Official Report 248KB pdf
Swine Vesicular Disease (Scotland) Order 2009 (SSI 2009/173)
Good morning, everybody. I welcome you to the committee's 15th meeting of the year. I remind everybody to turn off their mobile phones and pagers because they impact on the broadcasting system.
Members indicated agreement.
Environmental Liability (Scotland) Regulations 2009 (Draft)
Item 2 is evidence on an instrument that is subject to the affirmative procedure—the draft Environmental Liability (Scotland) Regulations 2009. Our purpose is to consider stakeholders' views on the instrument in advance of the committee's formal consideration of the instrument next week. I welcome Allan Bowie, the vice-president of the NFU Scotland, and Jonny Hughes of Scottish Environment LINK. I invite questions from members.
I suppose that I should kick off, as it was I who asked for evidence to be taken on the instrument. Concerns have been raised by Scottish Environment LINK about the difference between the transposing of the European Union directive in the rest of the United Kingdom and the way in which it is being transposed in Scotland. In particular, in Scotland it is not being extended to cover damage to sites of special scientific interest and Ramsar sites. Do you believe that the current legislation adequately protects such sites? If not, how is it inadequate?
I thank the committee for this chance to give evidence. We believe that the current legislation is enough and that there is enough legislation in process to protect the sites. The fear is that the regulations' being passed with the amendment will be gold plating. We have a lot of members who firmly believe that the polluter should pay—we have nothing against that—but we are concerned about the extension of the directive. That is NFU Scotland's position.
I thank the committee for the opportunity to comment. I read a paper yesterday about the EU environmental liability directive and was shocked to find that it has been 20 years in gestation. It is quite an important piece of legislation to the environment movement and we welcome the purpose of the directive, which is to make the polluter pay. However, we think that it does not go far enough if it does not apply to SSSIs, which will be regulated as a second tier of nature conservation beneath the European protected species and sites.
Thanks for that. In answer to a written question in which I asked the Government why it had not included SSSIs and Ramsar sites in the regulations, I was told that the majority of respondents to the Government's consultation were opposed to their inclusion. Do you have any comments on the consultation and the responses that were received?
That is an interesting issue. Scottish Environment LINK submitted one response to the consultation, but we are a membership body that represents 32 organisations with 500,000 members. Had each of those organisations submitted a separate consultation response, the number of respondents in favour of extending the regulations to SSSIs would have outweighed the number of respondents that were not in favour of that. However, in order not to overwhelm the Government with submissions, we decided to submit just one response on behalf of Scottish Environment LINK.
The NFUS did the same—we made one submission. It is pertinent that more than 70 per cent of respondents believe that the status quo is okay. We firmly believe that it is the management of the sites that is important, and legislation is currently in place that will ensure that that is looked after. I do not think that we need additional legislation to ensure that the sites are managed in the correct way. That is the crucial bit.
Jonny Hughes believes that there could be confusion for operators, users and whoever because they would be operating under two different regimes. Do you perceive it as being not confusing to have two different regimes?
I think that the structures that are in place are quite clear. If they are adhered to, a clear message will be sent to people who think that they can get away with polluting, which is rightly a criminal offence. If the current legislation is implemented correctly, I see no problem and no need for the regulations to be extended.
As we say in our written submission on the SSSI issue, the main relevant law is the Nature Conservation (Scotland) Act 2004—in particular, section 40 of that act, which deals with restoration orders. That differs from the environmental liability directive in a number of ways. As Allan Bowie has said, a conviction for a criminal offence is required under the 2004 act, and it is at the judge's discretion whether restoration should take place.
We know that the legislation for the rest of the UK will cover SSSIs and Ramsar sites. Do we know what is happening in the rest of Europe?
Information from the rest of Europe shows that various approaches are being taken to transposition. Spain is one of the countries that have proactively pushed through the directive, mainly because of two big environmental catastrophes there—the 1998 mine disaster that polluted the Doñana national park, and the wreck of the ship Prestige off the coast of Galicia in 2002. The burden for the clean-up costs of those incidents fell not on the polluter, but on the Spanish taxpayer, which cost the Spanish Government an awful lot of money. Spain has exceeded the directive's requirements and has extended the law to cover damage to the biodiversity not just of protected areas and species, but of all areas and species throughout the country. That example is useful. It is obvious that Spain has suffered significant environmental damage events, for which the taxpayer has paid the bill. Having had their fingers burned, the Spanish are keen to implement a strong environmental liability regime. Does that answer your question?
Yes, thank you.
I understand the NFUS's position, which is that the current law is in all regards sufficient to deal with matters. I am struggling somewhat with LINK's position. Jonny Hughes got close to the issue a moment ago, but perhaps he can go further.
Our comment that the
What might a "damage event" actually be? Could it be a tanker hitting the coast—you have used such an example from Spain—a farmer extracting aggregates from an area of ancient moraine, new tracks going up a mountainside or diggers working on the coast? Could you give me a feel for what the damage to which you are referring might be?
A "damage event" could be all those things. Let us consider your example of a track going up a mountainside. Peatland is an example of an annex 1 habitat. If a road is put through an area of peatland—as has happened—it damages the integrity of the hydrogeomorphology of the peatland and would, ultimately, damage the biodiversity that is associated with that hydrogeomorphology. If we consider the peatland resource in the whole of Scotland, the UK and the European Community, we might conclude that the building of that one track is not significant damage: there are peatlands elsewhere, so it would not constitute a decline in favourable conservation status across the whole of the resource. If we base the issue on a site integrity test and if the peatland is an SSSI, the damage on that local scale has damaged the SSSI's site integrity, so the ELD would be triggered. That is the difference.
Why would the provisions for managing an SSSI, planning law and so on not provide for a remedy in those circumstances? Why do you have to have a further remedy?
It is not so much about having a further remedy as it is about taking a consistent approach and applying environmental liability to protected habitats under the habitats directive. SACs and SPAs will apply to such habitats, and there is case law to show that, if one site is damaged in the network, that effectively damages the favourable conservation status of the whole network.
In that context, who decides on damage? Who is the arbiter of—
It would be the competent authority.
Which would be Scottish Natural Heritage or Scottish Environment Protection Agency or—
The competent authority would be SNH in respect of damage to natural habitats.
And it would be SEPA for—
It would be SEPA with regard to water damage on land.
If that damage had taken place after permission had been given by a competent authority—for example, for building a forestry road—who would be liable?
At the moment, the Scottish Government has chosen to transpose the permit defence. As long as a permit has been granted, the permit defence could be used to argue that the necessary permissions had been granted for the road. Therefore, environmental—
Nevertheless, the damage would have been done. Would the burden fall back on the Government to reinstate the land?
I am not a lawyer, so I cannot comment on the potential outcomes in such situations. However, I suspect that if the permit defence were invoked the burden would indeed fall back on the taxpayer, although that might depend on the level of damage.
So, it would be no different. If, say, a farmer or the Government incurred damage, both would have to pay, even if the permit defence had been invoked.
I would like to put the same point to Allan Bowie. What is your view on the adequacy of the existing law to deal with situations in which somebody extracts aggregates without consent and against management rules, or does some of the other things that I mentioned?
The procedures are in place already. A person who goes in without consent and does damage is liable; that is quite clear cut. Planning permission regimes are in place. If someone falls foul of or goes outwith them, procedures exist to make them responsible. The NFUS does not think that an extension to enforce that is needed; rather, the existing regime needs to be enforced at the time. It is pertinent to ask "What if?" but I do not think that such scenarios have actually happened. The procedures that are in place should be strict enough to prevent such situations.
Under section 40 of the 2004 act, only owners and occupiers are liable, if there is damage, to carry out restoration. Under the environmental liability directive, if a third party causes a major pollution event on the land of a landowner, that third party would be liable. It is important to point out the extension of the provision to cover third parties, which affords some protection to landowners. The landowner, or a combination of the landowner and the Government, do not have to pay the clean-up costs. The polluter must do so.
On any land, if a third party is responsible, insurance is in place to ensure that the third party is liable for the clean-up. That provision is currently in place, so I do not see the need for the legislation to cover third parties.
Would that apply across the board for all cases of environmental damage?
Again, I am not a lawyer, but I am working in a system in which we know we are covered for that eventuality.
It strikes me that, in dealing with the SSI, we are dealing with practicalities as they affect people on the ground, rather than with theory. Could Mr Hughes tell me how many cases would have been affected if an instrument had been drafted as he wants the SSI before us to be, and if it had been implemented some years ago? How many examples have there been of the type of thing that you are trying to stop, which would not currently be stopped?
I refer back to the partial regulatory impact assessment, which predicted that there would be only one additional ELD biodiversity case—I am talking only about biodiversity now. It identified that there would have been two additional cases in 2003-04, and four in 2004-05, had the ELD applied to SSSIs. That leads to a prediction of an average of three or more cases a year if SSSIs are included. That is compared with one additional case every two years otherwise.
What do you think the additional burden would be with regard to people's day-to-day activities if the regulations were put into place?
In some ways, there would be a removal of burden. If the regime were applied consistently to SSSIs as well as to SACs, there would be consistency—and it is a civil regime. The burden of a criminal conviction would be removed or lessened. On the additional burden in terms of costs, are you thinking about insurance costs?
I am wondering how the regulations would affect me. If the regulations are put in place as you would wish them to be, and if I was a landowner or tenant, how would they change my day-to-day behaviour, and how much would it—
If you did not pollute, the regulations would not change your behaviour in any way. Allan Bowie and I agree that the principle that the polluter pays is good—I think that we agree on it, anyway.
Yes.
Are you suggesting that nobody would do anything different if the regulations were passed as you want them to be passed? Somebody else would cough up money at the end of the day, in that case.
The regulations are another tool in the toolbox and will make people think that they must be careful about how they operate. If people cause a pollution event, they know that they are liable to pay for it. Currently, there are many cases in which such liability might not apply.
To use the same metaphor, is it not some people's complaint that there are far too many tools in the toolbox, and that far too much time is spent raking around in the toolbox checking what is in it?
I fully agree. Farming systems have changed a lot over the past decade. There are gate requirements and there is other legislation in place.
I come at the issue from a completely different perspective. Our purpose is not to argue for more gold plating and more regulation; it is to argue for legal certainty and fairness. We are not talking about an extension of the ELD's provisions; we are talking about dovetailing the regulations with existing legislation in order to ensure consistency. One could argue that the proposed regulations amount to better regulation that is fairer for farmers.
I am sorry, but I am not convinced.
I remind members and witnesses that time is pressing and that John Scott, Bill Wilson and Liam McArthur still have questions to ask. I ask that questions and answers be brief.
I want to ask two questions. As I understand it, none of the proposed provisions is to be retrospective, but what happens if in 20 years' time someone does something that turns out not to be regarded as best practice? Twenty or 25 years ago someone might have built a forestry road through a peat flow in good faith, because planting on peat flows was not regarded as bad practice back then. Are you saying that if people do something in good faith that turns out not to have the best environmental outcome, they should be held liable for that?
There are two defences under the directive. One is the permit defence, which we have discussed, whereby a permit has been given to do something. The other is what is called a state-of-the-art defence, which relates to the current state of knowledge. Given that those two defences are available and apply to environmental liability, I do not think that that is a problem. Reckless damage is committed only if someone did not have a permit and the state of knowledge at the time was such that the action in question was known to be damaging. For example, everyone is now aware that putting a track through a peatland will damage the integrity of that site. If someone were to do that illegally, in effect, the polluter would be liable. We are all agreed that the spirit of the directive—the polluter-pays principle—would apply.
I will let others in.
I recall that 26 years back there was highly vigorous debate about the wisdom of planting on flow country, so I do not think that it was an accepted behaviour, albeit that it was legal.
Under section 40 of the 2004 act, that is correct. I refer you to our submission on the ELD. The final paragraph of the section on environmental liability and SSSIs says that the relevant criminal offences
I was not asking whether it would be possible to bring a criminal conviction; I was asking who would be responsible for the costs if pollution occurred and it was accepted that it was caused by a third party or by the landowner, albeit that it had been caused by accident. In such cases of accidental damage to the environment, who would be responsible for the restoration costs? Under the present system, is it the person who causes the pollution, or is it the taxpayer?
Pesticide contamination can be quite serious. If we have a contractor in to spray, he is obliged to have insurance. We know that if he makes a mistake, he is liable for the clean-up, whatever that entails. In that example, it is the third party who is liable, not the landowner. If the landowner makes a mistake when he is doing the job, he is liable. That is quite clear.
You are saying that the landowner would be liable. The Government could go to the landowner and tell them that they would have to pay to clear up the contamination. The landowner could not say that they did not want to clean it up because it was caused by an accident that happened when they were carrying out a legal activity.
As far as I am aware, if the mistake is made by the landowner, he is liable to clean up the contamination. That is the polluter-pays principle. If the contamination is caused by a third party, such as a contractor, he is liable. We know that when we employ contractors to do the job.
That is the situation under contract law. There could be a situation in which the landowner has not contracted someone to come in and do operations on their land but a third-party, which might have nothing to do with that land, has caused contamination. I take you back to the example of the pollution of the Doñana national park in Spain. The owners of the land had nothing to do with the mining operations that caused the pollution event. In effect, their land had been destroyed and they were liable for the clean-up costs—although, obviously, the cost was then passed to the taxpayer. The operator that caused the pollution event was not liable.
Mr Bowie referred to gold plating. Will you give me examples of where you think that the regulations are gold plated and where you think that they will make the life of a farmer unreasonably difficult—or at least more difficult in an unreasonable manner?
That is a very good question. Farmers' definition of gold plating varies, as you would expect. We have issues with good agricultural practice requirements and the good agricultural and environmental conditions. People think that there is too much legislation, such as on poaching or on land near a waterway. However, farmers are coming to realise that they have to be aware of the consequences of actions in their farming operations. That is where there has been a change in the past decade. You will find that a lot of farmers have fenced off the river-ways and have buffer zones. There is no need for extra legislation to provide for that.
I am quite happy to accept that farmers take their environmental responsibilities much more seriously; I have no doubt about that at all. However, what I am trying to get to is whether you think that any particular aspect of the regulations will cause an unreasonable burden. Is there a lack of fairness or reasonableness in how you are being treated or in what you are being asked to do?
I hark back to the point that current legislation, if imposed correctly, is enough. We are in the business of producing food. We are fairly aware of the consequences of our operations on the environment. If we tighten up the current procedures, there is no need for an extension to the legislation. It is pertinent to say that 70 per cent of respondents think that there is no need for that. We stand by that.
We are almost getting into a different discussion. It sounds as if you are arguing against the environmental liability directive altogether.
No.
You just do not want its requirements to be extended to SSSIs and Ramsar sites.
Exactly.
I do not think that this is an issue of extra red tape or anything of that sort. A responsible farmer who knows that they have an SSSI or Ramsar site on their land would not be polluting it anyway. If the requirements were extended, it would be to catch the occasional operator who does not treat the site with adequate respect. It would not make a difference to your members, because the vast majority of them would be careful anyway.
It is the management of the sites that is crucial. If the management is done correctly within the current legislation, everything is okay. Jonny Hughes seems to be talking about the what-if factor, which has not really raised its head. The management of sites has been tightened up in the past decade.
You argue that the regulations would not be necessary because there is not a problem
The NFUS would like to think that there would not be a problem if everyone managed sites correctly.
The partial regulatory impact assessment found that, compared with one additional case every two years, there would be three or more cases a year if SSSIs were included in the regime.
You referred to the partial regulatory impact assessment. I appreciate that that piece of work was done by the Scottish Government, which means that my question might be better asked of the cabinet secretary, who is sitting behind you. However, as you prayed it in aid of your position in your written evidence and again this morning, I would like you to comment on it.
I am not in a position to answer the questions about the detailed figures. I would have to come back to you on how the figures were derived.
Mr Bowie?
Like Jonny Hughes, I am not in a position to comment on the figures.
You say that the Government estimates that there could be up to 10 cases of environmental damage. Can you give us one example of such a case? I might not have been listening adequately, but I am having difficulty in getting my mind round what a case might be.
I think that you mentioned a few yourself. They include structural damage to SSSIs that would damage the integrity of a site—we have cited the example of a track going through peatland. Similarly, if there is a point-source pollution event that then pollutes a watercourse or a body of water, that would constitute a trigger for the environmental liability directive. A number of examples could be given. Perhaps we should have included some in our briefing.
You mentioned three extra cases a year if the SSSIs were included, but the same memorandum says that the average cost per case was £22,000, so we are arguing about £66,000. Is that correct?
Those are the estimated figures. I can only go by the figures that have been provided in the assessment; we have not done our own analysis.
I get the impression that you think that this will have an effect not on landowners or people who are contracted by landowners, but on third parties—a neighbouring landowner, a passing tanker or a mine owner. Is that interpretation correct?
That is part of it, although I would not necessarily say that it is the only part of it.
But that is where the biggest effect will be. Is that correct?
In terms of the SSSIs, certainly.
We are acting only on behalf of our farmers, whether they are tenants or landowners. I am pretty sure that insurance would be in place for third parties. The impact of a tanker incident up the west coast somewhere would be major. However, the NFUS submission is concerned with the farmers, their systems and the SSSIs.
What about adjacent landowners? What if a landowner spills diesel, and it goes down a watercourse into the next farmer's land, where it causes damage to an SSSI? Presumably the farmer who had the SSSI would not be covered, because the spill would be the fault of a neighbouring farmer, with whom he has had no contract.
I am sure that insurance would be in place to cover that. If the polluter could be identified—and I think that they could be, if the spill involved diesel—the case would be simple: the neighbouring farmer would be responsible and liable. You know what farmers are like: if one farmer knows that their neighbour is responsible, they will ensure that they are held to account.
In light of the foregoing, I should have declared an interest, in that I am a farmer and landowner. I do so now, retrospectively.
I think that we have given the issues a fair hearing. The committee will consider the instrument again on 10 June, when the Minister for Environment will move the motion to seek the committee's approval of the instrument.
Meeting suspended.
On resuming—
Waste Batteries (Scotland) Regulations 2009 (Draft)
I welcome the Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, who is here to discuss the draft Waste Batteries (Scotland) Regulations 2009. With him from the Scottish Government are Louise Miller, the head of branch 2 of the solicitors food and environment division, and Kevin Philpott, the waste regulation senior policy officer.
I invite the committee's approval of the regulations to transpose parts of the European Union batteries directive, which introduces producer responsibility for waste batteries. The directive's key elements are that it will make battery manufacturers and importers financially responsible for the collection and recycling of spent batteries; set minimum standards for the content, storage and treatment of waste batteries; and prohibit landfill and incineration of whole industrial and automotive batteries.
Thank you, cabinet secretary. I invite questions from members.
The letter from the cabinet secretary dated 30 April states:
The usual requirement not to pollute is in place for all collection points, but we are exempting the collection points for batteries from the requirement for a waste management licence in order to encourage the existence of as many such collection points as possible for the public's use or for the businesses that are affected. The only regulations that will apply to those collection points will be the standard regulations for preventing pollution.
I would certainly encourage as light a touch as possible, but we should ensure that that does not bring our approach into disrepute as a result of people setting up collection points in inappropriate locations.
Yes. The directive instructs that those collection points should be exempt from the other licensing conditions. The existing standard regulations to prevent pollution will remain in place for collection points for such materials. People will not have to apply for a waste management licence for such collection points, as they will simply be for the purpose of collection.
Agenda item 4 is the formal debate on the instrument. I remind members that officials cannot participate in the debate.
I am sure that the committee recognises that the purpose of the regulations is to encourage recycling, protect virgin resources on the planet, and help us to move towards a zero-waste society.
Motion agreed to.
I thank the cabinet secretary and his officials for their attendance.
Meeting suspended.
On resuming—