Environment Bill

Explanatory Notes

Figure 3: Summary of enforcement process

Clause 31: Decision notices

274 This clause provides for the OEP to take further enforcement action in the form of a "decision notice".

275 The OEP may issue a decision notice under subsection (1) if it is satisfied, on the balance of probabilities, that the public authority has failed to comply with environmental law, and it considers that the failure is serious. As with an information notice, the question of seriousness will be one for the OEP to consider on the basis of its own, published complaints and enforcement policy (see clause 20). The "balance of probabilities" test means that the OEP must consider it more likely than not that a public authority has failed to comply with environmental law. Note that this test only relates to the question of when the OEP is permitted to serve a decision notice, and does not create a requirement to issue such a notice in any particular case where the test is satisfied.

276 As defined in subsection (2), decision notices are a means by which the OEP can take action against the public authority failing to comply with environmental law, by setting out the failure and the suggested steps for the public authority to take in relation to the failure. The potential actions that the OEP can request will be specific to each case. For instance, the OEP could recommend that the public authority prepare a new, or updated strategy, or undertake remedial action in the event that environmental harm has been done. Other possible steps could include asking an authority to cancel, amend or re-take a decision (for example to designate a certain area as a protected site), or take steps to pursue a particular environmental quality standard or other environmental outcome as required. Subsection (2) does not constrain the types of steps that the OEP can specify, and provides expressly that they may include steps designed to remedy, mitigate or prevent reoccurrence of the failure.

277 The public authority that receives a decision notice is not under a legal duty to carry out the steps detailed in the notice. Under subsection (3), the public authority is required to respond to a decision notice either two months after the notice was given, or by a date specified in the notice, whichever is later. The written response from the public authority must state whether the public authority agrees that there has been a failure to comply with the law, and whether the steps set out in the notice will be followed, as specified in subsection (4). This subsection also requires the public authority to specify any other alternative steps that will be taken in relation to the alleged failure described in the notice. This reflects the possibility that the public authority might accept that it had failed to comply with environmental law, but might wish to propose alternative or additional steps to remedy, mitigate or prevent reoccurrence of the failure, compared to those specified in the OEP’s decision notice.

278 Subsection (5) provides that the OEP may withdraw a decision notice after it has been issued (paragraph (b)), and also requires that the OEP must have previously issued at least one information notice relating to the alleged failure of the public authority to comply with environmental law before a decision notice is issued (paragraph (a)). The OEP may withdraw a decision notice if, for example, it has served such a notice where it considers there has been a failure to comply with the law but later considers that there had been no such failure. In this case, it would be desirable to withdraw the notice rather than require a public authority to respond to a notice that the OEP no longer considers is relevant or necessary.

Clause 32: Linked notices

279 This clause deals with the scenario in which the OEP considers that a notice should be issued to more than one public authority concerning the same or similar breaches of environmental law. In such a scenario, the OEP could issue information or decision notices in parallel to both (or all) parties, and determine that these are "linked notices" under subsection (1). Public authorities may make joint or separate responses to linked notices.

280 The OEP may wish to issue linked notices in various circumstances, including for example:

If a serious breach occurred for which a local authority was immediately responsible in the local area, but in relation to which a Secretary of State also had national duties, it might be appropriate for the OEP to commence enforcement proceedings (via notices) against both the local authority in question and the Secretary of State.

If a cross-boundary incident occurred where two or more local authorities failed to properly carry out their obligations under environmental law, the OEP might wish to issue linked notices to both or all of the authorities in question. For instance, if during the course of a major, cross-boundary development project it was found that two or more local authorities had neglected their responsibilities under Part IIA of the Environmental Protection Act 1990 to identify contaminated land and serve remediation notices where appropriate, leading to improper development of the site with potential implications for human health and the environment, it may be appropriate for the OEP to take action against both/all authorities in parallel using linked notices.

281 Subsection (2) provides that the relevant Minister may also request that the OEP designates information or decision notices as linked, and that the OEP must have regard to such a request. This does not mean that the OEP is obliged to comply with the Minister’s request, but it must be able to demonstrate it has appropriately considered it. The meaning of "the relevant minister" is as defined in clause 28(11).

282 Subsection (3) sets out that copies of any linked notices and any relevant correspondence between the OEP and the recipient of such notices, or the relevant Minister notified in the case, must be provided to notice recipients. Subsection (4) sets out what will be considered as "relevant" correspondence in such cases. To be relevant, correspondence must relate to a linked notice, but not be connected with an environmental review, or other legal proceedings such as a judicial review, or sent to fulfil the requirements of clause 35(1)(a) or 35(1)(b).

283 Subsection (5) provides that the obligations set out under subsection (3) to provide copies of notices or correspondence will not apply where the OEP considers that to do so would not be in the public interest. For instance, where correspondence regarding a notice contained information pertaining to matters of national security, it may not be in the public interest to share this with other parties.

Clause 33: Environmental review

284 This clause provides for the OEP to bring legal proceedings against a public authority regarding an alleged breach of environmental law. These proceedings are through a mechanism in the Upper Tribunal called "environmental review".

285 Subsection (1) sets out that the OEP may apply to the Upper Tribunal for an environmental review regarding an alleged breach where it has given a decision notice to a public authority. The OEP therefore cannot bring such a review unless it has gone through this earlier notice stage, which in turn must be preceded by the service of an information notice (see clause 30). This process is intended to ensure that cases dealt with through this bespoke process necessarily involve substantial pre-litigation stages, with a view to resolving cases without legal proceedings where possible.

286 Subsection (2) defines an environmental review as a review of the conduct described in a decision notice as a failure to comply with environmental law (paragraph (a)) or further alleged misconduct of the public authority that takes place after the OEP has issued its decision notice but is similar to the conduct described in that notice (paragraph (b)). Subsection (2)(b) addresses a scenario in which a public authority could respond to a decision notice by accepting it has failed to comply with environmental law in the manner described in the notice and committing to remedial action, but then does not take the steps needed to address the failing. In this scenario, subsection (2)(b) provides that the OEP may apply to the courts for a review that covers similar conduct that occurred after the giving of the decision notice, without having to serve another decision notice.

287 Subsection (3) sets restrictions for when an application for an environmental review may be made. Subsection (3)(a) sets out that the OEP may not make an application for environmental review before the end of a period of two months, or such longer period as specified in the notice, in which the public authority in question is required to respond to a decision notice under clause 31(3). The OEP may only make an application before this time if the public authority has already responded to the decision notice. This is to ensure that the OEP is able to consider the authority’s response to the decision notice before deciding whether to proceed to applying for an environmental review.

288 Subsection (3)(b) provides that the OEP may not apply for an environmental review before the expiry of any time limit in which legal proceedings (judicial review or other similar legal proceedings) in relation to the same conduct could be initiated. This is to ensure that environmental review does not pre-empt other legal proceedings. The timescales for the OEP’s enforcement process mean that the period within which judicial review or similar legal proceedings can be brought will normally have passed before the OEP can apply for an environmental review. For example, where a decision is challenged through judicial review, the application for review must be made promptly and within six weeks for planning cases and three months in other cases. The applicable legislation provides a margin of discretion for the courts to accept judicial review applications outside these time limits in exceptional circumstances. However, the provision in subsection (3)(b) necessarily only captures any specific time limit expressed in law, rather than any time limits that have been extended by the discretion of the court in an individual case.

289 Subsection (4) provides that any restriction in other legislation on questioning the conduct of a public authority in legal proceedings does not apply to an environmental review. This provision is made to ensure that the OEP’s route of challenge can exist alongside other pre-existing routes of challenge. In some cases, the relevant legislation may provide that the courts can only entertain challenges against those decisions in the form of a judicial review – for example, section 13 of the Planning Act 2008. Furthermore some existing statutory routes of challenge specifically exclude any other route of challenge – for example, section 284(1)(b) of the Town and Country Planning Act 1990. However, the intention is that these restrictions should not preclude the OEP bringing a challenge.

290 Subsection (5) establishes what the Upper Tribunal must determine in an environmental review, namely whether the public authority in question has failed to comply with environmental law. The subsection provides that the Upper Tribunal must determine whether there has been a failure applying judicial review principles. The Upper Tribunal will consider whether the decision maker has made an error in law, whether the decision was reasonable, and whether the process was fair.

291 Subsection (6) provides that, if the Upper Tribunal finds on an environmental review that a public authority has failed to comply with environmental law, it must make a statement confirming this, referred to as a "statement of non-compliance".

292 Subsection (7) sets out that, whilst the statement of non-compliance confirms that the Upper Tribunal has found that the public authority in question has failed to comply with environmental law, it does not in itself invalidate the decision of the public authority in question. For example, if the grant of a planning permission is challenged through environmental review and the Upper Tribunal finds it to be unlawful and makes a statement of non-compliance, the planning permission granted would nevertheless remain valid. This is the case unless the Tribunal decides that it is appropriate to impose further remedies such as a quashing order, and the conditions for doing so were met.

293 Where the Tribunal issues a statement of non-compliance, this would not prevent or oblige the Secretary of State, or other relevant decision-maker, from using existing discretionary powers in relation to that decision (that is, to modify or revoke their original decision).

294 Subsection (8) provides that, if the Upper Tribunal makes a statement of non-compliance, it will have the full suite of remedies, other than damages, available to it as on a judicial review, but only if it is satisfied that granting such a remedy would have neither of the effects described in paragraphs (a) and (b). These remedies include a declaration, quashing, prohibiting and mandatory orders, and injunctions. Damages are not available in environmental reviews because the OEP, as the only applicant, would have no cause to seek compensation for damages personally suffered where the claimant in a traditional judicial review might. As such, this remedy is unnecessary.

295 The provision that the Upper Tribunal may only grant a remedy if it is satisfied that neither of the effects described in paragraphs (a) or (b) would occur as a result, recognises the fact that the environmental review will take place after the expiry of judicial review time limits and that prejudice may result from quashing the decision at this later date. This provision allows third parties reliant on decisions involving the application of environmental law to have confidence that those decisions will not be quashed or other judicial review relief granted outside the normal judicial review time limits, if substantial prejudice, substantial hardship or detriment to good administration would be likely to result. If these effects are likely to result from the granting of the proposed remedy, the Tribunal may not grant the remedy.

296 Paragraph (a) of subsection (8) requires the Upper Tribunal to be satisfied that a remedy would not be likely to substantially prejudice or cause substantial hardship to a third party (a person other than the OEP or the defendant) before granting it. Expenditure already spent in reliance of the decision in question may be relevant to the question of substantial prejudice or hardship, along with potentially the recoverability of the sums and the financial means of the third party.

297 Paragraph (b) of subsection (8) requires that the Upper Tribunal also be satisfied that a remedy it grants would not be detrimental to good administration. This provision recognises the need to protect the orderly implementation of properly-reached decisions, and recognises that finality in decision-making is important for both public authorities and the public.

298 Subsection (9) sets out that the Upper Tribunal, subject to the conditions set out in subsection (8), must apply the usual principles applied in a judicial review when considering whether to grant a remedy in an environmental review. Subsection (9) also provides that any remedies the Tribunal does grant will have effect, and be enforceable, in the same manner as remedies granted by, for instance, the High Court. This means that if the Tribunal finds that a public authority has failed to comply with environmental law and imposes a remedy to address the failing, should the authority fail to comply with any resulting court order it could be subject to contempt of court proceedings brought by the OEP.

299 Subsection (10) requires a public authority that has been the subject of an environmental review in which a statement of non-compliance has been issued by the Upper Tribunal (and not overturned on appeal) to publish a statement. This statement should describe any steps the authority intends to take based on the outcome of these proceedings. For example, if the Tribunal were to agree with the conclusions outlined by the OEP in its decision notice, and make an order granting a statement of non-compliance and specified remedies, the public authority’s statement could include details of how it intends to ensure the remedies are given effect, and/or details of how it will ensure future breaches are avoided. Where a statement of non-compliance is not issued, the public authority is not required to publish a statement, but would not be prevented from doing so if it so wished.

300 Subsection (11) sets out that a statement under subsection (10) must be published within two months of the conclusion of the review proceedings. This means that the statement should be published after the final disposal of proceedings, meaning after judgment has been delivered on the final issue in the case, including any subsequent appeal proceedings.

301 Subsection (12) defines several terms used in this clause.

Clause 34: Judicial review: powers to apply to prevent serious damage and to intervene

302 This clause makes provision for the OEP to intervene in third party judicial reviews and statutory reviews where appropriate.

303 Subsection (1) provides that the OEP may apply for judicial review, or a statutory review (a legal challenge procedure similar to judicial review, but under specific legislation – for instance, the Town and Country Planning Act 1990 procedure by which an applicant may challenge a decision of the Secretary of State), of a public authority’s conduct, whether or not it has issued an information or decision notice, if it considers that the public authority in question has committed a serious breach of environmental law, and, under subsection (2), if it considers it is necessary to do so to prevent or mitigate serious damage to the natural environment or human health. The effect of these provisions is that the OEP could only make an application for judicial review (or statutory review), rather than proceeding according to its normal enforcement procedure (information notice; decision notice; environmental review) if doing so was "necessary". This could be the case if for example the serious damage would have already happened by the time that the normal enforcement procedure reached the Upper Tribunal and a more urgent court judgment was needed. To give all parties certainty, the OEP will be required to set how it intends to determine whether damage is serious for the purpose of this clause in its enforcement policy, as part of its strategy (see clause 20(6)(b). Subsection (3) disapplies section 31(2A), (3C) and (3D) of the Senior Courts Act 1981 in relation to judicial review applications under subsection (1) of this clause in England and Wales, which limit the granting of permission for judicial review, or relief "if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". This is because it is highly likely that the outcome for the OEP itself would not have been different if the public authority had behaved differently.

304 Subsection (4) provides that a public authority which was the subject of a judicial review, or statutory review, commenced by the OEP under this clause must publish a statement within two months of the conclusion of proceedings (including any appeal). This statement must set out any steps the public authority intends to take as a result of the proceedings.

305 Subsection (5) provides that the OEP may apply to participate in third party judicial review or statutory review proceedings (including appeal proceedings) against a public authority concerning an alleged failure to comply with environmental law, as defined under section 40. This could include scenarios where the OEP agrees that the public authority has failed to comply with environmental law, but also where it may disagree that this is the case; the OEP may have useful expertise to contribute in each case.

306 Subsection (6)(a) provides that in this clause reference to "an application for judicial review" includes an application to the High Court, or the Court of Session in Scotland.

307 Subsection (6)(b) provides that in this clause a "statutory review" means a claim for such a review under the provisions set out in sub-paragraphs (i) to (iv).

Clause 35: Duty of the OEP to involve the relevant Minister

308 This clause deals with how the OEP should operate in situations where the subject of an information or decision notice under clauses 30 and 31 respectively, or of an application for environmental review under clause 33, is not a Minister of the Crown.

309 Where the recipient of an information or decision notice is not a Minister of the Crown, subsection (1)(a) requires the OEP to provide a copy of the notice to the relevant Minister, as well as a copy of any correspondence between the OEP and the public authority concerned that relates to the notice. This is to ensure that the government remains informed about the matter and is able to contribute if appropriate. Paragraph (b) of this subsection also requires that the OEP must provide the recipient of a notice with a copy of any correspondence it has with the relevant Minister regarding the notice. In each case, the OEP is not required to share correspondence which is sent as part of these requirements. (In other words, it would not be required to share copies of copies of notices, or of correspondence which relates to notices by virtue of this clause.)

310 Subsection (2) provides that obligations to provide copies of notices or correspondence under subsection (1) will not apply where the OEP considers that to do so would not be in the public interest.

311 Where the OEP makes an application for environmental review, judicial review, or statutory review against a public authority which is not a Minister of the Crown, subsection (3)(a) provides that the OEP must provide the relevant Minister with a copy of the application. Subsection 3(b) additionally requires the OEP to provide the Minister with a statement which sets out whether the OEP considers the Minister should participate in the review proceedings, for example as an interested party. The OEP may consider such Ministerial involvement appropriate in particular cases, even where the Minister is not the defendant (that is, the party responsible for compliance with the environmental law in question), for various reasons. For instance, delivery bodies may adopt an approach to implementation influenced by factors or messaging emanating from central government. To this extent, it may be helpful for Ministers to provide input to the proceedings.

312 Ministerial involvement in proceedings where appropriate would have similarities to EU infraction cases, where the action is brought against the UK or other Member State government regardless of which particular public authority is at fault. Subsection 3(b) essentially therefore provides for the OEP to offer a formal statement of its view as to the desirability of the Minister’s participation, for the Minister’s consideration. The OEP cannot require the Minister’s participation under this clause. Further details concerning the addition of parties to legal proceedings in environmental reviews brought by the OEP will be a matter for the rules of the Upper Tribunal.

313 Throughout this clause, "the relevant Minister" has the meaning given in clause 28(11).

Clause 36: Public statements

314 This clause deals with requirements on the OEP to publish statements when it takes certain enforcement actions.

315 Subsection (1) provides that the OEP must publish a statement, for example in the form of a press release, whenever it serves an information or decision notice, applies for environmental review, judicial review, or statutory review, or applies to intervene in judicial review. This subsection also sets out the information that this statement must contain.

316 Subsection (2) provides that the OEP does not need to publish a statement if it considers that it would not be in the public interest to do so. For example, the OEP might judge it to be not in the public interest to publish a statement about its enforcement activities that would prejudice the protection of personal or confidential data.

317 The provisions of this clause are intended to provide an appropriate degree of transparency as regards the enforcement action that the OEP is taking and against whom. The European Commission also publishes press statements at key stages of the infraction process. The clause only requires the OEP to make a statement that it has issued an information or a decision notice, describing the failure or alleged failure and other appropriate information rather than requiring publication of the actual notices.

Clause 37: Disclosures to the OEP

318 To assist the OEP in carrying out its investigatory functions, subsection (1) of this clause enables persons whose functions include functions of a public nature to provide information to the OEP notwithstanding any obligation of secrecy, either statutory or otherwise, when that information is in connection with an investigation under clause 28, an information notice or a decision notice.

319 Subsection (2) provides for particular circumstances in which a person is not required to provide the OEP with information.

320 This disapplication of obligations of secrecy is limited: it applies only to the provision of information to the OEP, and not to anyone else, and it applies only under the conditions set out in subsection (1).

321 Subsection (3) makes similar provision for a relevant ombudsman. The meaning of a "relevant ombudsman" is set out in clause 20(9).

322 Subsection (4) excludes data protection legislation from the provisions in this Part of the Bill.

Clause 38: Confidentiality of proceedings

323 This clause deals with the circumstances in which the OEP and public authorities may or may not disclose information regarding an investigation whilst the OEP is carrying out enforcement proceedings. The provisions have been designed to provide adequate protection of confidential information during those enforcement proceedings, whilst ensuring compliance with the pillar of the Aarhus Convention that is concerned with access to environmental information, and with Council Directive 2003/4/EC on public access to environmental information. The Directive is implemented in England, Wales and Northern Ireland by the Environmental Information Regulations 2004 (EIR) and in Scotland by the Environmental Information (Scotland) Regulations 2004. The only way in which the provisions affect the application of the EIR is in the manner set out in subsection (7): that is, that information mentioned in subsections (1) and (3) is capable of attracting the exception relating to the confidentiality of proceedings of a public authority where such confidentiality is provided for by law.

324 Subsection (1)(a) sets out that the OEP must not disclose information which has been provided by a public authority as a response to a request for information from the OEP in an information notice (as provided for in clause 30(3)(b)), or otherwise obtained by the OEP on the basis of the duty on public authorities to cooperate, provided for in clause 22(1)). Under paragraph (b) of this subsection, the OEP cannot disclose any correspondence between the OEP and the recipients of information or decision notices that relates to those particular notices, including the information and decision notices themselves. Circumstances where this does not apply, and the OEP is able to disclose the information, are covered under subsection (2).

325 Under subsection (3), a public authority in receipt of an information or a decision notice may not disclose the notice or any correspondence between the OEP and that, or any other, public authority relating to that notice. Subsection (4) sets out the circumstances where the restriction in subsection (3) does not apply to a disclosure. This relates to cases such as where consent has been obtained, where the disclosure is required for the purposes of an investigation under clause 28, where disclosure is required to be able to respond to an information or decision notice, or where it is connected to an environmental review or judicial review proceedings.

326 Subsection (5) sets out that the OEP can only give its consent for disclosure of an information or a decision notice when it has concluded it intends to take no further steps under this Chapter.

327 Subsection (6) ensures that, if consent has been requested by a public authority, the OEP cannot withhold that consent for disclosure of correspondence if it has concluded it intends to take no further steps under this Chapter.

328 Subsection (7) provides that information referred to in subsection (1) and held by the OEP, or subsection (3) and held by a public authority, is to be regarded as "environmental information" in accordance with the EIR and held, for the purposes of these regulations, in connection with confidential proceedings. Whilst enforcement proceedings by the OEP are ongoing, the information referred to in subsection (1) will fall within an exception in the EIR that provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.

Chapter 3: Interpretation of Part 1

329 There is no universal definition of "the environment". Although a diverse array of definitions exists, each has been designed to describe the environment in a particular context, or from a specific perspective. A clear definition, therefore, is needed to determine the scope of the OEP. Clauses 39 and 40 define the "natural environment" and "environmental law" for the primary purpose of determining the range of legislation that falls within the remit of the OEP, and with respect to which the OEP can exercise its scrutiny, advice, complaints and enforcement functions. The definitions in clauses 39 and 40 are not intended to have any application beyond the interpretation of this Bill.

330 The definition of the "natural environment" is also relevant to the minimum scope of the environmental improvement plans.

Clause 39: Meaning of "natural environment"

331 In setting out the matters that are primarily the subject of environmental law, clause 39 uses the term "natural environment". The definition provided in the clause includes living elements of the environment, namely plants, wild animals, other living organisms (paragraph (a)), and their habitats (paragraph (b)). However, it is not intended to include domesticated animals such as livestock and pets. The definition also includes non-living elements, namely air, water and land (paragraph (c)). Buildings and other structures are excluded from the meaning of "land".

332 The clause also sets out that systems, cycles and processes through which the elements listed above interact are also included within this definition of the natural environment. This therefore includes ecosystems, and hydrological and geomorphological processes.

333 This definition covers the marine as well as the terrestrial environment. Moreover, the expression "water" will include seawater, freshwater and other forms of water, while "air" will include the atmosphere (including, for example, the ozone layer) and "land" will include soil, geological strata and other features.

Clause 40: Meaning of "environmental law"

334 This clause deals specifically with the definition of "environmental law", and therefore the scope of the OEP’s functions that depend upon this definition.

335 Subsection (1) defines "environmental law", for the purposes of this Part, as any legislative provision other than a devolved legislative provision (defined in subsection (4)), to the extent that the provision is mainly concerned with one of the matters described in subsection (2) and is not explicitly excluded under subsection (3).

336 Subsection (1) uses the term "legislative provision", which is a reference to UK legislation, and can cover specific sections or subsections of an Act, regulations or other forms of legislation. As such, the effect of this subsection is that the OEP will not have a statutory function to assess compliance with, or otherwise involve itself in matters concerning purely international environmental law. Rather, its remit will be limited to UK legislation that falls under the definition of environmental law, including legislation that implements international commitments.

337 The definition of environmental law applies at the level of legislative provisions (that is, the whole or any element of an Act or regulations). This means that, even if most of an Act or set of regulations does not meet these conditions, to the extent that any specific provisions in the Act or regulations do meet the conditions they should be considered as "environmental law".

338 When reading the matters set out under subsection (2), reference should be made to the definition of the "natural environment" in clause 39. These matters are: protecting the natural environment from the effects of human activity; protecting people from these effects; maintaining, restoring or enhancing the environment; and monitoring, advising or reporting on the above points.

339 The only matters explicitly and expressly excluded from the definition of environmental law are those which are concerned with an excluded matter listed under subsection (3), and devolved legislative provisions as defined in subsection (4). Unless so expressly excluded, any other law can be considered to determine whether individual legislative provisions are "mainly concerned" with an environmental matter. This does mean that within broadly environmental policy areas, whilst many provisions may meet these criteria, there may be certain provisions that will not be mainly concerned with an environmental matter, and therefore not constitute environmental law.

340 For example, the Forestry Act 1967 contains examples of provisions that would be considered to be mainly concerned with an environmental matter, and therefore constitute environmental law, as well as provisions which would not. Section 1(3A) of the Forestry Act 1967, for instance, places a duty on the appropriate authority to endeavour to achieve a balance between its functions in relation to afforestation and timber supply and production, and "the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest". As this places a duty on a public authority concerning the conservation of the natural environment, this provision would fall within scope. However, some other provisions within this Act would not, such as section 1(2), which charges the appropriate forestry authority "with the general duty of promoting the interests of forestry, the development of afforestation and the production and supply of timber and other forest products". This provision is mainly concerned with the promotion of the forestry sector and the production and supply of timber, rather than an environmental matter as listed in subsection (2), and as such would not be considered to fall within the definition of environmental law.

341 Another example is planning legislation. Whilst provisions concerning environmental impact assessment and strategic environmental assessment are clearly concerned with an environmental matter as set out in subsection (2), and therefore will fall within the definition of environmental law, most other areas of planning legislation are not mainly concerned with an environmental matter, and therefore will not fall within the definition.

342 It will be for the OEP to assess whether or not it considers a legislative provision to fall under the definition on a case by case basis when determining whether or not it has legal powers to act in that area. In most cases, it is expected that the answer to this question will be clear, and agreed by all parties. However, there may be cases of uncertainty or disagreement, and in these instances it may ultimately be for the courts to decide whether a specific provision falls within the definition or not.

343 Subsection (3) sets out matters that are explicitly excluded from the definition of environmental law:

Disclosure of or access to information. These matters are excluded under paragraph (a) in order to avoid overlap between the remit of the OEP and that of the Information Commissioner’s Office, which oversees and where necessary takes action to enforce public authorities’ compliance with the Environmental Information Regulations.

The armed forces or national security (paragraph (b)).

Legal provisions concerning taxation (paragraph (c)). The term "taxation" in this context refers to taxes in a legal sense, and therefore does not include other regulatory schemes that involve fees and charges for purposes other than taxation, such as the plastic bag charge or the imposition of fees to cover the cost of a regulatory regime. Such schemes are not automatically excluded from the Bill’s definition of "environmental law".

Paragraph (c) also excludes provisions concerning spending or the allocation of resources within government from the definition of "environmental law". As such, all finance acts are excluded.

344 Subsection (4) defines what is meant by "devolved legislative provision" as any provision which is contained in or created by legislation of the three devolved Assemblies and Parliaments, or which otherwise falls within their legislative competence.

345 Subsection (5) provides that the Secretary of State may use secondary legislation to clarify legislative provisions which are or are not environmental law. Provision in this way may be necessary in the light of experience, and could be made either by describing types of legislation in a similar way to the definitions in this clause, or by identifying specific provisions. Subsection (6) requires that the Secretary of State must consult the OEP, and any other persons the Secretary of State considers appropriate, before using this power to specify provisions.

346 Subsection (7) provides that any such provision made under subsection (5) would be made through a statutory instrument subject to the affirmative resolution procedure. This means it must be laid before and approved by a resolution of each House of Parliament.

Clause 41: Interpretation of Part 1: general

347 This clause defines various terms used throughout Part 1.

Part 2: Environmental Governance: Northern Ireland

Clause 42: Improving the natural environment: Northern Ireland

348 Clause 42 introduces Schedule 2, which includes provision for environmental improvement plans and policy statements on environmental principles in Northern Ireland.

Clause 43: The Office for Environmental Protection: Northern Ireland

349 Clause 43 introduces Schedule 3, which makes provision for the functions of the OEP in terms of its activities in Northern Ireland, as well as amendments to this Bill to reflect those functions.

Part 3: Waste and Resource Efficiency

Clause 44: Producer responsibility obligations

350 Clause 44 introduces Schedule 4, which amends sections 93 and 94 of the Environment Act 1995. Section 93 confers a power to make regulations to impose producer responsibility obligations on specified persons and in relation to specified products or materials. Section 94 makes further provision in relation to such regulations.

Clause 45: Producer responsibility obligations: Northern Ireland

351 Clause 46 introduces Schedule 5, which amends provisions in the Producer Responsibility Obligations (Northern Ireland) Order 1998. Schedule 5 amends Articles 2, 3, 4, 6 and 7, which allows regulations to be made imposing producer responsibility obligations on specified persons and in relation to specified products or materials in Northern Ireland. The amendments to the 1998 Order mirror the amendments made to sections 93 to 95 of the Environment Act 1995 by Schedule 4.

Clause 46: Producer responsibility for disposal costs

352 Clause 46 introduces Schedule 6, which allows the relevant national authority to make regulations that require those involved in manufacturing, processing, distributing or supplying products or materials to meet, or contribute to, the disposal costs of those products.

353 Subsections (2) and (3) sets out who the "relevant national authority" is. This is the Secretary of State in relation to England, the Scottish Ministers in relation to Scotland, the Welsh Minsters in relation to Wales, and the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland. The Secretary of State may make regulations on behalf of Wales, Scotland, or Northern Ireland, but only with the relevant Minister’s or Department’s consent.

354 Subsection (4) makes provision for regulations made under Schedule 6 to be subject to the affirmative resolution procedure.

Clause 47: Resource efficiency information

355 This clause gives effect to Schedule 7, which gives the relevant national authority the power to make regulations that set requirements for manufacturers and producers to provide information about the resource efficiency of their products. The purpose of the power is to enable the regulation of products that have a significant impact on natural resources at any stage of their lifecycle, with the object of reducing that impact primarily through ensuring consumers are supplied with information about the resource efficiency of those products in order to drive more sustainable consumption. Regulations may impose requirements on any person connected with a product’s supply chain, and in relation to any type of product other than some specified exceptions.

356 Subsection (1) sets out that the Schedule is divided into two parts. Part 1 gives power to the relevant national authority to make regulations about requiring resource efficiency information. Part 2 gives the relevant national authority power to make regulations about the enforcement of these information requirements.

357 Subsection (2) defines the "relevant national authority" in each territory.

358 Subsection (3) makes clear that regulations made under Schedule 7 by either Welsh Ministers, Scottish Ministers or Department of Agriculture, Environment and Rural Affairs can only contain provisions that are within their legislative competence.

359 Subsection (4) makes clear that the Secretary of State must obtain the consent of the appropriate national authority before making provisions in regulations that fall under the legislative competence of another national authority.

360 Subsection (5) states that regulations under Schedule 7 are subject to affirmative procedure.

361 This clause and Schedule 7 extend and apply to England and Wales, Scotland and Northern Ireland.

Clause 48: Resource efficiency requirements

362 This clause gives effect to Schedule 8, which gives the relevant national authority the power to make regulations that set resource efficiency requirements that products are required to meet. The purpose of the power is to enable the regulation of products that have a significant impact on natural resources at any stage of their lifecycle, with the object of reducing that impact primarily through setting requirements relating to durability, reparability and recyclability, and the recycled content of products and materials. Regulations may impose requirements on any person connected with a product’s supply chain, and in relation to any type of product other than some specified exceptions.

363 Subsection (1) sets out that the Schedule is divided into two Parts. Part 1 gives power to the relevant national authority to make regulations about resource efficiency standards. Part 2 will give the relevant national authority power to make regulations about the enforcement of these standards.

364 Subsection (2) defines the "relevant national authority" in the same way as in clause 47.

365 Subsection (3) makes clear that regulations made under this Schedule by either Welsh Ministers, Scottish Ministers or the Department of Agriculture, Environment and Rural Affairs can only contain provisions that are within their legislative competence.

366 Subsection (4) makes clear that the Secretary of State must obtain the consent of the appropriate national authority before making provisions in regulations that fall under the legislative competence of another national authority.

367 Subsection (5) states that regulations made under this Schedule are subject to the affirmative procedure.

368 This clause and Schedule 8 extend and apply to England and Wales, Scotland and Northern Ireland.

Clause 49: Deposit schemes

369 Clause 49 and Schedule 9 enable the relevant national authority – namely, the Secretary of State, in relation to England, Welsh Ministers, in relation to Wales, and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, in relation to Northern Ireland – to make regulations establishing deposit schemes. Subsections (3) and (4) allow the Secretary of State to make regulations on behalf of Wales and Northern Ireland, subject to their consent. Subsections (5) and (6) outline the parliamentary procedure for regulations establishing a deposit scheme. Regulations are subject to the negative resolution procedure, except in the below cases when they are subject to the affirmative resolution procedure:

the regulations establish a deposit scheme for the first time;

the regulations are the first to provide for enforcement of a deposit scheme;

the regulations create a criminal offence;

the regulations provide for new civil sanctions; or

the regulations increase the amount or the maximum amount of a fine or monetary penalty, or change the basis on which an amount of maximum amount of a fine or monetary penalty is to be determined.

370 Subsection (7) and paragraph 1(2) of the Schedule set out what a deposit scheme is. This is a scheme under which a person supplied with a deposit item by a scheme supplier (this might be a producer, retailer or distributor) by way of sale or in connection with the supply of goods or services pays the supplier an amount (the deposit) and a person who gives a deposit item to a scheme collector (this might be a retailer or other return point) is entitled to be paid a refund in respect of that item.

Clause 50: Charges for single use plastic items

371 This clause introduces Schedule 10 and allows for the making of regulations about charges for single use plastic items.

372 Subsection (2) defines who the relevant national authority is for the purposes of making regulations under the Schedule; this is the Secretary of State, in relation to England, Welsh Ministers, in relation to Wales and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, in relation to Northern Ireland.

373 Subsection (3) sets out the circumstances in which the affirmative procedure applies to the making of regulations (namely, where the first set of regulations is made by the relevant national authority under the Schedule, where the regulations contain provision about charging for a new item, where the regulations contain provisions imposing or providing for the imposition of new civil sanctions, or where the regulations increase the maximum amount of a monetary penalty or change the basis on which it is to be determined.) Otherwise, regulations under the Schedule are subject to the negative resolution procedure.

Clause 51: Charges for carrier bags

374 This clause amends Schedule 6 of the Climate Change Act 2008 ("the 2008 Act") by inserting a new paragraph 6A. New paragraph 6A makes provision for regulations made under Schedule 6 by the Secretary of State in relation to England, and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland in relation to Northern Ireland, to require sellers of single use carrier bags to register with an administrator. The regulations may also make provision about applications for registration, the period of registration, the cancellation of registration, and the payment of registration fees, including the amount.

375 Schedule 6 of the 2008 Act contains enabling powers conferred on the relevant national authority to make regulations about charges for single use carrier bags. Section 77(3) of the 2008 Act defines the "relevant national authority" as the Secretary of State in relation to England, the Welsh Ministers in relation to Wales, and the Department of the Environment in Northern Ireland in relation to Northern Ireland. However, new paragraph 6A does not apply to regulations made by Welsh Ministers in relation to Wales.

Clause 52: Separation of waste: England

376 Clause 52 concerns the separation of waste for recycling. It amends the Environmental Protection Act 1990, in particular replacing the current section 45A and inserting new sections 45AZA to 45AZG, and the Environment Act 1995.

377 Subsection (2) inserts additional definitions into section 30 of the Environmental Protection Act. These define "English waste disposal authority" and "English waste collection authority" as those whose area is in England. A waste collection authority is a term applied to those collecting waste on behalf of local authorities (and is defined in section 30(3) of the Environmental Protection Act). Given that section 45A duties apply to arrangements made by English waste collection authorities only, this has the effect of limiting the changes in new section 45A of the Environmental Protection Act to waste collection authorities within England only.

378 Subsection (3) amends section 33ZA of the Environmental Protection Act, which relates to fixed penalty notices, to omit the definition of "English waste collection authority". This is because the definition is now provided in the amended section 30 of the Environmental Protection Act.

379 Subsection (4) amends the Environment Protection Act to provide for separate collection of waste in England. It replaces section 45A with new sections 45A to 45AZG.

 

Prepared 14th October 2019