Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 964-979)





  964. Baroness Young of Old Scone, thank you very much for being with us this afternoon. We are very grateful both for the paper which has been put in and for you being with us this afternoon. Before we get under way, since there are three of you, would you like to introduce the colleagues you have brought with you so that it is on the record.

  (Baroness Young of Old Scone) I have Dr Paul Leinster, who is our director of environmental protection and Ric Navarro, who is our legal director.

  965. Thank you very much. Is there anything you would like to say by way of opening pursuant to your paper or would you be happy for us to get under way?
  (Baroness Young of Old Scone) No, I think our paper was fairly comprehensive.

  Chairman: Thank you very much. Baroness Gould would like to start.

Baroness Gould of Potternewton

  966. Baroness Young of Old Scone, throughout the paper which you so kindly let us have there is a number of references to relationships with Government and relationships with ministers and I found myself becoming a little confused about how that relationship actually works. For instance, in one instance you refer to being accountable to ministers and in another we have "interact with ministers" and then there is the question of the two roles that you play in paragraph 4.3, the second one being as an independent advisor to Government on environmental issues, and then if you have a conflict there is a right of appeal to the Secretary of State by the person who is making the complaint. So I found myself really looking to try to find a pattern through which I could actually say this is your relationship with ministers and with Government. I wonder if you could explain a little more about that and also within that how you maintain your independence.

  (Baroness Young of Old Scone) Well, we are accountable to ministers and through ministers to Parliament and to the National Assembly for Wales. Ministers appoint our chairman and our board and indeed are also responsible for appointing members of our advisory committees. Our relationship with Government has got several strands to it. We clearly are a regulator and we make independent regulatory decisions within the regulatory framework laid down by law but many of those regulatory regimes do have a right of appeal to the Secretary of State and we think that works reasonably well. We have to preserve a decent space between us and ministers in making our decisions so clearly our decisions have to be independent so that they are not compromised in their appeal role. In terms of our further role as advisors to Government, as champion for the environment, that was debated thoroughly about three years ago in our five yearly review and we established very firmly that we did have a role as giving authoritative and knowledgeable advice to ministers, to Government generally and indeed to anybody who would take our advice, quite frankly, because our primary objective must be to protect and improve the environment. It is quite a delicate relationship in giving advice to ministers because we believe that we also must be pretty open and transparent about that advice and from time to time what we are saying might be a trifle unpopular with ministers but providing we can demonstrate that it is rational and evidence-based I think we get along. The important thing, I think, for the agency and for the environment, and indeed for the political process, is that we are seen as authoritative and not interfered with because that is the only way we will gain public trust and it is important that the public trust the agency to do a decent job by the environment. I do not know whether Ric Navarro wants to comment on the legal issue of the Secretary of State as the person who hears appeals.
  (Mr Navarro) Well, that is the role of the Secretary of State. We take care not to impinge on that and they have to keep their distance on any decisions which come to them on appeal. I must say in practice we do not have that many appeals going to the Secretary of State, I think about a dozen a year. It is not a great number so I do not think in practice it has ever caused us any difficulty and of course if ministers have been involved previously in a matter and feel unable to address an appeal independently they would transfer it to a fellow minister.

  Baroness Gould of Potternewton: Thank you very much.

Lord Holme of Cheltenham

  967. Of course you are an enormous organisation with 9,000 people and lots of functions. I found myself trying to list what you did and I got advisor, educator, policy-maker, advocate, environmental manager, licence-giver, regulator, and I began to think what you reminded me of and you remind me of a government department really and I suppose historically this is the sort of thing which Government used to do and when the next step agencies came along a lot of the work of Government was transferred to executive agencies. The reason for that preamble is that the concern of this Committee is with the rather narrower point of regulation and I wondered if it would be possible for you to disentangle from that myriad of other quasi-governmental functions which you exercise as an agency the regulatory function and say how it is affected and how it is exercised in the light of these other responsibilities. I have to apologise, I do not fully understand the more limited sphere in which you are a regulator and how you exercise regulatory roles. I am not talking here about giving licences, I am talking about environmental regulation.

  (Dr Leinster) Our environmental regulation is mainly associated with a permitting and permissioning regime. So we have responsibility for a number of regulatory regimes, which would range from waste, the process industry, water quality discharges, nuclear, and in those regimes Government is responsible for making the regulations. We would help within that process. We certainly help in writing guidance on the regulations for operators and we will then determine permits which specify the conditions under which an operator must carry out their duties. Then we carry out compliance assessment activities. So that might be monitoring, it might be inspection, it is receiving and reviewing reports by the operator and we decide then whether or not that site is in compliance. If we find that an operator is in breach of the permit conditions then we have got a range of activities we will do, all the way from requiring them to take corrective action all the way through to prosecution. So it is in that wider sense that I think we exercise regulatory activity. We also have a role to report on the state of the environment. That is not a regulatory role but it is a role which is within the Act and under that we monitor mainly the water environment and then report on compliance with directive requirements in terms of water quality.
  (Baroness Young of Old Scone) The thing which gives us a magnificent logic, because I can understand that we may look a bit illogical from the outside looking in, is in fact environmental outcomes. We have established a 20 year vision for the environment which has a number of environmental outcomes that we believe need to be delivered and we have agreed that with Government. We are now tasked on a five yearly basis with a whole range of measures to achieve this outcome. Some of them will be regulatory measures, some of them will be advisory measures, some of them will be achieving change in policy, some of them will be about developing new economic instruments and we call that really modern regulation. It is about applying all of the tools, not just the strict regulatory tools that Dr Leinster has described, in order to achieve those environmental outcomes and that gives us this logic to which all of our different functions work.

  968. That is very helpful but within that, of course, sometimes you are the principal. You are yourselves, as with water and floods, taking action. So do you then regulate yourselves? Are you then seeing that you are yourselves compliant with the standards of environmental outcome that you want?
  (Mr Navarro) We do, of course, have to do that. The legislation to some extent is defective in this regard. Under water pollution, under the water law, there is a provision that for water abstraction, water resources, we do have to seek a licence ourselves and that is able to be called in by the Secretary of State for review, but for other legislation that mechanism does not exist. So in order to get over that and to put ourselves into a transparent position we have adopted as a matter of policy the fact that we will put ourselves into the same position as if we were regulating others and in effect have a document which would set out the same controls as if we were controlling a third party.

  969. If it turns out that you are non-compliant what do you do to yourselves?
  (Mr Navarro) If it turns out, as you say, that we are non-compliant our policy is to in effect report ourselves, having done a proper investigation of ourselves, to report ourselves to the Secretary of State so that it would be open to the Secretary of State to decide to take any action against us.
  (Baroness Young of Old Scone) We should say, however, that those instances are comparatively small. One of the great own goals of the Environment Agency is to be in a position where we could, if we were someone else, be prosecuted for an environmental offence. I think that would be entirely poor for our image. So we take great steps to avoid getting ourselves into that position.

Lord Lang of Monkton

  970. I would like to go back to the fundamental issue of accountability, if I may, from the starting point of Baroness Gould's question, where she referred to what you say in your paper about the Agency being accountable to ministers and through them to Parliament. This is an absolutely time-honoured and perfectly proper answer but do you not feel that it is a very closed circuit, a very narrow definition of accountability, particularly since you and other regulatory bodies are in a sense set up deliberately to be at arm's length from Government and operating in a wider sphere and facing outwards rather than inwards? Do you not wish yourselves to be accountable to the public in general or even to specific elements of it? I know you are accountable to Select Committees so in a sense it is wider than just the ministerial accountability to Parliament; there is a direct accountability there.

  (Baroness Young of Old Scone) I am sorry we have misled you because I was trying to answer Baroness Gould's specific point about our relationship with Government. In fact we regard ourselves almost as accountable to everybody, sometimes too many people. Clearly one of our major accountabilities is to environmental improvement and that is our touchstone, is the environment getting any better, but also we have a wide range of accountabilities to the public as a whole to deliver a better environment for them and also to deliver good quality customer services to our customers and our regulator stakeholders and also to a wide variety of groups we have established in order to be able to keep in touch with stakeholder groups across the country. We have got a member of an advisory committee per six members of staff. We have over 2,000 members on our advisory committees who are reaching out into those stakeholder groups. We have also got quite a wide range of public accountability and other customer accountability mechanisms at our area level, at our regional level and at a national level.

  971. What are the mechanisms by which these members of the public or these bodies hold you to account? Is there an arena in which they debate with you or do they respond to a published document, or what?
  (Baroness Young of Old Scone) There is a wide variety ranging from our standing advisory committees, who are appointed by the Secretary of State and who advise us on a whole range of issues. It will range through consultation on particular regulatory determinations and particular policy and regulation issues. It certainly includes consultation on our charging regimes. It will include local stakeholder meetings around particularly contentious issues. It will include an annual open day which each of our regions holds. A number of our areas have very innovative ways of involving stakeholders through discussion groups. Basically, we try to adopt a tool which suits the particular issue that we need to be open and transparent on, but we do have a strong commitment to transparency and to engagement with our stakeholders and with our customers. We also have a customer charter an we monitor our performance against the performance standards within our customer charter.

  972. Thank you very much. That is helpful. It was not all set out in your paper.
  (Baroness Young of Old Scone) We could certainly give you a list of it. It runs to several pages.

  Lord Lang of Monkton: I do not know if the Clerk would like that as an annex.

Lord MacGregor of Pulham Market

  973. You have talked about compliance assessment activities. I would like to ask you how you set about regulatory impact assessments, which are very different in some respects. I notice in paragraph 4.4 of your paper you say that you are required to take account of the likely costs and benefits in exercising your powers. "This includes both costs to people and organisations, and costs to the environment." How do you set about doing those assessments both before any action and subsequently to see what has happened. I do not mean the compliance side of what has happened, I mean the impact assessments.

  (Dr Leinster) So far we have published three regulatory impact assessments and two of those have been to do with a risk based approach that we were proposing and a charging regime for both people regulated under waste management licensing and process industry and other industry regulated under pollution prevention and control, a new regulatory regime which is coming in, and we carried out comprehensive regulatory impact assessments on those, looking at particular assessments, looking at the impact on SMEs in particular, seeing whether or not there were particular competition issues in the way that we were doing the work. We then consulted on those and those formed part of the consultation package that we went out on. I think we found them a useful exercise because it does allow you to analyse in a structured way the different policy options. So it forces you to set out the different policy options and then the different cost implications for those. So I think we found them a useful exercise and certainly other Government departments who looked at those consultations and also industry who looked at the consultations gave us positive feedback on them and said that they thought they had addressed the key issues. We have also done a regulatory impact assessment on water trading. We also assist in the regulatory impact assessments which are being undertaken by government departments, in particular DEFRA, but also we have input on producer responsibilities to the RIAs which are being done by DTI. Within that we have a regular meeting with the Regulatory Impact Unit. We meet them on a quarterly basis to just see and test against what their thinking is and how they perceive the work we are doing. We also have somebody who is on secondment there. We are now on to our second person on secondment within that unit to understand. In terms of post-appraisal, we have not yet done any post-appraisal. These regulatory impact assessments were written last year and the regulatory regimes to which they apply, PPCs, being implemented up until 2007 and waste management licensing—we want to have that bedded in for about 18 months and then we will do a review of it. The general work that we do on charges and those regulatory impact assessments to do with the charges and we discuss in what we call a charging forum in which the major trade associations, representatives of major industry and representatives from other government departments come together and we discuss those sorts of aspects and they give challenge and review.

  974. I understand entirely the point about the post-impact ones but it is part of your process that you intend wherever possible to do those?
  (Dr Leinster) Absolutely. We now have a formal policy appraisal system for all agency policies. As part of that you have to then consider whether or not you are going to do a regulatory impact assessment and the default is that you do one. Even if it is only a paragraph you do a regulatory impact assessment.

  975. Thank you. Just one other question. Obviously you are in a very complex world and you have relationships with a lot of other regulators—Ofwat, the drinking water inspectorate, the HSE and goodness knows how many others. How do you avoid conflicts and overlaps?
  (Dr Leinster) I think largely our roles and responsibilities are quite clear so certainly with people like the HSE and with the Health Protection Agency which has just been formed we have memoranda of understanding and within that we discuss our relative roles and responsibilities. With groups like English Nature and the Countryside Commission for Wales as well as those memoranda of understanding we also have regular meetings with them at all levels. So we meet at a policy level to make sure that we know how each other is thinking and where each other is going. At an operational level we also meet because for somebody like the Health and Safety Executive they are regulating sites that we also regulate. So we need to make sure that our interactions are good and that each knows what the other is doing. In fact under COMA, which is to do with major hazards, we are joint competent authorities with the HSE for that set of regulation. So it is all about communication.

  Chairman: I suppose if this is going to happen it is appropriate with someone who understands what is transpiring and indeed whether you wish to vote or not. We will adjourn for five or 10 minutes. We will try and get back as swiftly as we can because we know you are under time constraints.

The Committee suspended from 4.58 pm until 5.07 pm for a division in the House


  976. If you are able to pick up where you left off that would be splendid.

  (Dr Leinster) Yes. As I was saying, the key is to maintain good communication at the different levels I explained, which is at head office policy level and also at a regional and delivery level and on that basis we have regular meetings with our colleague regulators.

Earl of Mar and Kellie

  977. I have three separate questions. The first one is just one of information and quite easy, I think. Do you have any responsibilities at all outwith England and Wales? Do your responsibilities, for example, on nuclear strategy—

  (Baroness Young of Old Scone) No, we are an England and Wales body. I was just pausing momentarily because I am up to the neck in US ships at the moment. We do have a responsibility for transfrontier shipments of waste as well, which means that we do reach out into other parts of the world.

  978. How curious it is that toxic ships were in fact going to be my second question! It is fairly high profile this one and we have got these ships already en route. Is this the way that this type of licensing or the withdrawal of a licence to do the work normally happens? If I was someone reading a tabloid newspaper I would like to know why these ships were allowed to set sail.
  (Baroness Young of Old Scone) Transfrontier shipment legislation is still, I think, moderately untested compared with other regulation that we use more regularly so we are constantly, as we implement it, finding issues associated with it which have not come up in previous examples of the legislation. This one is a particularly complicated one. At the time that we issued the transfrontier shipment agreement the shipyard in Hartlepool was in possession, we believed and so did it, of a valid planning approval to create a dry dock facility. Subsequently that planning approval has been brought into date and is now the subject of a legal dispute and as a result the company is no longer able to fulfil the dry dock recovery method that it was planning to use and has also failed—and I think the company is culpable in this—to get in place sufficiently in time other permissions which need to be granted by other bodies, for example DEFRA, the Crown Estates Commissioner, as well as the planning approval. So we now have a situation where in the period between granting the transfrontier shipment, or at least commenting on the transfrontier shipment application, and the ships setting off life has changed at the point of reception. We advised the US marine authority and the company that they should not set the ships off in this direction until such permissions were in place. They have chosen not to do that and we are now in the situation where the transfrontier shipment cannot be legally completed. It cannot be practically completed because there is not a dry dock for it to be practically completed in. Therefore, it is our belief, legally advised, that the ships need to be returned to the USA. At that stage it would be possible then to start the clock again and do a legally unassailable job of the company getting all its approvals in place and then the marine administration in the US and the USEPA and the company seeking our views on the transfrontier shipment. They would then be able to bring those ships to what would be a state of the art breaking and recovery facility under fully legal terms, but at the moment that is not possible. So the next few days will be crucial in terms of the clear legal responsibility that the US authorities have and it very clearly lies with them to take these ships back. The only thing which would cause that not to happen is if, on proper examination by both our authorities and theirs, it was clear that the weather was not going to be in favour of returning the ships, in which case we then have to look at alternatives. But we would still be of the belief that the proper legal status for these ships ultimately would be for them to be returned.

  979. I will leave that one given the fact that there is obviously more which is going to happen. The other question is, you have to deal with floods and I wonder sometimes how much you are having to deal with the mistaken actions of others. Do you presumably not get a chance to comment on proposals which might in fact lead to becoming flood risks?
  (Baroness Young of Old Scone) There are two sorts of actions of others, or perhaps three, that we ought to comment on. Two are rather more less immediate. One is the actions of land managers generally. There is a lot we can do through the way in which Common Agricultural Policy develops in the future to make sure that farmers in managing the land and foresters in the wider sense help attenuate flooding, soak up rain and hold it back so that it does not just flood straight into rivers. That is one action. There are also actions which individuals or companies can do on the ground, altering the way in which streams and rivers flow in a non-consulting and ad hoc fashion and in those cases if it is going to cause a flood risk we will require them to take action or prosecute them, and Ric can tell you more about that. But the biggest challenge and I think the most immediate one is our role in being consulted on planning applications. We are not yet a statutory consultee for planning applications in the flood plain. We want to be that and the current review of statutory consultees is taking account of that and I think that will happen. But we do report annually on the way in which individual local authorities are relating to us in terms of consultation on planning applications in the flood plain. Although it is getting better, we are still not consulted universally on all applications which are of any size and seriousness and in the cases where we are consulted there are still too many where they go ahead against our advice and also without fulfilling one of the other provisions which is in place, which is if they want to go ahead against our advice they are supposed to come back and tell us they are going to do that so that we can, with them, try to get as much as we can by way of mitigation and handling into the design and development. So there is a little way to go yet and we have just published, if you are interested to read on our website, a report on the last year's performance by local authorities, including a list of those local authorities who are not doing very well. But that is a big challenge for us for the future, particularly if you look at the development in the Thames Gateway and some of the East Anglian developments under the Sustainable Communities Initiative where we have to do two things; one is to try and make sure that developments in the flood plain is not inappropriate (i.e. we are not putting old people's homes and schools in places where they are going to be very vulnerable) and also that we do not have development in the flood plain which will make flooding worse, not only for themselves but for other people.

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