Official Report 508KB pdf
Welcome to the 18th meeting in 2013 of the Rural Affairs, Climate Change and Environment Committee. Members and the public should turn off their mobile devices because leaving them in flight mode or on silent can affect the broadcasting system.
Thank you for inviting us here. I will briefly set out why the Government has introduced the bill, what it will do and the benefits that it will bring.
Thank you. We all have to dip into what is a fairly new area to the committee. I will kick off the questions. What was the rationale for undertaking a number of separate consultations?
We undertook the first consultation in May last year. That quite detailed consultation was on the environmental permissioning framework and the enforcement measures. We wanted to give sufficient time for stakeholders to consider the proposals fully.
Some provisions in the bill have not been consulted on. What are they and what informal feedback has been sought or received on them?
The main parts of the bill were included in the two consultations—the May consultation and the October consultation. Minor parts of the bill were not formally consulted on, but we informally consulted relevant stakeholders on them. The minor parts include vicarious liability, contaminated land, and air quality. If those are the parts of the bill to which you are referring, I can answer more questions on them. However, the vast majority of the bill was included in the formal consultation exercises.
We will have further questions on the minor parts of the bill.
Do you mean the responses to the consultations?
Yes.
I understand that they have, as is practice, been made available via the Scottish Government library. This week, we are in the process of putting all the responses to all the consultations on the Scottish Government’s website, although we have not—other than from the Scottish Parliament information centre—received any requests for them.
I am sure that people are used to going to the electronic medium to get such things.
As I said, we will have the responses online this week. I am happy to take the committee’s feedback on the issue.
Good morning, colleagues. I want to pick up on an issue to which I think we will refer several times, which is the apparent multiplicity of objectives. As drafted, there appear to be at least two duties on SEPA, one of which is to achieve sustainable economic growth. The other is sustainable use of natural resources. Those two duties could immediately conflict—never mind our worrying about any other principles. Does that concern you as much as it concerns me? How will the hierarchy of principles be sorted?
I think that you are referring to section 38, which establishes the general purpose of SEPA. The section sets out SEPA’s purpose in one place and does so more clearly than it is defined in the current legislation.
Yes. I am sure that that is true, and nothing that I want to say is to be critical of what is necessarily going on at present, although I think that, as constituency MSPs, we all run into some doubtful decisions every now and again.
What has been set out is that protecting and improving the environment is the primary purpose, and that SEPA must achieve the other purposes in so far as they are consistent with that primary purpose. That is a step ahead of the position that we currently have, where the only statutory purpose is to protect and improve the environment.
May I push this, convener?
Yes. After that, Claudia Beamish wants to come in with a supplementary question.
Given that we live in an increasingly litigious environment, and given that it might become easier for groups and individuals to go to court on environmental issues, which increasingly seems to be the legal situation, is not there a risk that a group or an individual could take the position that we currently have, where protection of the environment is the top line, and say in court, “If you are doing anything significant to my environment”—I am not talking about trivial things—“the sustainable economic growth should be struck, because the top level is protection of the environment”?
I suggest that that risk—there probably is such a risk—is greater under current statute, in which the only purpose is to protect and improve the environment—
Forgive my interrupting you. I would not dispute that but, given that we are rewriting the law, surely we should be doing it so that the hierarchy is organised so that we are quite clear that we can do some of the lower-order things. In other words, it should not be a hierarchy. It needs to be an “and, and, and” or an “or, or, or” rather than a “this, then perhaps that”.
It would probably be more difficult for SEPA to operate if the three elements—the economic, the social and the environmental—were simply left as equal parts.
Good morning to you all. I will take you back to the remarks that were made about not having formally consulted on some areas. Can any of you explain why it was decided not to consult formally on air quality and contaminated land? Frankly, I find that quite surprising, from the perspective of communities, if nothing else.
On air quality, the provision in the bill relates to our reporting requirement with regard to the local air quality mapping system for local authorities. We have consulted informally with local authorities, scientists and the Scottish pollution control co-ordinating committee, and the requirement is generally deemed to be a less useful one that gets in the way of the more meaningful reporting requirements. The intention is to consult on that formally, but in practical terms we have a good opportunity to include it in the bill. We intend to consult those groups fully in the coming summer.
On contaminated land, the bill seeks to address an issue that has emerged from consideration of communities’ concerns. The committee will be aware of the situation at Dalgety Bay, where there is radioactive contamination of the foreshore. SEPA has powers to declare that land to be contaminated land. One of the concerns that the community expressed to us and to SEPA was about the blight of having a declaration of contamination with no real mechanism for that to be closed off at the end of the period. The provisions in the bill therefore come directly from the concerns of communities. They attempt to address the concern that if SEPA—in that area of land or another area—has to go down the route of formal designation, the area will be forever labelled in that way. The bill attempts to provide a mechanism so that, once the contamination has been dealt with and there is no longer a problem, there is a way to say, “Okay. That’s finished and dealt with, so we can close that off.”
I remind members and the panel that the minister wrote to us at the beginning of this week to say that contaminated land will be the subject of a set of amendments at stage 2, as will an environmental crime task force and, potentially, a national litter strategy. I guess, from the evidence that has been received informally, that those two things have emerged in the way that you have just explained.
Yes.
I return to the practicalities with regard to the duties. How will SEPA and Scottish Natural Heritage implement the duties? Would that be done through pre-planning advice and looking at planning applications? How will those duties play out?
I know that the committee is taking evidence from SEPA separately today and from SNH later. I think that they would argue that, in a general sense, they already contribute to the Government’s purpose. I do not want to pre-empt what they say, but I have looked at their written evidence. I think that you are referring to the duty in part 1 that will be placed on regulators to contribute to sustainable economic growth. I understand that that will be underpinned by a code of practice, which will deal with exactly that kind of issue and which will be developed with input from the regulators. I can really only give you that general answer. You also mentioned planning.
I was thinking that all kinds of things go on out there. SEPA is involved day to day in things that go on in the real world, but there are also lots of development proposals. Clearly, SEPA and SNH will want to be involved at the planning stage. I suspect that the answer that I am looking for is about a code of practice. As a parliamentarian, that always worries me, because I wonder how much should be in the bill and how much should be in a code of practice. However, that is probably the answer.
The code will be consulted on and will receive parliamentary scrutiny in the coming year.
To clarify, SEPA will not be under the duty in part 1. There is an exemption so that a regulator that is under a similar duty under other legislation is not subject to the general economic duty in part 1. The proposal is to write into SEPA’s purpose the requirement to consider sustainable economic growth, so SEPA will be under a similar duty under part 2, and therefore part 1 will not apply to it. I hope that that is clear.
I am clear about the issue, but I am not clear as to what you said, although I am sure that the Official Report will be. Are you implying that SEPA will have the general economic part of its duty throughout its activities?
Yes.
That will be a result of the changes that are being made, even if SEPA is applying something that was previously set up under a different regime.
Yes. The new purpose that we are providing for SEPA, which is in section 38, applies across the board to all SEPA’s functions. That includes its functions of dealing with regulation, such as application for permits and the like, but it will extend to SEPA’s involvement in the planning regime, for instance. That is in contrast to the current statutory provision in which, as I said, the only hint of purpose that is given to SEPA relates exclusively to its pollution control functions, which are a much narrower subset. As Bridget Marshall explained, there is a general duty on all regulators in part 1. The interaction between that and other duties, such as the new general purpose that is being set out for SEPA, is resolved in part 1, so that we do not end up with conflicting sets of duties on bodies such as SEPA.
I want to double-check the purpose of the provisions in part 3 on planning authorities’ functions relating to charges and fees and street trader licences. Do those provisions relate to fairs or just to street trader licensing? When we talk about the environment in that regard, does that include noise?
I will pick up your questions in reverse order. Noise will certainly be an aspect of the environment that can be regulated; it is an element that can be controlled under the existing pollution prevention and control regime.
I point out that our committee is not dealing with part 3—another committee is dealing with that.
It was just a simple question while we have the people here. If you will allow me two seconds, convener, I would like to ask whether funfairs come under the part of the bill that this committee is not dealing with.
Funfairs are dealt with under the Civic Government (Scotland) Act 1982, probably under public entertainment licenses rather than street trader licences, which is what is referred to here.
It was just for clarification. Thank you.
I want to return to a particular subject, if I may. At the risk of labouring a point that Nigel Don raised, I would like some assurance on this issue. Can the panel conceive of a situation in which an argument is advanced for reordering the hierarchy, or in which pressure might be applied on the basis that economic growth must take precedence in particular circumstances? In such circumstances, can we be assured that such pressure would be resisted and that environmental protection would always be the priority?
That is why section 38 is written in the way that it is, with a clear hierarchy in place. As I have said, it acknowledges the three elements of sustainable development—the economic, the environmental and the social—and gives primacy to the environmental leg. We consider that to be right and appropriate for a body such as SEPA, which is an environmental protection agency, after all.
We are also alluding to any tension between the three elements. Such tension already exists and SEPA manages it daily. As George Burgess said, the new purpose is set out in statute and it gives primacy to the environmental protection role.
That is fine. I just wanted that to be clear and on the record. Thank you.
I think that Bridget Marshall has answered the first part of my question, which is how we expect the organisations involved to be able to balance the duties that the bill will impose on them with those that other legislation has imposed on them. I think that you answered that by saying that it will be fine—obviously, that is a paraphrase.
By “organisations”, do you mean those that SEPA regulates?
No, sorry. I mean SEPA, SNH and the Food Standards Agency.
To reiterate the point that we have already made, we are used to that balance and we do not foresee anything untoward arising that we do not already manage on a daily basis.
If that is all to be managed, I presume that the outcomes will have to be measured or reported on, but there is no provision in the bill for such reporting.
SEPA is already subject to duties to provide annual reports on its functions, so I think that we can expect future annual reports to address the outcomes to which you refer.
You expect SEPA to report the outcomes of the new duties in its annual report.
Yes.
Okay. Thank you.
We move on to part 2. Jim Hume has a question.
Good morning, ladies and gentlemen.
At the moment, we have a series of different regulatory regimes of different vintages with different provisions, some similarities and some bits that simply do not match up. To be frank, that is confusing for SEPA, the people who are regulated and Government. Part 2 will allow us to bring those regimes together and simplify them for the benefit of everyone concerned, so that farmers and distillers do not have to sit with a fistful of permits all written in different ways that are not necessarily consistent with each other under different regimes, but can have a single permit.
Okay. That sounds good.
We made it clear from the start that we expect there to be efficiencies for SEPA and for those whom it regulates. At a basic level, fewer permits means less administration. The ability to apply for permits online will save time as well.
I am thinking not about time but about money. I am thinking about helping industries and cutting their costs, which are many and varied.
SEPA’s time translates, of course, into money for the companies. Because the costs of the regulatory regime are met through SEPA’s charging scheme, if it costs less overall for SEPA to administer the new arrangements, less cost will be passed on to the regulated entities through the charges.
I will try to get as much detail as possible out of you. Has any estimation been made of how much industries throughout Scotland would save?
It is hard to answer your question specifically right now, but I will try to answer it in a different way. The feedback that we had from the consultation was positive on the measure, pending the detail, how it is implemented and how SEPA engages with business on its implementation. We are aware of the need to work closely with the regulated bodies on the detail. Only when we are working on the detail and producing the guidance will we be able to attach cost estimates to it. However, there is an acceptance that it will have a positive impact for SEPA and those whom it regulates.
Do you foresee doing that work before stage 3?
That would be challenging. I am less familiar with SEPA’s guidance. We can look into it, if that would be useful to the committee.
It would be.
We would like to know whether part 2 will be cost neutral. One assumes that, with a smaller budget, SEPA will have to maintain its income. Will charging for permits be a means of maintaining that income?
Part 2 is certainly not cost positive. It is not a cash-generating measure for SEPA. If it provides for efficiencies, there will be less work for SEPA to do and less resource will have to be expended on it, which should flow through to less expense to the regulated parties. It is certainly not a measure to try to find new ways to extract money from businesses.
To develop that theme, if SEPA’s budget is reduced, in effect it still has to deal with a potential shortfall in income. Would there not be a temptation for it simply to maintain the charging regime at the current level in order to maintain its income, even though less work might be entailed?
I do not think that that is the way in which SEPA operates. SEPA will be better able to respond later, but the history over the past couple of years, when charges have been frozen, demonstrates that it is looking at ways to ensure that what it does is efficient as well as effective. It is not looking at ways to screw every last pound out of those whom it regulates.
Going back to principles, we are moving from an activity-based system to a risk-based system. It will be difficult to compare, because SEPA will not be regulating everything that it regulates under the current system. It is accepted that by moving to the new model, SEPA will be able to make savings in how it operates and also in terms of the requirements for those whom it regulates.
Although SEPA’s charging schemes are not part of the legislative package, SEPA and the Government have consulted on proposals for reforming those charging schemes. The proposals were on moving to a risk-based, more flexible form of charging. There is a big commitment by SEPA and Government to work on charging with stakeholders over the next year, as the proposals develop.
Let us move to chapter 2.
Good morning, panel. I turn to the additional powers for SEPA and powers of enforcement, such as fixed monetary penalties and non-compliance penalties. In which cases do you envisage that SEPA would use fixed and variable monetary penalties? What process would SEPA use to identify whether to impose a fixed or variable penalty and the appropriate level of penalty?
The new enforcement measures that are being made available to SEPA will be within a framework of guidance from the Lord Advocate, who has a discretion around the disposal of offences in Scotland. He will provide guidance to SEPA about which offences are appropriate for fixed and variable penalties. Anything that I say is within the context of guidelines that will be developed with the Lord Advocate and which will set the framework for the use of the new enforcement measures by SEPA.
Is there a proposed ceiling for non-compliance penalties?
As a response to the variable monetary penalty, someone can offer an undertaking to carry out certain activities. For example, instead of paying the fine, they can offer to undertake restoration of the environment from all the harm that they have caused. If they fail to comply with that undertaking, the non-compliance penalty comes into play, so it is of limited application in that sense. However, there is no ceiling in the bill on what the non-compliance penalty could be and we have been in correspondence with the Subordinate Legislation Committee on proposing a stage 2 amendment that would plug that gap.
That is good.
That sort of system already exists in part of our regulatory regime. The pollution prevention and control regulations provide for SEPA, as part of the fit-and-proper-person test, to require financial provision to be put in place—it can take the form of a bond or a financial guarantee or some other mechanism. That will be available across the spectrum of regulated areas. It will be more appropriate in some areas than others—landfill is an obvious example in which we would want to ensure that sufficient safeguards are in place.
Yes, not just landfill but waste transfer facilities, too.
My point is not about subordinate legislation, although you might have expected it to be. On the idea of variable monetary penalties, am I right in thinking that SEPA would only have to be satisfied on the balance of probabilities that an offence had been committed?
You are right; that is the proposal in the bill. We have considered the issue long and hard. Similar sanctions are in place in England and Wales under the Regulatory Enforcement and Sanctions Act 2008—there they have a criminal burden of proof. We looked at that model and we thought about the context in which sanctions are being applied in Scotland, which is a very different legal context from that in England and Wales.
Thank you for that wide-ranging response; it is very helpful to have that on the record. I cannot help having a feeling that my local farmers will say that the provisions give SEPA a way of implementing a fine without having to prove very much. Perhaps the net result will be to have a relatively low-level way of enforcing something and extracting a penalty, if I may describe it that way, and then to have a very large jump from that to going through the courts. There could be a huge burden of proof, the fiscal has to be involved and there are significant costs for SEPA and any other organisation involved.
We are entirely aware of that, and that is the downside of the system that we propose. There is also the allegation that we will put our weak cases through the route that involves SEPA imposing a sanction, rather than referring them to the criminal court. The safeguard around that approach lies in the guidelines that the Lord Advocate will give us, as well as in the way in which SEPA will implement it.
I want to return to the issue of administrative-type offences. I understand that, at present, such low-level issues are dealt with on a site-specific basis. That means that a company that operates six sites and fails to provide the appropriate data or to report in the appropriate way is not dealt with as a significant offender, because no cumulative view is taken of its actions. Is there anything in the new proposals that addresses that, and if there is not, should not there be?
Are you saying that we do not look at the pattern of offending as a whole?
SEPA seems to treat companies on a site-by-site basis. Is there anything in the bill that will address that?
That would not necessarily be addressed through the bill; it is more of an implementation issue. SEPA will implement the measures in question on a much more national basis. We currently have regional peer review groups that look at what officers recommend be done on a site. In future, it is proposed that governance will be done nationally, so we will look at the way in which companies operate across Scotland in a much more rigorous way than we do at present. However, I think that that is more of an implementation issue than one that should be dealt with in the bill.
But it is an issue that you are aware of.
Yes.
Okay. Thank you.
One of the bits of flexibility that the bill’s regime provides for is what we have termed “corporate permits”, whereby rather than a single body having a series of permits for individual sites, it would be possible to deal with them all together in a single permit. That might be a way of dealing with the sort of issue that you mentioned. There are upsides and downsides to that, as came out in the consultation, but the flexibility is there to adopt such an approach.
We move to chapter 3, on which Jayne Baxter will lead off.
Good morning. Chapter 3, which relates to court powers, sets out provision for compensation orders, fines and publicity orders. How effective are the existing remediation powers? Under the current system, are there examples of cases in which fines have been imposed that have failed to offset the financial benefits that have been accrued by committing an offence?
As you know, fines—like sentencing—are largely for the criminal courts, so it is hard to comment in any detail or to express particular views on them. Fine levels in the environmental field are generally felt to be low, as I am sure that the committee recognises. Last year, the average fine was just under £6,000, which is higher than it has been in previous years, so we feel that we are moving forward in a positive way, even if progress is not as rapid as some of us would like.
Thank you for that useful and comprehensive answer.
Could any of you explain the issue further to me, as a layperson? Obviously, the issue of fines is for the procurator fiscal. Do I detect that you are pleased that there are more robust fines for very serious environmental crime? Waste crime, for instance, is extremely serious—I will perhaps leave it at that. I am concerned about whether the level of fines reflects the seriousness of crimes. Is there ever an opportunity to have dialogue with the procurator fiscal, or would that not be appropriate?
To correct that, the issue of fines is for the sheriffs and the criminal courts, rather than the procurator fiscal. As I explained, we have worked with the Judicial Studies Committee and the Crown Office on a package of measures that will improve the specialism of sheriffs and fiscals in relation to environmental crime.
Does the proposed £50,000 cap on compensation orders in respect of costs incurred in
That deals with only one set of provisions. Compensation orders have existed as part of criminal court powers since 1980. Because of how compensation orders were set up, their use in relation to environmental offending when there is no clearly identifiable victim has been limited.
Is there scope to use a range of sanctions—for example, a compensation order and the other measures—alongside each other?
There is. The provisions are quite complicated. We need to ensure that there is not an almost double recovery in them. If money has already been extracted from the offender or work has been done, they cannot be made to pay twice for the same offence. It is certainly possible for a combination of sanctions to be used.
We have had quite a lot of feedback from stakeholders on the package of enforcement measures. We accept that we need to outline more clearly and in basic terms what is involved. We are facilitating an event on 11 June to bring together stakeholders to discuss exactly that issue; we hope that there will be more clarity after that.
I would like more clarification about the terms “sustainable development” and “proportionate”. Does the Government expect the bill to have a positive impact on sustainable development?
Yes. That question could be answered in a number of ways. The requirement for SEPA to have regard to sustainable development exists alongside the new purpose. That requirement remains from the Environment Act 1995.
I am afraid that our accompanying documents rather use the formulaic phrase of having
The bill mentions sustainable development and uses the word “proportionate”. Sustainable development could mean different things to different people depending on their perspective on economic development and whether they are the Government, the regulator, the developer, the urban resident or the rural resident.
I am struggling to remember where in the bill the word “proportionate” appears. I think that we would describe the system as one that is aiming to be more proportionate. Perhaps the member can point me to a particular use of the word.
I am afraid that I do not have the bill with me.
Maybe we can pick up the issue outwith—
You can always write to us.
That will be fine. As has been mentioned, in relation to sustainable development and the purpose, ministers are required to provide guidance to SEPA. Rather more can be set out there than is necessarily appropriate for inclusion in the bill.
The policy memorandum that accompanies the bill states:
I am just trying to organise my thoughts on your question. We are talking about the balance between the Government’s purpose—the national focus—and the global commitment to sustainable development. The Government’s purpose is clear on the relationship between the two. We are very much focusing the bill and the wider programme on the contribution that regulators including SEPA can make to both elements. That is part of the Government’s purpose, as outlined in the performance framework.
Perhaps I was not clear, but I am particularly asking about the assessment in relation to our people as well as the environment. Communities are subjected to, say, noise from opencast mining or air pollution in Glasgow. I mention Perth as well, because it was in the news this week. It is important that we are clear—I would like to be clear, anyway—about what assessment was done in relation to sustainable development.
A number of assessments have been provided along with the bill. The provision on SEPA’s purpose, for example, has gone from being something that talked about only the environmental aspects to something that much more clearly brings in the social aspects that we discussed. In cases to do with air quality and noise, the environmental and social aspects often go hand in hand.
Impact assessments were undertaken on the various parts of the bill and were fed into the policy memorandum, from which Claudia Beamish quoted. They are available on our website, and they highlight positive impacts of the proposals in the bill.
Do they relate to Scotland’s people and communities?
Yes—the equality impact assessment is an example of that.
I will check that.
I can forward the assessments to the committee.
I think that I heard Mr Watt say that one or two minor items in the bill were not consulted on, including vicarious liability. I put it to you that that is not a minor issue for an employer who might find himself or herself vicariously liable.
I agree. It is certainly not minor. I suppose that I was talking about the length of the bill—
Will you explain why that was not consulted on?
The position is similar to the position on SEPA’s purpose. There are references to vicarious liability on pages 15 and 24 of the larger, May consultation document. It is not that we did not mention the issue in that original consultation; we just did not ask a specific question on it. The proposals in the bill reflect the valuable feedback that we got from stakeholders on that important point. I make it clear that I was not belittling the issue. I suppose that I was thinking about the size of the reference to the subject in the bill in comparison with larger sections.
Did you receive submissions that mentioned vicarious liability?
Yes. A lot of the submissions in response to the original consultation mentioned the issue. I can forward the references, if that is useful.
I will be able to find them, if I need to do so.
I thank the bill team for its evidence. We will have a short break before we hear from SEPA.
I welcome the witnesses from SEPA: Calum MacDonald is executive director; Jo Green is corporate support manager; and Bridget Marshall is head of legal operations. Bridget Marshall was on the previous panel—you know what questions we will ask; we will see whether you agree with yourself. I invite Calum MacDonald to make opening remarks.
Thank you for inviting us to give evidence. I welcome the opportunity to make a short opening statement.
We have a limited time in which to ask questions so I hope that we can have short questions and succinct answers. Nigel Don can set a good example.
Good morning to the newcomers and welcome back to Bridget Marshall. I think that it is the first time that the same person has appeared on the agenda under two different titles. It is wonderful.
We have been undergoing a change agenda at SEPA for a number of years. That continues, and the issues that will come to us via the bill will help us towards completing the journey. We are training our staff for the new enforcement tools that will become available, and we are taking a hard look at our structure to ensure that it is fit for purpose.
I can see that, if the legal environment is simpler, it will make life easier for everybody, but do you anticipate that you really will get greater efficiency and output out of the bill?
Yes, we are confident that we will get efficiencies from the bill. The main driver behind the bill is not to achieve cuts; it is to make us better regulators. It will enable us to redistribute and redirect our resources to the things that matter most and to where the biggest environmental risk is. The redistribution, retraining and redirection are the most important things.
So there is every prospect that, for example, the farmer down the road from me who has to have a visit and who gets charged £600 for a licence just to remove a gravel bank that his father and his grandfather moved might not have to have a visit or pay £600 for something that everybody knows needs to be done.
There are specific questions around gravel banks, which my colleague Jo Green might help to answer. We have engaged seriously and effectively with the National Farmers Union on that particular issue, and we are working towards finding a more proportionate way of dealing with it. We are required to regulate it, and in discussions with the industry we are trying to find a sensible way of doing that that is not unnecessarily burdensome on the businesses and farmers involved.
Specifically on dredging, we have changed our approach, so if you need any clarification—
Forgive me, but I raised that particular example merely so that you could give me a general answer, which I am sure is what we want to hear. Let us not worry about the specifics today.
On a theme that is similar to Nigel Don’s theme, I want to take you back to a point that I raised with the first panel and the example of a company that operates a series of sites and is not adhering in reporting and administration to what is required of it across those sites. Currently, the sites are treated individually. In practice, what scope will there be for you to look at the cumulative issue and to address it? As a cumulative issue it is quite important, whereas on individual levels the issue is relatively trivial.
I agree with what is behind your question. In his answer earlier, George Burgess started to touch on the possibility of a single permit for an organisation that covers several sites. That approach would give us more scope, or even more scope, to deal with the sort of issue that you are talking about.
We will move to questions on chapter 1.
Good morning to those to whom I have not yet said good morning.
We are considering how we might apply the ecosystem services approach to regulation. There are particular challenges in that, and the thinking is not fully developed at the moment. I am therefore not in a position to describe in detail what that might look like in future.
I appreciate that work on the relationship between the provisions, SEPA’s work and the ecosystem services approach is in development, but could you say something about that for us, please? How is it developing?
I will let Jo Green have the first crack at that, but I might come back in.
That is an area of strong interest for us. We know that the environment provides a lot of natural services that are important to communities and the economy in Scotland. The difficulty for us is that it is an emerging approach, so thinking about how it might apply to individual regulatory decisions is a bit down the road.
Are the changes in the bill likely to be cost neutral? How is the work of SEPA that we have discussed today measured? With the previous panel, we heard about the annual report, but what other measurement is there of specific streams of work?
To add to my previous answer, there is an additional reporting requirement on SEPA under the Public Services Reform (Scotland) Act 2010 to report specifically on how we are contributing to sustainable economic growth. That already exists.
I should probably know the answer to this next question, but I do not. Is the information that you have just talked about publicly available on your website and, if not, will it be in future?
We report annually on compliance but, from early 2015, our website will have on-going or regularly updated information on inspections. That will set out who we have inspected, the inspection frequencies for certain areas and what the compliance results are on an on-going basis. That will be much more easily accessible.
I probably should not have asked two questions at once, but I also asked whether the changes are cost neutral.
They are cost neutral. We are not seeking additional resource to enable us to do the work. We will redistribute the resource that we already have.
It would be fair to say that members receive a nearly weekly update on your activities, including things such as successes in the courts.
Good—I am glad to hear it.
That is in addition to the statutory returns and is helpful.
Convener, can I ask a supplementary question, before I go on to that?
Whyever not?
I explored charges with the previous witnesses. Mr MacDonald, you say that the bill will be cost neutral, but with the previous witnesses I tried to eke out whether there could be a positive cost implication for industries such as whisky, farming and aggregates—I think that those are the ones that I mentioned. Obviously, simplification possibly means that less manpower will be required. Do you foresee the bill resulting in reduced charges for licences?
I do not want to pre-empt the results of our consideration of a new charging scheme for SEPA, but I suspect that there will be some winners and some losers. We want our approach to be based on risk, so the level of both our charges and our activity will be based on the risk to the environment. We will put more effort into the processes that present more environmental risk and less effort into the ones that carry less risk.
Let us move on to chapter 2. How will SEPA ensure a consistent approach across the organisation to the application and level of penalties?
There is the Lord Advocate’s guidance, which Bridget Marshall mentioned earlier. We will also have robust internal governance arrangements. People should not be concerned about officers going out on inspection and imposing fines. That will not happen—it cannot happen. There will be governance arrangements to ensure that decisions are made consistently and at an appropriate level in the organisation.
I can put the new enforcement tools in context. Our approach is all about achieving the right outcomes. Sometimes that needs enforcement tools; sometimes it does not. It is really important that we are clear on that.
Mr MacDonald, you made the point about decisions on fines coming across your desk. Ultimately, you are responsible for a huge amount. Will a certain level of fine come to your desk, or will it be all of them? I presume that the vast majority of fines are small scale.
The more significant ones will certainly come to me. Below that, there will be robust governance arrangements so that individual officers cannot just make decisions willy-nilly and we drive consistency and proportionality.
That is fine; we have explored that point.
The 2011 act contained the ability to put in place enforcement undertakings. No regulations have yet been made under those enabling powers, so there is no experience in Scotland of enforcement undertakings.
We move on to chapter 3, on court powers.
My question is probably directed at Calum MacDonald. Can you provide examples from your experience of where the fines imposed have failed to offset the financial benefits that were accrued by committing the offence? How will the new regime be an improvement?
I think that Bridget Marshall comprehensively answered the question about fines earlier. There is a general feeling—not just in Scotland—that environmental offences do not attract the level of fines that we might otherwise wish for. However, the trend is definitely moving in the right direction. As Bridget Marshall explained, we have made efforts in the legal community to raise the profile and awareness of the importance of our environment. The recent fines of £90,000 and £200,000 are prime examples of that.
On the cap for compensation orders, the member is right that, in many cases of remediation, £50,000 will not go very far. However, my understanding is that the cap is in line with rules in the criminal justice system and that it came from the justice side of Government. All that we can say is that compensation orders will be useful in some circumstances and will probably be used most often for the removal of waste that has been fly-tipped. In those circumstances, £50,000 will go some way. The compensation will be able to be paid to SEPA or the landowner, so it will be useful in that context.
To sum up, do you feel that the direction of travel is appropriate and is sending out the right message to those who would play fast and loose with the environment?
Yes. That is my one-word answer to that.
We move on to chapter 4 and vicarious liability.
Good morning again. Vicarious liability was mentioned some time ago. Will the witnesses give us evidence of cases in which SEPA was unable to prosecute an employer under the old regime but will now be able to do so? How many times has that happened? How many convictions have there been in other regimes where employers have been found vicariously liable?
I will ask my lawyer to answer that one.
It is a good job we have them with us.
Yes, we are useful for something.
Thanks for that. Can we turn to the cause of significant—
Before we do so, Alex Fergusson has a question on vicarious liability.
I am grateful, convener. The thorough explanation that Bridget Marshall has just given highlights potentially quite a change of emphasis and a burden for employers in all this. Is that not quite a shift in burden not to be consulted on?
Perhaps that is a question that you should have put to the Government—
I did—or rather, I will.
—rather than to SEPA.
Okay, fair enough.
On the issue of significant environmental harm, are there any examples of offences where significant environmental harm has been caused but the courts have been unable to respond appropriately? How many times has that happened?
The significant environmental harm offence arose from consideration of the fact that most of the offences in the environmental field are around regulatory non-compliances, so are about not complying with the regulatory requirements. In that sense, the offences do not focus on harm or damage to the environment. In a discussion with the specialist fiscals, they made the point that it is difficult to lead evidence in relation to regulatory offences around the environmental harm caused. In many cases, particularly when we are talking about failure to have a permit, they are left presenting evidence about the failure to obtain a permit when in fact those concerned would not have been given a permit in any event for the activity that was being carried out in a particular location. However, that aspect somehow gets lost in the presentation to the court. So it is very much about making environmental harm, and significant environmental harm, the focus of the offence.
I agree with Bridget Marshall that, rather than for cases in which environmental harm has already happened, the new offence will be particularly useful in cases in and around the field of illegal landfill sites, which are a growing problem.
You will not be surprised to learn that I have a couple of questions about waste management offences. The first, which is for Calum MacDonald or Jo Green, is about the proposed inclusion in the bill of partnerships. At present, how many partnerships in which one of the licence holders might not be regarded as “fit and proper” hold licences to transport controlled waste? Has any estimation been made of the number of licences that might be captured by the new provision?
I do not think that we can give you specific figures. I suspect that there will be a considerable number of waste carrier registrations that involve partnerships. I do not think that there is any doubt about that.
No, other than to clarify that what is proposed is largely a technical, legal amendment to ensure that we can look at a partnership—as well as the individual partners within it—as a legal entity.
Okay.
I am not sure that the bill will help with decisions about the location of facilities; that is more of a land use planning issue. The bill will, however, give us a better range of tools to deal with sites that are in close proximity to housing. If I were to pick one sector where the bill’s provisions will be most helpful, it would be the waste sector. The range of tools available and the flexibility that the changes to the system will give us will allow us to apply more effort to exactly the type of circumstances that you have described.
To follow on from that, should the burden of proof not be moved to the operator for it to prove that it is not responsible for a reported event and its operation suspended until it can provide that proof to SEPA? As I understand the process, at the moment SEPA has to gather evidence of a breach of licence conditions and, until it does so, the operator is free to continue in action.
Bridget Marshall might want to have a stab at that one.
A rapid thrust.
Yes. That is true in terms of referring a report to the procurator fiscal. It depends on the significance of what the operator is doing. SEPA might take other action as well; it might issue an enforcement notice or some sort of suspension notice that stops the operator carrying out the activity or parts of the activity while the report is referred and until its non-compliance is brought back into compliance. There is a range of enforcement tools that SEPA uses in different—and proportionate—ways and which have different effects, depending on what needs to be achieved in the circumstances.
We move rapidly to chapter 5, which amends the Environment Act 1995.
Do you anticipate that SEPA will find itself contending with a conflict between managing natural resources in a sustainable way and achieving sustainable economic growth, or does the hierarchical structure of the bill make that situation clear cut? To put that another way, on a day-to-day basis—working at the coalface, as it were—are you clear in your priorities and purpose going forward?
Yes, we are clear in our purpose. I do not think that a shift in our main focus is being imposed. There is a clear understanding of what we have been established to do, which is to protect the environment. There are other things that we have to take account of in decisions that we make on a daily basis. The purpose as drafted in the bill accurately reflects the way in which we operate currently.
You will be aware that certain environmental groups look at examples of bills for better regulation that have been lodged in other countries which, in the view of those groups, shifted the balance inappropriately. What reassurance can you give such groups and the committee that protecting the environment will always be the priority?
That is what I am in the job to do. Perhaps that is not enough to reassure the committee. Changes in the regimes of other countries are much more part of a deregulatory agenda. I firmly believe that that is not what the bill is about. For me, it is about improving the way in which we regulate and making our duties and responsibilities as a regulator more transparent.
Thank you. That is useful.
Calum MacDonald, you said that you were confident that interpretation of the provisions in chapter 5 can be balanced against existing duties. Can you give any examples of where those provisions will be used in practice and how they will be prioritised?
I will ask Jo Green to answer that.
Is that in terms of our new general purpose?
Yes.
An example of where we have balance and where we can contribute is what we did on planning services reform back in 2008 and 2009, when our new chairman, David Sigsworth, came in. He knew that we were playing a valuable role with the advice that we were giving, but he was clear that we could improve our role in planning. When we analysed what we were doing and spoke to the development sector and planning authorities, it was clear that a lot of our advice was slow and so broad that it was difficult for people to understand what the important advice was. Often we were coming in quite late in the process.
There is no reason why that will not continue.
Absolutely. It is just a balancing act that we already do.
Those balancing decisions are literally taken on a day-to-day basis. Another example would be when we have a particular requirement on a permit holder. We can come and go about timescales, rather than being hard and fast. Those things are done in discussion with the operator. We take into account the wider context in which they are operating.
There is a focus on the economy part of this, but there is also the health and wellbeing element.
I am more interested in the health and wellbeing element, if I am allowed to say that.
SEPA already has a role in health and wellbeing. We are Scotland’s flood risk warning body. With the Health and Safety Executive, we play a role in the control of major accidents and hazards. We are a category 1 responder to major incidents.
How do the proposals in chapter 5 relate to the proposals in section 4, which require regulators to
Bridget Marshall attempted to answer that earlier, but you should hear it from us directly. Bridget and Jo Green want to contribute on this one.
As I explained earlier—I think that George Burgess covered this as well—section 4 exempts those regulators that have a similar duty under any other enactment from that general duty. As SEPA is getting a similar duty in part 2, the general duty under section 4 does not apply to SEPA.
The code of practice linked into that duty would apply to us. We will be on the group that will help the Government to develop a code of practice.
That is helpful.
This may be an operational issue but, as we have you here, I will ask about it anyway. There are communities in which, due to the nature of the economic activity, the risk of environmental incidents is higher. I am thinking in particular of my constituency. Should consideration be given to locating SEPA personnel in those communities to facilitate a faster response to environmental incidents and to ensure clear oversight?
We are very conscious of our environmental footprint and our coverage throughout the country. We have officers located in 23 offices, from Orkney and Shetland right down to the Borders. I am not sure what you are suggesting with regard to the location of officers. I want my guys out in the field as much as possible rather than sitting at desks and keyboards. I am happy to consider the specifics of your constituency case. I would be happy to have that conversation, away from this table, about how we might achieve what you are asking in a better way.
That would be good. Thank you.
We have asked all our questions. I thank the panel for their evidence, which will help us along our way. We are dipping our toes into areas that are important for the country. Thank you.
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