Month: May 2019

Today I submitted a response to the Scottish Government consultation on Environmental Principles and Governance¹, seeking to secure effective environmental protection post-Brexit. The text of my response follows, although you might need to look at the consultation paper to make most sense of it.  As usual, responses were invited to a series of specific (if rather open) questions addressing each of its main sections, which perhaps makes for a rather disjointed read. But I hope my preference for a new body with sufficient powers and resources is clear enough.

1. Do you agree with the introduction of a duty to have regard to the four EU environmental principles in the formation of policy, including proposals for legislation, by Scottish Ministers?

Yes – These principles underpin environmental policy across the EU and beyond.  A post-Brexit Scotland should commit to matching, or exceeding, these standards.

2. Do you agree that the duty should not extend to other functions exercised by Scottish Ministers and public authorities in Scotland?

No – The duty cannot operate successfully in isolation. The consultation paper invites the answer yes, but the text fails to explain how the environmental duty bears on other duties. Compliance should not be optional. I agree there are complex interactions, but now is the time to address these.  The aim should be to simplify the multiple (sometimes cross-cutting) obligations and responsibilities of Scottish Ministers and public bodies, so as to reduce the scope for confusion and dispute. The consultation paper implies (paras 33 and 34) that there may be circumstances in which the environmental principles would be put to one side.  At face value, that simply devalues any apparent commitment to them.

3. Do you agree that a new duty should be focused on the four EU environmental principles?

No – The principles are devalued in isolation, so alignment of these principles with other responsibilities is essential.  For example, how and when will the December 2018 human rights proposals (including the creation of rights with respect to the environment) be taken forward?  Is there a commitment to seek appropriate legislation before the next Scottish Parliamentary elections?

Alignment of new environmental governance with the Aarhus convention is important.  There is a case to restate the Aarhus principles of access to environmental information alongside these principles.

There’s a growing need to establish a framework for reaching a considered view on how the wider public interest is best expressed in decision making, showing how the environmental principles are realised in practice.

4. Do you agree there should be an associated requirement for a policy statement which would guide the interpretation and application of a duty, were one to be created?

Yes – The duty to have regard to the environmental principles must be clearly understood and enforceable, so clear guidance on their interpretation should be published, covering the scope of discretion which can be exercised, and the basis on which the principles are to be balanced with other factors, such as human rights.

5. What do you think will be the impact of the loss of engagement with the EU on monitoring, measuring and reporting?

It is important to maintain alignment with monitoring, measuring and reporting protocols across the EU and beyond. Without this, there is a potentially serious loss of understanding of how a post-Brexit Scotland, and UK, perform in tackling environmental degradation. Many environmental challenges are unavoidably cross-boundary in nature, for example air quality or annual bird migration. I agree with the Round Table assessment summarised at para 55 of the consultation paper, including:

• Our future ability to use EU systems to facilitate reporting and contribute to developing methodologies.

• The ability to aggregate data at European level and assess UK progress on a comparative basis.

• Access to wider expertise, systems, and data and knowledge holdings.

• Potential loss of requirements for data to be published..

6. What key issues would you wish a review of reporting and monitoring requirements to cover?

I agree with the Roundtable’s suggestion that a review of environmental reporting and monitoring could help to rationalise current programmes. Transparency and common standards are essential.

7. Do you think any significant governance issues will arise as a result of the loss of EU scrutiny and assessment of performance?

Yes – Post-Brexit, there is an essential requirement for informed, evidence-based and demonstrably independent scrutiny of the performance of Scottish Ministers and public authorities. A coherent replacement covering scrutiny, compliance and enforcement is required. The track record of the UK’s approach to the devolved administrations is unsatisfactory, so I agree with the Round Table statement² that: “…having a Scottish body with a thorough understanding of Scottish law, procedures and systems would be more focused on the issues that are most significant in a Scottish context. Scotland is of a scale at which we can envisage a separate body being justifiable and effective.” However, I also agree with the Round Table that UK arrangements to allow collaboration, comparisons, efficient use of expertise and promotion of best practice would be advantageous – if there is an appetite for appropriate cooperation at the UK level.

8. How should we meet the requirements for effective scrutiny of government performance in environmental policy and delivery in Scotland?

A new body is required which has sufficient resources and powers to provide oversight and to hold government to account. This body has a valuable role as arbiter of the wider public interest in respect of environmental protection. Simply amending the role of a current body, or appointing a ‘Commissioner’, does not seem to meet the need, implying a low-cost and hence under-powered approach. I agree with the Round Table assessment that: “to be effective and achieve public confidence, any such body must have independence from government and the regulatory bodies, must have the expertise and capacity to do its work, must have a guarantee of the resources necessary for its role and must have the powers required to fulfil its tasks“.  See: https://mowle.net/2018/09/05/dog-days/  for my recent exploration of the terms of ‘independence’ for such a body.  None of the existing bodies are well-placed, for reasons of position or expertise, to meet this requirement.

9. Which policy areas should be included within the scope of any scrutiny arrangements?

I agree with a scope including the policy areas summarised at para 72 of the consultation paper, namely:

• nature conservation and biodiversity;

• air pollution emissions and transboundary pollution issues;

• environmental impact, access to environmental information and environmental justice;

• marine environment;

• radioactive substances;

• waste and circular economy;

• water environment and flooding;

• chemicals, biocides and pesticides

• climate change mitigation and adaptation obligations;

• soils and contaminated land..

10. What do you think will be the impact in Scotland of the loss of EU complaint mechanisms?

I agree with the Round Table assessment of key issues summarised at para 80 of the consultation paper, including:

• Who can bring a case with respect to harm to the environment.

• The loss of the Commission’s role as an essential means of ensuring Member States take their duties seriously – it acts

as an incentive for Member States to deal with concerns and complaints before they reach the Commission.

• The loss of the Commission’s role in resolving concerns and problems without formal procedures.

11. Will a new function be required to replace the current role of the European Commission in receiving complaints from individuals and organisations about compliance with environmental law?

Yes – Post-Brexit, there will be a loss of coherence in the recourse available to complainants.

12. What do you think the impact will be in Scotland of the loss of EU enforcement powers?

I agree with the Round Table assessment of key issues summarised at para 91 of the consultation paper, including:

• The loss of the Commission’s power to refer a member state to court for failure to properly implement EU environmental law.

• The fact that judicial review proceedings are traditionally used to consider powers, process and procedure rather than substantive environmental outcomes. The nature of many EU measures is to impose obligations on Member States to

achieve specific outcomes (e.g. a target for air or water quality or for recycling rates).

• The CJEU’s powers to impose fines on Member States which do not comply with its rulings..

13. What do you think should be done to address the loss of EU enforcement powers? Please explain why you think any changes are needed?

A new body is required to exercise these powers along with the scrutiny role (question 8 above).  This scrutiny and enforcement body has a valuable role to play as arbiter of the wider public interest in respect of environmental protection. Similarly, this body must have sufficient resources and powers to provide oversight and to hold government to account. Again, simply amending the role of a current body, or appointing a ‘Commissioner’, does not seem to meet the need, implying a low-cost and hence under-powered approach. I agree with the Round Table assessment that: “to be effective and achieve public confidence, any such body must have independence from government and the regulatory bodies, must have the expertise and capacity to do its work, must have a guarantee of the resources necessary for its role and must have the powers required to fulfil its tasks“.  See: https://mowle.net/2018/09/05/dog-days/ for my recent exploration of the terms of ‘independence’ for such a body.  None of the existing bodies are well-placed, for reasons of position or expertise, to meet this requirement, analogous to that of Audit Scotland, hence responsible directly to the Scottish Parliament and funded via the Scottish Parliament Corporate Body.

When working alone, it’s often simple and straightforward to keep track of the things to be done, and how, in your head. As soon as there’s a team effort involved, things are not so simple. Does everyone share the same understanding of the what, and the how? Almost certainly not! It seems sensible to set the task out in a plan. Setting out aims, roles, resources, methods, the expected sequence of events, review points and so on just seems like common sense – doesn’t it? This blog is a reflection on where such logic led me, and many fellow travellers, over the years. Spoiler alert – it has not gone smoothly…..

I recently came across an essay, by Mark Toogood, discussing Frank Fraser Darling’s West Highland Survey¹. A passing comment in this notes that: “…both (Tom) Johnston and Darling (as well as most senior actors in state ecology in Britain) held integrated planning models in high regard…”. I’ve no reason to doubt this, but I now wonder what Johnston and Darling, individually or together, thought this to mean. Another giant of their generation, Max Nicholson (who helped found the Nature Conservancy and led the organisation as Director General from 1952 to 1966) argued vociferously for a National (economic) Plan from the 1930s onwards. Nicholson joined the Civil Service in 1940 and is said to have accompanied Winston Churchill to the Yalta and Potsdam conferences which set the scene for post-war reconstruction. He was then Private Secretary to the Deputy Prime Minister, Herbert Morrison, from 1945 to 1952. The end of the War was the trigger for rapid social and political change, creating not only the welfare state, free secondary education, nationalisation of railways, coal mining and electricity generation, but also a new approach to farming support, National Parks (but not in Scotland), the Nature Conservancy and a development planning system. Expectations and optimism seem to have been high.

Nicholson’s 1967 polemic ‘The System – the misgovernment of modern Britain‘², laments the subsequent failings of successive post-war governments, arguing: ‘The key to co-ordination and to getting the best results with the highest morale is a clearly thought-out plan, based on a complete and sound appreciation of the assembled facts, fully and simply explained to all whose efforts are essential to its fulfilment.’ (p420) .

Contemporaneous with the West Highland Survey, an interdepartmental committee of the Scottish Office reviewed ‘Highland Development’³, leading later to a White Paper⁴ recommending establishment of the Highland Panel. The 1964 Highland Panel report ‘Land Use in the Highlands and Islands’⁵ highlights the Island of Mull as a locality requiring urgent attention. The Labour government elected later that year established the Highlands and Islands Development Board.  The Board prepared “comprehensive development plans” for Strath of Kildonan and for the Island of Mull⁶. These documents begin to realise the limitations of proposals which are unable to reconcile the views of different stakeholders. HIDB went on to sponsor a ‘Mull Development Committee’, which sat uneasily with the various public bodies, elected representatives and other powerful interests and was eventually disbanded.

As a student in the mid 1970s I studied ecology and ‘rural planning’, going on to research land management in the Island of Mull⁷ . I investigated Mull as an ecological and economic system, framing an exploration of the interactions between land, people and the panoply of public bodies influencing land management. It became clear that no single plan document could realistically provide a foundation for co-ordination along the lines envisaged by Nicholson, even in such a limited geographical area. Encouraged by sceptical critiques⁸, I began to think of the word ‘plan’ more as a verb, rather than a noun.

As a junior official joining the Nature Conservancy Council in 1979, I found that plans were not much in evidence across the organisation. But public bodies through the 1980s and 1990s were increasingly challenged to demonstrate their effectiveness. Unexpectedly, for several years from 1995 I found myself Head of Corporate Planning for the recently formed Scottish Natural Heritage. Especially following the 1997 General Election landslide bringing Labour to power, we were pressed to adopt a managerial, delivery target-driven approach to our work, and plans were seen as key evidence of our credibility. In SNH, we had a three-year Corporate Plan and an annual work plan setting out the main work streams and budget allocations, broken down into directorate, team and individual job plans, reporting regularly on progress back up the line to senior management team and Board. The plan material was the foundation for reporting of progress and achievements in the Annual Report and Accounts. These plans, for people and resources, were perhaps the kind of thing Nicholson had in mind. Other public bodies had their own corresponding arrangements, but efforts to co-ordinate these never attracted sufficient priority; joint working was always an uphill struggle.

Meanwhile on the global stage, UN conferences in Helsinki (1972) and especially Rio (1992) led to the international Convention on Biological Diversity⁹. UK CBD commitments included the preparation of Species Action Plans (SAPs), Habitat Action Plans (HAPs) and Local Biodiversity Action Plans (LBAPs). An initial list of 577 priority species and 49 priority habitats signalled preparation of hundreds of SAPs and dozens of HAPs by the new Millennium. Their progress was to be monitored and reviewed; a massive commitment of expert effort. The priority lists were increased to 1149 species and 65 habitats, meanwhile public body budgets and staffing grew year-on-year increasing capacity for such work. Contrasting with corporate planning as above, this was a managerial approach comprising plans for wild species and habitats; but the absence of plan documents for the longer priority lists is a hint that practical limits had been breached¹⁰.

From 2010, incremental growth in public body budgets was abruptly reversed. Austerity policies drove year-on-year budget reductions and corresponding shrinkage in staffing. Even before these developments, the limitations of a plan-based managerial approach had become evident. Plan documentation usually lags behind events, and is often incomplete. The dream of accessible, easily digestible, yet comprehensive information was never realised. The idea of a plan (along the lines proposed by Nicholson) also implies a fantasy of control; the UK Government project management methodology adopted in the 1990s is called PRINCE – PRojects IN Controlled Environments¹¹.  For a modest project within a single organisation such control over events might just about be credible, but not for real-world initiatives involving multiple interests and especially across organisations. Delivery of a pre-determined plan is never realistic, so practice must accommodate unexpected developments and reconcile diverse interests – whatever the theory might say.

Such a managerial plan-based approach is especially deficient when applied to natural systems. A contemporary strand of thinking promotes the idea of ‘rewilding’; this is defined in diverse ways, but at centre is the idea of letting go – the antithesis of managerialism. For example, Benedict Macdonald’s excellent new book ‘Rebirding‘¹² highlights the shortcomings of prescriptive habitat management plans ¹³, preferring to ‘…let nature write the targets…’. A recent blog by Mark Fisher¹⁴ highlights the contradictions and absurdity emerging when such plans are put into practice.

Making plans for nature may indeed be a step too far, but I’m still left believing that some proportionate style of planning must facilitate people working together. For all our efforts and experience, we simply haven’t yet established what good practice should look like. Yet collective effort without co-ordination risks confusion and wasted effort. The UK’s biodiversity challenges cut across multiple interests and organisations, challenging the logic of methodical plan preparation and implementation. So, after the plan – what next?