Regulations without services

The story of Paul Powlesland and the River Roding Trust might have made the plot for an Ealing Comedy. An everyman with an alliterative name looks out of his window and sets himself to fix a problem that he sees, and is eventually joined by a band of disciples, only to find himself entangled in one of Leviathan’s tentacles. The David and Goliath dynamic is made all the more maddening by the fact that his bureaucratic antagonist, in the form of the Environment Agency, is moved by the no doubt sincere conviction of its officials that it is acting in the interests of the greater good.

For the last five or so years, Powlesland has devoted himself to the River Roding, which rises in Molehill Green in Essex and discharges into the Thames at Creekmouth in Barking. Along with a growing team of volunteers, the Trust has carried out an extensive programme of clearing of the river; rubbish, weeds and silt — as well as planting trees and restoring pathways along its banks. It was almost inevitable that he would attract the attention of one or another of the bodies that are responsible for deciding whether anything is allowed in Britain nowadays — and so he has. 

Under the Water Resources Act 1991, the Land Drainage Act of the same year and the Flood & Water Management Act 2010, the EA has responsibility for all rivers and watercourses in the country, as well as a responsibility for “strategic oversight” for flood risk. The Environmental Permitting Rules — under powers conferred by the Pollution Prevention and Control Act 1999 and the Water Act 2014 — determines any activity to dredge or clear a river to be a “Flood Risk Activity”, for which a permit from EA is required. Furthermore, any activity within 8 metres of the bank of a main river is also in scope of the permitting rules. The EA has a statutory duty to the Secretary of State for the Environment to enforce these rules. 

There is little evidence available that the Trust attempted to comply with these rules. Mr Powlesland is a barrister with extensive experience in campaigning for natural protections, and is presumably well aware of the legislation. In an illuminating exchange on social media, Powlesland was challenged by an anonymous defender of the EA as to whether he opposed the regulation of river dredging in general, or only insofar as it applied to his own activities. Powlesland seemed to accept that the regulations probably were necessary overall — the default position of the majority of environmental activists is that river dredging is generally harmful — but that the EA should surely be assisting a small voluntary organisation in carrying out works that contribute to the wellbeing of a river. 

A highly developed, modern country really ought to have some system in place to do the work that the River Roding Trust has tried to do

The EA of course does not have the authority to show this kind of pragmatic selectivity. Neither is it charged with the general upkeep of the country’s rivers and waterways, unless there is something happening which triggers its responsibilities under the secondary legislation; a risk of flooding, pollution or threats to public health or wildlife. A forgotten river merely being silted up and full of litter isn’t its problem — until somebody comes along and interferes with it. The shift from passivity to activity on the part of Mr Powlesland and his volunteers suddenly shifts the calculation, and brings the situation within the scope of the permitting regime which the EA is bound by law to enforce.

This web of law and regulation is what many people today — especially Europeans — have come to regard as the hallmark of modernity and development. Infuriating though it may sometimes be, we see it as the price we pay for avoiding the calamities and the filth that we associate either with poorer countries today, or with our own societies in years gone by. The corollary to this though is that a highly developed, modern country really ought to have some system in place to do the work that the River Roding Trust has tried to do. No doubt that was the vision back in the hopeful new dawn of the 1990s when Quangos like the EA were founded. Burke’s “little platoons” might have been all well and good in earlier times, but a serious, grown-up country ought to have serious organisations to do that sort of thing, in line with the regulations that were far too onerous for citizen volunteers. 

Now that the engines of productivity and growth have long-since stalled, the idea that we would find the money — presumably many tens or possibly hundreds of millions of pounds — to clean every watercourse in Britain seems frankly absurd. In today’s economy, every spending commitment is zero sum, and each penny that goes on something other than the NHS is a penny robbed from the NHS, or whatever one’s personal priority happens to be. Suddenly, the idea of unleashing the little platoons — and the River Roding Trust is a perfect example of one of them — starts to look appealing again. 

But while Mr Powlesland may be able to recruit volunteers to pick weeds out of the river, finding environmental consultants to work pro bono to help him submit an application for the dredging would be a far bigger ask. Cutting back the regulation to allow volunteers up and down the country to undertake similar kinds of work without permits would presumably entail the occasional flood, or mishap, or maybe even the odd drowning — which is the sort of risk that we in Britain think ourselves too developed and too modern to even consider entertaining. 

There was once a cartoon in Private Eye, back when it was funny, featuring a prisoner awaiting execution in some imagined Latin American dictatorship, who upon requesting a final cigarette is told by the leader of the firing squad: “A cigarette? no señor, this is our workplace!”. The transposition of modern health and safety rules into an anachronistic context was funny at the time, but it cuts a little close to the bone now in terms of what we in Britain are becoming. The River Roding story is a snapshot of a country with the regulatory frameworks, risk appetite and tort laws of a very wealthy, highly developed country, but with the practical capabilities of a far poorer and less advanced society. The state and its agencies don’t have the money to fix this particular problem, but they are primed to come down like a ton of bricks on anyone who gets any ideas about fixing it themselves. Once you spot this phenomenon, you can see it everywhere in today’s Britain. 

A couple of weeks ago, energy commentator Kathryn Porter shared the story of her horrendous ordeal having suffered a ruptured aneurysm in a car park in Wales. Having called 999, she was told that an ambulance would not be dispatched to her on the grounds that she was still breathing, and thus in their view capable of getting herself to A&E independently. She was left waiting in agony on the floor, unable to move, awaiting rescue by her husband who was some hours away. The state of Britain’s ambulance service is both a typical and extreme case of the failures in our public realm in recent years. An ageing population saw demand for ambulance services roughly double between 2005-2015 which, combined with horrendous bad management, saw an exodus from the service. Thereafter, a far stricter approach to dispatch allocation during the pandemic effectively became permanent. 

However, one detail in particular struck me from Porter’s dreadful story — that the staff in the car park felt unable to give her her own pain medication for fear of liability rules. This was not a split second decision — the car park staff were present and presumably aware of their obligations for her wellbeing while she was on their premises, but understood that it was too great a risk to themselves to participate in the process of self-medication in case something went wrong. So she was left to wait for hours, unable to move for pain, until a fireman, presumably with the right training, handed her the meds. Previously, we might have divided the world’s countries up into two distinct categories; 1) the sort of countries with such a litigious approach to tort law that one might let another person writhe in agony for two hours for fear of being sued should they suffer a reaction to their own medication, and 2) the sort of countries where ambulances don’t turn up for people clearly in serious medical distress. But Britain now finds itself at the intersection of this miserable Venn Diagram. 

What connects an incident like hers to the River Roding case is the absence in both of any clear mechanism by which rules and regulations that are beneficial in the round might be suspended in eventualities where there is clearly a justification for doing so. In Powlesland’s case, it might once have been the relevant minister who could make a judgement and instruct officials to back off; however non-departmental public bodies like the EA were specifically designed to remove practical decision-making from such political interference and ensure everything was done strictly in accordance with context-neutral rules. This might have been practical, if a little stifling, in a generally functional country, but it is going to be disastrous in a nation descending into genteel poverty, where we are all going to have to get used to winging it a bit.

So much of the British state’s approach now rests on the assumption that if a need exists, then the means of meeting it must also exist by default. The state sees its role in this as regulating the manner in which a need is met. Price caps, levies and obligations are imposed on utilities and business sectors that are just assumed to exist, regardless of the fact that nobody with capital that wasn’t already trapped in the sector would consider starting out in it now. The dredging and clearing of rivers is regulated on the assumption that somebody will naturally be there to do the job, even though no provision has been made to do so, and the costs of complying with the regulations are prohibitive to hobbyists. 

It is not hard to see how this ends up as a war of attrition, pitting the best against the good

The regulators and price cappers have no responsibility under the legislation to ensure that the service itself is provided; merely to ensure that if it is done, it is only done within certain parameters. It is not hard to see how this ends up as a war of attrition, pitting the best against the good — a country without a reliable ambulance service, in which it is still considered intolerable for the most basic assistance to be provided by a person without the right training. 

There is no sign of any of this registering with our regulatory infrastructure, or with the growing cadre that has proliferated across the public and private sectors to ensure compliance of all kinds. They regard regulation and law as an evolutionary ratchet that is only going to become more sophisticated. But the public’s perception is correct — the level of regulatory neuroticism and fastidiousness we have become accustomed to is a price that we pay to live in a certain kind of society, and it is one that we are increasingly unlikely to be able to afford.