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Corruption Control 5 - the Legal Department.

Once again we must make it clear that we are not alleging corrupt activity by the subjects of this blog but point to the failure of the Agency to manage the risk.

The Environment Agency has a Legal Department and of course, its integrity is vital.

The permits that allow water companies to pollute, the setting of prosecution policy, and decisions to pursue or curtail legal action are rooted in the legal department of an Agency that has failed to bring a single water industry director to court despite serial offending by companies. As an example, Thames Water has over 180 criminal convictions while trial judges have noted that knowledge of the offending went to the top of the organisation and made similar comments about Southern Water.

The Director of Legal Services is clearly a key role. Peter Richard Kellett joined the Environment Agency in November 1997, having been admitted as a solicitor in April 1995 (Law Society records). From what was presumably a junior role at the start, he became Head of Legal Services for 10 years until October 2022 when he retired (early, we believe) after 25 years of service.

WASP obtained a series of declarations of outside interests of directors from the Agency using Freedom of Information Law but Mr Kellet's declarations did not appear in any of them. However, he featured in a random response that we received from the EA in the section included for one year only for the Environment Agency Pension Committee of which he was a key member.

The declaration he made on 9 April 2020 indicated that he was a ‘Partner Bevan Brittan LLP’

Here it is:

Extract from FOI response from the Environment Agency to requests for declarations of interest.

It states that he was ‘employed in various roles since 2002 to date’ and that the nature of

the conflict of interest was that Bevan Brittan was a ‘Solicitors firm involved in the

provision of legal services to public organisations regulated by the Environment Agency

and from time to time bidding to do work for the Environment Agency.’

Bevan Brittan is a very big law firm with offices in Birmingham, Leeds, London and Bristol where Mr Kellet was based with the Agency. The firm's website currently lists 91 people described as Partners among a larger team of senior members.

Here is a link to the company's website.

In 2022, we could find no supportive evidence to confirm his declaration in the Solicitor and Partner listings for this large company, nor for anyone with the same surname. In addition, there was nothing to indicate this position in the comprehensive Solicitors Registration Authority or Law Society Websites. This sort of information is of course readily available so that people can check the credentials of solicitors and protect the integrity and reputation of the profession.

This was a baffling declaration and one that would add a great deal of weight to a CV. However, in view of the significance of the claim of holding a senior position in a major law firm along with the time and commitment that would entail, and a potentially serious and significant conflict of interest, we made inquiries with Kathryn Sullivan, the Head of HR at Bevan Brittan, in July 2022

We asked if Peter Kellet was or has been a Partner at the firm but Ms Sullivan refused to discuss it and that simply made us more curious.

Eventually, following a mail indicating we may go public with an account, in September 2022, we received this response from Bevan Brittan.

Peter Kellett is not and has never been a partner or an employee of Bevan Brittan. Peter has confirmed to us that in the course of his work he has made a declaration of interest in respect of a family member at Bevan Brittan.

I trust that this answers your query. I do not propose to engage further with you on this matter.

Kind regards

Kathryn Sullivan | HR Director

for Bevan Brittan LLP

Our request for confirmation that he did actually have a family member (not even a request for them to be named) working at Bevan Brittan was ignored. They only had to say yes or no to that reasonable question so that made us even more curious...

The form completed by Mr Kellett clearly does not indicate that the declaration is for a family member and it seems inconceivable that the Head of Legal Services of the Agency was not able to fill a form in properly.

When we asked the Environment Agency how this issue had been managed, the Chief Operating Officer eventually responded to a bigger request, over 3 months after we asked, on 9 January 2023.

Peter Kellett retired in 2022 and is not and has never been a partner or an employee of Bevan Brittan. Peter has confirmed that in the course of his work he has made a declaration of interest in respect of a family member at Bevan Brittan. The family member is the information which is redacted within the declaration of interest.

Interestingly, the underlined words are precisely those used by Bevan Brittan's Head of HR 4 months previously.

However, despite the Agency's claim, as you can see, there is no visible redaction (normally blacked-out rectangles, to show where text had been visible) - and no explanation. Redaction has to be justified and should be explained.

There is a specific box for family member declarations on the form and here is Mr Kellett's entry with nothing in it about a family member.

The lack of control and oversight of the Agency's Audit and Risk Assurance Committee responsible for such issues is revealed as meaningless, yet again.

However, after WASP had made the position clear to the then Chief Executive, Sir James Bevan, the declarations for Peter Kellett as a member for the Pensions Committee for 2021 and 2022 were sent to us but the original forms were omitted and information amalgamated on a new unattributed form, hitherto unseen, which stated that an unspecified relative was an employee at Bevan Brittan and that Mr Kellett had now left.

The lack of transparency, amateurish obfuscation, and arrogance in the Agency's response is developing as a theme.

Why should this laissez-faire approach to controlling outside influence on key regulatory directors and staff matter? Simply put, it's vital to keep the regulators serving the public, environment and customer rather than the regulated industry but this can't happen if risk and security are left to chance and self-monitoring.

The theory and reality of regulatory capture is well known and easily predicted for good reasons (see link)

Explanation of 'regulatory capture' :

Powerful and wealthy companies with direct access to regulators at all levels are able to lobby, cajole, bully with threats of legal action, and tempt, with offers of highly paid jobs in the private industry. The regulator ends up serving the industry rather than the common good and that can be clearly demonstrated with the Environment Agency.

How then does Mr Kellet's role and department link to the capture of the Agency that should have been a key component in preventing it? Let's look at some examples.

1. How well did the Pensions Committee, of which Mr Kellett was a key member, carry out its important role.

In 2021 Marion Maloney, Head of Responsible Investment & Governance for the Environment Agency Pension Fund posted a Defra blog claiming that the fund was world-leading alongside some apparently meaningless claims about Net Zero.

However, in August 2022 the Guardian revealed that the fund had invested in the criminally offending water companies it was supposed to be regulating. Truly effective enforcement action by the Agency would have a negative impact on the return on its investment.

And here is the article

2. How effective has the permitting system been? - Permits to pollute are supposed to protect the environment but allow companies to pollute within monitored and regulated limits. With only 14% of rivers in England in good ecological status and water company pollution recognised as one of the major causes, we can safely say that permitting has been applied very poorly. Add to that the very favourable allowances made to companies, the infrequency and inadequacy of monitoring and auditing, and the fact that permits are widely out of date and poorly administered and we can safely say it is a mess.

If you want more on the subject we recommend 'Watchdog that Lost its Bite' written by Wild Fish's solicitor Guy Linley Adams.

3. Of Course, policy is vitally important. It appears that Mr Kellett was the lead in the production of the Agency's Prosecution and Sanctions Policy. That is the policy that, unfortunately for the public and wildlife, weeds out almost all offending from prosecution or any meaningful intervention, and by prosecuting only a tiny fraction of the offences reported to the Agency, it has undoubtedly kept pollution as a very profitable activity for water companies.

4. The application of guidance is vital to a regulator and in 2018 an unusual example of potentially effective Agency Guidance ordered water companies to classify and rectify their failing sewage overflows. Perhaps it was too good because the water companies largely ignored the requirement and the Agency bizarrely capitulated on the grounds that the guidance was 'not statutory'. However, the reasons for failure were certainly statutorily based in many cases - such as illegally dumping in dry conditions.

The Agency's unexplained decision to let the guidance slide was akin to ignoring people failing to tax their cars because the guidance on how to apply and pay for the tax is not statutory. The explanation was not credible but it did save the companies billions of pounds that would have been required to fix illegal overflows within 3 years. We remain unconvinced by the Agency's explanation of why they let the companies off the hook. This was a remarkable win for the profiteers.

5. Not letting the Agency be led by the polluter should be another role of the Legal Department but in 2018 the Storm Overflows Assessment Framework was brought in and while it claims to be authored by the Agency, we understand it was highly influenced, if not produced entirely, by the industry and any reasonably informed observer would notice that it would make it almost impossible for a storm overflow to be rectified due to a remarkable set of hurdles to cross and the ultimate requirement to pass a cost-benefit test controlled by the water companies.

Indeed over 4 years, it resulted in nothing whatsoever being improved. Another advantage was gained by the industry.

6. The failure of the Agency to prosecute directors or apply the Proceeds of Crime Act has been covered in previous blogs and is one of the best indicators of a captured regulator - one that will not interfere with the bosses of the industry that captured it.

There we have it, with captured regulators, the polluters are always in the room with those who are supposed to be controlling them and the public has no input, no voice anywhere near the volume of the polluter, so with no meaningful protection or oversight of integrity, we can easily see how regulation was twisted to favour the industry and keep pollution profitable.

This also set up Agency front-line staff to fail and unfortunately, they often take the brunt of the blame which should be directed to the broad leadership of the Agency who let it happen or helped make it happen.

An inquiry into the reasons and actors in the failure of water regulation is overdue but it is clear that government does not want to look into this can of worms and whistleblowers are not welcome. Of course, they would be welcomed and handled with great care and discretion by WASP.

In the meantime -

AMENDED! On 5 May 2023 The UCL Centre for Law and Environment announced the appointment of Peter Kellett as Honorary Professor of Practice.



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