(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)

 

Notes from Den Helder …

vanleeuwenhoekstraat

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.

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.