The problem with government conducting its own regulation…

David Gordon has some interesting addendum notes for Arlene Fosters’s decision to re-badge what some regard as the toothless tiger formerly known as the Environment and Heritage Service. Most of his remarks simply echo those of his colleague Sharon Turner yesterday. It may be no surprise that Foster effectively decided on no action until her party has a chance to get to the next election (2011) and shuffle itself out of this particular hotseat. Not only is her Special Advisor a former staffer at the UFU (not great practice bringing lobbyists so far into the centre of government), but her own Westminster ambitions hinge on winning a tough fight in rural Fermanagh South Tyrone. What’s more surprising (though perhaps not when you consider their own rural base) is that Sinn Fein declined to make submissions to the independent panel which recommended its setting up:

Mr Burke also recalled that both the DUP and Sinn Fein had not taken up opportunities to make submissions to the review panel. “The first time I met someone from the DUP was when we went to brief the Minister on our findings,” he said.

Yet the deputy chair of the Environment committee Cathal Boylan yesterday was “disappointed because she [the Minister] has missed a good opportunity to introduce an independent environmental protection agency (EPA). The Minister mentioned some positive aspects about EHS; however, it has a bad record when it comes to planning and illegal dumping, particularly in border areas.” He makes an important point: internal deals between Ministers have a nasty way of being compromised by events. But why then were there no recommendations to Tom Burke’s panel from his own party, Sinn Fein?

There is some sympathy due to the Minister’s view that “the setting up of yet another quango in which unelected people will take decisions on behalf of the people of Northern Ireland. I am Minister of the Environment, and it is I, along with my Executive colleagues, who will take the decisions that will be scrutinised by the House and by the Committee for the Environment.” That, after all, is why we elect them.

Devolution has brought long wished for decision-making powers back to the locality. No minister wants to give that away lightly. Yet, the truth is that this kind of environmental protection agency may eventually have to be brought in because of the pressure on government to steer a consistent course along lines set by EU Directives.

The minister also alludes to set up costs of £2.5 million and running costs per annum of £600,000. It’s not clear where these additional costs would come from since (unlike the welter of Commissions many of which have little power other than to act as a clearing house for lobbyists) the primary functions already exist within the EHS.

It should be said that f Northern Ireland is blessed with the kind of economic growth the Republic has seen in the last ten to fifteen years, robust regulation needs to be embedded sooner rather than latter. It’s not simply a case of bungalow blight, the locals complain of, but insufficient services for expanded local communities and poor planning decisions made that have lasting (almost indelible) effects on transport and other wider forms of infrastructure.

The impression given here is that since, as one nationalist politician was heard to say a few years back, ‘there are no votes in the Environment’, another tough decision has been put on the long finger.

It would useful though to hear how the minister intends to keep clear blue water between the new EHS and the policy making function of her department. The board arrangement she mentioned yesterday sounds something like the way the Water Council has operated. And yet they have had enormous difficulty in the past, for instance, in getting access to legal advice given to direct rule minister viz a viz the Urban Waste Water Directive. Burke’s report notes three problems facing any body internal to central government have emerged from experience in Britain and elsewhere.

First, the necessary confidentiality of departmental policy making processes and inter-departmental debate creates a serious lack of transparency around the making of regulatory decisions. Without transparency regulatory decisions command neither the confi dence of the public nor that of the regulated.

Second, the officials administering the regulations are exposed to both a real and perceived risk of conflict of interest. This places the officials themselves in an unfair position in relation to the discharge of their statutory duties and further undermines the confidence of the public and that of the regulated in regulatory decisions. As departmental civil servants, the officials in charge of regulation are accountable, through the Department’s Permanent Secretary, to Ministers. Their first priority is to serve the Minister. Regulatory decisions are predominantly matters of judgement and can frequently result in decisions that are unpopular in some, and occasionally many, quarters. Inevitably, there is suspicion, indeed some risk, that judgements might be tailored to suit immediate
political circumstances.

Third, the effectiveness of the proposed agency as a promoter of fair and effective regulation and as an advocate for high environmental standards is inhibited. Modern environmental governance requires a strong and focused regulator able to adopt modern risk-based regulatory practices without a loss of public confidence. The proposed Agency therefore needs to be able to position itself in the public mind as a forceful advocate for the environment. To do so it needs to be able to carry out successful outreach activities whilst avoiding the risk of being seen to be at odds with the Government.

So openness is not necessarily, as the Minister appears to suggest, the most critical question here. Rather it is the lack of what John Kay calls ‘disciplined pluralism’. That ultimately should be about bring greater discipline to the business of government, and making sure that there is little scope for the convenient shifting of goalposts.

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