Rev Dr William McCrea (Chairperson)
Mr Armstrong
Mrs Carson
Mr Ford
Mr Molloy
Mrs Nelis
Mr Poots

Mr D Bell ) Department of the Environment
Mrs E Harkness )
Mr N Simmons )

The Chairperson: We welcome Mr David Bell, Mrs Ethne Harkness and Mr Norman Simmons back to the Committee.

Mr Simmons: I shall run through the letter written to the Committee on 9 September. That dealt with the issues which followed last week’s meeting of the Committee.

The first item concerns amendments to the explanatory and financial memorandum. As requested, we have provided two amendments. One of those relates to clause 2(5), and attempts to set down more clearly the purpose of the clause and the Department’s intentions as to its use. The second amendment is to the text in clause 4, which clarifies the meaning of "appointed day" and "relevant day", as used in the clause.

The Chairperson: The proposed amendment refers to clause 4(5), which should have been deleted, as agreed last week.

Mr Simmons: Sorry. We have made the amendments to reflect the Committee’s views of last week. The other incidental amendments will be made when we rewrite the explanatory and financial memorandum after Consideration Stage.

We have provided two draft amendments. The first is the amendment requested by the Committee last week, and it inserts the requirement in clause 2 to consult bodies or persons appearing to be representative of district councils. That subsection will now read:

"Before making any regulations under this section, the Department shall consult —

( ) district councils and such bodies or persons appearing to it to be representative of district councils as it may consider appropriate;".

Mr Simmons: I am sorry; that was not in the Committee’s letter to us.

Mr Ford: I appreciate that and I do not point the finger; I only raise the question.

The Chairperson: I am not so sure that the proposed wording provides for what we want. It says: "appearing to it to be representative of district councils". There is no reference to staff. You have the representatives of district councils, but not of the staff.

Mrs Harkness: On what basis would there be an interest in staff? Why would that be? What is the objective of including an express reference to staff? You would normally expect that when a Bill was going to involve contracts of employment, terms and conditions of appointment or something like that, but presumably that is not what the Committee is interested in here. I am not sure where this could be directed.

The Chairperson: When we have been talking about district councils in the past, we have been anxious to include the staff, who have representatives as well, in any consultations. We have been trying to protect that in the past.

Mrs Harkness: But the decision-making responsibility and so on would be in the hands of the district councils. Their staff would just be in a role of advising, and then handing over. The decision-making role would be for the councils as such.

Mr Ford: In my experience as a district councillor, I have sometimes felt that the advice of officers can be very valuable. I would have thought that there would be a strong argument for saying that the involvement of council staff at the consultation stage would help to smooth matters. Sometimes the Department does benefit from the advice that it receives from other people, especially experts closely related to the work that is involved.

Mrs Harkness: Absolutely, but there are other bodies that are named consultees, through which the views of experts — environmental health officers or whoever — can come. This is not something that has been referred to legislative counsel, because it was not in the letter, but I imagine that there would be a difficulty in deciding what mechanism you should use to consult staff on an issue such as this. When you are talking about terms and conditions of employment you can see a clear trade union role, but how do you do it in a situation like this?

Mr Ford: How does the Department consult the interests of small businesses? If it goes to bodies that apparently represent the interests of small businesses, I do not see how consulting council staff is any more difficult than liaising with the other list of consultees.

Mrs Harkness: For small businesses there are representative bodies, such as chambers of commerce and so on, and there would also be, through advertisement, scope for individuals to come forward and describe their position and the locus standi that they have for putting forward their views. It is more difficult in terms of individual staff, who can only speak in this matter as individuals. It is harder to see how the consultation would operate.

Mr Molloy: I do not want to break rank with the Committee on this, but I am inclined to agree that council staff are representative of the council if they are appointed to be so. There is a danger here. The primacy of the elected representatives within district councils is an important aspect. When expert advice is required, that comes through a certain structure. It is important at that level that we do not get personal opinions overruling the district council’s opinion. A representative of the district council could be an officer or a councillor, but it is not necessary for that to be defined.

The Chairperson: Before we have any further discussion, because we are talking about councils, could we have a declaration of interest please?

The Chairperson: I would prefer to go back to the first wording — "representative of the interests of district councils" — because it was more open. That would take in Mr Ford’s point. The interests of district councils could include staff. When you say "representative of district councils", that can tie it very much to an elite body, rather than the unions that represent staff. I have always found that it is much better to bring staff with you, rather than to say that their opinions do not count and that they are simply tied onto it.

Mr Simmons: We could reinsert the words "the interests of" —

"representative of the interests of district councils"

- if that was the Committee's wish. I do not think that that would cause any problems.

Mrs Nelis: Would the word "both" not qualify it?

- "both district councils and such bodies or persons . representative"?

To me, that would be staff.

Mrs Harkness: This is really looking at what will be paragraph (a) of a series of things. We are really looking at one paragraph in isolation. There is, in effect, a list. It would not be necessary to say "both", because we are saying

"district councils and such bodies or persons appearing to [the Department] to be representative of the interests of district councils … as it may consider appropriate".

In drafting terms, subject to advice from legislative counsel, I do not see any difficulty in doing that. If you were to say "both", there might be a difficulty about just how many you would want to consult. You might be limiting it.

Mr Armstrong: I do not see much of a problem with the original wording. It says:

"the interests of district councils, industry, agriculture and small business".

That takes in everyone. I refer to your list of what constitutes pollution. That has to be discussed at all times, because sometimes what is deemed to be pollution is not pollution. You have to consult with everyone, and I think that everyone is marked up in the section that gives that. You really have everyone there.

The Chairperson: Well, there is a proposal from the officials, but we may be making a different proposal. We have done that before, and we shall continue to do so in the future if we are trying to get clarity. We want to be sure that we know exactly what this means. There is not much of a difference between our positions; it is just getting clarity on the wording. You mentioned a moment ago the wording that you were trying to include. Can you send that quickly through to us?

Mrs Harkness: The only change — and it would have to come from legislative counsel — would be "representative of the interests of district councils" rather than "representative of district councils". Keep that as a new paragraph (a). Paragraph (a) would then cover district councils and bodies or persons representative of the interests of district councils; paragraph (b) would refer to those representative of the interests of industry, agriculture and business; and the miscellaneous consultees would be covered in paragraph (c).

The Chairperson: That could be a way forward on this.

Mr Simmons: Yes, that is fine.

The Chairperson: It is a way that we can move forward on that. Let us move on to the next amendment.

Mr Simmons: The next amendment is the raising of the maximum fine level from £20,000 to £30,000. Our legislative counsel has drafted that for us. In line with our commitment last week, we are in the process of putting that to the Minister to seek his views on approaching the Secretary of State.

The Chairperson: When is that going to the Secretary of State?

Mr Simmons: We are holding off because there is another amendment proposed by the Committee on the same issue, and we will send the Minister a composite submission.

Another issue raised was the proposed amendment from the Committee that certain matters should be taken into account when deciding levels of fines. Departmental officials have been working hard this week on that proposed amendment with legislative counsel. However, he has identified some serious legal problems with some of the concepts that the Committee would like to see reflected in the clause. Mrs Harkness will give the Committee a summary of the counsel’s points.

Mrs Harkness: The points are presented in a short document that has just been circulated to Committee members. The proposal came from the Committee to introduce an amendment requiring the courts to have regard to certain factors determining the level of fines. The Committee saw that as being in line with clauses in the Planning (Amendment) Bill and provided a draft of what it had in mind. The draft clause is set out in the paper that you have just received. The view of legislative counsel is that that violates some fundamental principles of the criminal justice system and sentencing process and, consequently, could not be supported as a package.

Various issues arose from the proposal, and some of the points that I want to make focus on the overall thrust of the proposal, and some concern the individual factors that are listed in the handout. The first proposal concerns "seriousness", and the draft states that "the court shall in particular have regard to the seriousness" of the pollution incident. That provision is not found in the Planning (Amendment) Bill. The seriousness of the offence, its consequences, and the relevant circumstances are already the most important factors in sentencing. The courts are obliged to do that by criminal justice provisions.

To provide in a Bill that the court must have "regard to seriousness" would not just be stating the obvious, but, in the words of legislative counsel, it would be "extremely dangerous". It would throw into question the whole issue of what the courts are doing in other situations. If the courts are to be told to look at the "seriousness" of one offence, then what is the role of "seriousness" elsewhere? For that reason legislative counsel’s firm advice is that "seriousness" as a concept should not be a factor that is expressly mentioned in this way.

The second point relates to the costs of prosecution to be taken into account. Legislative counsel said that it would be "entirely improper" to take into account the cost of prosecution because it is not a matter that the accused can control. As well as that, everyone has a constitutional right to defend themselves, and to say that a punishment will be increased because the accused had the temerity to defend himself against this charge is constitutionally improper.

There is an existing regime to deal with the payment or recoupment of costs. There is scope for costs orders to be made in criminal cases, but that is entirely unrelated to the system of criminal law penalties. It is a separate regime that is not part of the sentence, and it is expressly designed to compensate the authority rather than to punish the offender. Therefore, the matter is dealt with through that regime. It would not be proper for that issue to be dealt with under the Bill.

The third issue relates to costs of restoration, which is not just restoration in the limited sense, but remediation, which, although not a very attractive word, means remedying the effects of environmental damage. There are already several provisions relating to remediation and site restoration that are not specifically in the Bill, but appear in the Regulations. The Bill contains enabling powers to allow those Regulations to be brought forward. Although I have not gone into detail, I have referred to the provisions, which members can read to see the scope of what can be done. Does the Committee want more details on those provisions?

The Chairperson: Can you give a brief résumé of those?

Mrs Harkness: Paragraphs 6 to 8 of schedule 1 are among the paragraphs that deal with permits. Many of the Regulations address the point. In particular, paragraph 8 of schedule 1 allows for provisions to be made regulating the transfer or surrender of permits. Sub-paragraph (3) states that permits may be issued

"Authorising the imposition by enforcing authorities of requirements with respect to the taking of preventative or remedial action … in connection with the surrender … of permits."

That covers a situation where a person is about to leave the site of an installation, and the enforcing authority will not accept a surrender of the permit without being satisfied that adequate site restoration has been carried out. It is followed through in Regulation 19 of the draft Regulations, of which members have a copy.

I have drawn attention to paragraphs 14 to 18. Paragraph 15(1)(a) allows the enforcing authorities to serve notices requiring permit holders to take remedial action. It is not quite the same as restoration work, but we took it that the Committee meant that overall type of work. Regulations 26 and 36 of the draft Regulations take that provision forward. My colleagues from the operational side could give more information on that.

The Chairperson: Therefore, there is already provision in several other parts of the legislation, be it the schedules, Regulations or whatever, for what we want to incorporate.

Mrs Harkness: Not only is it covered elsewhere, but duplicating such provisions would, in itself, raise a difficulty by creating the risk of a double penalty. If it is mentioned as a factor to be taken into account in sentencing, it might restrict the powers of the enforcing order to issue a remediation or restoration order, because the accused might point out that while his or her fine is being increased to take account of that, he or she is also being ordered to pay the bill for remediation. Therefore, there is the risk of a double penalty. That is dangerous territory.

The Chairperson: Do members want to comment on any of the issues already covered?

Mr Ford: I have a degree of sympathy with the view that is expressed at paragraph (a) of the Department’s paper. Clearly, the Committee does not want to do anything that is outside normal criminal law. However, with regard to the arguments that have just been advanced about paragraph (c), the examples that were given were not related to restoration. Remedial action is referred to in paragraph 15(1)(a). It does not refer to restoration. Are you sure, on remedial action, that that covers not only ensuring that pollution does not continue but also includes full responsibility for restoration? I am concerned that paragraph 8(3) is merely concerned with surrender or permits; indeed, Regulation 19 refers to "application to surrender". When it gets to that stage it is not an effective power to deal with an ongoing problem. Does paragraph 15(1)(a), which refers to remedial action, specifically include full powers to get restoration work done and paid for, as opposed to merely stopping the existing pollution? "Remedial" and "restoration" do not have the same meaning in the English language, but they may have the same meaning to lawyers.

Mrs Harkness: Even to lawyers they do not have the same meaning.

Mr Ford: If that is so, where is the power of restoration?

Mrs Harkness: Paragraph 8 leads to that.

Mr Ford: I accept that, but that is only at the surrender of a licence. With regard to an ongoing problem you cited at paragraph 15, where is the provision to ensure that restoration, as opposed to mere remedial action, takes place?

Mr Bell: In the context of the Regulations, site restoration has a specific meaning that comes from the EC Directive. The Directive requires that on cessation of operations the site be restored to a satisfactory state. I believe that in the context of the Regulations the word "restoration" relates to cessation of operations. "Remediation" has a more general meaning. When site restoration is referred to in the context of the Regulations and the permit surrender provisions, it refers to the site of the installation, which is the footprint of the installation. The "remediation" measures could go well beyond that. Pollution could have occurred outside the boundary of the site and would need to be addressed. That is covered by Regulations 26 and 36.

Regulation 26 provides for enforcement authorities to issue notices requiring remediation. Regulation 36 provides for the courts to order remediation. Therefore, in that context, there is a differentiation, in that the word "restoration" is used in the context of the site and putting the site right before a cessation of operations. "Remediation" has a more general use, but it does mean putting right the effects of pollution and not just stopping the cause of pollution.

Mr Ford: Are you saying that Regulation 26 is covered by paragraph 15(1)(a) with regard to the word "remedial"?

Mr Bell: Yes. Regulation 26 gives effect to the general power in paragraph 15(1)(a).

Mr Ford: OK.

The Chairperson: It seems that once again the Department and the Committee are of the same mind with regard to wanting to ensure that the issue is covered. Officials say clearly that what we are endeavouring and desiring to do is already there and will be empowered by the legislation.

Mrs Harkness: We move to paragraph (d) of our paper and a difficulty raised by legislative counsel. It relates to the nature of the legislation involved. The proposal assumes that offences under the Bill will result in pollution. It contains the idea of cause and effect, but that will not necessarily be the case. The Bill is focused on concepts of permitting, and regulatory offences. There are also concerns about substantive pollution harm, and offences which cause pollution. There is not necessarily a causal link between the offences established in the Bill and the harm that can be seen on the ground. For example, with regard to the primary offence of operating without a permit, it cannot be said that harm arose next door to a site because someone was operating on the site without a permit. In the same way, it cannot be said that because someone was driving a car without a licence, there are pedestrians lying on a zebra crossing. There is no consequential link. That is the difficulty, and it is not just a pedantic, purist legal argument; it is a difficulty of substance.

There are some offences under the Bill. The Regulations create several offences; some could be described as regulatory, such as giving false information or not supplying information. To create that causal link would be very difficult. With some it could be argued — at least to the satisfaction of some people, if not the purists — that there is a connection. Even where it could be said that the pollution effect resulted from that infringement of the code, there would be other mechanisms for taking the scope or extent of that pollution harm into account in the sentencing process. That would be via the route of seriousness again.

If an offence does not technically lead to pollution, but is part of the scenario in which pollution arises, the seriousness of the offence and the elements associated with it will, in any event, be taken into account by the court. I submit that that is why, for example, there is no provision in the Planning (Amendment) Bill, which is our precedent, requiring that the dramatic or widespread effect of disregarding an enforcement notice must be taken into account. That already impinges on the seriousness, and on the overall role of the courts.

Our argument is, therefore, that first, in many cases, the link will not be made and that inroad will not be there. Secondly, seriousness as an overriding concept will take care of that difficulty. The draft refers not just to the seriousness of the pollution incident, but the environmental impact as well. The same argument applies to that too, and that is really what legislative counsel’s objections to that point are.

The Chairperson: If the link cannot be established in all cases, but can be established in some, why should there not be legislation to cover the particulars of those cases in which it can be established?

Mrs Harkness: If it could be established, then it would be possible to draft something that isolated not just offences out of the list of possible offences, but the way in which they were carried out on the ground. There would be difficulty in establishing the cause and effect. It could be done, but you would really be creating a subset of offences from the overall category of offences, where the seriousness of the whole scenario associated with the offence is already relevant. Potentially you would be dangerously impinging on the overarching concept of seriousness. It is hard to see how the court would distinguish between what it is doing under its implicit requirement to have regard to the seriousness of the offence and what it is then doing under its express requirement to have regard to the environmental impact. It would do both at the one time. If you separate them, you have arguments about whether the court is taking the same factor into account twice. It could be argued that it is unfair to the accused, who is being hit twice for essentially the same factor.

The Chairperson: Many of the words being used here, such as seriousness of pollution incidents, the costs of prosecution, and the environmental impact, are words used by the Department in its letter of 6 August to us.

Mrs Harkness: Yes, but they are used in the context of the overall sentencing regime that is familiar in criminal law. You are not requiring the courts specifically to address that.

Mr Armstrong: I cannot get my head around this. When is a pollution not a pollution? That is going to be the problem. A person could be deemed to be polluting, when in fact using anaerobic digesters or involved in the pasteurising process. That could be deemed to be pollution at the start of the process, but not to be pollution by the end of the process. How do you address that problem?

Mrs Harkness: In that situation the offence is not specifically polluting; it could be operating without a licence, breaking a condition of the permit, not supplying information required and things such as that. Those could be offences even if no pollution actually materialises — in the same way as the drunk driver is committing an offence even if he makes it safely home. He has still committed an offence, and this could be the same. With regard to the penalty, you want to punish more severely the drunk driver who actually knocks down the person, or, likewise, the operator whose wrongful operation results in a measurable impact of pollution. They are both wrongdoers.

Mr Poots: I do not think that the courts see it that way. A court looks at a situation where wrong was done, even if it may have been a matter of good fortune that something harmful was not done. A judge will look at both aspects and will regard them with the same gravity.

Mrs Harkness: The court has to take into account what arose as a result of the wrongdoing, or even the risk that wrongdoing exposed.

Mr Poots: Exactly.

The Chairperson: We saw that in connection with mobile phones recently, where someone got a two-year sentence for using a mobile phone while on an aeroplane. The plane did not crash, but the risk was there.

Mrs Harkness: There was a case involving someone driving on a motorway a short while ago. The driver dropped something and was fumbling to pick it up, when he lost control and crossed the central reservation with devastating results. It was a moment of carelessness, and most of us have got away with it many times, but the sentence in that case was imprisonment. We all run those risks if we drive carelessly. The same situation applies here.

Mr Simmons: The last factor is the question of the financial benefit, and it most closely resembles what is contained in the Planning (Amendment) Bill. We feel that it is not a direct comparison with the Planning (Amendment) Bill, and there are practical difficulties in establishing and quantifying financial benefits. However, having discussed it with legislative counsel, we are coming to the view that there may not be any overriding legal reason why a provision along those lines could not be inserted into the Bill, although we would have reservations about its practical outworkings. There may well be scope to explore with legislative counsel a provision in the Bill that restricted itself to financial benefit, very much along the lines of what is in the Planning (Amendment) Bill.

Mrs Harkness: The practicalities of doing that are different, and there are several reasons why. The difficulties arise when you move from the question of technical competence or "draftability" to the issue of how that provision would work, operate or make a difference in practice. In this context, unlike planning, it is difficult to see a close correlation of the type that the courts would need between offences under this legislation and financial benefit accruing.

It is difficult to see a causal link, and it is difficult to see the scope for doing it. It is also difficult to quantify any possible financial benefit. That is unlike the planning context, where you can have evidence of differentials in the value of land. You can say that there was an enforcement notice in place forbidding a building from being knocked down. You can show that the offender calculated the cost-effectiveness, decided to infringe the enforcement notice, and made a profit as a result. You can produce evidence from the experts about the level of the profit. That is easily workable by everyone involved.

It would be more difficult in this context. It would not be a one-off infringement; it would probably be a pattern — a continuing operation. An enforcing authority with a continuous, proactive role would be involved. The practicalities are different, but, as Mr Simmons said, it is possible to draft such measures. It can be done, but it would be difficult to put into operation.

The Chairperson: We must be careful. There are examples: there was a scandal in Craigavon some time ago regarding pollution, and a connection could be made. The Assembly’s legal advisers have advised the Committee that there is scope to draft provisions to cover the causal connections aspect, and thus meet the Committee’s concerns.

Mrs Harkness: It would be possible to take account of the need to show a causal connection. However, it would be difficult to convince a court that that requirement had been satisfied in relation to the evidence that would be forthcoming.

The Chairperson: It may or may not be difficult. The legislation could be in force for some considerable time, and it could be a long time before we get the chance to put it right again. The Assembly’s legal advisers have told the Committee that it can be drafted to take account of the causal link.

Mrs Harkness: I agree with that legal advice.

Mr Ford: In talking about the causal link, you highlighted the issue of the standards of proof. In taking an enforcement action, is it judged as in a civil case as opposed to a criminal prosecution? Are you looking at the balance of probabilities rather than being "beyond all reasonable doubt", thus making it easier to establish?

Mrs Harkness: No. We are talking about criminal offences and the factors that a court has to take into account when sentencing. If a court is to have regard for the financial benefit accruing as a result of the offence, it would have to be convinced that the evidence provided justified increasing the sentence. My difficulty is that I can see how, in the planning context, even anecdotal evidence of property values would show that someone had made a killing from his or her actions. It is not so easy to do the financial calculation, or to present the evidence, in this context.

Mr Ford: Is the enforcement action, and the potential recovery of costs by court order, easier to tie into some of these points relating to the gravity of the offence because of the question of the burden of proof that is required, or are you simply objecting to the concept of introducing this in the criminal part of activity?

Mrs Harkness: No. I do not have an objection to that — [Interruption].

Mr Ford: Sorry. I meant to say "expressing reservations about".

Mrs Harkness: My reservations would be based on the workability of the provision and how the courts would use it on a day-to-day basis. It could become a provision that lies on the statute book but is never used successfully. It is not likely to earn its keep on the statute book, and it is raising issues which the courts already ought to be considering. The general rubric concerning the circumstances of the offence and the sentencing approach already include those who set out to make a profit from an infringement. That is another objection. I do not envisage the courts using this provision, or people being able to present the sort of evidence that would convince the courts to use it. However, I can imagine accused people bringing appeals based on the argument that their sentences were increased on the basis of this provision, when they should not have been. I can envisage that counterproductive element. However, I do acknowledge that, as the Planning (Amendment) Bill would show, it is possible — unlike some of the other provisions that we have discussed — to draft a provision that requires the courts to have regard to this factor. We would then see what the courts do with it.

Mr Molloy: I can envisage this provision being used in cases where, for example, a contractor has disposed of waste improperly and has created a major pollution problem. The cost could be calculated on the basis of what the contractor was paid for disposing of the waste. Such improper disposal is one of the major causes of pollution.

Mrs Harkness: Waste disposal is one area where this provision could be used. However, some of those offences would come under waste Regulations, and not necessarily pollution prevention and control (PPC) installations.

Mr Bell: Some PPC installations may be handling waste, but in the situation that Mr Molloy has described it is usually the case that the waste being transported never actually reaches waste disposal installations. Such cases would not be covered by the PPC Regulations. In theory, there may be some sort of a link in a limited number of cases, but it would be difficult to quantify. The improper disposal of waste is a relevant issue, although not one so directly linked to PPC. However, it could not be ruled out as some installations may handle waste.

The Chairperson: Is it not better to look at something than to look for it? If including this provision in the legislation will not hurt anyone, is it not better to consider the matter, and have the power, than to need the power, and not have it? The provision may not earn its keep, but we do not just pass legislation on the basis that it will earn its keep. To tell you the truth, there is a pile of legislation on the statute book that has not been dusted for 100 years — but it has not been removed, because it just might be needed some day. If it can be drafted, and if it will not injure the Bill, it should be included in case it is needed.

Mrs Harkness: I argued not only that it would not earn its keep, but that it may be counterproductive. It may cause problems, but the Committee must evaluate that.

Mrs Nelis: I am inclined to take the advice of the Committee’s legal advisers. I accept that the Bill is regulatory, but polluters have been finding loopholes in the Regulations for years. Some form of deterrent must be built into the Bill.

The Chairperson: If possible, the Committee wants that point to be covered in legislation; the Assembly legal adviser says that it can be done. I do not think that it would have an adverse impact on the Bill. The Committee is working within a time limit, and we promised the Minister that we would meet the required deadline. Because of that, the drafting on outstanding issues is urgently required so that our staff can send it out to Committee members before the clause-by-clause reading next week.

Mrs Harkness: I wish to be clear about what is required. Are we talking about the accrual of financial benefit or other issues such as prosecution costs?

The Chairperson: May I have clarification on paragraph (a), which was mentioned by Mr Ford?

Mr Ford: We have no other option but to accept the advice that we received on paragraph (a).

The Chairperson: Our legal advisers focused on paragraphs (d) and (e), which relate to the causal link.

Mr Ford: I am concerned about paragraph (d), although I accept that the officials are meeting us halfway on paragraph (e).

On a practical level, some people may cause serious pollution incidents at relatively minor financial benefit to themselves. For example, in dumping a couple of tonnes of waste in a burn as opposed to a proper landfill site, a polluter might only save a few hundred pounds in gate fees, while causing tens of thousands of pounds worth of damage. If the Committee wishes to pursue that line, paragraph (d) will be more important than paragraph (e). Officials are meeting us halfway on paragraph (e); however, I am not sure that the issue of financial benefits is as important as the issue of external costs.

Mrs Harkness: The difficulty with what you are saying about paragraph (d) is that it impinges on the idea that courts implicitly give the matter of seriousness consideration. It involves duality.

Mr Ford: I accept your concerns, but there would be more practical value in pursuing paragraph (d), because the financial benefits to operators of not using a landfill site may be relatively small compared to the costs incurred by public authorities in remedying damage.

Mrs Harkness: That is how this situation is different from planning.

Mr Ford: Mr Chairperson, I am not sure whether that means that the Committee should just roll over and accept the arguments against paragraph (d) or whether we should continue to push the matter.

The Chairperson: We must look seriously at paragraphs (d) and (e). Our legal adviser tells us that both paragraphs are important and that there is scope for accommodation.

Mrs Harkness: My view is that paragraph (e) could be drafted to meet those concerns, but I would not feel free to say that legislative counsel would be satisfied that something along the lines of paragraph (d) could be done — he has serious reservations about getting into that territory.

Mr Simmons: Mrs Harkness and I can speak to legislative counsel to see what he can come up with; however, regardless of whether we go for (d) and (e), or (e) alone, the approval of the Secretary of State is required.

In putting our case to the Minister, who may refer the matter to the Secretary of State, we must reflect legislative counsel’s views, including his opinion that paragraph (d) is seriously flawed. It will then be for the Minister to decide what to do; however, I believe that the Secretary of State would give heavy consideration to legislative counsel’s opinion. Primarily, it is for the Minister to decide what to do. As well as putting the Committee’s case, we will be duty bound to give the views of legislative counsel.

The Chairperson: Legislative counsel’s opinion is that the Bill as it is drafted is flawed. Our legal advisers, who are also senior counsel, tell us that there is scope for doing something on (d) as well as (e). We are in the hands of lawyers who, as you know, are wonderful people. However, the good book says:

"Woe onto you also, ye lawyers!" (Luke 11:46)

They are like doctors — some patients die. However, we have taken advice.

We have a time constraint, which we are trying to fulfil. The Minister can help by giving genuine consideration and importance to the views of the Committee. You must keep in contact with Committee officials and our legal advisers to see if we can come up with wording that can satisfy some of the matters that we are asking you to review urgently. We must carry out a clause-by-clause consideration next Thursday.

Mr Simmons: We will speak to legislative counsel, and we will pass on to the Committee as a matter of urgency anything that we can draft. However, we cannot give unqualified approval until the matter goes to the Minister and, if need be, the Secretary of State.

The Chairperson: Would it be helpful if legislative counsel spoke to the Assembly’s legal advisers about a possible draft? If the opinion of both advisers is that it is not possible, at least the Committee will know where it stands.

Mr Simmons: We have been working closely with your legal advisers for the past week, and we will continue to do so. If an amendment is agreed, we will draft that to the Committee as quickly as possible. There is, however, this other loose end: it is a qualified passing, because we cannot say unequivocally that the proposal will be included in the Bill until we have the view of the Minister, who may decide to go to the Secretary of State on the issue.

The Chairperson: We must ensure that the Minister approves all our amendments otherwise they will not stand.

Mr Simmons: That is the first step in the process. We will now discuss the other amendment relating to the £20,000 to £30,000, and take what arises out of that to the Minister to seek his views on a way forward.

The Chairperson: If you pass on that information to us, the Committee officials will distribute it to members as quickly as possible.

You were also to update us on the financial security aspect.

Mr Bell: I want to clarify some of the comments that we made last week. We have been looking at the issue in more detail. To refresh everyone’s memory, we are referring to schedule 1, paragraph 15(1)(b), which relates to a general power to enable enforcing authorities to issue notices requiring financial security after a contravention of a permit, and pending remedial action.

The provision, if implemented in the Regulations, would complement Regulation 26, which allows enforcing authorities to take remedial action after a permit contravention and to recover the costs of that action from the operator. In cases where the costs are likely to be substantial, the enforcing authorities could benefit from having greater certainty that they will be able to recover those costs from the operator before committing themselves to the expenditure.

Last week, I said that such provisions would be relevant only in the event of a major incident, and I stand by that view. I said that I found it difficult to think of circumstances in which it would apply in Northern Ireland, but a major incident could occur. For example, a significant oil spill would require costly remedial action.

The difficulty arises from the complexities of the financial arrangements. They are not like insurance, because they do not deal with a risk; they deal with an event that has happened. It is difficult to define the financial security. Possibly, it would consist of some sort of bond or secure lodgement.

Financial security provisions are complex, and they are still evolving in several related regimes. There is a draft Directive on environmental liability, which might contain a clause relating to permit exemption. In other words, it would limit the environmental liability of operators who operated within the conditions of their permits. Sub-paragraph 15(1)(b) of schedule 1 would allow us to introduce a provision in the Regulations that would satisfy the requirements of that environmental liability Directive. However, the arrangements for financial security are not at present sufficiently developed for that regulatory power to be drafted. The power could be used in the future to implement the requirements of the environmental liability Directive. Last week we discussed whether the sub-paragraph was needed, if it was not reflected in the Regulations. The Department would rather leave it in place, because it would allow us to satisfy the requirements of the draft environmental liability Directive by amending the Regulations. I hope that that clarifies the paragraph.

The Chairperson: We must tease out whether it will earn its keep on the statute book.

Mr Simmons: To elaborate on what Mr Bell said, the environmental liability Directive, as it stands, would require any operator — carrying out any activity — to take out protective financial security. That is a massive undertaking. The UK is among several member states that are trying to deal with that by suggesting the concept of permit exemption. However, if we choose permit exemption and no financial security, we will be left with little environmental liability. Permit exemption is in the melting pot, and that sub-paragraph is designed to reflect or deflect the possible outcomes.

The Chairperson: Thank you for your advice and patience in taking the Committee through the material. We will go through the Bill clause by clause next week.

Mr Simmons: May we take the amendment on district councils as read, by putting in "representative of the interests of"?

The Chairperson: Yes.

12 September 2002  (i) / Menu / 19 September 2002 (i)