other words, things
that are not covered by anybody—that could occur in this
field as a result of this legislation for which the Government
would be liable?
Ian Pearson: I am not sure there
is anything else that has not been considered as part of the Regulatory
Impact Assessment.
Mr Atkinson: There is nothing
in the Directive that places subsidiary liability on the state
in cases of default. If there was damage which arose for which
somebody could not be held responsible there is no absolute requirement
on the state to remedy it. Having said that, the competent authorities
at the moment, the regulators at the moment, make decisions every
day in those situations about where they think it is important
to take action themselves to remedy damage and they would take
those decisions also no doubt in the case of the Environmental
Liability Directive.
Q133 Lynne Jones: One of your public
service agreement targets is to have 95% of your SSSI sites in
favourable or recovering condition by 2010. Would you expect the
ELD to assist in this? If you do not improve on your current performance,
which I think is 23% that are not recovering or are in decline,
would you consider whether your no gold plating attitude should
be reconsidered?
Ian Pearson: Obviously we looked
at extending the Directive to SSSIs that will not be covered anyway.
Our conclusion would be that this would have only a very small
benefit indeed in terms of meeting our 95% target. I think the
figure was one percentage point. Based on that, I do not think
extending the ELD produces a significant benefit. We have to look
to other measures that we might want to take as Government and
through our agencies and regulators to help meet our PSA target.
Q134 Chairman: Thank you very much
indeed Minister, Ms Connell and Mr Atkinson, for being here for
quite a long time, but it is a detailed area. The Committee are
interested to learn that there will be further consultation before
the regulations are drawn up.
Ian Pearson: Can I correct you,
Chairman? My current intention is that there will be consultation
on the regulations themselves rather than consultation before
the regulations are drawn up.
Q135 Chairman: There is another bite
at the cherry for those who want to have their two penn'orth and
a chance for you to reflect on this.
Ian Pearson: There certainly is.
Chairman: Thank you very much indeed
for your contribution.
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