Select Committee on European Scrutiny Seventh Report


COM(01) 139

Draft Directive on the protection of the environment through criminal law.

Legal base: Article 175 (1) EC; co-decision; qualified majority voting
Department: Home Office
Basis of consideration: Minister's letter of 14 November 2001
Previous Committee Report: HC 152-ii (2001-02), paragraph 6 (17 October 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Cleared, but further information requested


11.1  The draft Directive aims to establish criminal offences for certain acts relating to the environment, whether committed intentionally or through serious negligence, and in breach of Community law protecting the environment. It would oblige Member States to set effective, dissuasive and proportionate penalties for these offences, including imprisonment in serious cases.

11.2  When we last considered this document, in October, we left it uncleared, noting that there did not seem to have been many developments since it was deposited. We agreed with the Government that the criminal law aspects of environmental protection were matters for Member States, subject to any measures taken under the EU's Third Pillar,[51]and not within the competence of the Community. We asked to be kept informed of the progress of negotiations, especially in relation to the competence issue.

The Minister's letter

11.3  We have now received a letter from the Parliamentary Under- Secretary of State at the Home Office (Mr Bob Ainsworth), addressing questions from Lord Brabazon of Tara on this proposal. Lord Brabazon had asked about the likely impact of the draft Directive, noting that the Minister had been unable to respond to our question about the likely resources needed to implement and monitor the measure. In reply the Minister says:

"The Government has undertaken an extensive cross-departmental consultation and I can confirm that the exercise has so far shown that the draft Directive is unlikely to create new offences. The Government believes that it is unlikely that changes to current legislation will be required. The Government cannot, at present, put a figure on implementation and monitoring costs but given the points mentioned above on new offences and changes required, it is unlikely that these will be significant."

11.4  Like us, our sister Committee in the House of Lords raised concerns about the competence issue; it asked for the Minister's view on the way forward. The Minister says that he can add little to his earlier response, but then continues:

"The Government considers that one way forward would be to use the model adopted for the instruments on unauthorised entry, transit and residence.[52] Thus, a Directive would stipulate the conduct to be prohibited and would provide that the conduct should be subject to effective, proportionate and dissuasive sanctions. An accompanying Framework Decision would provide that the conduct is subject to criminal sanctions and would set out the provisions on jurisdiction. The Government takes the view that others can be persuaded that this is an acceptable way forward."


11.5  Although there still does not seem to have been much progress in negotiations, the Minister's response goes some way to addressing our chief concerns — the likely cost of the measure, and the issue of Community competence. We agree with the Government that the combination of a Directive and a Framework Decision, while cumbersome, would constitute a way forward.

11.6  We are now content to clear the document. However, we ask the Minister to let us know what consultation took place with the Scottish Executive on the document, and how any matters raised by the Scottish Executive were dealt with. We would also still like to be kept informed of progress on the document, and, if it is recast as the Minister suggests, we shall, of course, require the new documents to be deposited with an Explanatory Memorandum.

51  i.e. inter-governmental co-operation in the field of Justice and Home Affairs. Back

52  (21969) 13739/00; see HC 152-i (2001-02), paragraph 7 (18 July 2001). Back

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