Allergic to accountability

Has Natural England ordered a pony cull?

Matt Chorley (host): “Are you advocating the culling of ponies?”

Marian Spain (CEO, Natural England): “Absolutely not...”

Matt Chorley: “Would the outcome of what is being proposed [by Natural England] going to lead to a reduction in ponies on Dartmoor?”

Marian Spain: “It could”

Dartmoor’s semi-wild hill ponies were facing a cull, which could reduce pony numbers by 90%. This is almost certainly not going to happen now, every major political party leader has made clear: killing hundreds of ponies is simply not on.

The threat to Dartmoor’s semi-wild ponies comes from Natural England, the nature regulator, who look set to impose tougher livestock caps on farmers qualifying for stewardship payments.

Upland farming (what happens on Dartmoor) isn’t economical and farmers are reliant on subsidies. The land is marginal (so cash crops can’t be grown) and farmers rear livestock (mostly sheep) for meat. Sheep, viewers of Clarkson’s Farm will know, are not the route to large profits. In fact, even with subsidies upland farmers earn a pittance. In 2020, they earned on average £22,000 a year. This is less than the National Living Wage (at a 35 hour working week) and about two-thirds of the median UK income.

Upland farmers on Dartmoor are paid for their environmental stewardship of the site. However, most agree that Dartmoor’s biodiversity has got worse, not better since the subsidies came in. The culprit is likely overgrazing from livestock. Natural England has a legal duty to protect and enhance the biodiversity of sites like Dartmoor, so is set to make continued receipt of the funds conditional on large reductions in livestock numbers (a 56 to 89% fall). So, why is this a threat to Dartmoor’s semi-wild ponies?

It appears that Dartmoor’s semi-wild ponies will be included in the livestock count. Ponies, unlike sheep, can’t be slaughtered and sold for food (Findus ‘Beef Lasagne’ anyone?). The inevitable result will be farmers choosing to cull their ponies to save their sheep. And given the reductions discussed, it could mean 90% of semi-wild ponies on Dartmoor will be killed.

This blog isn’t really about Dartmoor’s hill ponies. I am not a farmer or ecologist, and have no special expertise to speak on whether livestock numbers should (or shouldn’t) be cut. I am however becoming an expert in Natural England’s ‘rebuttals’.

A few weeks ago, I blogged about another of Natural England’s positions, that the £700m spent on fish protection at Hinkley Point C isn’t sufficient and that EDF must provide additional compensation, in the form of a large saltmarsh if they are to obtain their water discharge license, without which the plant cannot legally operate. In response to the Telegraph article which broke the story, Natural England published a rebuttal.

The rebuttals are worth reading for what they reveal about the British administrative state. The decisions made by Natural England, a quango tasked with protecting England’s natural environment, can have massive consequences – from blocking 100,000 homes to delaying a power station capable of supplying 7% of the country’s electricity – yet the organisation is extremely reluctant to be held accountable for the predictable consequences of their actions.

In the case of Hinkley Point C, they wrote the following:

“Natural England is not demanding a salt marsh to be created.”

…

“Natural England does not “sign off” nuclear power stations. Our statutory role is to provide independent scientific advice to the relevant competent authorities.”

…

“Natural England has not required design changes to the power station. Our role is to advise on the effectiveness of mitigation already agreed in the 2013 DCO.”

Put simply, don’t blame us, we’re just doing our jobs – advising on what is and isn’t compliant with environmental law – if a nuclear power station is delayed then that’s the fault of the developer for not proposing sufficient mitigations.

Or take their response to criticism they insisted on a £100m plus bat-shed for HS2:

“Natural England has not required HS2 Ltd to build the reported structure, or any other structure, nor advised on the design or costs.

“Natural England was consulted by HS2 on whether the proposal designed to mitigate the impact of the railway on rare and protected bats was sufficient to comply with environmental law - we advised that it was.

“The need for the structure was identified by HS2 Ltd more than 10 years ago, following extensive surveying of bat populations by its own ecologists in the vicinity of Sheephouse Wood.

…

“HS2 has an obligation throughout the whole route to abide by legislation that exists to protect nature.

“It is for HS2 Ltd to make choices, consider risks and factor in costs when deciding how to comply with environmental law - that could be by choosing a route which avoids species and sites protected for nature or by investing in mitigations to limit the harm when the route passes through sensitive sites.”

Natural England never ordered HS2 to build a £100m bat-shed. They merely told them that to comply with environmental law that they needed to mitigate the impact on bats and that the bat tunnel was sufficient to meet that requirement. The developer was free to comply by alternative means – for example, radically changing the route of the railway (after it had been chosen) or designing other effective mitigations.

The problem is the former option would be extremely costly (or at least, not compatible with key aspects of the scheme i.e. speed) and the latter do not seem to exist. As Dan Tomlinson MP, Economic Secretary to the Treasury pointed out on Twitter, HS2 considered 17 (!) separate mitigations over a ten-year period, which involved extensive consultations with key stakeholders. Only the bat-shed was sufficient to comply with Natural England’s advice that ‘no bat death is acceptable’.

Natural England never explicitly demanded that HS2 build a bat-shed, but the inevitable consequence of their advice is HS2 spending over £100m building a bat tunnel to save a small number of bats. Notice a pattern?

Or take their response to the media’s coverage of the threat to Dartmoor’s hill ponies.

“Natural England has not recommended a cull of Dartmoor ponies. We do not have the power to order a cull, and we have not advised one.”

…

“Our role is to advise farmers who wish to enter the publicly funded schemes available for grazing regimes. These government schemes have been designed to restore nature - some areas will require less grazing, some more”

…

“Decisions about which animals are grazed on Dartmoor commons rest with individual landowners and commoners, not with Natural England. Our role is to provide evidence-based advice on how to protect and restore the habitats that are legally designated for protection.

…

“We are aware of concerns that including ponies in livestock unit calculations could lead to some land managers favouring more commercially profitable cattle or sheep.

“Including ponies in calculations of grazing animals means that ponies will be properly recognised within agri-environment payment schemes.”

To the untrained eye, Natural England’s blog appears to be a strong rebuttal to the claims in the Times (and other papers) that they are demanding a cull. Yet, taken with the other blogs, the obfuscation becomes clear. Yes, Natural England does not explicitly demand £100m bat-sheds, delays to Hinkley Point C, or pony culls, but the result of its advice is that bat tunnels, salt marshes, and pony culls are the rational choice of the people Natural England regulates.

It is like arguing that capping rents does not reduce the supply of rental properties because landlords are under no obligation to sell their properties, and could continue to let out their properties at far below market rate.

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Who deserves the real blame?

Natural England is a strange organisation. It does not see itself as a normal regulator. Regulators in Britain have a growth duty. Natural England believes, or at least has believed, that the growth duty does not apply to many of its actions. Their job isn’t to weigh up whether a requirement is proportionate or not, but to enforce legal protections for nature. They see themselves less like Ofgem and more like the police. When, for instance, Natural England designates an ex-industrial site as a Site of Special Scientific Interest, the fact the designation might jeopardise the creation of a new town does not factor into the calculation.

It is a problem the writer Benedict Springbett describes as the lexical fallacy: “Such-and-such a value is widely agreed as being a Good Thing – protecting bats, saving human life, safety, and so forth. It is so widely accepted as being a Good Thing that its Goodness takes on a life of its own, and people end up reasoning in such a way that the Good Thing ends up overruling all other competing moral values.”

This way of thinking is effectively hardcoded into our legal system via various environmental laws. Natural England is essentially the living and breathing avatar of the Lexical Fallacy. This is what leads it so often to making unreasonable and, clearly disproportionate, requests. In fact, its requests are so disproportionate (e.g. £700m on fish protection) that defenders of the status quo go to great lengths to argue that they have not, in fact, requested them. The problem is… they have.

It is likely that in many cases, Natural England has more leeway to be proportionate than it claims. Many environmental lawyers and ecologists believe that changes in guidance – a steer from politicians – could lead them to act more proportionately.

Yet it is unlikely this would solve all of the problems. Natural England will probably still make decisions that seem incomprehensible. The underlying legislation probably does tie their hands and prevent them from taking into account large economic benefits.

In that sense, Natural England’s resistance to accountability isn’t entirely unjustified. A more proportionate Natural England – “On second thoughts, £700m on fish is more than enough” – might make decisions that get reversed by the courts.

We are left in a scenario that is deeply frustrating. There is effectively no individual decisionmaker who can be held accountable when Britain’s nature protections lead to disproportionate outcomes. If nothing else, it is bad for democracy. Our elected officials have outsourced core parts of their job to a body that by its very nature isn’t set up to represent the electorate’s desires. This can’t go on.