What’s in a watchdog: Why the future of UK environmental governance matters for business and the environment

Alistair Taylor of RSPB and Martin Casey of CEMEX discuss the value of effective regulation for business and the environment.

A joint blog from Cemex UK and RSPB for the Aldersgate Group

The value of effective regulation for business and the environment

The body of evidence that well-designed environmental regulations can not only protect and restore the environment but also deliver positive economic outcomes in the form of increased business investment in innovation and skills, greater business competitiveness and job creation is significant and growing.

In the nature conservation sector, recognition among progressive businesses that conservationists and the private sector can work together to deliver projects that make good business sense as well as delivering significant environmental outcomes has led to several fruitful partnerships.

CEMEX and the RSPB: Working in partnership

CEMEX UK, a leading company in the building materials industry, and the Royal Society for the Protection of Birds (RSPB), a leading civil society organisation in the nature conservation sector, have for several years now been working together on a joint programme of restoring worked-out areas in quarries with the aim of providing more space for nature. But our partnership doesn’t end at the quarry gates, or at the UK level. At Global level, CEMEX has also developed a close working partnership with BirdLife Global, and has been working closely with BirdLife Europe, of which RSPB is the UK partner, in pursuit of a common vision of achieving environmentally sustainable development.

CEMEX Europe and BirdLife Europe have issued a joint statement on the EU’s nature conservation policy titled “Good regulation drives innovation in industry”. In the statement CEMEX and BirdLife recognise that corporates and NGOs with compatible aims and interests can generate significant gains, for both business and biodiversity by working together, and confirm that both see clear and consistent regulation, guidance and implementation that is science-based and outcome-driven as preconditions for both sound business and sound nature conservation.

Progressive businesses and conservationists are in agreement that sound, and well-implemented legislation is important in order to protect and restore the environment, to provide a level playing field for industry and to stimulate innovation and enhanced performance. We therefore view the Government’s commitment to carry existing EU environmental laws such as the Birds and Habitats Directives into UK law and to ensure no weakening of environmental protection post Brexit as vital to securing our shared objectives for sustainable business and for the future of the UK’s environment. However, ensuring that legislation is well implemented and enforced requires an effective and properly resourced regulator to support regulated industries and, where necessary, to take enforcement action.

Effective regulation requires effective regulators

The need for effective environmental regulators has been recognised by governments in the UK and across Europe. Defra’s Habitats and Wild Birds Directives Implementation Review (2012) highlighted skills and capability gaps in the statutory agencies in England and Wales as barriers to effective implementation. The European Commission’s 2016 report on the Fitness Check of the EU Nature Legislation (Birds and Habitats Directives) also highlighted that a lack of capacity in the administrative authorities can lead to administrative burdens on business across all 28 EU Member States. The conclusions of these and other reviews reflect a broad consensus in the views expressed by governments, by civil society, and by business.

Until now, as an EU Member State, the UK has been able to draw on the capacity and expertise of shared EU level agencies and institutions to support the implementation of environmental legislation and provide some of the key monitoring, scrutiny and enforcement functions expected of an effective regulator. These bodies include the European Environment Agency (EEA), the Agency for the Cooperation of Energy Regulators (ACER), the European Topic Centre on Biodiversity Conservation, and the Joint Research Centre – Institute for Environment and Sustainability (JRC-IES), as well as the European Commission and the European Court of Justice. UK businesses, regulators and civil society organisations have also benefitted from the body of EC guidance which clarifies and supports the consistent implementation of environmental regulation.

Leaving the EU could mean the UK losing access to these shared EU level bodies and resources. The UK could also cease to participate in shared processes, such as joint reporting, could lose recourse to the valuable body of EC guidance, and might no longer have recourse to legal referral mechanisms that support and underpin environmental action. Both conservationists and business have a mutual interest not only in how these resources will be replaced, but also in government action to address existing capacity gaps and failings in the UK’s existing environmental governance arrangements.

Addressing the ‘governance gap’

The need for new governance arrangements has now been recognised by the UK Government. The House of Lords Select Committee on the Natural Environment and Rural Communities Act 2006, in its report, “The countryside at a crossroads: Is the Natural Environment and Rural Communities Act 2006 still fit for purpose?” confirmed;

“The departure of the United Kingdom from the European Union will result in a governance gap for environmental protection in the UK. Potentially, this could diminish the extent to which the Government can be held accountable for its environmental promises and commitments.”

In his evidence to the Committee, the Right Hon Michael Gove (Secretary of State for Environment, Food and Rural Affairs) acknowledged that “The need for a body or bodies has been clearly identified”.

The question then is what does an effective regulator look like? On this business and civil society are again in close agreement. The Greener UK NGO coalition (of which the RSPB is member) has called for domestic governance institutions to be sufficiently resourced, independent, empowered and expert to ensure the high level of environmental protection that benefits the whole of society and nature.

This echoes evidence submitted to the NERC Act enquiry from civil society and business representatives calling for any new body to enjoy sufficient independence from Government, and to be clearly separate from organisations—including Natural England and the Environment Agency—whose functions and work might fall within its oversight.

Functions of the new environmental watchdog

The House of Lords Select Committee neatly summarised that the requirement was for a new, independent body to replicate some of the environmental protection functions currently carried out by the European Commission. This simple sentence disguises a myriad of functions delivered by a body of relatively modest financial and human resources.

The Greener UK NGO coalition has called for governance arrangements that deliver on six key areas, including ensuring the proper implementation of environmental law and policy, scrutinising whether conditions and requirements are being adhered to, and enforcing environmental law through use of appropriate remedies and sanctions.

These asks echo the CEMEX/BirdLife joint statement which calls for clear and consistent regulation, and confirms that “sound and well implemented legislation are important in order to provide a level playing field for industry and stimulate innovation and enhanced performance.”

Watchdog consultation launched

In her recent speech on the Government’s new 25-year plan for the environment, the Prime minister confirmed that the Government intends to set out its “plans for a new, world leading independent statutory body to hold Government to account and give the environment a voice” and advised that the Government would be consulting widely on these proposals. However, we have been deeply concerned at Government delaying this important consultation.

Given the impending governance gap that will result from Brexit, the importance of securing the effective, independent and adequately resourced regulator that business and conservationists have been calling for cannot be overstated.

So together we welcome today’s launch of the Government’s consultation and will scrutinise their proposals to assess the extent to which these are sufficient to support our ambitions for the environment and for sustainable business in a post-Brexit UK.

Alistair Taylor is Senior Policy Officer, Nature Directives at RSPB and Martin Casey is Director of Public Affairs & Communications UK & EU Public Affairs at CEMEX.