Terms and conditions apply …


The draft withdrawal agreement, setting out how the UK leaves the European Union was published earlier this week, and has dominated domestic news coverage ever since.   Theresa May’s government seems to have weathered the storm – just – but the likelihood of the agreement surviving a vote in the House of Commons seems small, meaning that political uncertainty is set to continue for some time.

The agreement’s provisions for environment have received relatively little attention in the media during this period.  This is surprising, given the importance of this topic generally, and the central role that European legislation plays in our domestic environment policy.   As I have tried to offer a commentary on the Brexit process as it has unfolded (see “Environmental governance post Brexit” for the latest of these posts), I now need to steel myself for a scrutiny of the 585 page document (without even a contents page) to see what provisions have been made.

The political brouhaha has focussed around the problems surrounding the land border between the Republic of Ireland and Northern Ireland, and the proposal that the UK and the EU remain as a single customs territory, run according to existing EU rules, for as long as it takes to achieve a satisfactory long-term solution.   The prospect of being bound into EU legislation indefinitely is what has provoked the wrath of the hard Brexiteers; however, the rest of us need to bear in mind that the proposals set out in the withdrawal agreement are not indefinite.   Once a long-term solution is agreed, then UK administrations will be free to modify legislation unless a future trade deal specifically incorporates provisions for the environment.

The European Research Group’s argument that the UK will become a “rule taker” is disingenuous because the subsidiarity principle that was introduced as part of the Maastricht Agreement means that Member States always have had considerable liberty to implement EU legislation as they see fit.   The EU legislation tends to outline the ambition and principles rather than prescribe how these are achieved.  We already have strong domestic legislation that enforces environmental policy.  I have not heard the Brexit camp offering credible alternatives to the ambition set by the EU that might suggest that the UK will be constrained in this respect.

The key passages relevant to the environment are found in Annex 4, some 356 pages into the agreement.  These commit the UK to “non-regression in the level of environmental protection” which means that environmental standards in force at the end of the transition agreement (including, importantly, “access to environmental information”) should not be diluted during the period that the UK is part of the single customs territory.  The UK is also bound to adhere to the precautionary principle, the principle that preventative action should be taken, the principle that environmental damage should as a priority be rectified at source; and the “polluter pays” principle. We are also required to have “a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its [environmental] obligations … by an independent and adequately resourced body or bodies” (p. 359).  This is, in effect, the new watchdog that Michael Gove has already proposed but with greater independence as it needs to have power “to conduct inquiries on its own initiative” and the right to “bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure, with a view to seeking an adequate remedy.”  Gove’s proposals put the new environmental watchdog under the control of DEFRA, which was widely regarded as compromising its independence.

The question that remains is how much latitude a future UK government will have to deviate from the principles of EU environment legislation.   The implication is that the UK and EU will move towards a long-term trade deal and my suspicion is that a level playing field for the environment will be a pre-condition from the EU for this to happen.  This would mean that the principles set out in the withdrawal agreement would apply in the long-term (though the UK would not necessarily be bound to comply with any new EU environment legislation).  What is also not clear is whether the UK would be expected to comply with collective decisions on implementation of existing Directives (and, indeed, to participate in reaching these) in the future.  The Water Framework Directive, for example, is 18 years old, but there are still aspects of implementation that are being discussed. The EU will want the UK to stay in line with new developments; the UK should regard participation in the debates around these to be a quid pro quo.

Almost every environment professional and academic I have met feels that leaving the EU to be a colossal mistake.  However, if we accept that leaving the EU is now inevitable (I still need to be convinced that a second referendum would offer a more decisive outcome than the first), then I think the provisions for the environment set out in the withdrawal agreement are good.   Even Michael Gove, an ardent Brexiteer, has acknowledged that the EU offers strong protection for the environment, and this agreement ensures that we go forward with as strong a foundation as we have at present.   However, the prospect of this agreement passing the various hurdles in front of it are slim, so a more likely scenario at present is that the UK crashes out of the EU in March 2019 with no transition arrangement and no trade deal in place.  That would leave UK environment legislation in a far more precarious position than is the case at present.


“Learning from mum”: Heather’s prize-winning photograph in the 2018 BSBI photography competition shows her friend Priscilla botanising in Hannah’s Meadow, Upper Teesdale.  The photograph at the top of this post shows Upper Teesdale near Widdybank Farm, earlier this week.

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 …

Sea of puddles?

I took this photograph of the Aral Sea (“Sea of Islands”) from the cabin window of our flight from Tashkent to London back in April.   The atlases which fed my young mind back in the sixties and seventies have changed enormously, but it is mostly political boundaries that have shifted, particularly in this part of the world.   There are few instances where the physical landscape has changed on quite such a scale as the Aral Sea which has largely disappeared from our maps.  This photograph was remarkable because you can actually see water: most of the Aral Sea is now just desert.

The Aral Sea was fed by two rivers: the Amu Darya – the Oxus of antiquity – and the Syr Darya. The latter was fed by the streams that flow down from the Tien’shan mountains (see “Theme and Variations”); the former rises in the Pamirs in northern Pakistan and then forms the border between Afganistan and Tajikistan before flowing through Turkmenistan and Uzbekistan to the Aral Sea.

Or, at least, that is what used to happen.   The story of the decline of the Aral Sea is a tale that puts most of the concerns about loss of connectivity of western European rivers into the shade.   In the 1960s, Soviet planners decided to use water from the Syr Darya and Amu Darya (“darya” is the Persian word for “river”) to irrigate the semi-arid lands of central Asia in order to grow crops such as cotton.   Not only did this reduce the flow of the rivers substantially, but poor design of the irrigation channels meant that most of the water did not get to the crops that it was meant to sustain.   The reduced flow of fresh water into the Aral Sea caused it to both shrink and become more saline (it is now as salty as the Dead Sea, according to some accounts).   In 1987 the lake split into two separate bodies, and the dried-up area between became the Aralkum desert.

It is a salutary story that, according to the limited research that I have been able to do on the Internet, wholly avoidable.  The Russian attitude to central Asia in the 19th century mirrored that of European power’s approaches to their colonies in Africa and Asia, with a mixture of geo-political manoeuvring and economic motives.  These attitudes were inherited by the Soviets in the 20th century and, even though experts predicted the dire consequences for the Aral Sea, the irrigation scheme was fixed into the Soviet’s five year plans and no-one dared contradict the Politburo’s decisions.

What is the relevance of this to us?   Only that we have just seen the appointment of a Secretary of State for Farming, the Environment and Rural Affairs who said, not much more than a year ago: “people in this country have had enough of experts”.

The madness that is “British values”


This post is a slight diversion from the core business of my blog, but bear with me because some of the themes will resonate with issues that I have been writing about over the past couple of years.

Recently, a local school, Durham Free School, made national headlines after an excoriating Ofsted report.   The Ofsted inspection was one of a number of inspections called at short notice on faith schools in the region and there seemed to have been a particular focus on determining whether or not the school taught “British values”.   The inspectors commented that the school was “…failing to prepare students for life in modern Britain. Some students hold discriminatory views of other people who have different faiths, values or beliefs from themselves”.   If true, it would be damning but as my job for the past 20 years has involved developing objective measures to determine the success of policy (albeit for the environment rather than education), I was curious to see just how OFSTED inspectors arrived at this conclusion.

The report itself is not very illuminating on methods: the inspectors “…spoke to students in lessons, at break and during lunchtimes. They also spoke formally to two groups of students on the first day of the inspection.”   What, in particular, I wondered, did they ask before arriving at their conclusion about these “discriminatory values”?   I’ve read the whole report, I’ve searched the OFSTED website and I’ve looked at OFSTED’s publication Inspecting Schools: A Handbook for Inspectors.     The Handbook explains that Inspectors should consider how well management and leadership ensure that the curriculum “… promotes tolerance and respect for people of all faiths, genders, ages, disability and sexual orientation…” but there is nothing that explains how such an evaluation should be performed.   The Inspectors, I conclude, simply reported their opinion based on the conversations they had with this small sample of pupils.

Let’s look at this process from a statistical perspective: the Inspector’s opinion is, in effect, a test of the hypothesis that “students hold discriminatory views”, which could be re-cast as a null hypothesis: “students do not hold discriminatory views”.   The Inspectors reach their opinion via the conversations mentioned above (no mention of whether there was a set form of questions, whether students were interviewed as a group or individually or whether closed or open questions were used).   The outcome is cited in the report in absolute terms but, in reality, is a probability based on the outcomes of the interviews.   And, because they only interviewed a sample of students, there will be uncertainties associated with this outcome.   The Inspectors might have reached the wrong conclusion. In statistical terms this means that they rejected the null hypothesis based on their sample because most of the students, in fact, hold non-discriminatory views – a “Type 1 error”.

That the Inspectors concluded that “some students” held these views is, perhaps worrying in itself. We could argue, in support of the inspectors, that there should be zero tolerance of discrimination of any kind. Yet this then raises the question of whether the limited sampling program deployed by the inspectors is sufficiently sensitive to detect discrimination in every school where it occurs (i.e. to retain the null hypothesis when it should have been rejected – a “Type2 error”).   On the other hand, if Ofsted published detailed guidelines on how such evaluations were to be performed (guidance on sample size, types of questions and so on), and the Inspectors at Durham Free School had given more details of the sample size on which they based their judgements, then perhaps we would be in a better position to evaluate the credibility of their judgements. The reality, I suspect, is that the risk of a wrong outcome will be high because the sample size was small. The two inspectors had just two days to evaluate all aspects of the teaching and governance of the school. Some topics that deserved detailed scrutiny were, inevitably, evaluated in a superficial manner as a result.

The core of the problem was summarised neatly in an editorial in The Independent today which places the blame squarely on Michael Gove, the previous Education Secretary, for putting “British values” onto the list of criteria that Ofsted were required to inspect.   The problem, The Independent comments “is that no one can say exactly what it means, which gives inspectors enormous leeway to decide whether or not a school is teaching the said value correctly.”   Political ideology, at some point, has to be translated to practical action and the success or otherwise of policy depends on being able to make judgements consistently across the entire country.   If Ofsted are unable to convert Michael Gove’s rhetoric into transparent and fair measures, then they should resist being drawn into an arena where objectivity comes second to political grandstanding.