(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)

 

Farewell to 2016

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Has there been a year in my lifetime quite like 2016?   The possibility that the UK might leave the EU was alive at the start of the year, but few seemed to think that it was likely to actually happen. And Donald Trump was a cartoon character at the fringes of the race for the US Presidency.  Yet here we are, as the sun sets on the last day of the year, living in a UK that has voted – narrowly – to leave the EU and 20 days away from President Donald Trump’s first day in office.   The phrase “post truth” seems to have established itself in the English language, encapsulating the sad truth that the veracity of figures quoted by politicians, or emblazoned on the sides of their buses, is less important than their impact on target audiences.

Michael Gove’s comment just before the referendum that “people in this country have had enough of experts” puts the year into perspective.  He was referring, particularly, to the dire economic forecasts in the event of a vote to leave the EU but the comments hit much wider.   Most environmental scientists are engaged, to some extent in predicting outcomes depending upon particular interventions and we are trained to understand and articulate the uncertainties associated with these predictions.   It is the foundation of responsible decision-making. Yet it also means that we are easy meat for ideologically-driven politicians who can latch onto either the uncertainties themselves, or on differences between predictions, in order to push their own agendas.

I have a mote of sympathy for Gove’s comment.  Environmental scientists, in particular, can revel in the complexity of systems and deploy powerful statistical techniques that render outcomes inexplicable to non-specialists.  Being able to communicate the state of the environment to wide audiences is, in my opinion, in danger of becoming a lost art.   This is a point that I have tried to make in this blog in both 2015 and 2016 (see “The democratisation of stream ecology?”) and will continue to push in 2017.   This is not to pretend that the environment is not complex; or that there are not nuances which may be missed by a superficial or rapid analysis.  It is, rather, recognition that we need to pay particular attention to aspects of the environment to which non-specialists can relate if we are to produce evidence that is resistant to the guile of the political classes.

My word cloud for 2016 is similar to my 2015 word cloud, with “see” and “algae” both prominent, reflecting what is, I hope, the core business of this blog.   It was algae that put oxygen into the atmosphere in the first place, and which play a major role, still, in regulating affairs on this planet.  We may marvel at nature as presented by David Attenborough on Living World 2, but it is important that we do not forget the important role that nature’s “back room staff” play in the web of life.  The danger of TV natural history documentaries is that people end up thinking that the interesting stuff only happens elsewhere.   It doesn’t.  There is just as much interesting natural history in your own back garden and in the stream that flows through your local park, as there is on the African savannah.   We just need to look for it ourselves rather than expect the BBC Natural History Unit to do all the hard work for us.  That’s why I started this blog in 2013, and I hope to continue doing this throughout 2017 too.

Happy New Year.

Remembrance in Berlin

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This week’s trip to Berlin straddled the results of the US election and the anniversaries of Kristallnacht and the end of the Great War.  And my hotel was less than five minutes from Checkpoint Charlie.  The first reaction to news of the victory of a man who wanted to build a wall between the US and Mexico was to walk to a site where a divisive wall had been taken down within my own lifetime.   Were it not for the ghoulish tourist industry that has sprung up around Checkpoint Charlie, cashing-in on the wall’s notoriety, you would never know that Berlin had ever been a divided city.

If there is one grain of comfort to be gleaned from Donald Trump’s victory it was that it pushed Brexit down the agenda in dinner-time discussions with European colleagues, though the consensus was that both were manifestations of similar social phenomena.   And, many told me, nationalist and anti-EU parties are on the rise in other countries too.  Marianne Le Pen is using Brexit as a springboard to make her own overtures in France, and she is not the only one.   It would be highly ironic if one consequence of Brexit was that the ambition of those who have been arguing for “ever closer union” has to be tempered as a result of anti-EU sentiments encouraged by Brexit.   The other side of this argument is that the UK is generally seen as a voice of moderation within the EU and some fear the loss of our voice against the federalists.

A short walk on from Checkpoint Charlie brought me to the Jüdisches Museum, housed in a wonderful building by Daniel Libeskind (who also designed the 9/11 Memorial in New York: see “Reflecting absence”).   I visited this museum on my first visit to Berlin not long after it opened in 2001 and was impressed by the way that the building itself drew you in and subtly adjusted your mood to fit the ambience of the museum and its message.   The only comparable experience is a visit to one of Europe’s great Romanesque or Gothic cathedrals.   The message of the Jüdisches Museum is not pretty in a time when Trump and Farage are stoking up fears of the “other”: Jewish communities have lived their distinctive lives for well over a thousand years in Europe, often in peace alongside their Christian neighbours, but sometimes not.   The coincidence of the rise of nationalist movements with increased suspicion of Jewish communities is stark.   We need “them” in order to define “us” and the Jews have been the convenient foils for nationalists for time immemorial.   Perhaps Islam now takes that role in Europe?

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I wonder, too, if the Jüdisches Museum is somehow symbolic of Germany’s determination to make a Europe that transcends old nationalistic prejudices and limits?  The Second World War feeds the UK’s national myth of a small proud independent nation, the “Few” battling against, and ultimately overcoming, forces of Evil.   Germans walking through the Jüdisches Museum and contemplating the history of the 20th century can only leave with the question “what must I do to ensure that this never happens again?”

Libeskind’s building is more than just a container for the museum’s exhibits: it also speaks directly to visitors.   He created “voids” into his design: empty spaces that extend vertically through the whole museum as a counterpoint to the exhibits themselves.    His intention was that these voids illustrated the absence of Jews from modern German society.   One of these contains an installation, Fallen Leaves, by Menashe Kadishman, an Israeli artist, who has filled the floor of the void with 10,000 faces punched out of steel to represent all the innocent victims of war and violence.   The eleventh hour of the eleventh month passed while I was in the museum but the atmosphere inside was such that there seemed no need to mark that moment.  The building, itself, more than compensates for two minutes of silence that, in UK, we mark at this time.

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Menashe Kadishman, Fallen Leaves  / Shalekhet, Jüdisches Museum, Berlin.  

Notes from Den Helder …

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I passed this street sign whilst walking from my hotel to the station following a meeting at Den Helder in The Netherlands last week and could not resist taking a photograph.  Anton van Leeuwenhoek was the Dutchman credited with the invention of the microscope (see “The Invention of microscopy”).   When I visited Delft, his home town, I was surprised at how little there was to commemorate him (in contrast to the celebration of the life of his friend Johannes Vermeer), so it was nice to see him remembered in another part of The Netherlands.

I was in Den Helder to attend a meeting of European ecologists responsible for implementation of the Water Framework Directive, the first such meeting since UK’s referendum vote to leave the EU back in June and, not surprisingly, a lot of the discussion over mealtimes and during coffee breaks centred on the implications of this.   At dinner time, I sat with a group including Poles, an Estonian, a Lithuanian and a Hungarian, all of whom saw the European Union in very different terms to those expressed by UK’s “Brexiteers”.   All of those countries have been invaded twice in the last century and they see the EU as a source of security and prosperity, rather than in the negative terms that were expressed during the UK referendum debate.   The Estonian and Lithuanian had been part of the “Baltic Chain”, a peaceful protest that was part of the movement for independence in the Baltic States.   I had the sense that these people knew rather more about oppressive stifling bureaucracies than any of the politicians and journalists who had led the “leave” campaign in the UK.

That these conversations were held over dinner in a converted fortress, Fort Kijkduin, only added to my sense that the UK public had been duped by a group of politicians with a selective – and distorted – view of history.   The fort had been built on Napoleon’s orders, using local labour and Spanish prisoners of war.  At the entrance there is a diorama depicting 18th century Dutch soldiers repelling a British landing party.  Downstairs in the museum there is part of the wing of a Messerschmitt 109 shot down in the vicinity.   States and empires ebb and flow through small countries such as The Netherlands, in a way that an island nation such as the UK can barely understand and this, in turn, shapes a sense of purpose for the European Union that the narrow-minded politicians of the British Right will never comprehend.   There is no lack of national pride among my European colleagues, but what they have that many in the UK lack is a sense of the EU as a bulwark not just against outside threats, but also against a worst-case-scenario that emanates from within.   Almost every EU State has been occupied or controlled by another State within the lifetime of its oldest inhabitants; many of those occupiers came from other EU States.   That the UK has not feeds, I fear, a theory of British Exceptionalism within politicians of the Right, but also means that many in the UK simply don’t “get” the EU in the same way as most of my European colleagues.

The same group of people also expressed anxiety about the future of the EU without the UK’s participation.  Much of my own engagement with the EU over the past decade has involved finding consensus among Member States on the implementation of the Water Framework Directive.  Countries come with different positions on the correct interpretation of the wording of Directives, and argue their case vigorously at meetings such as these.  Some of those to whom I spoke were concerned that the exit of a large and vocal country that generally adopted moderate standpoints on environment policy would put smaller countries such as theirs at a disadvantage.   Several, too, suggested, optimistically, that Brexit might never happen …

Traveling back towards Schiphol Airport on the train, I reflected ruefully that Brexit is not just the cause of great economic uncertainty (which hit me with every purchase made during my short time in The Netherlands) but also reputational damage to the UK.  It was hard not to leave The Netherlands without feeling that many in Europe now think that ours is a small island with some Very Silly Politicians.

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Fort Kijkduin, near Den Helder in The Netherlands.

An open letter to Andrea Leadsom

You said something in your speech to the Conservative Party conference earlier this week that intrigued me, and I wondered if you would mind explaining exactly what you meant?  Of course, I may be reading too much into your words, which I only heard your talk because I was up stupidly early, and listened to Farming Today over breakfast.

My ears pricked up when I heard you say: “I’m truly excited that our departure from the EU means we can develop policies that are tailored to our most precious habitats and wildlife not a one-size-fits-approach for 28 Member States.”   Those are fine words but, I’m afraid I need to push you for some details.   I’ve done a lot of work on the implementation of EU environment policies over the past quarter of a century and I’m not absolutely sure where your idea that EU environment policy adopts a “one-size-fits-all approach” comes from.   The Water Framework Directive, for example, sets out general principles to ensure sustainable water supplies for Europe in the main text, but the extensive annexes give considerable scope for each Member State to tailor these principles to their own circumstances.   Even to drop the phrase “one-size-fits-all” into your talk suggests to me that you have not mastered your brief and that fills me – and other environmental professionals – with a sense of foreboding about the future of the UK environment.

However, you have not been doing the job for very long so we should give you the benefit of the doubt.   Your talk was strong on fine-sounding words but rather short on specifics.  So an easy solution to the problem may be for you to give us just one example from each of the Habitats and Water Framework Directives explaining the type of changes that your department will be looking to enact to strengthen environmental protection over and above the provisions of existing legislation.   Of course, I note that you said “… we can develop policies…” rather than “… we are developing policies …” but I am sure that you would not have said this if there were not civil servants within DEFRA currently considering just this type of option.   It is hardly an issue that is going to affect Brexit negotiations so you don’t need to resort to Theresa May’s argument of the need for discretion, and it will surely enhance your credibility among those voters who are genuinely concerned about wildlife and the environment.

One problem that I have is that you, and fellow Brexiteers, put a lot of emphasis on the red tape that Brussels generates.    Environmental and wildlife legislation often needs a “carrot” and a “stick” and that “stick” can very easily be interpreted by those on the receiving end as “red tape”.   A legitimate reading of your suggestion is that farmers and water companies may be subject to more, not less, regulation as a result of our exit from the EU.   That is counter-intuitive, given all that you, Farage, Gove and others claimed during the referendum campaign and is going to take some explaining, if it really is the case.  Once again, a couple of examples of what these new policies will look like will reassure us all.

And this brings me onto my final point: enactment of both EU policy and of your vision will only work if there are properly resourced regulators and, in my experience, the Environment Agency and Natural England have been struggling over the last few years.  Better environmental management will, of course, need more high calibre and well-resourced staff in both agencies.    Please don’t roll out that tired old mantra of greater efficiency: there is only a finite number of times this can be used before it loses credibility and, I am afraid, your predecessors have squeezed this particular argument dry.

Credibility is, unfortunately, the key word here.   Environmental professionals were very strongly in favour of “remain”, recognising the high quality of the legislation that comes out of Brussels in this field.   You came into this job without any strong track record in environment or agriculture and, I suggest, maybe you need to temper your enthusiasm for changing the status quo at least until you have mastered your brief.   An assurance that current EU legislation will not be revoked or watered down would be a good first step.   Despite claims by some of your colleagues that there was a decisive vote in favour of leaving, 48 per cent of voters want to remain.   That’s a lot of people who will be looking hard at your government’s performance come the next General Election.   Remember, too, that wildlife and conservation charities can run very effective campaigns when they think politicians are making a hash of things and that you only have a slim majority at the moment.   In other words, get this wrong and things can only end badly for you …

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.