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SECTION 2
APPROACH TO TRANSPOSITION
Policy objectives, and principles governing the approach to the ELD
32. The Directive results from new intentions negotiated among Member States in the light of existing obligations and past experience. It harmonises liability at a strategic, European level, leaves existing (mainly EU) legislation in place for more routine cases of damage and gives Member States scope to operate at national and regional level according to local needs. As noted at paragraphs 28-31 above, there are also four options for Ministers to consider by way of variation from the basic provisions. Scottish Ministers have considered the options and have concluded that generally they should apply the Directive without enhancement. Available options are discussed in Section 3.
33. The factors that weighed with Ministers included the following.
- The civil law approach is new as an alternative to regulation, enforcement and penalty and needs to be tried initially.
- The relationship between new and existing regimes is complex and should be kept as simple as possible.
- The Directive is likely to create liability in a relatively small number of cases in any year so it would be better initially to create the most basic regime to support it.
- The better regulation priority initially is to create a workable regime going no further than necessary.
Relationship between existing and new regimes
34. There is a relationship between the requirements of the Directive and the remediation requirements of the existing environmental protection regimes. To the extent that the Directive is more stringent (for example, the requirement for complementary and compensatory remediation in the case of water or biodiversity damage) or goes wider than existing regulation (for example, micro-organisms in land damage), its requirements will need to be reflected in transposition. There are, however, areas where existing regulation is broader (for example because it applies to a greater number of activities potentially giving rise to environmental damage, not just to operations listed in Annex III to ELD) or more stringent than the Directive (strict liability for all activities, not just those in annex III to ELD).
35. Where significant damage is judged to be within the scope of ELD, the obligations and relationship between operators, CAs and third parties will be set by the ELD transposition, rather than by the existing, subject-based regime. The transposing instrument will need to designate CAs and express the essential obligations upon operators and CAs - ie to avert damage or plan to remediate it and for dialogue and agreement with the CAs and the public. It will need also to describe its scope and the thresholds that will trigger its operation, any offences for non-compliance and any provisions for representation or appeal.
36. Where damage falls outwith the scope of the threshold for ELD our approach is to allow existing regulatory regimes to continue to operate as at present as far as that is possible, ie the definitions, scope and thresholds for action. That should allow cases of risk or damage of local or national impact to continue to be handled under existing, well-understood regimes.
37. Table 1 below outlines the main changes for the types of damage covered by the directive, highlighting (in colours/patterns as indicated) where the ELD provisions:
38. Transposition will be made by a Scottish statutory instrument (or instruments). That SSI in draft, and updating of the policy upon which it is based, will be subjects of a second Scottish public consultation.
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