Author: Michael Nicholson (IEEP UK)

Seasoned Defra watchers (yes, there are a few of us…) will be all over this, but outside of us hawkeyed Defra watchers, well, perhaps less so. Earlier this month, the results of the Corry Review were published. NGOs, thinktanks (like IEEP UK), the regulated community and frankly anyone else who considers themselves a Defra watcher will no doubt be wading through the 29 recommendations thinking, so what next? Is this yet another better regulation initiative, one that we have seen all too many times before [1] and which invariably generate a lot of heat and light but not amount to much? Is there perhaps something more to it this time around or is this review perhaps mere embellishment on a direction of travel the Labour Government were intent on taking already?

IEEP UK’s Head of Policy, Michael Nicholson, explores the takeaways from the independent review of Defra’s regulatory landscape

The recommendations are wide ranging and cover many aspects of environmental governance and policy.  There are some good bits, some bad bits and some ugly. And to break with the metaphor, some that just need to be watched carefully. More on this shortly.

The context is important though. A key plank of Labour’s manifesto was/is to ‘kickstart [economic] growth’ part of which is to build more. More houses and more infrastructure and to do this, it has zeroed in on reform of planning rules and removing obstacles to that growth, including ensuring regulators and regulation support growth. Some, (perhaps more than just some of us?) are not against all of this, so long as protection of the environment is not ridden roughshod over in the process.

And so back to the Corry Review.

In his executive summary, Dan Corry commendably acknowledges that environmental groups may be nervous. The language he uses is suitably soothing in trying to allay those concerns. The problem is, one week after publication, a press release from the Cabinet Office about abolishing quangos threatens Corry’s narrative and passage of the Planning and Reform Bill – which environmental NGO’s argue is currently insufficient and one sided – seem to belie the overall impact and message of the report that we can have a win-win for nature and economic growth. Some of us may even debate the fundamental message in Labour Government messaging (and in this report) that it is a regulator’s job to be promoting growth but that is an aside. [2]

Before we get into the weeds of the recommendations it is worth saying that throughout the Corry Review there is a notably frequent use of words such as: rapid or rapidly (16 times), fast or faster (19 times), quick or quickly (11 times), swift (2 times), speed or speedy (10 times) and sprint (3 times).

It is abundantly clear that the brief demanded the author to convey the need for speed. The inference here is that the current set of regulation is stifling growth, and it is imperative that it is reformed quickly to ‘unlock that growth’. However, what the review fails to recognise is that after such a huge upheaval (EU Exit), where most UK environmental law derived from the EU, a calm and considered programme of regulatory reform is needed now not a supercharged sprint.

After the REUL Act saga and several years of talk of bonfires of regulation; the inherent risk in such speed is that it does away with the good as well as the bad and more importantly does not take a sceptical (and tired?) stakeholder community along on a journey who are probably more willing to give these changes a chance than some in Government may realise. It is worth also noting that an expected report by the Office for Environmental Protection (OEP) on what ‘good’ environmental regulation looks like is due soon and it is hoped that this will call for a calmer, more reflective and surgical approach to reform of legislation.

The ‘Good’ in the Good, Bad and Ugly

There is plenty in this review to welcome. Encouraging regulators to make their monitoring information more accessible to the public and using live and up to date data is sensible and good for the public to see what, for example, regulated sites in their community are up to (Recommendation 17). The regulators themselves have probably wanted to do this already so as to help tackle non-compliance amongst the sectors they regulate and improve public confidence in what they are trying to achieve but lack of funds and resources has likely stopped them from doing this before now.

A call to review the enforcement and sanctions framework for environmental regulation is equally welcome (Recommendation 18). Robust sanctioning versus persistent and deliberate offenders is necessary to provide the public with confidence that their environment is not being trashed. Flagrant breaches of water pollution rules and waste rules are perhaps uppermost in the public’s mind at a time when profits appear to keep rising.   

More public naming and shaming should be considered for those companies with reputations to lose and heavier financial penalties for those with profits to lose. And where necessary, jail sentences for the most egregious environmental crimes. Penalties ought to be dissuasive, not a cost of doing business. Recent changes to speed up justice, for example the removal of variable monetary penalty caps and lowering the burden of proof are positive changes, but it should not stop there.

Corry’s recommendations to ‘turbo-boost’ Defra’s digital transformation are worthy of inclusion (#26-29). Is important to note however that regulators have been working hard to make the best use of the fast-moving technologies mentioned for quite a long time already though. Whether that is using satellite and near-earth observation techniques to monitor land use change or illegal waste sites for example or grappling with ‘big data’ and ‘big data analytics’ to help determine where to focus regulatory effort. It is regrettable that much of this boils down however to the fact that regulators need resource, especially trained and highly skilled employees, as well as appropriate investment in IT systems.

The Bad and the Ugly…

The theme of ‘untangling and tidy[ing] green tape…’ (Recommendations 11-14) are nerve jangling and concerning.

Corry says that: “there is a strong view that the law is being applied to the UK in a significantly more risk-averse way than in other EU nations”. It would be refreshing not to see such lazy throwaway statements included within Government reviews but alas, here we are. It is welcome that the rhetoric of the previous government ‘bonfire of regulations’ etc, has been eschewed and most (if not all?) would not disagree that regulations need review from time to time to make them fit for purpose. The ‘problem’ however is that the debate is often characterised as ‘Regulation = Bad’ or hinders progress whereas what it can do is set a strong level playing field for all concerned, encourage innovation and provides stability for the business community to invest (provided there is not constant chopping and changing).

Very little rationale has been given by the Government as to why it views the individual regulations it singles out (water, habitats, diffuse pollution and permitting regs), as troublesome. Moreover, the plan to ‘work rapidly’ to un-pick regulations that took years to craft with huge stakeholder consultation and buy-in is the wrong way to go about it. It also only feeds the scepticism about the overarching objective that Corry is trying to pursue here.

Recommendation 19 is problematic and appears to miss the point about what role the Office for Environmental Protection has been playing since the UK left the European Union. Scrutinising outcomes and process has been absolutely essential at a time when there have been multiple governments in a very short space of time (not to mention dozens of Ministers!), multiple twists and turns in policy all the while when 50 years’ worth of laws were being reviewed and reformed (and in some cases axed). That independent voice of scrutiny outside of a busy Parliamentary schedule has been vital.

What to Watch

There are several promising recommendations in the list but how they are progressed and work going forward will require careful examination and involvement of related stakeholders.

For example, the recommendations (#1-9) included in Corry’s theme on focussing on ‘outcomes, scale and proportionality with constrained discretion’ appear to be, in principle, fine and largely sensible. Experimental sandboxes (Recommendation 10) though is a little reminiscent of the ‘freeports’ experiment where concerns over protected sites were paramount – one to watch very closely.

Crowding-in and promoting private sector investment in nature restoration (Recommendations #21-25) are welcome and we wait to see how this will evolve over the coming months and years ahead. Guy Thompson makes a compelling case in this space.

Allowing trusted nature conservation and environmental partners more autonomy (Recommendation 15) is interesting though as Matt Browne of The Wildlife Trusts states special treatment is not what is needed, rather this could potentially be applied too to farmers who are applying nature friendly farming practices to a high standard.

In Summary

The Corry Review’s recommendations are both pertinent and valuable and appear to be reassuring of the need to focus regulation on promoting wins for nature. Yet, at the same time, the irritating dash for reform ignores the fact that many stakeholders would probably be supportive of these changes if there was a more considered and holistic approach to making regulation work for nature [and economic growth] in the post-EU landscape. Further, wider messaging and rhetoric from Government on scrapping quangos and the need to ‘build baby build’ and problems around resourcing of the regulatory bodies involved undercut the, on the whole, laudable efforts being made.

[1] Someone close to IEEP UK mentioned there had been over 60 better regulation initiatives in the last 30 years. Though we don’t have the names and dates for them all and are not sure about the exactness of this claim, but as our organisation has been around for over 40 years, we are confident there have been quite a lot!

[2] Certainly, a regulator should not be seeking to get in the way of [economic] growth, but more to the point it is there simply to apply the law as it stands, dispassionately and as robustly as it can.

Photo by Bob Brewer on Unsplash