Committee for the Environment

Thursday 5 September 2002

MINUTES OF EVIDENCE

Pollution Prevention and Control Bill:
Committee Stage
(NIA 19/01)

Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mrs Carson
Mr Ford
Mr McClarty
Mrs Nelis
Mr Poots

Witnesses:

Mr D Bell      )
Ms E Harkness        )        Department of
Mr N Simmons        )        the Environment
Mr J Waterworth     )

The Chairperson: I give a warm welcome to Mr David Bell, Ms Ethne Harkness, Mr Norman Simmons and Mr John Waterworth from the Department of the Environment. We are delighted that you have come before the Committee again. Mr Simmons will begin the presentation, and questions will follow the initial presentation. If any of the witnesses or members wishes to raise any points, feel free to do so and help us with our deliberations.

Mr Simmons: I shall begin by talking to the letter of 28 August 2002 that we sent the Committee. That letter covered the draft amendments plus other points relating to the drafting of the Pollution Prevention and Control Bill. I shall then move on to our letter of 6 August, which covers other points raised by the Committee during earlier presentations. We have received a couple of responses to the Committee’s consultation, and we shall update you on those. Finally, I shall say a few words about the draft Regulations, which we sent the Committee on 29 August 2002.

The letter of 28 August deals with substantive matters relating to the Bill. At the Committee’s request, we have provided a detailed breakdown of the provisions in schedules 2 and 3. We have provided the text of the current legislation, the text of the seven proposed amendments and a short note that explains the overall effect that they would have. The amendments are reasonably self- explanatory, so unless any member has a particular question I intend to proceed quickly.

Mr Ford: As the member who asked for that letter and who has not had time since yesterday to study it in detail, I agree that it appears to be fairly clear. However, I would reserve my right to possibly ask another awkward question next week.

The Chairperson: That right shall be given you.

Mr Simmons: The meat of the letter is in the amendments. We have drafted seven amendments and received the Minister’s approval to table them at Consideration Stage. The amendments are, in the main, drafted to address points raised by the Committee at earlier meetings.

Amendment No 1 is a simple amendment, which inserts "( ) district councils;" into clause 2, thereby placing on the Department a specific requirement to consult district councils on all Regulations that are made under the Bill. That meets the point raised by the Committee at earlier hearings.

Amendment No 2 is partially consequential on amendment No 1. It removes the requirement to consult bodies or persons representative of district councils in favour of district councils and also replaces the term "small businesses" with the term "businesses", thereby placing the Department under a requirement to consult businesses, rather than just small businesses. Again, that meets the point raised by the Committee at an earlier stage.

The Chairperson: Although amendment No 1 appears to be logical, those representing councils — the Northern Ireland Local Government Association (NILGA) or the Northern Ireland Public Service Alliance (NIPSA) — are now excluded from that provision.

Mr Simmons: They are not named specifically, but we intend to consult them, as originally intended, using what is currently clause 2(4)(b),

"such other bodies or persons as it may consider appropriate."

The Chairperson: Why would they not be named? In several other situations it was felt that they should be named, rather than just be any other

"bodies or persons as it"

— the Department — "may consider appropriate."

Mr Simmons: We would be happy to do that. If the Committee provides us with the names of the bodies in which it would be especially interested, we could name them specifically.

The Chairperson: I would like you to consider that, and the Committee will come back to you on it.

Clause 2(4)(a) states:

"persons appearing to it to be representative of the interests of district councils".

That would certainly mean the staff of the different bodies.

Mr Simmons: No, that would now be left out. Amendment No 1 would insert a specific requirement to consult district councils. To be absolutely clear, paragraph (a) would now read: "such bodies or persons appearing to it to be representative of the interests of industry, agriculture and business".

The Chairperson: That relates to people who represent staff. The proposed clause 2(4)(a) specifically relates to district councils.

Mr Ford: The new first paragraph is to read "(a) district councils;". Is it possible for that to also include

"and such bodies or persons appearing to be representative of district councils and their staff;" ?

Mr Simmons: Do you mean reinstating the original wording?

Mr Ford: No, I mean is it possible to relate the wording of the current paragraph (a) to district councils as well as to "industry, agriculture and business"?

The Chairperson: In other words, new paragraph (a) would cover district councils, including such bodies or persons appearing to be representative of the interests of district councils and their staff and paragraph (b) — currently (a) — would concern industry, agriculture and business.

Mr Simmons: We shall certainly consider that and take it to the legislative counsel.

Amendment No 3 concerns a change to clause 2(5). It is designed to deal with the question of what is meant by a "prior consultation". Again, no difference exists between what the Committee and the Department are trying to achieve with the clause. However, as we indicated at an earlier meeting, we took it to the legislative counsel, who drafted an amendment. The legislative counsel has asked us to say that he feels that it is not an issue that cannot be dealt with in drafting terms. He supports the Department’s view that the matter would be best dealt with outside of legislation, although he has provided a possible amendment.

Ms Harkness will go into more detail on the Department’s reservations.

Ms Harkness: Clause 2(5) reads:

"Consultation undertaken before the passing of this Act shall constitute as effective compliance with subsection (4) as if undertaken after that passing."

The amendment would insert at the beginning:

"Except where the regulations in question contain provisions by virtue of paragraph 20(2)(b) or (d) of Schedule 1,".

That means that prior consultation would not be acceptable for Regulations in connection with the Directive on waste or Regulations in connection with any other Directive designated by the Department for the purposes of subsection (5). Prior consultation would be acceptable for Regulations made under the Pollution Prevention and Control Bill or the EU Landfill Directive.

Legislative counsel has drafted amendment No 3 in an attempt to meet the Committee’s concerns about the possible scope of clause 2(5). The Department suggested an alternative solution that would involve it giving a commitment that the provision would only be used in very limited, exceptional circumstances. In particular, under no circumstances would the Department introduce proposals for new Regulations using that provision to proceed on the basis of consultation that had already been carried out. If necessary, that undertaking could be incorporated into the explanatory and financial memorandum.

I discussed the matter at length with legislative counsel, and he said that that proposal would be preferable to the proposed amendment. His reasoning arises from the fact that the enabling provisions of schedule 1 must be read as a composite unit. When subordinate legislation is made, it must be within the scope of the power conferred by schedule 1. However, it is not usual to break down the enabling provisions into their component parts, or to attempt to allocate each later provision, or sub-provision, exclusively to an individual provision or sub-paragraph in the schedule. In other words, the schedule should be read as a whole, and it is drafted in that context. Legislative counsel’s view is that to select certain sub-paragraphs for differential treatment threatens the integrity of the overall provision, and it may lead to legal and practical problems in drafting, interpreting or implementing subsequent legislative provisions.

I agree with those reasons, and the legislative counsel is reluctant to proceed with amendment No 3. He recommends exploring the alternative solution of an agreement or undertaking by the Department.

The Chairperson: Our legal advisers see both sides of the story, and they suggest that it might be appropriate to place the undertaking in the explanatory and financial memorandum that accompanies the Bill, with no amendment to clause 2(5).

Ms Harkness: That reflects my conversation with your legal adviser.

Mr Ford: If our legal advisers say that their legal advisers may be right, we should listen to them. If there is a clear statement in the explanatory and financial memorandum, it is something that we should consider. I presume that the Department can give us a draft of that.

I am not happy with the argument that this is not what is usually done. We are a new body and we should be able to do whatever we want. We must listen to the advice that the integrity of the Bill could be damaged.

The Chairperson: We should seriously consider the advice that has been given. The Committee would like to see the wording of the explanatory and financial memorandum. That may allow us to see it afresh and with a more open mind. I cannot give a commitment, but the view of the Committee and that of the Department may not be miles apart on the issue.

Mr Simmons: Amendment No 4 is a simple amendment to remove a reference to subsection (5) of clause 4 in clause 4(2).

Amendment No 5 removes subsection (5). The amendment was discussed at earlier meetings of the Committee. It gives effect to the clause’s overall intent, which is that only people who have continued to operate within the terms of the original disposal licence will be able to benefit from the clause. Subsection (5) would have had the effect of allowing those who had continued to operate outside the terms of the disposal licence to benefit. We all thought that that was wrong, so we have removed subsection (5) in order to bring the clause into line with the original intention.

Amendment No 6 deals with the Committee’s point about the definition of the words "which have been concluded" in clause 4(6). The legislative counsel has considered this and has provided a textual amendment, which reads: "in which the accused has been convicted".

His view is that that is the most effective way to deal with the matter. Ms Harkness has been in contact with the legislative counsel and can give the Committee the details of the reasons behind that.

The Chairperson: Our legal advisers have accepted that that is a reasonable way forward.

Ms Harkness: Yes. I have discussed that amendment with your legal advisers.

Mr Simmons: The Committee was advised of amendment No 7 to the Pollution Prevention and Control Bill at an earlier meeting. Mr Waterworth from the Environment and Heritage Service will speak about that amendment.

Mr Waterworth: The purpose of amendment No 7 is to insert after clause 4 a clause titled "Financial Assistance by Department". Subsection (1) of the new clause states:

"The Department may make grants to any body having among its objects —

(a) the furtherance of the objectives of the strategy in relation to the recovery and disposal of waste prepared by the Department under Article 19 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19); or

(b) the prevention or control of environmental pollution."

Subsection (2) states:

"Grants under this section shall be made

(a) in accordance with arrangements approved by the Department of Finance and Personnel; and

(b) subject to such conditions as the Department may determine (including conditions for repayment in specified circumstances)."

That follows on from a key element of the Department’s action plan for implementing the waste strategy for Northern Ireland. The action plan was launched in March 2002. The key action is the provision of grant aid to various stakeholders identified in the strategy. The strategy was built on stakeholder involvement and consultation.

Grant aid is to be made available to district councils, industry, and to the waste and resources action programme (WRAP). WRAP is a new UK-wide organisation. Among its objectives is the development of sustainable waste management.

The voluntary sector has also lobbied for grant aid through the Waste Management Advisory Board for Northern Ireland, which the Department established, with stakeholder involvement, to advise and direct the strategy’s implementation. Unfortunately, the Department has direct powers to provide grant aid to district councils under section 5 of the Local Government Act (Northern Ireland) 1972 only. That proved to be problematic when the Department tried to develop initiatives such as the industry fund. The Department had to join with Invest Northern Ireland, which is an agency of the Department of Enterprise, Trade and Investment, to make use of its statutory powers. The Department had to find a mechanism through the Budget (No. 2) Act (Northern Ireland) 2002 to provide funding for WRAP for the current year. Unfortunately, officials would have to seek that power again for future years. The Department has no powers to fund the voluntary sector.

The Chairperson: Members may have accepted your argument. Does anyone oppose it?

Mr Ford: I assume that, as part of a consultation process, the Committee can expect to hear about the criteria for grant aid from the Environment and Heritage Service.

The Chairperson: We have quite a bit of business to discuss and, although I do not want to interrupt your comments, if we are agreed on that issue, you should take that as a helpful sign that the Committee wants to help the Department to introduce the necessary legislation.

Mr Simmons: That concludes the seven amendments.

The remaining issue contained in the letter of 28 August concerns the Council for Nature Conservation and the Countryside’s (CNCC) response. At an earlier meeting, we advised the Committee that the Department would contact CNCC for clarification of its comments. It has confirmed that the comments that it made to the Committee are identical to those made in response to the Department’s original consultation. The Department responded to those comments by letter on 20 June and a copy of that letter was given to the Committee. Therefore, the CNCC’s comments contain nothing new.

At the start of the meeting, I referred to a letter dated 6 August, in which the Department provided an update of the current state of discussions with the farming industry. Mr Bell will further brief the Committee on that.

Mr Bell: At a further meeting with the integrated pollution prevention control (IPPC) working group on pigs, which we referred to at the previous Committee meeting, we completed the initial review of the Standard Farming Installation Rules. Therefore, the Department has finished its study of those Rules with the working groups on pigs and poultry and must revise the Rules as agreed. We have a further — [Interruption].

The Chairperson: Were certain issues agreed at those meetings?

Mr Bell: Yes, and the Department must revise and reissue the Rules to reflect those changes.

The Chairperson: Do changes to those Rules mean that the Ulster Farmers’ Union and the Department are agreed on how to tackle the issue, or does the union continue to raise major issues?

Mr Bell: The issues that have been raised are points of clarification. I do not claim that the Ulster Farmers’ Union thinks that the Standard Farming Installation Rules are great and what it has been waiting for. However, we have explored areas with potential for flexibility, and I received the impression from the meetings that there is a consensus that the Rules are a practicable way forward.

The Chairperson: Will you identify the farming industry’s areas of concern for us? If there has been movement and agreement, when can the Committee look at those issues and consider its position?

Mr Bell: The Rules are detailed and consist of a set of requirements to which the farmers are prepared to sign up in order to avail themselves of lower charges. I referred to a couple of changes at the previous meeting, such as the change to diet rules. We have simplified some documents such as the water audit document. We have also identified some areas in the supplementary guidance to the Rules in which more information is required to help people.

Some concern was expressed about the odour control provision in the Rules. We have endeavoured to take a pragmatic approach to that, in that there would only be a requirement for applicants to address odour control issues if they had sensitive receptors, such as residences within 400 metres, or if complaints had been made. It is accepted that that is a reasonable approach. At the meeting there was some discussion among members about how the Department would deal with issues of odour complaint. That cannot be reflected in the Rules; all that I could say was that it was the Department’s intention to deal with odour complaints pragmatically and that a single odour complaint would not necessarily result in additional requirements being imposed on a farm. Those practical issues have been the focus of our discussions.

The Chairperson: How close are you to agreement on the entire issue?

Mr Bell: We have identified where changes are required in the Rules. Once those changes are made, my proposal is that we would run with that version for the first applicants when the Regulations come into effect next year. It is our intention to have an ongoing dialogue with the industry, and the Rules may be changed and developed in the future. Therefore, it is not a final document. Some of the new installations will be introduced quite early; applicants must apply by 1 January 2004. We shall be running with this version of the document, although further minor changes may be made if issues arise in discussions.

The Scotland and Northern Ireland Forum for Environmental Research (SNIFFER) case study for a poultry farm in Scotland and Northern Ireland is going well. The dummy applications have been submitted from both the Scottish and Northern Irish farms. An initial assessment of their applications has been made and we anticipate that, in the next few months, we shall issue a report on the case study. A main outcome will be good practice examples for applications, rather than just guidance. That will benefit farmers and can be adapted and used in the preparation of applications. We express our appreciation at the effort that individual farmers have put into the scheme; it has been extremely helpful.

We have also identified several areas from the case study in which we can improve the application documentation, and we intend to do that. It has been a helpful exercise.

Mrs Nelis: When will the case study be completed?

Mr Bell: The recommendations should be available in about two months’ time.

Mr Simmons: The next issue in the letter of 6 August refers to the Northern Ireland Human Rights Commission (NIHRC). We indicated on 4 July that we had sent a copy of the Bill to the NIHRC. It has confirmed that it has no comments to make on the Bill. We have also provided the NIHRC with advance copies and final copies of the draft Regulations. We shall take into account any comments the commission makes on those and share them with the Committee.

In its letter of 8 July, the Committee asked several further questions, and we have dealt with those in the annex to our response of 6 August. I shall go through them quickly for the benefit of the Committee.

We have already dealt with clause 2(5) and the prior consultation issue. As regards clause 3, the Committee asked about the arrangements for waste disposal plans and the three-year transitional period in the Waste and Contaminated Land (Northern Ireland) Order 1997. That Order contains transitional provisions to enable us to move from the system of disposal licences to the new system of waste management licences.

The original proposal for waste management licences was that current disposal licences could remain extant for three years. We have changed that period to an open-ended one in the Bill. The original proposal also made similar provisions for council disposal plans under the Pollution Control and Local Government (Northern Ireland) Order 1978. It provided that such plans should remain in place for three years before being replaced by new waste management plans under the Waste and Contaminated Land (Northern Ireland) Order 1997.

However that particular proposal was overtaken by events: there was an infraction case against the UK in respect of the Waste Framework Directive involved in the preparation of those plans. The entire procedure has been accelerated, and that is outlined in our response of 6 August. The three-year period for disposal plans is now not practical because the whole issue has been overtaken by events. Waste management plans will be in place either later this year or early next year.

The Chairperson: The advice given to the Committee is that no issue remains on that point.

Mr Simmons: The next request from the Committee was for a simple definition of the term "appointed day" as it appears in clause 4(1)(a) of the Bill. The term "appointed day", as used in the Bill, means the day on which the new system of waste management licensing will come into operation. We must provide a time frame within which the provisions of clause 4 will have effect. It cannot be an open-ended clause. At one end of the time frame is the "relevant day", which is a day 12 months before the passing of the Act. At the other end of the timeframe is the "appointed day", which is the day for waste management licensing. If the Act were to be passed in January 2003 and waste management licensing were to be introduced in November 2003 the clause would effectively apply for the period from January 2002 until November 2003. After that it would cease to have any practical effect.

The Chairperson: However, the letter of 6 August contained a relatively clear explanation of the term. Although it is clear in the letter, is there a reason why the meaning of the "appointed day" is not clear in the explanatory and financial memorandum?

Mr Simmons: We shall put it in the explanatory and financial memorandum; there is no problem with that. I thought the Committee was requesting a drafting change.

The Chairperson: The Committee is asking for a change, but it is trying to be as helpful as possible.

Mr Simmons: A definition will be included in the explanatory and financial memorandum.

The Chairperson: That is necessary for clarity.

Mr Simmons: Certainly.

Clause 4(5) will be removed by amendment No 5. The Committee asked why, in clause 4(7), district councils should have a duty to let those affected know about the effect of the new legislation. The simple reason is that district councils are the regulatory authority. They hold all the information on disposal licences, and they are the people best placed to inform licence holders about the new arrangements.

The Chairperson: The district councils are the best organisations to do the donkey work?

Mr Simmons: They are the regulatory authority. They issue the disposal licences and have all the information on licence holders. No one else can do it.

The Chairperson: We have been advised that that is not an issue.

I want to give members an opportunity to ask questions, so that we know that everyone is saying the same thing.

Mr Simmons: Paragraph 15(1)(b) to schedule 1 refers to financial security, and the Committee asked for details about what that means in practice. That provision is contained in the Bill, but it will not be reflected in the Regulations, because head (b) is designed to deal with a major pollution incident costing millions of pounds, which would require an arrangement of that type. It is not in the Regulations at present because we do not envisage an incident on that scale happening in Northern Ireland. If it were to occur, the Regulations could be changed accordingly.

Mrs Nelis: What do you mean by "on that scale"?

Mr Bell: I should say that the facility is not reflected in the Regulations under the Pollution Prevention and Control Bill or anywhere else. The Department has the power to require financial security

"pending the taking of remedial action".

I imagine that the legislation would deal with a situation in which widespread contamination occurred. I cannot think of a situation that could occur in Northern Ireland that would require that power. I suppose, if there was soil contamination in a wide area by some sort of persistent material, it might be appropriate to require financial security before taking remedial action.

The Chairperson: What sort of financial security would be required?

Mr Simmons: I am not sure. The clause appeared in the UK legislation, but it has not been reflected in the Regulations. I imagine that it would be some sort of bond.

The Chairperson: The issue, and the type of financial security to be provided, requires clarification.

Mr Simmons: We shall provide that.

The Chairperson: It would be helpful if you could find out exactly what it means. The clause is included in the legislation, so must mean something in some part of the UK. We need some clarification as to whether the clause has been used in the past or what it is intended to cover.

Mr Simmons: I agree with that.

The Committee raised a concern about serious pollution, which is mentioned in paragraph 15(1)(c) to schedule 1. Mr Bell dealt with that point on 4 July, and in our letter we set out the position again as to how we envisage the power being operated.

The Chairperson: In light of those responses, do members have any other questions? Is it considered that the use of the word "serious" is reasonable?

Mr Ford: I wish to return to paragraph 15(1)(b). Is that a requirement of an EU Directive or has it been added to the United Kingdom legislation? If it is a requirement of an EU Directive and we do not have the necessary Regulations in place, are we failing in our duty?

Mr Simmons: That is not the case; the requirement is a UK measure only.

The Chairperson: Can we be sure that it is in no way a requirement of an EU Directive?

Mr Simmons: Yes, we can.

The final point relates to different levels of fines detailed in paragraph 25 to schedule 1. That is a difficult and tricky problem, although there is no difference of opinion between the Department and the Committee in what we are trying to achieve. In effect, the Pollution Prevention and Control Bill is based on the "polluter pays" principle. The problem is how to put the paragraph into effect practically. Two aspects are involved, the first of which is that polluters should not escape from meeting the cost of pollution that they cause. The Regulations state clearly that a court has the power, not only impose a penalty, but to require polluters to remedy the pollution and to meet the cost. The second aspect is more difficult in that polluters should not be able to gain financially from their activities.

The Chairperson: I was checking with the Clerk to the Committee to discover whether you had sight of a new provision to cover the issue.

Mr Simmons: Yes, we have. That covers the second aspect where we see practical difficulties arising. Having considered the relevant provision in the Planning (Amendment) Bill, it would be reasonably easy, in legal terms, to provide something in the Bill along those lines. However, the practical outworkings might be more problematic as it is more difficult to quantify pollution incidents than it would be, for example, to quantify land development or land values. It would be difficult to draw a direct parallel between what we put in the Planning (Amendment) Bill and what would be in the Pollution Prevention and Control Bill.

Mr Bell may wish to elaborate on the operational side.

Mr Bell: To reiterate, there are two sides to the problem, one of which is to cover polluters who potentially could escape the cost of putting right any damage. That seems to be covered in regulation 26(2), which allows enforcing authorities to take steps to remedy pollution and recover the costs, as well as regulation 36, which allows courts to order offenders to remedy any matters.

The other issue is where there is a financial incentive or benefit in breaking the law. To use the analogy of the planning situation, if someone knocked down a listed building and built a block of apartments on the site, there would be a clear financial benefit. There is not a direct parallel with integrated pollution prevention control (IPPC) installations — a situation in which people would accrue a financial benefit from polluting deliberately. An example was given of the illegal dumping of toxic waste. That is not related directly to pollution prevention control (PPC) installations where it is the installation that is being permitted.

Arguably, were there a difference in the standards applied to similar installations, one might have lower costs if the standards were less stringent. However, that is more about consistency of permitting than someone gaining financially from breaking the law deliberately. There is not a direct parallel with regard to financial benefit from breaking the law. To ensure that people are accountable for putting right any damage that they cause is a valid point, but that aspect is addressed effectively in the Regulations.

Mr Ford: I accept that paragraph 18 to schedule 1 refers to the issues of remedial action and cost. Given the difficulties that we sometimes have with the judiciary, at all levels, in getting realistic recognition of penalties, does a case not exist for saying that paragraph 25 to schedule 1, which deals with offences, should include the issue of costs alongside fines? Mr Simmons referred to the Department getting back its costs, but fines do not benefit the Environment and Heritage Service or any part of the Department of the Environment. They are lost in the Treasury. It may or may not have been the case up to now, but by failing to tie the issue of compensation and costs into the issue of penalties, an opportunity has been lost to flag that up.

Mr Bell: Compensation and costs are addressed, but in addition to the penalty. The penalty would be the punitive aspect. The remedial costs could greatly exceed the fine, and the offender would also have to pay those costs.

Mr Ford: The opportunity to add on those costs while a criminal prosecution is ongoing, rather than the Department having to take a further civil case for the recovery of costs, would have time benefits for your staff if nothing else.

Mr Simmons: Provision is made in the Regulations for the court to do that. The Regulations state specifically that in imposing a penalty

"the court may, in addition to or instead of imposing any punishment",

require the offender to do the remedial works and to pay all the costs. That is an additional power.

Mr Ford: That is part of the criminal prosecution?

Mr Simmons: Yes.

Ms Harkness: That is regulation 36.

Mrs Nelis: The operative word here is "may". It states: "the court may"; should it not state "the court will"?

Mr Simmons: There is a limit to how far you can go in determining what the judiciary is or is not going to do, and "may" would be a standard word in such a case. It would be difficult to impose a mandatory requirement on a court in such circumstances.

Mrs Nelis: It is a serious weakness. We all know that polluters do not pay. As officials, are you convinced that the Regulations will ensure that polluters will pay? For example, if a manufacturer sets up a dying installation that pollutes the water, will he be made to pay for doing so? Are the Regulations strong enough?

Mr Bell: The power exists, but it is a matter of ensuring that the costs of remedial action are met.

The Chairperson: That is the problem. The power is there, but the courts must be made to exercise that power; that will not happen with the inclusion of the word "may". Clause 2(4) of the Bill stated that the Department "shall" consult district councils. That gave the district councils responsibility, and it should be the same for courts. That has grieved many people in the past because they felt that the polluter was leaving society to pay for his actions. There is a price to pay.

Mr Simmons: Those are legal issues, but departmental officials will discuss them with the legislative counsel.

The Chairperson: Our office suggested the inclusion in the Bill of the following provision:

"In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to the seriousness of the pollution incident(s), the environmental impact of the pollution and, where relevant, details of the costs of restoration and prosecution and to any financial benefit which has accrued or appears likely to accrue to a person in consequence of the offence."

Mr Simmons: I shall take that draft to the legislative counsel.

Ms Harkness: There are difficulties involved in mandatory sentencing provisions of that type, which can cause difficulties regarding human rights and the lack of flexibility for the sentencing authorities. Although it may be appropriate to encourage more stringent actions, there may be other ways to do that. Use of the word "shall" imposes obligations and will cause difficulty.

The Chairperson: The use of clear legislation was appropriate in the Planning (Amendment) Bill. Where possible, the same should apply in the Pollution Prevention and Control Bill because of the human rights issues involved. As Mr Simmons said, it is difficult to see from where the finances will come, but decisions must be made. Why can the court not make a decision where appropriate just as it will under the Planning (Amendment) Bill? That matter should be looked at again.

Mr Simmons: As I have said, if the Committee provides us with the draft I shall discuss it with the legislative counsel.

The Chairperson: The Committee raised its concerns about the levels of fines under the Pollution Prevention and Control Bill and suggested that the maximum should be increased from £20,000 to £30,000, in line with the proposals under the Planning (Amendment) Bill.

Mr Simmons: The figure of £20,000 is the standard maximum fine in Northern Ireland environmental legislation. That is not to say that it cannot be changed.

The Chairperson: It has been changed in the Planning (Amendment) Bill.

Mr Simmons: That the levels of fines are a reserved matter also presents a difficulty.

The Chairperson: That is also the case for the Planning (Amendment) Bill, but the Minister of the Environment will make representation to the Secretary of State. I request that, on the same day, the Minister mentions this Bill.

Mr Simmons: The Secretary of State, in giving his approval to the Bill, made it clear that it was on the understanding that the level of fines were identical to those in Great Britain.

The Chairperson: He has made those determinations before and has seen the wisdom of other people’s opinion. With the same vigour and vitality with which I ask you, I ask you to ask the Minister to present the case to the Secretary of State. If it is presented half-heartedly there is no chance of getting anywhere.

Mr Simmons: We can certainly do that, but the matter is outside our direct control.

As regards the letter of 6 August, the item outstanding is that headed "Consultation Responses", which deals with the comments from the Council for Nature Conservation and the Countryside (CNCC).

The Chairperson: Unfortunately, two other groups from the Department are outside waiting to meet the Committee. I apologise, but we shall have to deal with those matters next week.

Mr Simmons: We have no further issues to raise on the CNCC. The matter has been dealt with, unless the Committee has more questions.

Mrs Carson: It is a valid point that there seems to be no detail on the procedures of transboundary consultation for the councils concerned. Have you considered including powers in the Bill to cover that?

Mr Simmons: Those procedures on transboundary consultations are set out in the Regulations. The procedures are required under the Directive and that is reflected in the Regulations.

Mrs Carson: In my constituency, we are concerned about the headwaters of the River Erne that go into Fermanagh and South Tyrone.

Mr Simmons: The only other matters left to deal with are the responses that the Committee received from the Northern Ireland Meat Exporters’ Association (NIMEA) and the Northern Ireland Chief Environmental Health Officers’ Group (CEHOG). CEHOG’s response says little other than it is looking forward to reading the Regulations, of which they now have a draft copy.

NIMEA expressed concern about the 26 district councils’ interpretations. For all practical purposes, slaughterhouses are dealt with through part A and IPPC processes. Therefore, they are subject to control by the chief inspector, and uniform procedure. At the moment, slaughterhouses that are not covered by legislation are exempt from control altogether. In all likelihood, all slaughterhouses will eventually fall within part A and will be permitted by the chief inspector. We are content that we can deal with that matter easily enough.

The Chairperson: There were concerns that, as there are 26 councils, there would be 26 interpretations of the same piece of legislation.

Mr Simmons: It is unlikely that all the slaughterhouses will be covered by the councils. They will be dealt with by the chief inspector, so the issue does not arise.

We do not believe that the legislation is simply gold plating. It reflects the requirements of the Directive. NIMEA also requested copies of the draft Regulations, which have been forwarded for consultation.

The Chairperson: Have you contacted NIMEA to answer its concerns and queries?

Mr Simmons: We can write to NIMEA directly or perhaps respond through the Committee. We can provide the Committee with a response to send on to NIMEA.

The Chairperson: We have made significant progress on the Bill today. Time is running out, but we still have issues that must be addressed. Thank you.

5 September 2002 (part i) / Menu / 12 September 2002 (i)