Environmental governance post Brexit

It is some time since I have written a post about Brexit but the time has come to re-visit one of the issues which I identified early on as a critical to UK environment policy once we have left the EU: the role of European institutions as powerful enforcers of policy (see “Who will watch the watchmen now?”).  It was a concern reflected by the House of Commons Environmental Audit Committee and others (see “(In)competent authority”), leading to Michael Gove proposing a new environmental watchdog part to “hold the powerful to account” (see “Michael Gove has made a sensible suggestion”).   The document in which these ideas are laid out in detail, Environmental Principles and Governance after EU Exit Consultation Document, has just appeared and it is worth taking a closer look.

First point to notice is that this document applies only to England.   Responsibility for the environment was devolved to Scotland, Wales and Northern Ireland in the 1990s; however, as the key environmental legislation has come from Europe, their activities have had a common focus until now.   The UK administrations have worked together to ensure consistent application of the Water Framework Directive, in marked contrast to some other Member States (Belgium usually sends separate “Walloon” and “Flemish” representatives to meetings, for example).   Take away the constraint of European law and the devolved administrations are free, in principle, to develop their own environmental legislation as they feel appropriate.   There are moves towards a “common framework” for the environment but, as yet, no concrete mechanisms in place.

In many ways, this consultation document encapsulates one of the biggest contradictions of the whole Brexit process: the slow, bureaucratic and barely democratic structures of the European Union are actually rather good at managing the environment and this is precisely because they override national sovereignty.   A Member State has the right to implement EU legislation as it sees fit but the European Court of Justice acts as a powerful deterrent to any that might try to sidestep their responsibilities.   Taking back control from Brussels and recognising the sovereignty of Parliament means, in effect, that DEFRA are responsible not just for developing and implementing legislation but also for scrutinising the effectiveness of that implementation.   The risk, recognised by Michael Gove (though not in these words), is a self-affirming circle of smugness.

So the consultation document makes two important suggestions: first, that a new policy statement is made in which the environmental principles that guide policy-making and legislation are set out, and second, a new independent watchdog is set up to ensure that governments adhere to these.   The environmental principles might be set out in primary legislation or in a separate policy statement.  The former would have more teeth whilst the latter would be more flexible, allowing the evolution of these principles as scientific and technical knowledge improve.

The watchdog – “a new independent and statutory body holding government to account for the environment” – sounds like a good idea except, of course, that it is funded by, and must answer to the same government that it is holding to account.   The Government, in turn, must balance “… environmental priorities with delivering economic growth and other policy priorities such as housing” (paragraph 83) and, as a result, this new regulator would be primarily advisory, and would lack enforcement mechanisms.   It would not be an insignificant force but, at the same time, it would lack teeth.   If economic growth, for example, depended on trade agreements with the USA and China, for example, will the government be prepared to sacrifice stringent domestic environmental targets?

The irony is that one of the best indicators of the UK’s performance in any area of environmental policy is a comparison with that of other countries and the EU – via the European Environmental Agency – already provides a framework for doing this.   If the rhetoric is that the UK will perform even better after we leave then EU then, it follows, the UK’s relative position in the many “league tables” that the EEA produces should improve*.   A confident Michael Gove would, therefore, ensure that his new regulator worked as closely with the EEA as possible and, importantly, produced indicators that enabled such comparisons to be made.   My concern, again, is that, restoring UK sovereignty in these areas will create greater headroom for political meddling and spin.

Michael Gove’s appointment as Secretary of State for Environment, Food and Rural Affairs was greeted with caution by many working in the environment, given his mixed track record in his previous roles.   We were, however, cautiously optimistic as, for the first months of his tenure, he made all the right noises. He is a politician who likes the big picture and is not afraid of a grand rethink of entrenched ideas.   However, the environment is a sphere of policy where grand rhetoric is cheap and the devil lies in the detail.  The consultation on environmental principles and accountability for the environment shows up the weakness of the UK’s muddled thinking on Brexit: the EU has many faults but handing back control of the environment to a parliament whose members are slaves to short-term cycles of public opinion is unlikely to deliver a greener future any time soon.

* in practice, of course, the four administrations of the UK may need to report separately in the future.   England might well drop a couple of places whist Scotland and Wales could improve, simply due to the differences in population density.

Note

The blog on the www.brexitenvironment.co.uk website is well worth a visit if you want to learn more about this topic.

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Letter from Cyprus

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Travel can be one of the most rewarding forms of introspection ….
Laurence Durrell, Bitter Lemons, 1957

When I stepped off flight EZY1973 from Manchester to Paphos on Saturday night I passed a personal milestone. Arriving in Cyprus means that I have now visited all 28 Member States of the European Union. Starting with (West) Germany in 1972 on an exchange visit before the UK was even a member of the European Economic Community, followed shortly after by a family holiday to southern Austria (where my father had been stationed just after the war) with a day trip to Slovenia (then part of Yugoslavia), the number started to increase in the late 1990s when I became involved in the work of CEN, the European Standards Agency and, from the mid-2000s onwards, with the intercalibration exercise associated with the Water Framework Directive. A few years ago I made a list and realised just how many I had visited, after which, I have to admit, my choice of conference and holiday destinations was driven by this rather childish whim. Latvia, Malta and Bulgaria, all subjects of posts on this blog, were ticked off, leaving just Cyprus. This year, a family holiday to celebrate my mother’s 80th birthday provided the opportunity and, after some shameless lobbying, we had booked a villa near Paphos via AirBnB and were on our way.

How Europe has changed in the 47 years since my first overseas trip. Twelve countries were behind the Iron Curtain, three of the remainder were right-wing dictatorships. Two have merged (East and West Germany) whilst seven have become disentangled from previous relationships (the Baltic States from the USSR, Slovenia and Croatia from the former Yugoslavia and the two former constituents of Czechoslovakia from each other). Cyprus, from where I am writing, was in political chaos in the early 1970s. A former British colony whose territory was argued over by Greece and Turkey, it was soon to be split into two, separated by a buffer zone. I used to browse my Collins World Atlas assuming national borders to be fixed and immutable; the older and wiser me wonders where (and when) the next changes will come from.

The intercalibration exercise, in particular, was an opportunity for an exchange of ideas and I counted co-authors from 23 of the 28 EU states on my publication list. Looking back, these papers show remarkable consistency in some aspects of ecology across Europe whilst, in other respects, I am much more cautious about assuming that knowledge gained in my damp corner of north-west Europe can be applied to warmer and more continental regions. This publication list includes, incidentally, two papers about Cyprus, despite never having either visited before or having a native Cypriot on my list of co-authors. In the first paper, we worked with an Austrian employed by the Ministry of the Environment but, for the second, the samples were collected and analysed by Italians and Germans whilst I helped out with data analysis. Scientific colonialism is not, perhaps, dead?

My favourite? I don’t think I should single one of the 28 out. The food and culture of the warm lands of the Mediterranean basin draw me but I think that the parched summer landscapes would lose their appeal if I was there for too long. I find the grey, damp climate of my own corner of Europe wearisome but the greenness of the Spring and Summer, and the Autumn colours almost compensate. My ideal, in other words, seems like it should be a semi-nomadic existence but that, too, would pale with time. The truth is that, for me, elsewhere, being wanted, is always more wondered at ….

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So that was 2017 …

As is now traditional, I end the year with a word cloud based on the posts I’ve written over the past 12 months.  Comparing it to 2016’s word cloud I see that “see” is still prominent but that the word “diatoms” is now larger than “algae” whilst “desmid” also makes an appearance on the left-hand side.  “Brexit”, despite occupying much of my thoughts, does not merit an appearance.

I am no more optimistic as 2017 closes than I was at the end of 2016.  The Government still has no clear vision for life outside the European Union and the impact on the economy is still uncertain (see note at the end).   There are a few shafts of light: I was pleased to see, for example, that Michael Gove was prepared to consider a new environmental regulator wholly independent of government (“OfEnv”, as some have termed it), responding to genuine concerns raised by Caroline Lucas and others (see “(In)competent authority”).  We will, however, have to wait to see how these fine words are translated into action, bearing in mind Michael Gove’s track record in other ministerial roles.

An “OfEnv” will have its work cut out.   I suspect that one of the unintended consequences of Brexit is going to be a yet greater squeeze on public finances.   This is because many issues whose budgets were, to some extent, ring-fenced in order to meet UK’s obligations to the EU will be less protected in our post-EU economy.   Bearing in mind the huge political significance of health care and education and, in the case of the former, the increasing care needs of an aging population, every other sphere of government spending is going to be under intense scrutiny.   At best, the environment is a mid-table concern in the eyes of politicians, which makes Government funding crucially dependent upon the state of the economy.

That’s ironic in the extreme because one of the most thought-provoking books I read this year was Doughnut Economics by Kate Raworth (Random House).   Her core argument is that an economic system focussed on growth is unsustainable for many reasons, one of which is the likely consequences for the environment.   Yet environmental regulation is, at present, dependent upon tax revenues arising from the tired economic system that Kate Raworth decries.   And the hiccups in economic growth from 2010 onwards have put enormous strains on the Environment Agency and other environmental regulators, though management is reluctant to admit this publicly.  I suspect that the BBC’s self-satire “W1A” is very close to the mark for much of the public sector.   Its catchphrase “more of less”* catches the dilemma faced by middle-managers who have bought into an illusion that a leaner, more efficient organisation has arisen from the self-examination that cuts have precipitated.

There are no easy answers.   Long-term, I suspect that neither the EU nor a post-Brexit UK government will deliver a truly green future, for as long as both depend upon politicians needing to meet the material aspirations of their electorates.   Wanting less is a good first step for each of us, as individuals, but such lines of thought are too far from the core business of this blog for me to venture.  I’ll leave that with you as my personal New Year’s resolution and see you all in 2018.

* “To identify what the BBC does best and find more ways of doing less of it better”

Reference

A summary of Kate Raworth’s economic thinking can be found here:

Raworth K. (2017).   A doughnut for the Anthropocene: humanity’s compass in the 21st century. www.theLancet.com/plantary-health 1: e48-e49.

Note

I was pulled up by one reader for my pessimistic view of the economic prospects post-Brexit.  I have, consequently, changed the wording to emphasise the uncertainty in all economic predictions. Three reports from responsible sources that offer perspectives on the post-Brxit economy are: Brexit and the economy one year on, Brexit: is the UK economy growing or slowing?  and: UK economy in 2018: steady growth tempered by Brexit politics.  My primary point – about the vulnerability of the budgets of environmental regulators – remains.

Michael Gove has made a sensible suggestion …

I found myself buying the Sunday Telegraph for the first time in my life a few days ago, as Michael Gove chose this newspaper to announce his plans for a new environmental regulator.   His proposal links back to points I have made previously about a need for a new type of regulator to take over the role of the European Commission and European Court of Justice in holding the UK governments to account once we have left the EU (see “(In)competent authority” and “Who will watch the watchmen now?”).

Gove is in a difficult position in his role of Secretary of State for the Environment, Food and Rural Affairs.  His instincts, as a leading architect of the “leave” campaign, are against the European Union yet, for the environment at least, he cannot deny that there are many benefits that the EU has brought.   He acknowledges this: “Some of the mechanisms which have developed during our time in the EU which helpfully scrutinise the achievement of environmental targets and standards by Government will no longer exist in the same way, and principles which guide policy will have less scope and coverage than they do now”.   Too right.

His proposal is for a “world-leading body to give the environment a voice and hold the powerful to account, independent of government and able to speak its mind freely”.  That sounds promising, in the same way that Gordon Brown’s decision to make the Bank of England free of political control back in the late 1990s.   Of course, such bodies are never completely independent (witness the way that John Redwood, Jacob Rees-Mogg and others turn on the Bank of England whenever it dares contradict the most optimistic post-Brexit forecasts) but it is a step in the right direction.

So I will await, with interest, the consultation that Michael Gove promises in his Sunday Telegraph article.  I am hoping that this means that the Environment Agency will still be the tool of official government policy whilst this new body will be independent and able to point out shortfalls in performance.  I’m hoping, too, that this will bring some new thinking into environmental regulation, preserving the best of the EU systems whilst, at the same time, shaking up some of the aspects – such as the integration of environmental and agricultural policy – where the EU was notoriously weak.

The elephant in the corner of the room is finance.  The Environment Agency is currently working on a shoestring and, unless more money from Government is forthcoming, they and this new Agency will simply be unable to afford to be “world-leading”.   Somehow the Environment Agency muddles along, thanks to well-motivated staff, but corners are being cut and monitoring the state of the environment – one of the cornerstones of any effort to giving the environment “a voice” – has been a major casualty.

All this is going on whilst Parliament debates the EU (Withdrawal) Bill and we should, perhaps, see Gove’s announcement as a tactical move to head off rebellion in the Tory ranks.   Issues such as whether existing legislation will be amended by primary or secondary legislation under particular scrutiny.   I and others saw the prospect of the fine print in European environmental legislation being quietly written out of the statute books as a particular risk of Brexit so, even if this is a cynical manoeuvre, I am encouraged by Michael Gove’s words.   If nothing else, it demonstrates that even arch-Brexiteers know that they have to make some concessions.   However, we need to watch this story closely as it unfolds over the next few months …

(In)Competent Authority?

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Back in June last year, when everyone was still reeling from the outcome of the vote to leave the EU, I wrote a post entitled “Who will watch the watchmen now?”   In it I suggested that not only did the UK get strong environmental legislation from the EU, it also benefited from collective oversight that ensured that Member States actually enforce this legislation.  This is exercised, ultimately, by the Court of Justice of the European Union, a body whose jurisdiction will cease once we leave the EU.   That was what prompted the title of my post: good environmental legislation needs independent scrutiny.  Where will that come from once we leave the EU?

I was pleased to see this point being made forcefully in reports from the House of Commons Environmental Audit Committee and the House of Lords European Union Committee recently, as well as in a very useful report by Green Party MP Caroline Lucas.   One recommendation of the Environmental Audit Committee is that the Government should introduce a new Environmental Protection Act to maintain and enforce environmental standards after we leave.  One of the witnesses to the Committee made it clear that the terms of reference of the UK’s Supreme Court meant that we could not assume that it would fill the legal void left once the European Court of Justice no longer had authority.   Even assuming that the Supreme Court could play a role, however, there would still need to be an organisation that scrutinised the activities of government agencies responsible for the environment and initiated the legal actions.  I suggested in my earlier post that this body must be wholly independent of government.

The Government’s aim, as stated in their white paper on Brexit, is that all EU legislation will be transposed into UK law in the first instance via the Great Repeal Bill, after which Parliament (and, where appropriate, the devolved assemblies) will be able to decide which elements of that law to keep, amend or repeal (clauses 1.1 – 1.3 in the Brexit white paper).  However, Caroline Lucas points out that much of the new legislation is likely to be in the form of Statutory Instruments rather than Acts of Parliament, which will mean that there will be less scope for intense scrutiny by Parliament.  If she is correct then this is an important – and worrying – loophole that those of could be exploited to water down future legislation.

One point that Caroline Lucas makes (and which I touched upon in my earlier post) is that the European Commission grants a degree of flexibility in the implementation of legislation in the form of “derogations”.   Does this mean that the UK governments will transpose into UK law the right to give themselves lower targets or extended deadlines?   Again, who will hold the governments to account?  DEFRA and their counterparts in the devolved administrations will continue to talk the talk, but the devil will lie in the detail and only the eagle-eyed are likely to notice when the sharp edges of current legislation are quietly eroded away.

Another possible fate of transposed legislation, highlighted in the Environmental Audit Committee report, is that it will simply be ignored, again without the oversight of the European Commission and the European Court of Justice.  The result will be “zombie legislation”, either not enforced or not updated to the latest scientific understanding.   An unspoken question hovering behind much of this report is “is DEFRA up to the task?”   The overall tone of the report suggests that the Committee is not yet convinced that it is.   The question remains: who will watch the watchmen?

I have worked with the UK’s environment agencies for 25 years now, and my travels around Europe convinced me that they were amongst the most effective at translating the fine words of EU environmental legislation into positive outcomes.  Results in many cases are impressive (see “The state of things, part 1”).  However, I have felt for a number of years that their effectiveness has been slipping.  This started roughly when the coalition government introduced austerity measures after the 2010 general election, leading to substantially less money being available for the public sector.  As the Environment Agency tightened its belt, it was noticeable that activities that were driven by EU legislation were less affected than most.  The fear of the European Commission bringing infraction proceedings trumped almost all other factors when determining budgets (with the exception, perhaps, of flood protection).   Chris Smith, Chairman of the Environment Agency adds in a recent blog that is well worth reading that this period also saw the Agency’s ability to speak publicly in defence of the environment being limited by the coalition government.

The answer to this worrying situation is a body that can engage the government at the highest level in informed debate.   This will almost certainly not be performed by yet another DEFRA-funded agency.  But if not this, then what?   I believe that the charity sector, professional bodies and environmental and wildlife charities may have to step in to fulfil this brief.  Anglers already do this via the organisation Fish Legal (formerly the Anglers Co-operative Association); the time may have come for the rest of the environment and conservation sectors to learn from this well-organised lobby group.  Perversely, if the “people” now have control of their own destiny (as the Brexiteers claim), then the government must be ready for those same people to ask the hard questions about their performance that we had previously delegated to Brussels.

(The photograph at the top of this page shows Cracken Edge in the Peak District, in November 2016)

 

Who will watch the watchmen now?

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There can only be one topic to write about today.   On Thursday, the UK voted, by a narrow margin, to leave the European Union and entered a period of uncertainty and instability as the nature of the “divorce” is agreed between London and Brussels.   I know that most of my UK readers were in favour of staying in the EU but at least one was in favour of exit.  And, as I know from personal experience that the EU is a far-from-perfect organisation, I am happy to accept that there is scope for intelligent people to hold different opinions on the benefits of membership.   I also accept that being anti-EU does not necessarily equate with being anti-Europe, or a “Little Englander”.  I do believe, however, that the “out” campaigns presented a distorted view of EU policy particularly on immigration, in order to play on the fears of sections of the populace.

However, what is done is done and now attention must focus on the nature of the future agreement between the UK and the EU.   As the dust settles and the bluster dies down, we awoke to a horrible truth: the “out” campaign actually have no more idea of what the future will look like than anyone else.   We now enter a period of negotiation with 27 countries, several of whom are both annoyed and worried by the UK decision, and they are not going to roll over quietly and let UK politicians dictate terms.

I have grave concerns for the UK environment after an EU exit.   The campaigns from both sides involved stripping down highly complicated arguments to a few key points that would have traction with the electorate, and then rebutting the other side’s efforts at the same. It was, in short, a campaign decided more by political process than by principle.   Unfortunately, this is exactly how environmental policy is decided at the highest level.   The sad truth is that most people’s awareness of environmental problems comes from the media, not direct experience.   Press stories can synergise with a general sense that summers are different now to when we were young to reinforce fears of global warming.  At the same time, the patterns are not so robust that naysayers cannot spin their own interpretations.   The same applies to the aquatic environment: we have (thankfully) passed the stage when many rivers looked (and smelt) appalling.  The reason we know that our rivers are polluted now is more due to media accounts, and the reason we know that they are improving is due to the Environment Agency’s press releases.  Beyond a dedicated band of anglers, few of us have enough direct experience to challenge either set of statements.

That’s where the EU played a role.   They provided a level of scrutiny above that provided by domestic politics.   I spent much of the past 15 years working towards definitions of the health of the aquatic environment that were applicable throughout Europe.   That provides a benchmark against which claims of rivers improving or declining in quality can be judged.   Bearing in mind that Europe extends from the Arctic Circle to the Mediterranean and from the Alps to areas that are below sea level, this was not an easy task, and what we have is a “work in progress” rather than a definitive product.  But it is a positive step that, to push a metaphor, “detoxifies” debates about the state of the environment.

Unfortunately, interventions such as this represent exactly the sort of loss of “sovereignty” that Ian Duncan-Smith, Nigel Farage, Boris Johnson and others decry.   So let’s unpick just what “sovereignty” might mean in this instance: it would mean DEFRA deciding on criteria to define the health of the aquatic environment, irrespective of the views of experts elsewhere in Europe.   Bear in mind that DEFRA also has responsibility for agriculture (high political sensitivities), my comments above about the susceptibility of environmental policy to “spin” and the general advocacy for “small government” from the right, and this cannot be good news for the environment.  I predict that the clause in the Water Framework Directive that allows “less stringent objectives” under certain circumstances (article 4, paragraph 5) will be applied very broadly in the UK, once scrutiny from Brussels is loosened.

What to do?   We may have to wait and see how the “Brexit” negotiations unfold.  My hope is that free access to European markets will require the UK to stay signed-up to legislation that ensures a “level playing field” for business, and that the environment will be part of this package.  This would be similar to the deal that Norway has at present, and Norwegian colleagues continue to make substantial and valuable contributions to debates on how EU environment policy is implemented.  That would mean “business as usual” for the UK environment.

However, changes in the Tory party may bring a more obstreperous breed of politician to the negotiating table and we cannot rule out the possibility that rattles will be thrown out of the pram.   Plan B, therefore, may be for independent, non-Governmental bodies such as the river trusts to steps in to scrutinise UK environment policy and measure claims against evidence.   As the Environment Agency will be even more liable to funding cuts once obligations to the EU no longer exist, such bodies will also need to watch that sufficient evidence is being collected, and maybe to collect some evidence themselves.  All that will take money, and I don’t know where that will come from.   But we need to start preparing for a world in which the “watchmen” return to being political pawns answerable only to Westminster and Whitehall.

Cadaques_2012Memories of happier times in Europe: Cadaqués in north-eastern Spain, June 2012.  The top picture shows vineyards near Bäd Dürkheim, Rhineland-Pfalz, Germany (circa. 2000), the area where my love affair with continental Europe started in 1972.