(In)Competent Authority?

cracken_edge_nov16

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)

 

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?

vineyards_near_Bad_Durkheim

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.  

What has the EU ever done for us?

This is the text of an article published in the Quaker magazine The Friend on 12 May as part of my contribution to the debate on the UK’s membership of the European Union:

I should declare my interest in the outcome of the EU referendum: my work involves helping clients (government agencies, mostly) translate European environmental legislation into practice.  I once tried to explain this to Enoch Powell.  His put his face close to mine and, eyes blazing, spat contemptuously “what business of theirs is it if we poison our rivers?”

It was a fair question.  If I was a Dutchman, I would have pointed out that all of our major rivers rose elsewhere and received effluents from sewage works and industries in several other EU States before crossing into their territory.   Were I Swedish, I could point to the role of EU legislation in reducing emissions from power stations elsewhere in the European Union, leading to less air pollution blowing over their territory.  But what about the UK?   We have a short land border with the Republic of Ireland, mostly running through rural areas.  Other than that, the patterns of North Sea currents mean that our coastline is less affected by pollution from the River Rhine than by our own rivers, and the prevailing winds from the Atlantic mean that it is our pollution that blows to continental Europe and Scandinavia, not the other way around.  There is, relatively speaking, less direct benefit to the UK’s environment than is the case for many other countries.

Environmental management can be summarised as devising a path from where we are to where we would like to be.  That destination might be expressed in the language of science but it is tangled up with a slew of social and cultural factors.   Ambition, in many cases, is tempered by what is perceived to be the Art of the Possible, framed by a collective vision.   An environmental regulator responsible for a densely-populated region with a long history of urban and industrial development will, rightly, gain a sense of achievement from any significant movement towards a cleaner environment.  And the Environment Agency in England has made considerable progress over recent years.  But “better than before” is not the same as “good enough” and where European Union legislation goes beyond what the UK alone can achieve it is by establishing this collective vision.

But regulation of the environment the UK as a whole suffers from a more systemic problem: the lack of clear policy separation between agriculture and the environment.   It is, of course, foolish to pretend that environmental policy does not have implications on agriculture, or vice versa.  The problem is that the ambition for the environment can never be entirely separated from issues of farm income or food security.  What may be presented as joined-up thinking on rural affairs may also end up as a fudge.  Far better to lay out the ambition and then make cogent arguments for why that ambition may need to be balanced by pragmatism.

That, to me, is the biggest advantage of the EU to the UK: it brings a clear ambition for sustainable development, based on a continent wide view, independent of views of other sectors.   My point is not that these other viewpoints are not important, or that there may be situations where they have to take priority.   It is that we must not let these sectors influence the setting or implementation of environmental targets.   The accommodations that are necessary to make high principle rub up against reality can be dealt with by derogations within the legislation (as is the case in the Water Framework Directive, for example) rather than by fudges during the process of policy development.

But this debate is less about the minutiae of legislation, whether environmental, trade or any other sector, than it is about how the UK sees itself in relation to the rest of Europe.  The logic of pulling back from international co-operation at a time when national boundaries seem to be increasingly irrelevant, defeats me.  The environment epitomises this: a crude analysis suggests that the UK gains fewer tangible benefits than some other countries, yet this misses the point.  The true benefit of Europe to the UK’s environment is not measured by the absence of negative effects, so much as by the share that we hold in a collective vision that is greater than the sum of its parts.

Caplecleugh_May2016

An abandoned lead mine draining into the River Nent in Cumbria: one of many challenges facing the UK environment where we benefit from engagement with the European Union.

Farewell to our “Green and Pleasant Land”?

I’ve spent the last few days contemplating the implications of a UK exit from the European Union, my thoughts focussed by a stimulating workshop in Birmingham organised by the Chartered Institute of Ecology and Environmental Management.   Reassuringly, many of the other participants echoed the view that I aired in a post at the start of the year: that the immediate implications of a UK exit (I refuse to use the term ‘Brexit’) for the environment will be limited, as most EU law has been transposed into UK legislation (see “122 days to go …”). We also have a strong body of domestic legislation that dovetails with EU Directives to such an extent that it is difficult to unpick the unique contribution that EU Directives have made to the state of our environment. If I had to point to one event that truly marked an upturn in the fortunes for English and Welsh rivers, it would probably be the privatisation of the water industry in 1989 and the creation of a strong, independent regulator, the National Rivers Authority (see “The state of things, part 1”). That was nothing to do with Brussels.

My biggest worry about a UK exit is less tangible, not so easily supported by hard evidence, but no less real. It is that the EU, with the UK as a willing and constructive partner, defines our collective ambition.   Legislation such as the Water Framework Directive (WFD) sets out a vision for the sustainable use of Europe’s water that goes far beyond anything that domestic legislation had ever contemplated.   Maybe it is not leaving the EU that is the major concern, so much as what such a step would say about the mentality of a significant proportion of my fellow citizens? My ‘vision’ will be their ‘red tape’ and, gradually, the ideals enshrined in legislation such as the WFD will be chipped away and watered down.

Let’s be honest and admit that the UK is far from perfect at the moment. It has been dragged into the European Court of Justice for infractions of EU environmental legislation on a number of occasions and, if we vote to stay in the EU, we will probably find ourselves there again.   Think of the European Court of Justice as the speed cameras on the environmental highway.   Simply knowing that there are speed cameras along a stretch of road is enough to quell the temptation to speed and the same principle applies to environmental law.   The ‘No’ campaign will claim the moral high ground but, realistically, the more challenging aspects of EU legislation will be quietly revoked as time passes, without this scrutiny from a higher body. The phosphorus standards for freshwaters, which I helped to develop, would be an obvious candidate. This is partly because they represent the small print in environmental protection, rather than headline-grabbing issues.   More pertinently, they are sufficiently tight (for which read “realistic”) for many utility companies to struggle to achieve them.   Quietly letting them drop from the legislative agenda could even be turned into a PR success (one less reason to raise water charges).

I realise, at this stage, that ‘No’ campaigners will be nodding sagely at what I have just written. ‘Exactly’, they will be saying, ‘that is what we want to happen.’ Leaving Europe is a vote against interventionist approaches to government but, when it comes to matters of environmental policy, the political right has not yet demonstrated a better alternative (see “When Right is not right”).

Of course, the environment will be competing for column inches with high profile issues such as the economy and immigration over the next few months. Immigration presents us with an interesting parallel: when you next consider the free movement of people across European borders, think, too, about the free movement of migratory birds across a continent, and the benefits that joined-up environmental policy has on organisms that cannot be constrained by national borders. You might also like to consider the free movement of atmospheric pollution; again, no respecter of boundaries.

Leaving the EU would be a double whammy for the environment. Not only will it water down our ambition, it will also reduce the amount of independent scrutiny. The ‘No’ campaigners may allude to our “Green and Pleasant Land” in their rhetoric, but don’t expect it to stay that way for long.

Second term?

Taurei_Bere

The picture above shows myself with Taurai Bere from Zimbabwe at the Use of Algae for Monitoring Rivers meeting in Trento.   Taurai gave an interesting talk on the use of diatoms for biological monitoring in Brazil and Zimbabwe, ending with a call for better interactions between scientists and the general public and decision-makers.   It was a theme that others had already echoed (see previous post) and, for me, is a positive sign that the ecological assessment community is getting more realistic.

His final clarion call deserves repeating: “Those who want a second term need to be convinced that the environment, too, needs a second term.”   The relative indifference of politicians to the environment at the moment seems to be common both in the UK (see “A plague on both their houses …” and “The political landscape isn’t very green …”) and Zimbabwe. That is probably a comparison that David Cameron will not welcome.

But we should not be complacent. The problem is, at least in part, the fault of ecologists who are not able to move their information through the political and administrative “ecosystem” (see “The human ecosystem of environmental management”).   Sorting this one out is going to take a long time, but I’m leaving Trento with some stimulating conversations on which to dwell and a renewed impetus to make sure that everyone understands the importance of algae as a vital component of healthy ecosystems.

Disunited Kingdom?

Alert readers may have spotted a flaw in my last post about the forthcoming UK General Election. I wrote that, in my next post, I would consider the environmental policies of the regional parties.   “But,” I hear you all shouting “responsibility for the environment has been devolved to the regional assemblies, so the Scottish, Welsh and Northern Irish parties will not be campaigning on this issue in this election.”   Correct.   However, I have tried to show in my writings on the election, that policies on a wide range of other issues has knock-on effects on the environment, so we still need to consider the policies of these parties, particularly as the likely outcome is unlikely to be an outright majority.   One or more of the regional parties could well hold the balance of power and, in the process, influence environmental policy directly or indirectly.

The two big factors are the economy and Europe.   Any sort of pact between a minority Labour or Conservative government and a regional party, whether it is Labour and Scottish Nationalist Party or the Conservatives and the Democratic Unionist Party, would inevitably involve a deal that leads to more money being spent in Scotland or Northern Ireland.   And that, in turn, would put a further strain on the finances for other sectors of government, including the environment. Just as for the other parties (see “A plague on both their houses” and “The political landscape isn’t very green …”), the manifestos of the regional parties are not short of fine words on environmental protection, so perhaps the best we can hope for is slightly more expenditure in Scotland or Northern Ireland, albeit at the expense of England.

My biggest worry, however, is UK’s relationship with Europe (see “What has the European Union ever done for us?”) and, on this point, most of the major regional parties are firmly pro-Europe. The only exception is the Democratic Unionist Party in Northern Ireland who support the idea of a referendum on our continued membership of the European Union.   I do believe that several elements of the EU need significant reform and that those countries that have opted out of the Euro may need different terms of membership to those that are in the Eurozone. But I don’t think that a referendum on UK membership is a good idea.   If I thought a referendum would stimulate a sober debate on the pros and cons of our membership, I would have no qualms. The reality, I suspect, would be that Eurosceptic elements of the Conservatives would unite with UKIP and media barons to create a feeding frenzy of scare stories that could precipitate an anti-EU victory.

Please excuse this series of posts on the election.   I am a floating voter by inclination but my constituency (City of Durham) has an entrenched Labour majority and a sitting MP (Roberta Photo-Opportunity) who has shown herself to be a loyal and ambitious apparatchik unlikely to deviate from official party policy.   So I can read every manifesto, ruminate on the budgetary implications of every pronouncement and cast my vote without ever shaking the foundations of Westminster. I am to UK politics what a eunuch is to the survival of the human race. However, having lived in Nigeria at a time of military rule when democracy was just a dream, I know that we should not dismiss the privileges that we have lightly.   So I’m typing away here hoping that someone out there who reads my blog lives in a marginal constituency and has the chance to influence things in a bigger way than I can.  Though, as you may have noticed, I am not expecting a major improvement in the state of the UK’s environment, whoever gets elected on May 7th.