Subordinate Legislation
Environmental Liability (Scotland) Regulations 2009 (Draft)
I welcome everybody to the committee's 16th meeting in 2009 and apologise for my croaky voice. I ask everyone to turn off their mobile phones and pagers, as they impact on the broadcasting system. The main purpose of today's meeting is to take evidence on the Marine (Scotland) Bill. This will be the committee's second evidence session on the bill and will involve a wide range of stakeholders.
Agenda item 1 is evidence taking on an affirmative instrument. I welcome the Minister for Environment, Roseanna Cunningham, and her officials from the Scottish Government: Stuart Foubister, divisional solicitor from the solicitors food and environment division; Heather McCabe, waste and pollution reduction policy officer; and Kevin Philpott, waste regulation senior policy officer.
The Subordinate Legislation Committee has commented on the instrument and its comments are reproduced in paper RAE/S3/09/16/2. In addition, the committee took evidence on the regulations from representatives of Scottish Environment LINK and NFU Scotland at its meeting on 27 May. A copy of their written submissions and an extract of the Official Report of that meeting make up paper RAE/S3/09/16/3, which members should have.
Members may ask questions about the content of the instrument before we move to the formal debate on the motion at agenda item 2. Officials can comment during item 1, but cannot participate in the formal debate. I invite the minister to make a brief opening statement.
I welcome this opportunity. Members may be aware that infraction procedures are being taken against the United Kingdom at the European Court of Justice in respect of the European Union environmental liability directive and we are anxious to get the regulations passed.
The regulations transpose the EU environmental liability directive into Scots law. The directive was originally developed out of concern at the damage that was caused to the environment from a number of large-scale incidents throughout Europe in the past 20 years. The aim is to establish a new kind of civil law mechanism that is based on the polluter-pays principle. The regulations will therefore take the burden of costs for cleaning up the environment in cases of incidents relating to significant damage to aspects of water, land or biodiversity away from the Scottish taxpayer and place it solely with the polluting operator.
An important factor to remember is that the provisions in the regulations will apply only when an operator's activities bring about significant damage or the threat of significant damage to water, land or protected species and natural habitats. As the committee is aware, the environment is already protected by existing legislation; therefore, normal day-to-day activities should continue to be dealt with under existing legislation.
The Government conducted two public consultation exercises on the directive. The first began on 21 December 2006, under the previous Government, and ended on 23 March 2007. The second was carried out between 16 May 2008 and 8 August 2008, and took into consideration views from the previous consultation.
The first consultation highlighted specific concerns on extending the scope of the regulations to nationally protected biodiversity sites—sites of special scientific interest—and on genetically modified organisms. In the case of GMOs, concern was raised by respondents about the long-term damage that could be caused by the release of GMOs. Many respondents were not in favour of allowing permit or state-of-the-art defences as an exemption from an incident arising from the release of a GMO.
Around 70 per cent of responses supported the proposal not to go beyond the basic requirements of the directive and include nationally protected habitats and species. Many, including Scottish Natural Heritage, thought that the existing legislation covering nationally protected sites was adequate and did not see any advantage in including those sites in the regulations. I know that there was some discussion last week about what that 70 per cent represented. That could form an interesting part of the debate, given that all those who responded were, as it were, representative bodies, which will always be the case with consultations.
We have designated three competent authorities to oversee the regime: the Scottish Environment Protection Agency; Scottish Natural Heritage; and Scottish ministers. However, regulation 8 allows a competent authority to call upon the expertise of another public body if the authority feels that that other body is better placed to deal with any incident.
The competent authority will be able to recover costs from the offending operator, including costs that are incurred in performing its duties such as investigating, assessing damage, monitoring and supervising any necessary preventive or remediation measures. Further, an operator can lodge an appeal to the sheriff but any decision that is made by the sheriff will be final.
The regulations include offences if an operator, without reasonable cause, does not comply with certain conditions in the regulations.
I invite the committee to recommend the Environmental Liability (Scotland) Regulations 2009 to the Parliament. I am, however, conscious that some questions have been asked, particularly by Elaine Murray, about the extent of the coverage of the directive in this country. Different countries in Europe have taken different positions on that, and I want to say at the outset that I am happy to make a commitment to come back to the committee in two years—before the election in 2011—with an update of how the directive has operated in practice, if the committee wants to put that into its forward work programme. That will enable us to consider whether the decisions that we are making at the moment with regard to the extension of the directive are the right ones. If they are not the right ones, we will be able to revisit that in two years' time.
Are there any questions?
My question is more of a comment, as I am significantly reassured by what the minister has said.
Obviously, there is an issue for the committee, because the United Kingdom is facing infraction procedures. Further, there is general consensus that the directive is a good thing; both the witnesses to whom we spoke last week were in favour of the directive—there was simply a question about whether it should be extended to SSSIs and Ramsar sites. Scottish Environment LINK argued that, if the directive were extended, it would result in better legislation, which would be fairer to farmers, but the NFUS did not see it in quite the same way. We saw figures that suggested that an extra one to three cases a year might be involved if the directive were extended to SSSIs.
The minister's commitment to come back to the committee is welcome. When would you do that? You said that it would be before the next election.
In fairness, I could commit us only up to that point. It might be appropriate for the committee to consider scheduling a meeting—at a time that is convenient to you—at which I and my officials could discuss the situation with you. That would provide an opportunity to check up on what had been happening over the previous two years.
One difficulty with that is that two years might not be a long enough period. We are talking about significant events, and it is entirely possibly that there might not be any in that two-year period—although, I suppose that that would be an experience that would be relevant to the operation of the directive as well. If it turns out that there are a number of significant events in that timescale, we can consider the decision that has been made and think about whether we ought to extend the directive further.
There is a general feeling in Scotland that we do not want to gold plate everything that comes from the EU. I understand that committee members are conscious of that. South of the border, the area of land that has an SSSI designation is an extremely small percentage of the overall area, whereas the figure for Scotland is something like 12.9 per cent of our land mass. That means that we would be considering extending the directive to a significant area of land, and there is a concern that we might be overregulating if we do that.
With two years' experience, we should be able to see whether the extra regulation was needed. We are confident that it will not be needed, but we are willing to discuss the experience of that two-year period with the committee and to reconsider at that point.
Our exchanges with Scottish Environment LINK and the NFUS also touched on the regulatory impact assessment. Perhaps unfairly, I asked the witnesses to comment on how the figures might have been arrived at, principally because Scottish Environment LINK was praying them in aid of its arguments.
It would be helpful if you could set out in a little detail how the figure of £316,000 of benefits was arrived at. Is that the investment in maintaining the SSSIs that, were the legislation not to be extended to those sites and Ramsar sites, could be under threat? Can you also say what the £93,000 of costs is made up of?
Kevin Philpott will answer that question.
Kevin Philpott (Scottish Government Environmental Quality Directorate):
I will, but I am afraid that I cannot give very detailed information.
The figures that appear in the Scottish regulatory impact assessment were based on English figures that were examined by SNH and its own economists. I cannot really comment on how those details were arrived at. SNH has subsequently examined the figures and has said that the costs of around £10,000 to £60,000 per event are probably true. The difficulty that it has found, however, is that there is no upper limit to what the costs might be. Perhaps we should have emphasised that rather more in the regulatory impact assessment.
Is the figure for the benefits to do with the investment that is going into the SSSIs?
I am afraid that I do not know.
First, I declare an interest as a farmer and a member of the NFUS—I do so at the beginning of the meeting this week, rather than at the end, which is what I did last week.
It is entirely appropriate that the matter is being considered by the Rural Affairs and Environment Committee, because the information that we have is that agriculture will bear 35 per cent of the costs that we are talking about.
Last week, I expressed concern that people might inadvertently fall foul of the regulations, which I believe—although I appreciate the minister's difficulty regarding infraction procedures—gold plate what is already in place. I appreciate that the regulations are not retrospective, so we will start with a clean sheet, but the accepted wisdom on permit or state-of-the-art defences now may not be the accepted wisdom on them 10 years down the line. I am concerned about farmers, landowners and others committing sins for which they are entirely liable and for which they will therefore have to pay.
I read in the Official Report of last week's meeting the exchanges that took place, and I am a little puzzled that you think that there is gold plating. The NFUS has welcomed what has been proposed. There would be gold plating if the regulations were extended to cover sites of special scientific interest, but we have not agreed to do that at this point. I am willing to come back after two years to discuss whether that is necessary. We have gone some way towards meeting our commitment to trying to reduce regulatory burdens and not to gold plate.
We do not have a choice about transposing the directive. We are already at the European Court of Justice because of the delays. We had a choice about how far to extend the regulations and we decided not to extend them beyond what is necessary.
I take on board your concerns about inadvertence and changes in understanding and knowledge, but those matters are covered. On the likelihood of causing environmental damage, the directive refers to knowledge at the time of the emission or activity, not to assessing in hindsight 25 years later. That should alleviate your concerns. Regulation 17(3)(b) of the draft regulations clearly refers to
"the state of … knowledge at the time of the emission or activity",
not the state of knowledge 25 years later and using 20:20 hindsight. Therefore, there is protection.
So should farmers not have to be concerned? If they comply with the current cross-compliance, will that in itself be a protection, or should they think before they do anything that they need to carry out an ELD risk assessment?
I hope that farmers are always thoughtful about the activities that they undertake on their farms.
I assure you that they are, but another level of responsibility will be put on them.
Indeed. I also hope that the NFUS's position on the matter reflects farmers' positions on it. We have said—and it is clear from the regulations—that a crystal ball is not needed; people do not have to know what the received wisdom will be 25 years in the future. People need only undertake the best practice with the best knowledge that is available at the time. As long as farmers do that, they can be confident that they will not fall foul of the regulations.
I welcome that assurance.
Agenda item 2 is the formal debate on the instrument. I remind members that officials cannot participate in the debate. I invite the minister to make any further remarks that she wishes to make and to move the motion.
I do not see any need to labour the point.
I move,
That the Rural Affairs and Environment Committee recommends that the draft Environmental Liability (Scotland) Regulations 2009 be approved.
The arguments last week were extremely finely balanced. There was no clear case either way. I could easily have bought into the NFUS's argument, but equally, I could have bought into the arguments that Scottish Environment LINK presented. The minister has offered us an entirely fair compromise. Therefore, we should agree to the motion, make the progress that is required, and keep matters open so that we can reconsider them. That would be a satisfactory outcome.
I echo everything that Peter Peacock said. However, I add that the comments on the regulatory impact assessment are somewhat unsatisfactory. I appreciate that the costs are potentially not measurable at the top end, but the lack of clarity on the benefits leaves the committee in a difficult position, particularly as other witnesses used the figures in the regulatory impact assessment to substantiate their evidence. I echo Peter Peacock's comments on the minister's approach of returning to the issue in two years.
Like Peter Peacock, I think that the arguments are finely balanced. I am inclined to support the inclusion of SSSIs, but the minister's reassurances are excellent. It is more than adequate to know that we will revisit the issue in two years or so. My only point is that I wonder whether the committee should recommend to a future committee that it revisit the issue in, say, four years. The minister is entirely correct that two years might be a rather short timescale to allow us to make a proper judgment. I certainly think that we should accept the regulations.
We can put that in our legacy paper at the end of the parliamentary session.
The consequences of voting against the regulations would be pretty significant—that is not an option. As I said, I am happy with the minister's suggestion about coming back within two years. Bill Wilson's suggestion is also sensible, given the timescale over which the matter should be reviewed. I am happy for the Parliament to approve the regulations. However, the committee should note that it has a responsibility to invite ministers back to review the issue in two years, and that that should be done thereafter, too.
I associate myself entirely with Elaine Murray's comments, as we face infraction proceedings. However, a two-year timescale is not enough for review, so it might be reasonable to have a review every two years for two or three periods.
That is what I said.
I agree with you.
At that point of consensus, I put the question, which is that motion S3M-4195, in the name of Roseanna Cunningham, be agreed to.
Motion agreed to.
That the Rural Affairs and Environment Committee recommends that the draft Environmental Liability (Scotland) Regulations 2009 be approved.
Thank you. We will make a note that we will revisit the issue within two years.
Meeting suspended.
On resuming—