Examination of Witnesses (Questions 240-254)
MS BARBARA
YOUNG AND
MR ED
MITCHELL
20 MAY 2008
Q240 Phil Wilson: The Hampton Implementation
Review of the Environment Agency said you have a good reputation
as far as influencing issues and initiatives in Europe. How will
you continue to achieve more commonality in the European arena
on environmental regulation?
Ms Young: We set up a modern regulation
interest group across the European Environment Protection Agencies
about four years ago now. We have been working on a series of
ways of influencing the debate. We have produced a number of reports
which we will leave with you. One is on the contribution of good
regulation to competitiveness and another is on the barriers to
good regulation at the European level, Member State level, and
then implementation. A third, which we have just reached agreement
on and which we are now peddling around Europe, is called A
Vision for Good Regulation for the Future to try to get some
principles and models accepted. We think that needs to be linked
with a UK Government approach on a wider basis, adopting the same
sorts of principles of recognising where the problems are in terms
of getting good regulation from Europe and trying to sell a common
regulatory model. Business tells us that one of the most difficult
things for them is successive regulatory regimes coming out of
Europe in a completely different fashion. They have different
definitions, different time periods, different data requirements,
different inspection regimes, and they have to invent a new process,
a new language, a new system for each of those. We are trying
to bring all the environmental regulation under a common regulatory
model, so that when something new comes out of Europe we just
bolt another bit on the end and it looks remarkably as though
it is just another requirement and so it is easier for business
and easier for the regulators. That sort of approach is the one
we would like the BRE to peddle in Europe—and, indeed, UK
ministers.
Mr Mitchell: Of course we support
Defra and other government departments when they are negotiating
over individual instruments and stuff because we are the ones
who have the evidence about what it will be like in practice for
the regulated community.
Q241 Phil Wilson: Is it an ongoing
scenario really or is there light at the end of the tunnel or
will you always be having to go at it?
Ms Young: We hoped that the European
better regulation initiative, which got a head of steam a couple
of years ago, would deliver more than it has. It is a bit flabby,
to be honest. That is why we are trying to invigorate it with
this vision of modern regulation. If you go and talk to Directors
General and Commissioners about this, it is interesting that you
get different reactions from different bits of the system. There
is a lot of selling of the idea still to happen.
Q242 Dr Naysmith: Why did the initiative
become flabby?
Ms Young: I think DG Enterprise
saw the vision but hardly anybody else did. I think what happened
is what happens in Europe a lot: DG Enterprise tries to put in
place something that crosses the Commission and individual bits
of it go at it in a slightly half-hearted way and it just diminishes
and dribbles out the bottom of the door really. It is a very good
way of dealing with government initiatives you do not like the
look of!
Q243 Chairman: The Hampton Implementation
Review did make a few criticisms of the Agency or identified areas
for improvement. What steps have you taken to address those?
Ms Young: The first thing we did
when we got the Hampton Implementation Review was to reach a view
with our board as to which of the propositions in it for further
work we accepted we would implement and go through, and which
we did not. There were some issues in the report that we felt,
in spite of quite a lot of debate with the team, they had not
quite got their head around and were facing in the wrong direction.
We have been very clear in terms of what it is we are now going
to implement. We have a programme underway to implement the changes
and there are others where we will continue to debate with them
because we do not really think what they were proposing was necessarily
the right way to go.
Q244 Chairman: What are the areas
of debate?
Ms Young: One was the whole issue
of inspection. The report was rather unclear about that. It made
a bald statement that we inspect comparatively more than other
regulators, but there is to be a further report shortly, a kind
of overarching compendium report which the National Audit Office
is going to do drawing on the Hampton Implementation Review reports
on the five separate regulators and drawing common messages out.
We were interested to see in that that we inspect comparatively
little compared with some other regulators. It is the whole principle
of what inspection is about: when is it valuable, what is the
basis for it, how do you get a risk-based approach to inspection,
and whether the folk you are regulating like inspection or not.
Quite often our regulated customers do not see inspection as us
coming along wagging the finger, saying, "Don't do this"
and "Don't do that." They welcome it as an opportunity
to talk about some of the issues they have and get our advice
on how they can move forward. That was just one example where
we do not think they bottomed out the issue well enough. Ed will
no doubt remember other things.
Mr Mitchell: The one that particularly
strikes me is the balance between consistency across all our regulators
and local discretion. We have been on a journey of several years
really to improve the consistency of decision making between individual
frontline staff in response to business saying that is what they
want. The audit team, which was not just the BRE, recognised that
that was an issue, without really giving us much to go on as to
whether they thought we had the balance right or not, but just
leaving a sense that we had not quite. It is an area where, as
I say, we have been working very hard to move towards more consistency
and will continue to do so.
Q245 Judy Mallaber: In your very
first answer in relation to relations with the BRE you talked
about data sharing and wanting to work with them on it. The Hampton
Review itself highlighted that as an area for improvement by the
Environment Agency itself, and not just your original point about
working with the BRE on it. What are you doing about that and
about improving data sharing? Are there any pitfalls? What is
the positive side? What is the progress like?
Ms Young: Ed will probably want
to talk about the exact work we have in the working group on data
sharing between a number of regulators at the moment. We also
need to look at it in the context of the processes of collaborative
work in general on the regulation. For example, there are a number
of industries that we regulate in parallel with other regulators,
particularly the HSE, where we have described quite clear regulatory
models of how we will work together and how that will look a seamless
whole to the folk we are regulating, from which data requirements
flow that are consistent with that model, so they have a logic
to them and we reduce the amount of both organisations looking
for data. It is a single parallel regulatory process. We do quite
a lot of that with HSE. We have done quite a lot of that, particularly
with farmers as customers, through our integrated regulation process
and also in the work that we do with Natural England as the overseer
of agri-environment schemes and in their role as the regulator
for biodiversity and natural resources. There again we try to
have joint regulatory processes which are not just about data
sharing but also about providing joined-up regulation that suits
the customer. Some farmers want everybody who is regulating them
around a particular issue to arrive on one day and get it over
with; others, particularly small-scale operators, would be overwhelmed
by that and want you to turn up in different years in different
months. It has to be based on the right regulatory process for
that client group and then the data issue flows from that. But
we do have a working group on data sharing.
Mr Mitchell: We were also picked
up slightly on making it clear to business that it was not just
about sharing but about the collection of data in the first place.
We have put a lot of effort into making sure that not only do
we ask for the information we need but we also use that information
to produce environmental outcomes: it does not just sit in a database
somewhere. But we are going to go back through all of our data
request requirements and make sure we are not asking for anything
we do not use. The difficulty there is that there are some specific
regimes in the way they have come through, particularly from Europe,
that specify exactly what data you have to collect, which in a
better regulatory world you perhaps would not do but they are
there within the regime. On the data sharing side, we felt we
could have benefited from input from the BRE in our working with
other regulators to look at some of the legal constraints around
data sharing and data protection type stuff. We felt they could
have added value to that process. At the moment they are preferring
us to deal with that as a group of regulators rather than them
being involved in it.
Q246 Chairman: I asked Defra about
a specific local example that affects my own area. We are shortly,
I understand from the minister, going to get a Dee Estuary Regulating
Order, at last governing cockle fishing in the area. I have been
working on this for years. At one stage I had a huge obstacle
coming from Environment Agency Wales. I said, "All you have
to do to help, in the absence of an order, is put on the form
which licenses someone to collect cockles: `The information on
this form may be shared with other government departments'."
This was intended to frighten off some of the people in the black
economy, with millions of pounds dodging HMRC's interests, but
your officers did not think they could do it. They said it would
be in breach of the Data Protection Act. Is there a gap there
in your own field staff's training in the way they manage data
and the way they relate to other government departments?
Ms Young: I do not know enough
about the particular circumstances but certainly there are some
real constraints in data protection. Also, with some other regulated
groups there are real anxieties about competition issues and confidentiality
of data that would be business sensitive. What you are suggesting
is an entirely sensible approach but I suspect the reason they
were saying that was that they were aware of the legal constraints.
Q247 Chairman: They were wrong on
the legal constraints, as it happens. I corrected them and the
following year they amended the form precisely as I suggested.
Ms Young: We thank you for that.
This may be a best practice sharing issue that we can take away
with us.
Q248 Chairman: I am just trying to
probe as to whether your own colleagues have the right level of
understanding.
Ms Young: We do have some really
good examples of data sharing between ourselves and other agencies,
particularly local government, in the whole business of illegal
waste dumping and fly-tipping. We have developed a joint database
which allows us to share information with the police, the local
authorities, ourselves. Being able to share intelligence has resulted
in us being able to catch people we would not otherwise have caught.
That is an approach we would like to do more of.
Q249 Judy Mallaber: The week after
next we are making a brief visit to several European countries,
Sweden, Holland and Denmark. We were talking earlier about some
of your experience in dealing with European agencies and I wondered
if you had any thoughts on whether any of those countries have
particularly good models that you think we should be asking about.
Ms Young: I do not know about
models, but they are certainly the three that have thought about
it more than the others. There is the usual north/south gradient.
Italy has thought a bit, but, unfortunately, even though the model
is probably interesting in Italy, it is undermined by the fact
that the Mafia run the waste industry, so that what you see on
the surface is not what happens in practice as far as I can understand.
Q250 Dr Naysmith: Which are the best
ones for collaborating with you when you talk about doing your
initiatives?
Ms Young: Certainly the Danes
and the Dutch have collaborated well with the BRE on the administrative
burdens reduction issue. To be honest, we have driven the pan-European
process. We have had some willing supporters in the Dutch and
the Danes and the Norwegians and the Swedish but I am not sure
that the better regulation initiatives are as live in some of
the other countries to be honest.
Q251 Judy Mallaber: That is interesting.
Mr Mitchell: It depends slightly
which issue it is. For instance, if you are interested in the
regulatory budget debate that is in the Enterprise White Paper,
the Dutch have some interesting experience there. It slightly
depends which issue it is that you are interested in. We could
provide further advice on that.
Q252 Chairman: That would be interesting
if you were able to do that in the next few days.
Ms Young: The other area where
there has been very good pan-European collaboration is in some
of our regulatory regimes on things like integrated pollution
control. It is a European regime. There has been a lot of collaboration
by experts across Europe and there is now quite a lot of collaborative
work on streamlining and harmonising.
Q253 Chairman: Thank you very much.
That was an extremely interesting session. I hope the Mafia were
not listening in!
Ms Young: Before we break, could
we say on the regulatory Enforcement Sanctions Bill that we endorse
entirely what the previous witnesses said. To be frank, a very
promising bill with some very promising flexible sanctions is
being so hedged around with checks and balances that, quite frankly,
we are also thinking it is not perhaps going to be worth much
to get hold of them—which is a real shame because the Macrory
proposals were excellent.
Q254 Dr Naysmith: Perhaps the Lords
will amend it and add something in.
Ms Young: We had a good go at
that. I think we need to rely on you now really.
Chairman: Thank you very much.
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