Guidance vital for level playing field

Environmental laws and regulations are written by lawyers for lawyers writes Matthew Farrow, executive director of the Environmental Industries Commission (EIC).

Of course, the impulse behind them comes from social and political desire to improve the environment we all live and work in, but the actual drafting is inevitably done from a legalistic point of view.

Guidance, on the other hand, is written for people trying to implement these laws in the real world. Guidance explains how to interpret words such as ‘significant’, or ‘building’ or ‘economically practicable’ in real world contexts.

The Government, however, has basically declared war on guidance. As Ministers have sought to follow through on pledges of deregulation, they have realised that although guidance is not really the same thing as regulation, it is much easier to cut.

This is all very well, but let me give three examples of the implications.

The waste management industry has worked hard in recent years to improve its health and safety record and has developed guidance which the HSE has approved and published. But no more. Because ‘health and safety’ is now viewed as a burden on SMEs, the HSE is discouraged from publishing new guidance on its website. 

Secondly, the contaminated land industry has been asking the Environment Agency to produce guidance to define ’significant pollution’ so that developers and land remediation companies can plan accordingly. The Agency is working on such guidance but it is unclear when, or if, this will be published.

The final example refers to recycling. Under EU Law, local authorities must provide separate recycling collections of plastics, paper, metals and glass ‘where technically, economically and environmentally practicable’. Defra had intended to produce guidance to clarify matters but these plans have now been dropped, meaning that local authorities will find it harder to plan.

In these and other areas, Ministers’ arguments tend to be either that guidance is simply not needed, or that it should be produced and published by the relevant industries rather than government. Both these points are sometimes valid, but as the examples above show, there are many areas where guidance plays a key role in the efficient and proportionate achievement of social and environmental objectives.