I welcome the Minister of State at the Department of the Environment and Local Government, Deputy Gallagher, and his officials. We will hear, first, from the Minister of State, to be followed by contributions from members of the joint committee.
Protection of the Environment through Criminal Law: Motion.
I am grateful the joint committee has been able to allow time for discussion of the motion. I will explain the circumstances under which the matter is before it today. Deputies and Senators will be aware of the provisions of Article 29.4.6° of the Constitution which reads as follows:
The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5° of this section and the second and fourth Protocols set out in the said Treaty, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.
The treaty referred to is the Treaty of Amsterdam and the articles specified include Article 1.11 which introduced new provisions on police and judicial co-operation on criminal matters and under which the framework decision on the protection of the environment through criminal law was negotiated. The intention of the constitutional provision was that certain matters in respect of which the State could exercise an option or discretion would require the approval of both Houses of the Oireachtas before the Minister could indicate agreement. These would include framework decisions.
The framework decision on the protection of the environment through criminal law arises from the concern of member states at the rise in environmental offences and their effects which are increasingly extending beyond the borders of the states in which the offences are committed. The main objective of the framework decision is to impose an obligation on member states to provide for criminal sanctions in the case of specified serious intentional or negligent environmental offences. It is left to the discretion of member states to decide on the level of penalties so long as they are effective, proportionate and dissuasive, including, at least in serious cases, deprivation of liberty which can give rise to extradition. The framework decision is also intended to ensure corporations as well as individuals are held liable for environmental offences, whether participating in or instigating the offence, and that such persons or corporations do not avoid prosecution because the offence was not committed in the member state where the damage occurred.
I will outline in a little more detail the main provisions of the framework decision. It is clear from Article 2 of the framework decision that we are talking about the more serious environmental crimes. These include any emission or discharge which causes or is likely to cause death or serious injury to any person; unlawful emissions or discharges which cause lasting or substantial deterioration to the environment, death or serious injury to any person or substantial damage to protected monuments, other protected objects, property, animals or plants; the unlawful management of waste, including hazardous waste, which causes or is likely to cause death or serious injury to any person or substantial damage to the environment; the unlawful operation of a plant in which a dangerous activity is carried out and which, outside the plant, causes or is likely to cause death or serious injury to any person or substantial damage to the environment; the unlawful manufacture or any use of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the environment; the unlawful possession, taking, damaging, killing or trading of protected or endangered wildlife and the unlawful trade in ozone-depleting substances. Member states are required to establish these offences as criminal offences under domestic law, when committed with negligence or, at least, serious negligence.
Articles 5 and 7 contain stringent provisions in regard to penalties. As I said, these must be effective, proportionate and dissuasive, including, in serious cases, deprivation of liberty which may give rise to extradition. Penalties must include fines and may include other sanctions such as exclusion from entitlement to public benefits, disqualification from practice of industrial or commercial activities, placing under judicial supervision, a judicial winding up order, or requirement to adopt remedial or other specific measures.
The framework decision has the objective that offences are prosecutable regardless of where or under what circumstances the offence occurs. Under Article 8, a member state is obliged to take measures to establish its jurisdiction where the offence has been committed fully or in part in its territory, even if the effects of the offence occur entirely elsewhere, on board a ship or an aircraft registered in it or flying its flag, for the benefit of legal persons with a registered office in its territory, by one of its nationals if the offence is punishable under criminal law where it was committed or if the place where it was committed does not fall under any territorial jurisdiction. A member state may decide that it will not apply or that it will apply only in specific instances or circumstances the jurisdiction rule set out in the latter two circumstances. The further advice of the Attorney General's office will be sought when considering the exercise of these latter two options.
Under Article 9 a member state must ensure it has jurisdiction to prosecute its own nationals where the offence was committed outside its territory but where it does not propose to extradite that person to the other member state concerned. This requirement does not present any difficulties for Ireland. The position in regard to extradition under Irish law is contained in section 38(1) of the Extradition Act, 1965. The relevant subsection, which is self-explanatory, reads as follows:
Where any citizen of Ireland does any act outside the State which constitutes an offence for which he would be liable to extradition but for the fact that he is a citizen of Ireland he shall be guilty of the like offence and be liable on conviction to the like punishment as if the act were done within the State.
Ireland extradites its nationals on a reciprocal basis.
Legislation is being prepared to give effect in domestic law to the provisions of the framework decision on the European arrest warrant on the surrender procedures between member states. The arrest warrant will replace all existing extradition arrangements between member states of the European Union with effect from 1 January 2004. The European arrest warrant abolishes the nationality exemption. Accordingly, from 1 January 2004 a member state of the European Union will no longer be able to refuse to extradite its nationals to another member state. The terms of the Council of Europe Convention on the Protection of the Environment through Criminal Law of 8 November 1998 have been taken into account in the preparation of the framework decision. The convention contains provisions broadly similar to those of the framework decision.
While all relevant primary and secondary legislation will be examined to assess compliance with the framework decision and identify any amending measures required, Irish environmental legislation contains significant penalty provisions by any standard in the case of a number of key offences. Financial penalties of up to €12.7 million and-or ten years imprisonment on conviction on indictment are provided for under the Environmental Protection Agency Act, 1992 and the Waste Management Acts. These sanctions are available, therefore, in national legislation addressing a number of types of offences specified in the framework decision.
The Environmental Protection Agency has a good track record in the enforcement of its environment legislation and publishes annual reports on IPC licensing and control. In 2000 the agency took prosecutions against 15 facilities and all were successful. The recent landmark case where proceedings taken by Wicklow County Council under the Waste Management Act, 1996, against the land owners and persons ultimately responsible for an unauthorised land fill, resulted in a court order to restore the affected lands at an estimated cost of €20 million and confirms the effectiveness of current legislation.
The enforcement of some aspects of environmental legislation, however, has been somewhat problematic, particularly in relation to the management of waste. Closing that gap is one of the Government's highest priorities. We will establish a new office of environmental enforcement to audit the performance of local authorities in discharging their environmental functions and to take action against those authorities that fall behind. The Government intends that the office will be able to prosecute cases or to assist local authorities in doing so where significant breaches of environmental legislation occur.
The EPA has developed and is applying on a progressive basis a new environmental management and performance system for supervision of local authority environmental functions. A significant proportion of landfill levy receipts will be remitted directly back to local authorities to fund the employment of additional staff for enforcement of waste legislation. My Department has received proposals from local authorities and funding allocations will be announced shortly. We have implemented the EU recommendation on minimum criteria on environmental inspection, and will strengthen enforcement powers in forthcoming legislation. These measures will result in a significant strengthening of public and local authority capacity to implement the law and improve environmental performance.
Although the offences specified in Article 2 of the framework decision are already largely provided for in existing legislation there may not be provision for penalties of the type or on the scale required in all cases. While penalties and other sanctions are regularly reviewed and updated we are aware of a number of issues which may have to be addressed in the context of the implementation of this framework decision. There are substantial variations in the levels of existing penalties. The maximum penalties on conviction on indictment under the Local Government (Water Pollution) Acts, 1977 and 1990, are €31,740 and five years imprisonment, compared to €12,700,000 and ten years imprisonment under the Waste Management Act, 1996, and the Environmental Protection Agency Act, 1992. Water pollution legislation, however, also contains provisions to require a polluter to remedy any defects arising from the pollution. The cost of such remediation can be extremely high and, accordingly, these provisions would dissuade would-be polluters.
The European Communities Act, 1972, under which many EU directives have been transposed into Irish law, permits the creation of summary offences in regulations made under that Act. Penalties in these circumstances, therefore, are subject to the limits which apply to district court proceedings from time to time. If it is determined that an offence in question ought to be an indictable offence it will be necessary to provide for this by primary legislation, if it is not already provided in existing legislation.
Deputies and Senators will have further opportunity to consider the issues when detailed proposals for implementation have been developed, perhaps involving primary legislation.
The framework decision adds a further international dimension to environmental protection through its provision for standardised application of criminal law in the case of significant environmental offences throughout the European Union. It is a measured and balanced response to the more serious threats to human health and the environment from a number of the major and potentially dangerous activities which are part of modern economic development in the EU. The framework decision will ensure that a number of basic principles and sanctions underpin the different environmental legal codes of member states. At the same time it is in accordance with the principle of subsidiarity and respect for the right of states to determine their own penalty provisions.
In order for the framework decision to have effect, the State will have to enact new legislation. Much of the existing legislation providing penalties for environmental offences would not be applicable to cases under the framework decision. It is related to domestic waste management and water legislation and the legislation providing for the Environmental Protection Agency. The impact of this decision will be felt on trans-boundary problems.
There are two possible scenarios. There is a danger of trans-boundary pollution from Sellafield and other nuclear installations in the United Kingdom. If we enact legislation allowing for penalties for the pollution and increase in the radioactivity of the Irish Sea under the OSPAR convention, could we pursue offenders located in another jurisdiction in the Irish courts? What if we were faced with the problems faced by Spain and Portugal by the break up of an oil tanker? The oil tanker concerned may be operating under the flag of a third country but would it be possible to pursue an action against the importer of crude oil if it was located in the EU? Could there be a penalty in Irish law to pursue a case of that kind if our coastline was damaged by an oil spill?
Are we also liable for charges from other countries? Could the sulphur dioxide emissions from Moneypoint lead to Scandinavian countries taking action against us under this document?
Many directives have been transposed into Irish law under the European Communities Act, 1972. Is the Minister of State saying that many cases are dealt with at District Court level and there is no legislation in place to deal with incidents where damages and fines may exceed the limits of the District Courts? If our legislation is deficient, when do we propose to introduce the necessary new legislation?
Did the Commission propose a directive in this area that the Council of Ministers watered down to become the document before us? There might not be sufficient strength in these proposals. Illegal and unauthorised dumping is happening in County Wicklow, but the local authority cannot afford to tackle those responsible for the offences and the Environmental Protection Agency does not have the resources or the legislative remit to ensure remediation of these dumps occurs. There is a significant and ongoing occurrence of pollution less than 20 miles from this meeting room, but the local authority cannot deal with it and the Environmental Protection Agency is unwilling to deal with it. Will the document under discussion allow us to take more action, through the new office of environmental enforcement or otherwise? When can we expect this office, with the clout outlined in the briefing notes, to be established?
I thank the Deputies for their questions. The offences are all covered by the decision. This is to standardise penalties as far as possible, although we do not want total standardisation because it would be a matter for the Department of Justice, Equality and Law Reform and its equivalents in other member states. We will deal with that in the same way we deal with taxation - there must be unanimity rather than a qualified majority. We have agreed that penalties must be effective, proportionate and commensurate with the offence and dissuasive in nature. The framework deals with those penalties and not necessarily legislation. We will decide in the new year if primary legislation would be required.
Oil pollution would come under the Sea Pollution Acts. The situation regarding Scandinavian countries is covered by existing legislation. This is a framework decision, rather than a directive. The directive proposed by the Commission was rejected by the Council of Ministers, but we hope this will have the same effect. The difference between the two is that this gives more discretion to member states. The Council did not accept the Commission's recommendation.
The necessary legislation for the office of environmental enforcement to monitor the local authorities which will have responsibility for implementing this decision will be introduced in 2003. There will be a further opportunity to consider all of the issues if the detailed proposals for implementation involve legislation. If they do, there will be a full debate on the matter.
This is a serious measure that will go a long way towards conserving and improving the environment. We have read criticism of the Government for its lethargy when it comes to transposing European measures into Irish law. The Minister of State should take this opportunity, as he presents a decision to this committee for the first time, to respond to that criticism and outline his programme.
Ireland's record in the transposition of environmental directives is good. There is, however, a perception that the opposite is the case. The most recent Commission report on the monitoring of EU legislation confirmed that we had, by 31 December 2000, implemented 96 directives. There are only six remaining to be implemented and we are working on them. We have maintained a programme of transposition and since June 1997 more than 60 regulations have been fully or partially transposed, with 46 directives on matters falling under the direct remit of the Minister for the Environment and Local Government transposed.
What about Sellafield? Article 2 of the decision states that each member state shall take the necessary measures to establish as criminal offences under its domestic law the discharge, emission or introduction of a quantity of substances of ionising radiation into air, soil or water which causes death or serious injury to any person or the unlawful discharge, emission or introduction of a quantity of substances of ionising radiation into air, soil or water which causes, or is likely to cause, lasting or substantial deterioration or death or serious injury to any person or substantial damage to protected monuments.
If there are serious levels of emissions from Sellafield into the sea or air or another accident occurs, which country will deal with it? Would our domestic legislation or that of the British come into play? Would it be sufficient for the State to enact legislation making certain discharges criminal? Would any such offence be prosecutable, under this framework, against the operators of a nuclear installation? If that is the case, do we have legislation enabling an action to be taken? Is there legislation to address the discharge of ionising radiation that would cause death or serious injury to a person?
The Radiological Protection Act covers that area through the Radiological Protection Institute of Ireland. Any offence would be dealt with under the legislation of the country where it occurs. We have legislation on emissions. There is similar legislation in the United Kingdom. The question of extradition is also covered. Matters raised here and elsewhere will be examined in detail before the deadline for primary legislation which will be introduced either on its own or as part of other legislation.