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Of red tape and Brexit red herrings in the war between business and the environment

We shouldn’t be demonising regulations that are there to protect our future, as “red tape”. Part two of a three part series.

Image: Sethoscope via Wikimedia, Creative Commons license.

David Cameron and his Conservative-led coalition government launched the Red Tape Challenge in April 2011. The government said it was “challenging the public to help cut unnecessary regulations.” The real aim, it seems, was to confirm the Tory reputation as being good for business, and the idea the economy could be jolted back into life through a few cuts here and a restructure or two there. It also reinforced the story that regulation, or bureaucracy, was the scourge of British life.

The Red Tape Challenge included yet another house building review (see part one of this series for the history of recent reviews).

Again, the doors to the house building lobby remained open. The review was, according to the government, set up “to identify...unnecessary regulatory barriers to growth and associated costs to the house building sector, while ensuring necessary protections are maintained...[it] will examine any aspects of regulation or the way it is implemented which could be made simpler, more cost-effective, efficient, proportionate, or consistent.”

The Wildlife and Countryside Link, which represents environment charities, observed: “A review of biodiversity regulations was also undertaken, to which 84 percent of responses were in support of keeping or strengthening existing regulations and only two percent were in support of removing or weakening them.” (Emphasis added).

George Osborne, then chancellor, personally took up the cause of the house builders. In doing so, he came out strongly against our dozy great crested newt and its EU protectors. He demanded a review of the implementation of the birds and habitats directives, and its impact on business and developers, in November that year. Osborne made headlines when he seemed to pre-empt the results of the review by announcing that these wildlife protections were "placing ridiculous costs on British businesses".

The review was led by Osborne’s cabinet colleague, Caroline Spelman, in her role as environment secretary. But it did not all go his way. Spelman said: "The review has shown the directives have been working well to provide the vital protection nature needs”, though she added “there are cases where problems arise and delays occur, which is not good for business, the environment or local communities."

The 54-page report established that Natural England - responsible for implementing the EU directives - in fact objected to fewer than 0.5 percent of planning applications. Spelman admitted: "There are a handful of cases where we have had problems." The Department for Environment, Food and Rural Affairs (Defra) nonetheless presented 28 new recommendations, promised to establish three new specialist units and published another tranche of "new streamlined guidance".

Martin Harper, conservation director at the Royal Society for the Protection of Birds (RSPB), said at the time: "The government's own review has shown that the chancellor's comments were misleading rhetoric, with no factual basis. We remain determined to persuade the government that there is no contradiction between environmental protection and economic growth." Carol Day, a lawyer at the international conservation charity WWF, was even more blunt: "Osborne's claims were completely wrong.”

The government would later claim that the Spelman review delivered more than £1 million in savings to housing developers over three years, by simplifying the planning process. “Savings have been made chiefly via the introduction of an ‘annexed licence’ system for works affecting bats, great crested newts and dormice – which has reduced the number of applications and subsequent rejections and reapplications,” Natural England boasted in its press release.

EU regulations are not immutable, as the newt has learned

Fast forward three years to 2015 and it was the European Union’s turn to review the birds and habitats directives, again taking on the complaints of house builders in the UK and elsewhere. The European Commission announced a review of nature conservation laws in order to assess whether they remained “fit for purpose”. Over 550,000 EU citizens responded to the commission’s public consultation on the issue, including 100,000 from the UK - the largest ever response to an EU public consultation.

The Wildlife and Countryside Link was among the British respondents. It argued that the directives were too often presented as a barrier to growth when the reality was “[t]he network of sites protected under the directives represent the foundations of UK nature conservation and a core component of the UK’s natural capital, supporting the delivery of a wide range of ecosystem services essential for human health and well-being.” It concluded: “Without the directives, nature in the UK would be in a far worse state.”

That same year, Natural England announced a fundamental shift in the way it would interpret the EU regulations and enforce protections of the great crested newt. This was in response to lobbying by the house building sector, but also because new technology had become available.

DNA mapping would be used to identify larger populations of great crested newts within local authority areas, and the directives would be used to protect these locations. House builders who discovered a couple of newts would no longer have to stop in their tracks. The few would be sacrificed for the greater good. A trial was established in Woking, and even before it had concluded, the policy was being adopted in other parts of the UK.

The Telegraph reported gleefully: “[G]reat crested newts will no longer be able derail new housing… developers will no longer be required to move individual newts, as long as councils protect the biggest populations and best habitat.” The newspaper also reported that Natural England had, in any case, only issued about 1,000 licences to disturb great crested newts so far in 2015.

It’s not the rules that are the problem – but how they’re implemented

Three months after Natural England announced the Woking pilot, the commission published the conclusions of its review of the nature directives, which had found that it was the implementation of the directives, not the rules themselves, that needed improvement.

The conclusions were adopted by the European Parliament’s Environment Council in December 2015, followed by the full Parliament two months later. Rory Stewart, a junior Defra minister, reported back to Parliament, telling MPs that “the UK raised concerns over the implementation of the nature directives” but then admitted that this was best resolved “through looking at much better approaches to implementation”. This was in effect admitting that the EU and its directives were all in good order. But the British government, through its agencies, was failing in terms of implementation.

In the wake of the EU’s Environment Council decision, DEFRA set about trying to get an agreement between the various interest groups. “Ministers are looking to set in place a Memorandum of Agreement between government, developer organisation and environmental bodies to take forward a programme of work to agree improved implementation arrangements,” the House Builders Federation(HBF) informed its members. “The HBF attaches importance to this work being expedited.”

The whole charade moved back onto UK shores. Civil servants from Defra, the then Department for Communities and Local Government (DCLG), and Natural England met with charities and with developers and their representatives, including of course, the HBF.

The different interest groups sat down together, listened diligently, and began to reach a consensus, a solution to how to implement the directives. The house builders were mindful of the need to protect the great crested newt, the environment charities understood the pressing need for new housing.

The HBF continued to express concern about how the regulations were being implemented. John Slaughter, director of external affairs, published Cutting Red Tape – Sector Review of House Building. The report stated: “The implementation of the Habitats and Birds Directives can be problematic for house building.”

Referring to an issue in Thames Basin Heaths, it added: “[T]here should be a duty on the regulatory bodies and local authorities to plan proactively for strategic solutions that can successfully meet both conservation and development requirements...There have been other examples of the implementation of the directives resulting in adverse impacts on home building.”

The emphasis is added. But the message remains clear. It was the implementation of the rules by the British government and its agencies - agencies answerable to the Conservative cabinet, including at that time George Osborne - that was the problem for home builders. It was not the EU and its directives.

The disparate groups reached the point where they were happy to all agree to the memorandum of agreement. This was due to be signed on 24 June 2016. Indeed, 2016 was the year house building in Britain had returned to good health, great crested newt or no.

“A generally more attractive environment for house building investment, improved economic conditions and political action to tackle blockages and support first-time buyers has contributed to unprecedented increases in housing supply which has risen by more than 50 percent in just three years,” the HBF rejoiced. But then...

Thrown under the great red Brexit bus?

Brexit rebooted the whole process – again. The whole conversation around great crested newts, house building, planning, regulations and European directives became subsumed in the great Brexit debate. The June 2016 memorandum of understanding was abandoned, or at least put on hold. Some involved in the process expressed frustration that “the whole delicate process was thrown under the big red Brexit bus”.

Take back control. Westminster, not Brussels. Controlling our borders. No more immigration. No more busy body bureaucrats. No more red tape. The concordat between housing developers and conservationists was shelved by government. A letter from the stakeholders, from the HBF to the RSPB, was sent asking that ministers in fact improve the implementation of the directives, but so far to no avail.  

John Tutte, the chief executive of developer Redrow, launched an attack on EU directives themselves. He was reportedly supported by the HBF, a story covered by The Telegraph. I asked the HBF whether this represented a change in policy for the trade association, or whether it reflected a pre-existing divergence of views in the organisation. I am yet to receive a response.

Tutte complained that different species facing extinction need protection during different periods of the business year - not leaving enough time for his developers. "The UK has the largest colonies of great crested newts in the whole of Europe. We haven't got a shortage, there's no threat to great crested newts in the UK, but it's European legislation," he is quoted as saying. The old complaint - and others like it - was again heard in the corridors of power.

In the next instalment in this three-part series, we look at the Brexit red herring – and where the confused claims about the desirability and deregulation are really coming from.  

About the author

Brendan Montague is a regular columnist for openDemocracy in our 'Brexit Inc: the environment and corporate power in the new Britain' series.

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