Written by Henrietta Appleton, Policy Officer (England)
The National Audit Office (NAO) has just released a report on Environmental Regulation which covers the role of Defra, Natural England (NE) and the Environment Agency (EA) in its delivery.
Whilst we welcome this as it helps to further the much-needed streamlining of the regulatory framework, following three major reviews in 2025 resulting in 149 recommendations that will affect Defra, NE and EA’s approach to regulation, there are some observations which we hope the on-going reform programme will address. These revolve around the need for:
- appropriate language – is policy conflating protection and regulation?
- a definition of risk appetite – focussing on both risk of inaction and action is needed to avoid unintended consequences
- consistency of approach – which requires understanding what the regulator wants as well as what is expected of the customer (land manager); and
- value for money – focussing on outcomes and carrots rather than sticks would enable the better targeting of resources to casework that would have the greatest environmental benefit.
These are now considered in turn.
The first is one of language. The first sentence of the summary states “Environmental regulation aims to protect the environment and nature from pollution and harm, safeguard natural resources and contribute to the health and wellbeing of citizens” [my emphasis]. I would suggest this ambition is its problem. It becomes a stick not a carrot. Surely a better descriptive would be that environmental regulation aims to reduce the impact of anthropogenic activities on the environment and nature? Protection as interpreted in policy is hindering our ability to manage our environment (and the biodiversity within it) for the common good and becomes problematic to the governments growth agenda as it challenges the concept of biodiversity net gain (BNG). Protect comes from the Latin “pro [forward] tegere [cover or clothe]”. This means to proactively shield, keep safe from harm – not regulate (from the Latin to rule or govern).
The second is the focus on risk. The NAO report highlights that there is an overly risk-averse culture in Defra, NE and the EA based on an interpretation of the precautionary principle requiring a no risk approach, even if the potential harm is minimal. The report recommends that Defra should define its risk appetite and that the ALBs should assess and triage intelligence to target the greatest risks.
Such recommendations would be addressed by a broader approach to risk assessment than is currently applied. Risks need to be looked at in the round and in this regard the Environmental Principles Policy Statement should aid this as it requires decisions to be made based on the interaction between the environmental principles and not just the precautionary principle. Innovation should not be hindered by the precautionary principle but it needs well managed risk taking (as Richard Sullivan-Jones of the NAO highlighted in his interview on Farming Today today (15th January)).
Consequently, Defra should require NE and the EA to consider the risk of inaction as much as action. In other words, instead of focussing on the risk of continuing what is considered to be a damaging operation, there should also be an analysis of the risk of stopping that activity. For example, the current approach to restricting the licensing of gamebird releases on protected sites under GL43 (Special Areas of Conservation (SAC)) and the decision not to reissue GL45 (Special Protection Areas (SPA)) due to risk of avian influenza spreading to wild birds. Scientific evidence demonstrates that game management activities which are intrinsic to game releasing can contribute to the conservation of SPA bird features. The cessation of these intrinsic activities such as predation management could prove a greater risk to the future resilience of SPA bird features than the risk of avian flu transmission as ground nesting SPA species could suffer significant breeding female and young losses during the breeding season.
The third is consistency of approach and engagement. The stakeholders consulted as part of the evidence gathering of this report highlighted inconsistent applications of regulations between regions, differences in expertise and support from regulators whilst the Office of Environmental Protection (OEP) has already highlighted differences in the regulatory approaches to inspection. Consistency, as the NAO notes, can increase engagement and compliance as customers understand what is expected of them and in reverse engagement can be vital in achieving an understanding of what the regulator requires. It is notable that in the general absence of specific detail, the NAO does refer to NE’s lack of effort in engaging with those affected by its decisions and cited the West Penwith Moors and Downs designation process. That said we note that NE has made improvements to how it engages with stakeholders and made better regulation (including working with responsible operators) a key part of its current strategic approach to recovering nature.
Finally, is the question of value for money. The OEP has expressed concern that regulatory oversight is affected more by resource constrains than the decision-making process itself. Given that the Corry Review identified that the complexity of the regulatory landscape (Defra has over 3000 items of legislation in force) made it challenging to customers to understand what is expected (for example 69% of farmers are not confident in understanding the regulations that apply to their farms), it is not surprising that this resource burden exists. In addition, the NAO points to the lack of a consistent, joined-up approach by Defra, as hindering the ability to target limited resources.
A clear regulatory strategy backed up with the systematic evaluation of evidence (both points made in the NAO report) would aid a more streamlined approach, as would focussing on a more light-touch approach to regulation based on outcomes rather than prescriptions. Working with land managers and farmers through voluntary self-regulation backed up by codes of practice, training and advice would create a more positive regulatory environment. Peer pressure can be vital in changing behaviours. This ‘earned recognition’ (or responsible operators in NE’s language) would allow the regulators to target the high-risk casework that can deliver the biggest improvement to the environment and provide better value for money.
Reforming the regulatory environment is an ongoing challenge but one which has been given more impetus by the current government’s drive for growth. We hope that the conclusions from this report will be scrutinised by the up-and-coming Public Accounts Committee inquiry (which we will be submitting evidence to) and that we will start to see real progress in creating a regulatory environment that is fit for purpose.