Crickhowell hits out over Environment Agency

The Government is exercising undue pressure on its new Environment Agency Advisory Committee to rush to judgement about the Agency's structure and financing, the Chairman of the National Rivers Authority (NRA), Lord Crickhowell, warned during the second reading of the Environment Bill in the House of Lords on 15 December. Lord Crickhowell also delivered a powerful warning about the wide-ranging powers which the Government was taking to intervene in the Agency's work.

The Bill's main provisions were summarised in last month's edition, which also contained a detailed analysis of its provisions on contaminated land (ENDS Report 238, pp 15-21 ).

The second reading debate is the occasion on which notice is served of issues on which substantive or probing amendments will be tables at Committee stage. On 15 December, there was no shortage of indications that the Government is going to be pressed for changes to the Environment Bill's provisions on National Parks, hedgerows, abandoned mines, the structure and functions of the Scottish Environment Protection Agency (SEPA), and the Environment Agency's conservation duties.

However, it was Lord Crickhowell who raised the most telling questions about the Environment Agency. Drawing on his experience with the NRA, he warned that attention should focus not just on the Agency's statutory functions and duties but also on its relationship with Whitehall.

Lord Crickhowell had initially voiced his concerns during a Lords debate on the Queen's speech on 23 November. Ministers and their departments, he commented, "will have a huge influence on the ability of the Agency to carry out its functions."

By way of example, he cited the 2,000 appeals lodged by water companies against the revised discharge consents sought by the NRA, in the aftermath of the Water Act 1989. Not one of those appeals was ever settled by the Department of the Environment (DoE), which instead drafted a set of rules and passed them down to the NRA to apply earlier this year. "The fact that the process has taken so long and left individual disputes unresolved means that over quite a long period environmental protection has been less effective than it should have been," according to Lord Crickhowell.

The implication, he went on, is that the Agency "will be able to carry out its formidable responsibilities in an effective and timely way only if the appropriate divisions of the Department of the Environment are adequately staffed and deal promptly with the considerable number of policy decisions that will remain to be taken within government.

"Almost everything that the Agency does - its regulatory arrangements, charging schemes, corporate plan and financial arrangements - has to be approved by Ministers," he pointed out. "The Bill is replete with phrases such as 'with the consent of the Minister', 'dependent on ministerial instructions or request' and 'the guidelines given through the management statement'."

"In the coming months," Lord Crickhowell concluded, "what Parliament will be doing is establishing a partnership, and everything that follows will depend on whether or not that partnership works. Parliament would do well if it spent as much time probing the intentions of Government about their general approach to these issues as to the detailed examination of clauses."

The NRA Chairman returned to the theme on 15 December. The Agency's marriage with the DoE, he suggested, looks like being more difficult than the NRA's. There is "an unhappy suspicion that on this occasion the Government are attempting to write the word 'obey' into the marriage service, although I fear that they will not couple that word with the phrase, 'with all my worldly goods I thee endow'. The NRA has not been obliged to live with a bossy and prescriptive management statement, but that appears to be the coming fate of the Agency. The Environment Agency is being nagged by its partner even before the nuptials are concluded."

A more serious problem for the Agency, he suggested, could be clause 4 of the Environment Bill. This requires it to "have regard to" any guidance from Ministers on its aims and objectives, and particularly on its contribution to sustainable development.

According to Lord Crickhowell, "guidance from Ministers cannot provide an ideal and stable foundation for policy-making, for regulatory activities which may impact heavily on others or for a legal framework which the courts can interpret and enforce."

Furthermore, there was a "real anxiety" that Ministers are preoccupied with the economic and development aspects of the term "sustainable development", and that this could become an obstacle to environmental action.

"Industrialists, water plcs and others will quickly see that there are opportunities here to challenge the Agency's decisions," warned Lord Crickhowell. It was therefore imperative that the Government published its guidance on sustainable development as soon as possible, so that Parliament could debate its implications for the Agency while the Bill was still before it.

Lord Crickhowell went on to criticise the Government over the Agency's nature conservation duties. In October, the Government published a draft of the Bill which would have required the Agency simply "to have regard to the desirability of" conserving natural beauty and wildlife. This was less powerful than the NRA's present duty "to further" conservation, and after a row the current wording was largely restored.

Nevertheless, the NRA's Chairman pointed out, the duty will not apply to the Agency's pollution control functions, where the "have regard to" phrase remains. This will leave it in the position of having a weaker conservation duty than the water companies and internal drainage boards which it will regulate.

Lord Crickhowell went on to welcome some detailed features of the Bill, including the introduction of a power to serve enforcement notices to prevent water pollution risks, and the abolition of the "tripartite" sampling requirement for water pollution prosecutions (see below).

However, he expressed disappointment that on the water pollution control side the Bill will not provide powers to serve prohibition notices and take out injunctions to deal with threatened pollution, leaving the harmonisation of the NRA's, HM Inspectorate of Pollution's and waste regulators' powers "partial and incomplete." The NRA has also failed to secure new water resource provisions, including the power to make drought orders on environmental grounds.

Concluding his speech, Lord Crickhowell expressed concern about the pressure being exerted on the new Environment Agency Advisory Committee to take rapid decisions. It is understood to have been asked to give a preliminary view on the Agency's structure, finances and location by the end of January, after only its second meeting.

Ministers, said Lord Crickhowell, are asking the Committee, "which as presently constituted is thin on relevant experience, to rush its fences and take early decisions about structures, locations and budgets while most of the Committee members will not have had time to acquire detailed knowledge of a very complex subject and when it is not likely that there will be a chief executive and senior management team in place before the summer of next year. If the shadow authority members are wide," he suggested, "their first show of independence from ministerial guidance will be by way of a refusal to be rushed or to commit themselves to the decisions that the board and management team may later come to regret."

As reported last month, one of the major disputes is over the Agency's structure. The NRA wants to keep the water regulatory and operational functions integrated, but HMIP wants the Agency to have a clearly distinct regulatory arm.

One advantage held by the NRA as this debate unfolds is that it has several friends in the Lords to make its case for it where HMIP appears to have none.

Viscount Mills, an NRA employee, told the Lords that it has been an effective regulator because of its presence "on the river" in pursuance of its other functions such as flood defence, fisheries and navigation. And "in cases such as a serious pollution incident, the regulatory role of preventing environmental damage are linked to great effect."

Commenting directly on HMIP's claim that the Agency may be compromised by the NRA's dual role, Viscount Mills said he was unaware of any such conflicts in practice. "But should this ever occur," he went on, "any concerns could be addressed by much less drastic measures than the complete separation of regulatory and operational roles - for example, through audit and/or general appeal procedures."

For Labour, Lord Williams of Elvel voiced several concerns about the Agency's structure and principal duties. Labour favours a separate agency for Wales. It also appears to support local authorities' demands that waste regulation should not be removed wholly from local control.

Lord Williams also argued that the Agency's general duties lack a proper balance. Nowhere, for instance, is there any expression in the Bill of the "polluter pays" principle, he said. "Indeed, the incorporation of the cost/benefit provisions in [clause 37 of] the Bill defy that principle to the point where it becomes the polluter pays only if he can afford it or does not have an accountant ingenious enough to fiddle the figures."

Labour appears to be opposed outright to clause 37, which requires the Agency to take account of costs and benefits in exercising its powers. According to Lord Williams, the Agency will be unable to protect the environment and fight pollution "if it is constantly going to test their outcome against business costs. There are plenty of channels for business to use if it finds protecting the environment too burdensome; and if there are complaints they will be dealt with elsewhere."

Lord Williams also argued that the Bill's contaminated land provisions do not go far enough. "Without a proper programme of site identification," he said, "there will be no means of locating immediate threats to public health and the environment...A database of historical land uses would seem to us to be the only way to proceed."

In common with several other peers, Lord Williams also condemned the Government's proposal not to life the present exemption from normal water pollution controls for abandoned mines until 1999 as "too long".

On the Bill's National Parks provisions, peers were generally critical of the Government's failure to act on two recommendations made by the National Parks Review Panel four years ago.

Lord Denham, a member of the Countryside Commission, said that one of these was the need for a statutory test for proposed major development. New roads, quarries and industrial installations should be permitted in National Parks only if this was shown to be in the national interest, and if there was no alternative location outside the Parks. These principles are already enshrined in planning policy guidance and should now receive statutory backing, he said.

The review had also recommended that one of the Parks' formal purposes should be as "tranquil places for quiet enjoyment". The Government had made a positive response to this but had not made suitable provisions in the Bill.

Scottish interests were poorly represented during the debate, but Lord Carmichael warned the Government to expect a large number of amendments on SEPA's structure and functions. SEPA, he suggested, will be "too big and remote", and "ordinary people would find it very difficult to go to any place as elevated" as SEPA to complain about pollution problems. A strong representation of elected members on its Board will also be necessary, he said, to provide some local accountability.

For the Government, Environment Minister Viscount Ullswater responded to one of Lord Crickhowell's concerns by announcing that an "initial outline" of the "scope" of the Government's guidance to the Agency on sustainable development will be made available when the Bill reaches its Committee stage.

But the Minister rejected suggestions that the Agency should have the same duty "to further" conservation in all its functions as the NRA presently has. An "overriding" duty of this kind would, he said, "be inconsistent with the effective discharge of the Agency's role in issuing environmental licences" - though why this should be so was not explained.

On National Parks, Viscount Ullswater said that primary legislation is inappropriate for introducing constraints on development. The DoE's planning policy guidance already makes it clear that major development should take place in National Parks only in "exceptional circumstances", and then only after the most rigorous examination and after being shown to be in the public interest.

The Minister also rejected the demands for a reference to "quiet enjoyment" among the Parks' statutory purposes because the term would be subject to divergent interpretations.

Viscount Ullswater revealed for the first time how the Government intends to use powers provided by clause 79 of the Bill to protect "important" hedgerows.

Criteria will be established in regulations to define what is an "important" hedgerow. Land managers intending to remove such a hedgerow will have to notify local planning authorities which will have 28 days in which to refuse such a proposal. Their decisions would be subject to appeal.

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