Flooding scrutiny regulations no longer in force

Posted on 03/05/2018 by Ed Hammond.

If you like central Government process, and you also like local scrutiny of flood management and flood risk, the last month will have been an exciting month for you. If not, allow me to get you up to speed on something which, while a bit niche, has surprisingly broad implications – the fact that regulations governing how flood risk scrutiny is carried out are no longer in force.

A word a warning – this is going a get a bit legal.  

Flood risk scrutiny: a bit of background

About ten years ago, the then-Government commissioned a review to investigate the way that public authorities handled the extensive floods in 2007. The Pitt Review reported in 2008, and made specific recommendations that there be a formal role for scrutiny in overseeing the way that public bodies work together to tackle flood emergencies. In no small part this was due to the experiences in Gloucestershire, where scrutiny played a significant role in drawing together a huge number of partners to review and debrief on the issue in the immediate aftermath of flooding in that area.

The legal powers to undertake flood risk scrutiny were introduced in the Local Democracy, Economic Development and Construction Act 2009. Now to be found at s9FH of the Local Government Act 2000, these powers entitle the scrutiny function of councils which are lead flood authorities to carry out investigations into matters relating to flooding – including calling in evidence from “risk management authorities” (which include councils, water companies, the Environment Agency and Highways England, amongst others). A “request” under s9FH(3) is a request for information, and for responses to reports. In 2010, we, along with the LGA and the Local Government Information Unit, produced a guide to flood risk scrutiny – it is still a good read and should provide some assistance even though times have moved on.  

Regulations were issued further to this section which go into more detail about the precise way in which a scrutiny committee can exercise these powers. The Flood Risk Management Overview and Scrutiny (England) Regulations 2011 gave a timescale of 28 days for a risk management authority to respond to “requests” under s9FH, and says that attendance at a scrutiny committee will be required by a risk management authorities when requested.

Perhaps unusually for Regulations of this type, a “sunset clause” was attached – meaning that the Regulations would automatically cease to have effect on 6 April 2018 unless Government took action to extend them. This is where our story really begins…

The sunset clause and the review

The sunset clause required that Government take action to carry out a post-implementation review of the Regulations (to evaluate their impact) prior to making a decision on whether to renew them.

At the beginning of the year we realised that the sunset clause meant that the Regulations were about to cease having effect, and that the Government would need to begin their review in short order. We made contact with MHCLG to find out about the arrangements in place for the post-implementation review of the Regulations, and following a short flurry of discussion it emerged that Defra were leading on this activity. We attempted to make contact with Defra but unfortunately received no response.

The results of the review were published on 11 April and can be found here. Defra concluded that there was no need to renew the Regulations and that, in fact, they could find no evidence of their having been used.

Defra found 12 overview and scrutiny reviews of flood risk management (presumably carried out since the Regulations came into force). It is by-the-by that four minutes of googling on my part came up with rather more than 12 examples; what is interesting is what scrutiny practitioners are recorded as saying, and how Defra has chosen to interpret those statements.

Perhaps unsurprisingly, a view coming across from the evidence *as it is presented in the review* is that the additional powers in the Regulations are good to have – even where they are not formally deployed. Where those subject to scrutiny know those powers exist, they act as an encouragement to engage substantively, constructively, and earlier. This is a well understood feature of scrutiny not only in local government, but also Parliament – where it has been long-documented in academic research going back to the 1980s. Parliament has formal power to summon recalcitrant witnesses to give evidence – powers that are hardly ever used but whose mere presence does serve to concentrate the minds of people who might otherwise not wish to engage with the scrutiny process.

This does not appear to cut much ice with Defra. In fact, it is an argument with which they choose not to engage. The conclusion that they have drawn is that the fact that formal reliance has not been placed by an OSC on the Regulations is evidence enough that they are unnecessary. This is worryingly simplistic. We know from other work (and from the pre-Pitt days) that some RMAs can be very difficult to engage – water companies and Highways England have, on occasion, been tricky partners, for example. Behaviours change over time, but what does the removal of these formal safeguards say to people working in RMAs who might now look at the generally-expressed wording in s9FH and feel that it is safe to string along and, essentially, ignore scrutiny? This would be to do a disservice to the Pitt Review’s important findings on the critical role for scrutiny as a partner in understanding and addressing flood risk issues.

I am not a natural nitpicker – Defra are entitled to reach their own conclusions on the evidence that they have collected. But the review was a missed opportunity – as delivered, it is a perfunctory exercise carried out purely to satisfy the minimal requirements in the Regulations.

What happens next

Well, the formal powers for flood scrutiny remain the same. Scrutiny can still ask for information, and can ask for responses to reports. But getting that information, and those responses, might be more difficult now that the detail in the Regulations have gone. Those with existing relationships with RMAs might be able to rest easy. Those who have not recently sought to draw in RMAs to give evidence might expect that process to be a little bit more of a challenge than it might have been hitherto.

We’re keen to learn about examples of people doing flood risk scrutiny. Thankfully, this past winter has seen few of the flood emergencies which have typified some of the last few years but the time will come again when it happens, and we want scrutiny to be there ready both to prepare councils, and to help them to deal with the aftermath.