Motion on Review of Environmental Governance

Speech by David Ford MLA delivered to Assembly on Tue 11th Nov 2008

Proposing the motion: "That this Assembly expresses its concern at the failure of the previous Minister of the Environment to take forward the recommendations of the 'Review of Environmental Governance'; believes that the Northern Ireland Environment Agency is not adequate to deal with the challenges facing Northern Ireland; and calls on the Executive to re-consider this matter urgently."

I have great pleasure in proposing the motion that stands in my name and the names of my colleagues. The motion is similar to one that Brian Wilson and I brought to the Assembly on 25 September 2007:

"That this Assembly calls on the Executive to establish an independent Environmental Protection Agency for Northern Ireland." - [Official Report, Vol 24, No 2, p72, col 1].

Following debate on a couple of amendments, that motion was passed unanimously - or at least without dissension - by the Assembly. Even the Minister, who subsequently took a different decision, did not oppose the principle of an independent environmental protection agency. However, it is well known that on 27 May 2008, the previous Minister of the Environment refused to implement the recommendations of the review of environmental governance. Rather, she put forward a plan that amounted to little more than the rebranding, on 1 July 2008, of the Environment and Heritage Service (EHS) as the body now known as the NIEA - I am indebted to Friends of the Earth for reminding me that that stands for "Not the Independent Environment Agency". That is not a criticism of the agency's staff, but a simple statement of the fact that, at a time when this region, along with every other region on this island, must be seen to have transparent, open and independent environmental governance, it is the only region not to have made any progress in that respect.

Mr Deputy Speaker, I am sure that you studied the Hansard report of 25 September 2007 in detail. Indeed, I think that you supported my call for an independent agency on that occasion. The House clearly accepted the substantial piece of work that had been submitted by the review of environmental governance (REGNI) team of Mr Burke, Professor Turner and Mr Bell. The team submitted detailed arguments for significant changes to environmental governance in general, and they argued in particular for the establishment of an independent agency to meet the needs of our economy, society and environment.

Several major issues that were highlighted during that debate do not need to be reiterated today. However, some key points remain, notably the court ruling that was made a short time before the debate. It dealt with the draft northern area plan and the need for the Planning Service to receive independent advice. Mr Justice Weatherup's decision stated:

"By the terms of the Directive it is apparent, as the Department accepts, that there be separation between the responsible authority and the consultation body."

Members are aware that the decision was subject to an appeal by the Department. Nonetheless, it is clear that the Department accepted the fundamental tenet held by the judge that separation is required. The question is whether the Department can argue that there is adequate separation. Patently, the Environment Agency, as currently established, is an executive agency of the Department of the Environment (DOE) that reports to the Minister. To those of us who understand the dictionary definition of the word, the agency is, in no sense, independent.

The Department ought to accept the strong likelihood that it will lose any appeal that it mounts. It could learn a lesson from the Department of Agriculture and Rural Development (DARD) decision this week and not proceed with meaningless appeals and accept court decisions without wasting more taxpayers' money.

There is no sign that the Department is preparing for the possibility of change. In May 2008, the then Environment Minister told the House:

"The Minister for Regional Development, the Minster of Agriculture and Rural Development and the Minister of Culture, Arts and Leisure have all set out practical, and even constitutional, reasons why the transfer of functions is not appropriate at this time." - [Official Report, Vol 31, No 1, p2, col 1].

She continued:

"the Programme for Government commits us to a review of Departments by 2011." - [Official Report, Vol 31, No 1, p2, col 1].

Given that the Executive will not engage in their present responsibilities, Members will appreciate why those of us at this end of the House are not holding our breath for a review of Departments by 2011.

I am interested to know the constitutional objections to the transfer of powers among Departments. It seems that empire building by Departments is not, in any sense, a valid constitutional reason for objection. Since the Minister's decision, agencies and bodies that are appointed to advise DOE have outlined their opinions on environmental matters. The Historic Buildings Council was less than happy with the proposals, and the Council for Nature Conservation and the Countryside (CNCC) issued a fairly strong criticism in the minutes of its June meeting, in which it noted that the chairman of the CNCC was the only member with an environmental background invited to sit on the Department's better regulation board. The Department seems to have lost sight of its key position.

CNCC reiterated independence issues and noted that an agency staffed by civil servants - regardless of those individuals' skills - will be responsible to a Minister and will not enjoy the necessary degree of independence. As CNCC noted, such an agency will not facilitate the necessary checks and balances. In those minutes - which I presume are not objected to, given that they are published on the Internet - a senior official in EHS explained that the rebranding process is likely to last some years. The fact that that rebranding process, which will merely change the name of a departmental agency, will take some years to complete suggests that taking time to establish an independent agency might have been a better idea.

In recent weeks, an area of special scientific interest (ASSI) at Lisnaragh near Dunnamanagh in Tyrone has had its status rescinded. It has been alleged that there was ministerial interference in that process. I do not make that allegation; I do not know whether there was ministerial interference. However, as long as the Northern Ireland Environment Agency (NIEA) reports to the Minister, a suspicion of ministerial interference in such decisions will remain. The Assembly must avoid that situation in order to secure good environmental governance and meaningful progress. It is not good enough to say that nothing underhand occurred, because the suspicion exists and will remain.

[Intervention from Peter Weir, DUP MLA (North Down): I am shocked at such an allegation. We cannot tolerate the appalling situation of democratically elected politicians taking decisions in this country.]

If Mr Weir is incapable of distinguishing political decisions from decisions based on scientific evidence in accordance with European law, he is a worse lawyer than I had thought.

Since that decision in May, flooding has affected people in Northern Ireland during this year's so-called summer. Not only did the REGNI report support the rebranding of EHS but the merging of several agencies.

It was specifically recommended that there should be proper river-basin management, and that the Rivers Agency should be in the same body as EHS and that the whole process of sustainable water management should be dealt with by one agency.

The so-called flood map of Northern Ireland has just been launched. Compared to the flood map maintained by the Environment Agency of England and Wales, which is on the Internet, it is fairly low-level. However, even that required the co-operation of two Ministers. That is an example of how a single agency, with absolutely clear and unambiguous responsibilities for dealing with river management, would have had a much clearer line of responsibility and accountability for dealing with flood prevention and its associated problems. Such flooding is likely to continue, affecting homes, businesses and agriculture across Northern Ireland. That is a fundamental issue that should be dealt with by a single agency. That is what REGNI reported, and that is what Ministers deny.

Other issues that may not have the same day-to-day resonance - such as establishing a national park or further aspects of planning guidance - are clear cases where much-needed independent advice is not yet present. That is why we need an independent agency.