November 2023
While farming can be a key solution to the nature and climate crises, it is also a key driver of decline. For twenty years, farmers and land managers have had to comply with a set of basic good practices to receive public money, known as cross compliance. These set an important baseline, seeking to prevent pollution of rivers and streams, minimise soil erosion and protect agricultural hedgerows. However, from 1st January 2024, cross compliance will cease to apply.
It is right that the Westminster Government is switching from direct payments to a public money for public goods approach. Yet this must be underpinned by effective regulations to protect the environment and meet societal expectations. Whilst some cross compliance actions are covered by equivalents in domestic law, significant gaps will be created in protections for water, soil and hedgerows (despite claims to the contrary). This blog sets out some of those gaps, and the consequent risks to nature, climate and communities.
Myth 1: All the cross compliance rules are already in domestic law
Not all cross-compliance rules are reflected in existing regulations. To date, apart from a consultation on hedgerow protections, Defra has not indicated how gaps in domestic law will be plugged.
These gaps expose our soils, waterways and hedgerows to damage when they can least afford it. Making good practices paid-for actions within ELM is often mooted as a solution; but this would be poor value for public money, as these practices represent a bare minimum to prevent damage, rather than positive actions to boost nature.
This approach would also fail to replicate the near-universal uptake of cross compliance; ELM is a voluntary scheme, so only those who choose to participate and pick the right options within it would comply with measures that are basic good practice. This would also create an unlevel playing field for farmers, with those choosing to continue using basic good practices potentially undercut by those who take shortcuts. Therefore, this would be an unhappy compromise compared to copying existing practices into domestic law where there are gaps.
Myth 2: After cross compliance ends, the enforcement regimes based on domestic law will be sufficient to meet environmental objectives
Beyond covering gaps in domestic law, cross compliance has a wider ecological and societal beneficial impact in that it ensures that farmers and land managers do not undertake activities that risk harm to the environment and public rights of access. Under cross compliance the requirement to be compliant with specific regulations to receive payments, acts as a deterrent to harmful activities.
These requirements also facilitate enforcement. For example, obligations on land managers to keep public rights of way clear are found in domestic laws such as the Highways Act 1980. Cross compliance adds to this with the risk of a visit from the Rural Payments Agency and penalties for farmers restricting public access rights, providing an additional layer of deterrence. This is particularly important given ongoing financial constraints within local authorities which continues to negatively hamper their enforcement efforts.
Beyond access, the enforcement regimes under domestic law are struggling to meet the environmental objectives set out in the 25 Year Environment Plan and the Environmental Improvement Plan. For example, the Farming Rules for Water, contained in domestic law, have regularly failed to prevent serious violations alongside poor rates of enforcement. A more ambitious approach is needed.
Link, Client Earth and Green Alliance recently submitted questions on cross compliance to the Secondary Legislation Scrutiny Committee. Defra’s response indicated that the Environment Agency will scale up farm visits, improvement notices and other measures, to try and compensate for the loss of cross compliance. However, given the challenges outlined above it is unclear how the removal of cross compliance will be managed, particularly as the Environment Agency is already struggling to comprehensively enforce existing domestic rules.
Conclusion
Uncertainty lies ahead. Although it is right to end direct payments, which have delivered such poor value for the taxpayer, it is deeply problematic that a new means of securing compliance with regulation, or a new baseline for good farming practice has not been established. Some of the most crucial rules within cross compliance are not actually contained in domestic law, and existing enforcement regimes are not sufficient to replicate the wider impact of cross compliance. This could lead to a ramping down, rather the ramping up, of standards.
Farmers require urgent clarity on their obligations, and wildlife desperately need the gaps in protection to be plugged.
The Farm Inspection and Regulation Review
was completed in 2018 and there has been no movement on regulation since then. Regulation is the foundation of a fair farming transition. What is needed now is for policymakers to show leadership by scaling up ambition and increase the pace of action to close these gaps.
Verity Winn is a Senior Policy Officer (Agriculture) at RSPB. Follow @Natures_Voice
Hannah Blitzer is a Policy Officer at Wildlife & Countryside Link. Follow @WCL_News
The opinions expressed in this blog are the authors' and not necessarily those of the wider Link membership
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