Dominic Woodfield is the Managing Director of Bioscan, a long established and well respected consultancy specialising in applied ecology. He is a life-long birder, a specialist in botany, habitat restoration and creation and in protected fauna including bats, herpetofauna and other species. He is also a highly experienced practitioner in Environmental Impact Assessment and Habitats Regulations Assessment. Most of his work is for the development sector, but he has also undertaken commissions for Natural England, the RSPB, Wildlife Trusts and campaign groups. He once mounted an independent legal challenge in defence of an important site for butterflies in Bicester, Oxfordshire, which resulted in planning permission for a five-hundred unit housing development being overturned. He lives in Oxford with his partner and family.
As most of the followers of Mark’s blog will by now be aware, the Government is consulting on a new nature conservation agency that it claims will be ‘world leading’, will spearhead environmental governance post-Brexit and hold our elected politicians to account on environmental matters.
The first question one might ask faced with this prospect is, “Isn’t that the job of Natural England?”. Well, it is, or at least it was, and ought to still be while it remains in existence. Those as moderately long in the tooth as me (or longer), will recognise the place Natural England (NE) is now in as the final leg of a cycle that takes a decade or perhaps two to play out. It starts with a shiny new nature conservation quango which blossoms for a few years in the glow of funding and enthusiasm. It then gets “too big for its boots” (as far as its ringmasters are concerned), is summarily admonished, starved for a few years while becoming increasingly ineffective and finally wound up and re-packaged. NE has run almost the full circumference of that circle, as did English Nature before and the Nature Conservancy Council before that. So here we are again.
Except that the depths that NE have sunk to in the course of its decline are arguably far deeper than any plumbed in the dying days of its predecessors. In what would increasingly appear to be its final months, the agency faces an unprecedented confetti of legal challenges, criticisms about a culture of secrecy and cronyism and deference to developers and hunting interests, pointed remarks about whether some of its most senior executives have either the relevant qualifications or expertise for the job and accusations that an exodus of its brightest talent has left it a demoralised automaton. Meanwhile, and perhaps this is the harshest measure of all, the health of England’s biodiversity holds to a precipitous downward course and the targets for halting this decline flash steadily by unmet and increasingly unheeded.
Last autumn I was drawn in to one of the current legal challenges facing Natural England. Tom Langton, a fellow ecologist with whom I had worked on a number of projects previously, approached me to ask if I would review the adequacy of Natural England’s assessments of potential impacts from badger culling on the top tier of protected sites in England: these being Special Protection Areas, Special Areas of Conservation and Ramsar Sites. These are all protected under international law and convention. Tom was working up a crowd-funded legal challenge to decisions taken by NE and other Government bodies in relation to badger culling policy and the execution of that policy. It was clear he felt he had exposed an absence of scientific rigour and anticipated I would do the same.
I confess that I initially agreed to the task with some genuine misgivings. I was worried about what a successful challenge to NE’s scientific authority would mean, most importantly for its role in delivering nature conservation, but also for those staff within it that I still hold in high regard. But those misgivings began to fall away as I delved into the detail and become increasingly appalled at the depth of the malaise within the organisation.
One of Tom’s legal challenges to NE (the other, against NE and Defra, relates to badger culling science and procedure) concerns the agency’s role in licensing the trapping and shooting of badgers as part of the Government’s bovine TB eradication programme. To say this is a minefield topic is an exercise in rank understatement. Thankfully my task was a discrete and clearly prescribed one, removed from the core debate. It was to answer the following question; ‘where culling is to take place in or near protected sites, have Natural England carried out the requisite impact assessments with due diligence and have they put appropriate protective measures in place?’.
The first hurdle I faced was NE’s paranoid and obdurate secrecy on this issue. To an extent this was not surprising – badger culling is a highly emotive and controversial subject – but the lengths to which NE seemed happy to go to prevent disclosure of even the assessment methodology it had followed seemed unjustified, extraordinary and ultimately suspicious. Tom had been chasing this information for years and, just before I became involved, the Information Commissioner summarily directed NE to offer it up. Instead they appealed, and it was another five months before the First Tier Tribunal upheld the Commissioners decision. NE had no place left to go and in spring 2018 grudgingly released some of their assessments, albeit still redacting essential detail that helped anyone make sense of them.
I was asked by Tom and his legal team to review this information to check whether the statutory agency had been going about this crucial task with due rigour. Working round the disclosure obstacles, I found that, unequivocally, it had not and, moreover, that this had evidently been the case since the start of badger culling in 2013. I found myself concluding that the agency charged with protecting the best of England’s nature, had been pursuing an extraordinarily cursory and prejudiced approach to assessment of impacts from badger culling and that this can only have put some of England’s rarest wildlife and most special protected sites at clear risk of harm. Betrayal does not seem too strong a word.
Tom Langton is not alone in advancing the case that NE is now failing in even its most fundamental of duties. Legal challenges to the agency are starting to snowball. As readers of this blog will know, Mark is running several (here and here), and the RSPB are following suit. The cracks are beginning to show – Natural England recently capitulated in the face of one of Mark’s challenges and have accepted they carried out a defective impact assessment for an upland European Site. The parallels with Tom Langton’s challenge are clear. Tom is also challenging aspects of the badger culling policy on ‘absence of proper science’ grounds. That also is not new ground: last year Natural England’s science was found by a judge to be flawed in respect of impacts from air pollution. The still incumbent chair of NE has been revealed as having a background of house-building and financial asset management, with no nature conservation credentials at all. A House of Lords select committee recently found NE to be ‘hollowed out’ and unfit for purpose.
In tandem with rising concern about the ability of Natural England to fulfil its current statutory purpose, there is growing unease about what could replace it, stoked by the nature of the current Government consultation on a replacement body, and the implications for environmental governance of Brexit more generally (see here and here). Leaving the EU is seen by many environmentalists as an opportunity – a chance to part with the shackles of the CAP and deliver something better for the rural environment, farmer and conservationist alike. But the direction the Government is now taking on environmental governance and accountability can do nothing but temper such optimism.
Fundamentally Tom Langton’s challenge, which reaches the High Court this week (9th-12th July) is part of a pattern. I have characterised it as different pieces of a jigsaw that, once assembled, depict a graphic picture of a dysfunctional nature conservation agency. I have dared to hope that the rot was superficial – that any outward appearance of being in hock to vested interests disguised a body that was still sound of mind underneath. I am increasingly struggling to hold on to that hope and vision.
Ultimately I can most easily reconcile myself to the prospect of challenging the core worth of NE in its current form by looking closer to home. Professional environmental consultants such as myself need a properly functioning statutory agency, otherwise it falls to us to become judge and jury, operating either in a complete vacuum or in an environment of diminishing compunction to take heed of advice, good practice, policy or even the law. I have seen first-hand how the less scrupulous have become emboldened in the wake of NEs slide into ineptitude. The direction of travel for biodiversity protection seems increasingly to be towards poorly evidenced gestures, the success or otherwise of which relies upon mere assumptions or balance-sheet decisions (yes, I am talking about district licensing for great crested newts and biodiversity offsetting using drop-down menus instead of getting ones hands dirty in pursuit of the right answers). Without rigorous monitoring, how do we know if these things are working and without an effective NE, who’s enforcing that rigour?
In the past, when NE (and especially its predecessor EN) had both adequate front-line expertise and teeth, and used both, my role as consultant was often as an independent broker, tempering and challenging the more obstinate or unrealistic excesses of the statutory authority through good-tempered scientific debate (or simply informed debate) and trying to find middle-ground inventive solutions to keep both client and agency happy. Yes there were times that obduracy and lack of expansive thinking of individual officers made me tear my hair out, but one always felt that EN (and the early days of NE), at least had its sights squarely on its statutory raison d’etre, and never strayed far from the remit of Nature, Conservation, Authority (with equal stress on all three words).
I would give my right arm to go back to that level of engagement and professional discourse. Over the last ten years NE have withdrawn increasingly into a small, dare I say it almost Desmoulin-like, shell. Like a wounded animal it has restricted the flow of influence from its remaining expertise into external appendages. One consequence is that it has vacated the line it used to hold against all forms of damaging or unsustainable land use – that line is now largely manned by voluntary organisations, charities and concerned individuals. At the same time, NE undermines those actors by seeking to maintain the pretence of being the statutory authority on all such things, a source for abject confusion and misconception for decision makers that invariably stacks the odds against those who have picked up the dropped baton and who at the end of the day seek to protect the greater volume of England’s everyday biodiversity. It is the worst of both worlds. On the occasions when one can actually engage with NE, one is all too often faced with that ghastly term “outcomes focussed” and the sense that staff are shackled and expected to act as little more than a facilitator or in the interests of appeasing the most moneyed interests at play.
It might genuinely be time to put NE out of its misery and create something better from the ashes. However, I have little faith that the Government intends to put anything better in its place unless it is forced into that position by public pressure. By rights that pressure ought to flow from outrage that the Government’s current wildlife watchdog has merely become the caretaker for a policy of ‘managed biodiversity retreat’. Everyone with an interest in the future of nature conservation should demand something better. We can start with a vigorous and vociferous response to the Government’s consultation .