the state of environmental law in 2011-12 – final report launch the dickson poon school of law...
TRANSCRIPT
The State of Environmental Law in 2011-12 – Final Report
Launch
The Dickson Poon School of Law
With the kind support of
EVENT PROGRAMME17.45
UKELA/King’s/BRASS project team presentation: 'The State of Environmental Law in 2011-12’
With questions
19.00 Steven Gleave (Better Regulation, DEFRA) in
responseFurther discussion
19.30 Drinks reception with Defralex display
(Somerset Rooms: turn right out of Theatre, follow the staircase up one level and take a right at top of stairs)
21.00 Close
The Report
2009
• Frustration amongst UKELA members– Complaint – ineffective legislation – Consequences – cost, delay, piecemeal
interpretation, rule of law
• Charitable aims of UKELA– Make the law work for a better environment– Make environmental law accessible
Effective meaning?
Coherence Issues
• Frequent amendments and lack of consolidation
“I think its really badly put together…lots of it is archaic, it’s in little pieces that don’t always match each other” (industry professional)
• Key concepts are too difficult to understand– Waste– Habitats
Integration Issues
• Overlapping regimes and obligations applying to the same set of facts causes:– Duplication of legislation– Confusion as to which regime applies– Contradictions– Multiple enforcement options and appeal
mechanisms
Transparency Issues
• Accessible – If not coherent and/or not integrated ?
• Concerns– Unclear who regulator is (to industry)– Key requirements‘hidden away’in guidance
documents issued by different regulators– Referential drafting
• UK Government Aarhus infraction
Scrutiny Issues
• Not one body in charge – aim unclear• Parliamentary scrutiny more political than
qualitative• Consultation good tool – too much and not
enough feed back• Committee scrutiny – narrow and policy
focused• Post-legislative scrutiny – rarely occurs
Word on guidance
• Role of non statutory guidance
• “Democratic deficit”
Specific Recommendations • Streamlining
– Consolidating legislation more routinely– Simplifying overlapping legislation – Rationalising appeals mechanisms and enforcement
powers
• Communication of information – Updated and accessible websites, with consolidated
legislation, and all legislative information gathered for a single topic
– Alert users to legislative changes
Specific Recommendations • Further Government efforts to influence of EU
developments to minimise coherence problems
• Guidance should be:– up-to-date, consistent and comprehensive– drafted in a way that is appropriate to its function
and audience
• Consultations– Improved communication with stakeholders
Broader Recommendations• We covered tip of iceberg• More work for the future:
– On understanding the systemic problems with the quality and effectiveness of UK environmental legislation – is the system fit for purpose?
– Is wider institutional reform required, boosting scrutiny?
– Is there a role for environmental principles in improving legislative quality?
Quality Legislation
• The principle is not about de-regulation
• Principle is about improving regulation in the 21st Century
Methodology, Institutional Collaboration and Environmental Principles: Findings and Lessons
Dr Eloise Scotford
King’s College London
Project Methodology• Challenges:
– Thinking about legislative problems in an area of law with porous, contested (limitless?) edges
– Across a number of jurisdictions: UK and its administrations
– Where multiple causes of legislative quality
• Challenge but also strength of project: working with variety of environmental law perspectives– Practitioners, government, industry, academics,
students, judges, NGOs
Methodological Choices• Research limits adopted
– Confined subject-matter, somewhat arbitrary
– Focus on legislation (including guidance), not enforcement or policy outcomes, institutional and administrative matters only as relevant
• Driven by purpose: to better understand problems of legislative quality in the UK– To put issue on agenda, identify typology of problems, their
causes and avenues for reform
• Stages and variety of research methods– Datasets limited, range of methods developed
Methodological Findings• Systemising issues of legislative quality told us about
the nature of the problems, including how they are caused and how to find them– Coherence, integration (substantive, administrative),
transparency– Importance of mapping
• Range of perspectives showed that:– Problems for some users of environmental law might not be
for others (eg expert practitioner vs industry)
– Solutions need to focus on users’ needs/knowledge
• Devolved administrations need particular and different attention
Institutional Collaboration• Method of project in bringing together perspectives also
reflects an accomplishment/experiment of institutional collaboration
• Lessons learned: different kinds of institutional expertise (variation on Fisher; Collins + Evans)– Interactional issues (different terminology, objectives, timeframes,
resources) – need to find common ground, maximise resources– Contributing knowledge across institutional contexts – value of
different viewpoints and cultures, rigorous research methodology to build coherent project, with communication challenges
• Importance for UKELA, as well as this project
Environmental Principles• Eg sustainable development, precautionary principle,
polluter pays principle, intergenerational equity, integration
• Solution to problems of legislative quality if inserted explicitly into legislative scheme?– Hard to know, will have legal effects, not looking like a total
solution
• Obstacles/influences in UK legal system– Generality of principles: not determinative, open for
interpretation (waste definition, NPPF)– UK legal/regulatory culture (cf EU/NSW law)
Role for Environmental Principles?
• Depends how you introduce them into UK legislation…– As legislative objects that act as interpretive tools
for courts and those acting under legislation – an alternative is more bespoke objects clauses as an interpretive device to reduce coherence problems
– As general duties on public decision-makers– Into policy documents, still legally influential
• Resulting improvement in legislative quality?
Future of Environmental Principles
• Report recommendation: further work to monitor, map, predict the legal effects of environmental principles– How they might influence ongoing UK legal
developments, particularly in implementing and interpreting regulatory obligations
– Differently across the DAs? - see WAG planned Sustainable Development Bill experience
– FTT (Environment) jurisdiction?
Environmental Law Across the UK
Bridget MarshallScottish Environmental
Protection Agency
Introduction
• Capturing environmental law across the UK key part of project
• Increased size of project
• Introduced additional methodology problems and significant analytical complexity
• But worth it!
Methodology
• Consultants used with relevant experience provided reports on key issues of legislative quality in each devolved administration
• Reports covered:– Political context– Key issues in legislative quality– Scale of activity going on in devolved
administrations in 2011/12
Significant Developments 2011/12
• History of devolved competence
• Legislative reform on the environment
History of Devolved Competence
• “Yes vote” Wales referendum- March 2011• SNP majority in Scottish Parliament and
announcement to hold a referendum in 2014 about independence-May 2011
• Discussion paper on “Environmental Governance” including options for an independent environment agency for Northern Ireland-September 2011.
Legislative Reform on the Environment
• Consultations in Wales on “Sustaining a Living Wales” and “Arrangements for Establishing and Managing a New Body for the Management of Wales’ Natural Resources”-February 2012
• Consultation in Scotland on “Proposals for an Integrated Framework of Environmental Regulation”-May 2012
What Does this Mean for UK Environmental Law?
• No single unitary environmental law in the UK
• Devolution has resulted in a complex legislative picture across the UK
• Individual administrations improving own quality of legislation
• Issues for coherence, integration and transparency across the UK
Does it Matter?
• Cross border differences in law can cause difficulties for regulator and regulated
• Can put industry at an economic disadvantage/advantage
• Can be a burden on industry to understand environmental law in different administrations
Report Recommendation
Further work should be done, both within and between UK Governments and by external organisations (including universities), to research, analyse and explain the emerging picture of fragmented environmental law across the UK administrations
Robert Lee and Radoslaw Stech
ESRC Research Centre for Business Accountability, Sustainability and Society (BRASS), Cardiff University
Methodology
Sample38 on-line respondents13 interviews
IssuesTimescaleSample size and contoursRepresentation by SIC codesReading mixed methods research
Access to Legal Information Main Survey Findings:
Most respondents work with UK environmental legislation and statutory guidance and many with EU law
Non‐statutory newsletters and guidance are most frequently accessed sources of environmental information
Respondents most often use statutory bodies' websites to access environmental legislation but such websites are said to be difficult in terms of access
Interview findings: When interviewed respondents rarely refer to accessing
legislation or other sources of law directly Respondents heavily rely on free sources of environmental law
from trade associations and statutory bodies Large companies educate smaller ones about environmental
requirements through supply chain relationships
Coherence Main Survey Findings:
Respondents' perceptions of the UK environmental legislation is largely negative with vast majority wishing the legislation was simplified
For the majority of respondents environmental legislation lacks clarity, is not well structured and consists of conflicting concepts
Many respondents have problems in understanding key concepts in environmental legislation resolved to some extent by statutory guidance
Interview findings: Lack of clarity was the single most stated reason for concerns about the
coherence of environmental legislation The ideal piece of legislation for respondents would have to be 'clear‘ Respondents have fairly negative perception of guidance complementing
environmental legislation
Integration Main Survey Findings:
About one third of respondents had experienced working with more than one piece of legislation to find an answer to their question
Environmental legislation should be more regularly consolidated There is too much 'red tape' in respondents' work arising out of
environmental legislation Interview findings:
There is a need for consolidation stemming from earlier perceptions of the complexity and the lack of clarity in legislation
Large companies can deal with the problems of integration; smaller ones will struggle
Respondents were critical as to the lack of uniformity in the Environment Agency's handling similar issues in different regions of England and Wales
Transparency
Main Survey Findings:There is the accessibility problem for business users
as many of them do not know where to find environmental legislation
Over half do not know why and when environmental legislation is altered
Interview findings:In contrast with the survey results respondents did
not report any major problems in accessing environmental legislation
Environmental Principles Main Survey Findings:
Sustainable development, the polluter pays principle, the preventive principle, the rectification of pollution at source principle and the precautionary principle broadly acknowledged by respondents
Majority never heard of principle of integration and the principle of inter‐generational equity
Respondents more reserved about the usefulness of environmental principles
Interview findings: Respondents’ focus on sustainable development principle but
some see environmental legislation hindering sustainability Organisations who embraced sustainable development
principle and include it in their culture are positive about its long‐term effects
Consultations Main Survey Findings:
Majority of respondents are aware of the parliamentary processes involved in drafting and reviewing environmental legislation
Respondents who have taken part in government consultations rated their experience predominantly as ‘average’
Interview findings:SMEs are less likely to receive invitations to take part in
government consultationsThere are too many consultations taking place and
respondents often perceive that they are ineffective in terms of consultation responses actually being taken into account or making any real difference
The State of Environmental Law in 2011-2012
Reforming Environmental Regulation
A Defra Perspective
Steven Gleave
Head of Better Regulation Team, Defra
Defra’s Approach to Regulatory Reform
• Aim to achieve environmental and other public policy objectives in ways
that encourage sustainable growth whilst minimising the burden of
public and private sector interventions on those affected.
• An end-to-end approach across core Defra and delivery partners:
development of policy, implementation on the ground, evaluation.
• Not just about legislation but guidance and data reporting too.
• Increasing focus on reducing the burden on SMEs/micro-businesses.
• Better evidence to underpin choice of policy options and whether/how to
intervene. Improved and more transparent information for policy makers
and the public.
• Developing a common approach across Whitehall Departments and
Devolved Administrations.
• Improving EU regulation.
Defra Regulation Assessment 2011
• 435 sets of regulations or Acts, of which 227 derived from EU.
• Includes 258 sets of environmental regulations or Acts together
with more than10,000 pages (?) of associated guidance.
• Total net cost to business of £3.6bn (£5.4bn costs and £1.8bn
benefits).
• Wider economic, environmental and social benefits (where
assessed) of £8.4bn.
• Weighted average benefit:cost ratio of 2.4:1.
• Average administrative burden of 8% (range of 1%-65%).
• EU accounts for 81% of costs to business.http://www.defra.gov.uk/publications/files/pb13623-costs-benefits-defra-
regulatory-stock110816.pdf
Red Tape Challenge - Environment Theme
• A package of reforms to protect the environment in a more effective and
efficient way that puts fewer burdens on businesses. Once implemented,
estimated benefits to business of more than £1bn over 5 years.
• 132 regulations to be improved, mainly through simplification or
consolidation; 70 to be kept unchanged; repeal of 53 that are obsolete.
• Main areas covered: waste, chemicals, air quality, biodiversity,
landscape, noise/nuisance and inspections.
• Identifying areas of EU legislation for reform.
• A review of the overall framework of environmental regulation, guidance
and data collection to assess the scope for further action to help
businesses comply with their obligations.
• Proposals to be supplemented by RTC water and marine theme in hand.
Defra’s Smarter Environmental Regulation Project
• Six month project. A commitment from RTC environment theme.
• Addressing the ad hoc and piecemeal way that environmental regulation
has developed since the 1970s.
• A complicated landscape of domestic and EU legislation, guidance and
data reporting.
• Comprehensive assessment of the current situation by summer.
• Proposals to Ministers by autumn on a) options for reform of guidance
and data reporting and b) identification of principles for longer term
regulatory reform (including legislation).
• Drawing on external stakeholder Sounding Board (including UKELA).
Improving Enforcement and Compliance
• Providing strategic oversight and direction for Defra and delivery
partners.
• Improving guidance and forms to make them simpler and clearer.
• Developing Enforcement and Compliance Plans.
• Developing a National Intelligence Model.
• Reviewing appeals processes.
• Contributing to Government’s regulatory reviews programme and
powers of entry review.
Defra’s Environmental Appeals Project
• Richard Macrory’s report on environmental appeals.
• Accepted the strong arguments for making greater use of the
environment jurisdiction of the FTT.
• Working assumption that environmental appeals to be routed to FTT but
each case to be considered on its merits.
• Users of appeals services to be consulted.
• Guidance for Defra policy officials.
The State of Environmental Regulation in Five Years?
• A significantly simplified legislative and administrative
landscape.
• Better information on costs and benefits leading to better
quality public policies.
• More sophisticated regulator/court interventions, with focus
on serious/persistent criminals.
• Improved compliance by business/Higher environmental
standards achieved overall.
• Continuing domestic drive for regulatory reform. EU?
International convergence?
EVENT PROGRAMME17.15 Registration/tea and coffee
17.45 UKELA/King’s/BRASS project team presentation:
'The State of Environmental Law in 2011-12'
19.00 Steven Gleave (Better Regulation, DEFRA) in
response
19.30 Drinks reception with Defralex display
(Somerset Rooms: turn right out of Theatre, follow the staircase up one level and take a right at top of stairs)
21.00 Close