Commentary on provisions of Bill
Part 1: Environmental Governance
Chapter 1: Improving the natural environment
Clause 1: Environmental targets
60 Clause 1 provides a power for the Secretary of State to set long-term targets by regulation.
61 Subsection (1) provides the Secretary of State with a power to set long-term targets in relation to the natural environment or people's enjoyment of it. The natural environment is defined in clause 41 (meaning of "natural environment"). This definition includes living and non-living elements of the environment, such as plants, wildlife, their habitats, air, water and land, natural systems and processes through which organisms interact with their surroundings. As such, the definition extends to the marine environment, as well as the terrestrial and water environments. Targets relating to people’s enjoyment of the natural environment may relate to its use, access to natural areas or a measure of public views about the environment. Among other initiatives, enjoyment may be increased through education and public awareness of the natural environment both past and present.
62 Subsection (2) requires the Secretary of State to set at least one long-term target in each of four priority areas. More than one long-term target could be set within a given priority area; however, one is the minimum. Subsection (3) defines those priority areas as air quality, water, biodiversity, and resource efficiency and waste reduction. Clause 3(9) requires that a draft statutory instrument (or instruments) satisfying the requirement in subsection (2) must be laid before Parliament by 31 October 2022.
63 Subsection (4) requires all long-term targets set under this clause to specify an objectively measurable standard to be achieved and a date by which this standard must be achieved.
64 A specified standard might be the exposure of a certain area to damaging levels of ammonia in the atmosphere, for example. The method for objective measurement should be clear and repeatable, with results reproducible within reason. The process of setting targets will necessarily involve some choices as to how a target will be measured. Subsection (5) provides that regulations made under this clause may make provision specifying how a target will be measured.
65 Subsection (6) provides that long-term targets must have a minimum duration of 15 years.
66 Subsection (7) clarifies that a target is initially set once the regulations setting it come into force. This is relevant to calculating the specified date (that is, the duration) of long-term targets under this clause. Subsection (8) provides that, in Part 1, the terms "specified standard" and "specified date" mean the standard and date specified in subsection (4).
67 By virtue of clause 2(6), subsections (4) to (9) also apply to the PM2.5 air quality target set under clause 2.
68 This clause, and clauses 2 to 6, extend to England and Wales. Subsection (9) prevents the Secretary of State from making provision in regulations made under this clause that could be made in an Act of the Welsh Assembly. The regulations made under this clause can therefore make provision relating to the natural environment in England (including the English inshore area), as well as in the offshore area (to the extent that Her Majesty’s Government has functions).
Clause 2: Environmental targets: particulate matter
69 Subsection (1) introduces a requirement for the Secretary of State to set a target for an annual mean concentration level of fine particulate matter (PM2.5) in ambient air, in secondary legislation by regulations. These regulations will be made having obtained expert advice as to the date that the target can be achieved and having considered the full economic analysis in line with clause 3(1).
70 Subsection (2) provides clarification that the fine particulate matter target is not required to be set for 15 years in the future, and therefore may not be a long-term target as defined in clause 1. This could be the case if the independent expert advice is that the target could be achieved more quickly.
71 Subsection (3) defines fine particulate matter (PM2.5).
72 Subsection (4) specifies that regulations setting the target can also define "ambient air".
73 Subsection (5) clarifies the duty to set a target for fine particulate matter in this clause does not discharge the duty on the Secretary of State to set a further long-term target for air quality under clause 1.
74 Subsection (6) clarifies the elements of the environmental targets framework set in clause 1 that apply to the fine particulate matter target. These elements include the provisions that specify that the target will be set by secondary legislation that will specify the standard to be achieved and the date by which it will be achieved, as well as the details regarding how the target will be measured.
75 Subsection (7) defines the "PM2.5 air quality target" as being the target set under subsection (1).
Clause 3: Environmental targets: process
76 Clause 3 sets out the process that must be followed by the Secretary of State before setting and amending any target.
77 Subsection (1) requires the Secretary of State to seek advice from independent experts before making any regulations under clauses 1 and 2. This could involve consulting expert individuals or bodies, with the purpose of advising the Secretary of State on setting appropriate targets.
78 Subsection (2) specifies that, when setting or amending a target, the Secretary of State must be satisfied that the target, or the amended target, can be met.
79 Subsections (3) to (6) set out the process for amending a target so as to lower or revoke it. Lowering a target is defined in subsection (5) as a lowering of the standard to be achieved or an extension of the specified date for achieving the target. For example, where a target requires an increase in standard based on a numerical value, a reduction in that numerical value would constitute a lowering of the target.
80 Subsection (3) provides that a target may only be lowered or revoked where the Secretary of State is satisfied that meeting the target would have no significant benefit as compared to not meeting it or meeting a lower target, or that because of a change in circumstances, the costs of meeting the target would be disproportionate to the benefits. Those costs might be of an environmental, social, economic, or other nature.
81 Meeting a target may have no significant benefit – for example, if meeting it was anticipated to generate a health benefit, and new scientific evidence has now demonstrated that the same health benefit is achievable through meeting a revised or entirely new target.
82 A change in circumstances may, for example, occur as a result of an event, such as a significant wild fire or major flood, taking place after the target is set. The financial costs, for example, of meeting the target may, following this change of circumstance, then be disproportionate to the benefits gained by meeting the target.
83 Subsection (4) requires that, before lowering or revoking a target, the Secretary of State must publish and lay before Parliament a statement that explains why the Secretary of State is satisfied that one of the grounds in subsection (3) has been met.
84 Subsection (6) prevents the Secretary of State from using the processes set out in this clause to revoke the PM2.5 air quality target; however, the target may otherwise be amended in line with this clause.
85 Subsection (7) provides that, for the purposes of Part 1, a target is met where the specified standard is met by the specified date.
86 Subsection (8) specifies that the regulations made under clauses 1 and 2 are subject to the affirmative procedure.
87 Subsection (9) requires that a draft statutory instrument (or instruments) containing regulations setting the long-term targets for the priority areas required under clause 1(2) and the PM2.5 air quality target set under clause 2 must be laid before Parliament by 31 October 2022.
Clause 4: Environmental targets: effect
88 Clause 4 provides that the Secretary of State has a duty to ensure that the long-term targets set under clause 1 and the PM2.5 air quality target set under clause 2 are met.
89 The environmental improvement plan (EIP) provisions under clauses 8, 11 and 14 set requirements for consideration of the progress made towards meeting targets, and for consideration of the need to introduce new measures to meet targets, when reviewing and renewing EIPs.
Clause 5: Environmental targets: reporting duties
90 Clause 5 sets out the reporting duties that must be fulfilled when a long-term target set under clause 1 or the PM2.5 air quality target set under clause 2 ends.
91 Subsection (1) requires that all regulations setting targets under clauses 1 and 2 contain a reporting date. This is the date used to determine the timescales for producing the statements under clause 5.
92 Subsections (2) and (3) require the Secretary of State to prepare a statement confirming whether or not each target has been met. Alternatively, the statement may provide that the Secretary of State is currently unable to make that confirmation. The statement must be published, and laid before Parliament, by the relevant reporting date set under subsection (1).
93 Subsections (4) and (5) set out the process the Secretary of State must follow in the event that the statement made under subsection (2) confirms that the target has not been met. The Secretary of State must prepare a report explaining why the target has not been met and setting out the steps taken, or intended to be taken, to achieve the required standard as soon as reasonably practicable. That report must be published, and laid before Parliament, within twelve months of the statement being laid.
94 Subsection (3)(c) provides that, where the Secretary of State is unable to confirm whether or not a target has been met, the statement made under subsection (2) must explain why and set out the steps the Secretary of State intends to take in order to be able to make that determination. In these cases, subsection (6) provides that the Secretary of State must prepare a further subsection (2) statement within six months of the initial statement being laid. There may be cases when the data needed to assess whether a target has been met is not yet available, and the Secretary of State is therefore unable to confirm target achievement on the reporting date. Subsection (7) provides that, where further statements are needed pursuant to subsection (6), the requirements of subsections (3) to (6) apply equally to those statements.
Clause 6: Environmental targets: review
95 Clause 6 sets out the procedure for the Secretary of State to conduct a periodic review of all targets set under clauses 1 and 2.
96 Subsection (1) sets out the requirement for the Secretary of State to conduct the review. Subsection (2) clarifies that the purpose of the review is to consider whether the significant improvement test is met.
97 Subsection (3) explains that the significant improvement test is met where meeting the targets set under clauses 1 and 2, and any other environmental targets that the Secretary of State considers appropriate to consider, will bring about a significant improvement in the natural environment in England. Subsection (8) sets out certain requirements that those other environmental targets must meet to be capable of consideration.
98 Subsection (4) provides that, following the conclusion of the review, the Secretary of State must publish, and lay before Parliament, a report confirming whether the Secretary of State considers that the significant improvement test has been met. Where the Secretary of State considers that the test has not been met, the report must set out the steps the Secretary of State proposes to take, using the powers in clauses 1 and 2, to ensure that it is met. In addition to identifying potential new targets, the report might also acknowledge, for example, the need for more research in a particular policy area in order to examine the possibility of developing a target in future.
99 Subsection (5) sets out that the Secretary of State must complete the first significant improvement test review by 31 January 2023.
100 Subsection (6) provides that, following the first review, future reviews must be conducted at intervals of no more than five years. Subsection (7) confirms that a review is completed when the Secretary of State publishes, and lays before Parliament, a report under subsection (4).
101 Subsection (8) sets out the conditions that a target set otherwise than under clauses 1 and 2 must meet in order to be capable of consideration by the Secretary of State under subsection (3)(b). In broad terms, those targets must meet the same standards as targets set under clauses 1 and 2. These conditions include the need for a target to have an objectively measurable standard to be achieved by a specific date.
102 The National Emission Ceilings Regulations 2018 targets are examples of those that may be taken into consideration under the conditions set out in subsection (8). These targets relate to reductions in total anthropogenic emissions of five key air pollutants in the UK by 2030.
Clause 7: Environmental improvement plans
103 Clause 7 introduces a duty on the Secretary of State to prepare a plan for significantly improving the natural environment (an "EIP"). It sets requirements for what an EIP must contain. The 25 Year Environment Plan, as published on 11 January 2018, will become the first EIP.
104 Subsection (1) introduces the requirement for the Secretary of State to prepare an EIP.
105 Subsection (2) clarifies that an EIP is a plan for significantly improving the natural environment in the period it covers. The natural environment is defined in clause 41 (meaning of "natural environment"). This definition includes living and non-living elements of the environment, such as plants, wildlife, their habitats, air, water and land. As such, the definition extends to the marine environment, as well as the terrestrial and water environments.
106 Subsection (3) specifies that the period of each EIP must be at least 15 years. Long-term EIPs are needed because some aspects of the natural environment change slowly and require continuity in how they are managed. The current 25 Year Environment Plan covers a period of 25 years, but a future government may prefer to set an EIP for a different period. Clause 9 requires the government to review and revise EIPs at least every five years. A period of 15 years allows for an EIP to be introduced, reviewed and revised twice before its end. This will allow its effectiveness to be assessed, and meaningful corrective action taken if necessary.
107 Subsection (4) specifies that the EIP must set out the steps the government will take to improve the natural environment during the lifetime of the EIP.
108 Subsection (5) allows EIPs to contain steps the Government will take to improve people’s enjoyment of the natural environment. Steps relating to people’s enjoyment of the natural environment may relate to its use, access to natural areas or a measure of public views about the environment. Amongst other initiatives, enjoyment may be increased through education and public awareness of the natural environment both past and present, natural systems and processes through which organisms interact with their surroundings. For example, the current 25 Year Environment Plan includes the ambition to make it easier for schools and pupil referral units to take pupils to natural spaces on a regular basis. This policy aims to increase enjoyment of the natural environment through learning, improved wellbeing and raised public awareness.
109 This clause and clauses 8 to 14, 15, and 25 extend to England and Wales. Subsection (6) provides that the Secretary of State’s functions in relation to EIPs are not exercisable in relation to the natural environment in Wales. The policy areas covered by EIPs therefore could cover the natural environment in England (including the English inshore area), as well as in the offshore area (to the extent that Her Majesty’s Government has functions) and to Her Majesty’s Government’s international policy (including to the Overseas Territories where Her Majesty’s Government has functions: Gibraltar and the British Virgin Islands, for example).
110 Subsection (7) confirms that the current 25 Year Environment Plan must be treated as an EIP. Furthermore, subsection (8) specifies that references to the first EIP are to that document, and that references to the current plan refer to the plan that is in effect at the time.
Clause 8: Annual reports on environmental improvement plans
111 Clause 8 establishes a duty on the Secretary of State to produce annual reports on the implementation of the environmental improvement plan (EIP) and on whether the natural environment is improving. It explains when and how these reports should be published. Given clause 7(6), this clause applies only in relation to England.
112 Subsection (1) requires the Secretary of State prepare annual reports on the implementation of EIPs. These reports must be published (subsection (8)) and laid before Parliament (subsection (7)).
113 Subsection (2) requires that annual reports must describe what has been done to implement the EIP, and consider whether the natural environment (or particular aspects of it) has improved, during the period to which the report relates. Consideration of whether the environment has improved must have regard to information gathered under clause 15.
114 Subsection (3) provides that, when considering whether the natural environment (or aspects of it) has improved, the Secretary of State must consider the progress that has been made towards achieving the targets (or any relevant targets) set under clauses 1 and 2, and the interim targets (or any relevant interim targets) set under clauses 10 and 13.
115 Subsection (4) explains that the first annual report on the current EIP may cover any 12 month period that includes the day on which clause 8 comes into force. Government has already committed to producing annual reports on the implementation of the 25 Year Environment Plan. The first report was published on 16 May 2019, and covers the period from the EIP being launched until March 2019. The intention of this subsection is to allow the timing of the first statutory report to be aligned with the preceding non-statutory reports.
116 Subsection (5) states that, following the replacement of the current EIP, the first annual report should relate to the first 12 months of that EIP.
117 Subsection (6) states that all other annual reports should relate to the 12 month period immediately following the previous reporting period. This ensures that there is a continuous timeline of annual reports relating to consecutive 12 month periods for the duration of each EIP.
118 Subsection (7) requires the Secretary of State to lay each annual report before Parliament within four months of the end of the 12 month period on which it reports. For example, an annual report assessing the period 1st April 2020 to 31st March 2021 must be laid before Parliament by 31 July 2021. Subsection (8) requires the Secretary of State to publish all annual reports laid before Parliament under this clause.
Clause 9: Reviewing and revising environmental improvement plans
119 Clause 9 provides for the review and revision of EIPs. It establishes a duty on the Secretary of State to review the EIP, and timeline in which to complete a review and, if appropriate, revise the plan. Given clause 7(6), this clause applies only in relation to England.
120 Subsection (1) establishes the duty on the Secretary of State to review the EIP and, if the Secretary of State is required to revise the plan under clause 10, or considers it appropriate to revise the plan as a result of the review, to produce a revised plan. It is expected that revisions will be appropriate when each EIP is reviewed, but this clause does allow the Secretary of State to decide that no revision is appropriate following a review of the EIP.
121 Subsection (2) specifies that a revised plan will cover the remaining time period of the existing plan. The current EIP runs until 2043; any revisions to this plan will also be required to cover the period up to 2043. Furthermore, when an EIP for a future time period is produced in line with clause 12, the time period will be specified in that EIP and any revisions to it must retain the same end date.
122 Subsection (3) specifies that the first EIP (the 25 Year Environment Plan) must be reviewed by the end of January 2023. This is just over five years from its publication. This is considered to be sufficient time for some progress to be made against the EIP, for the monitoring of the environment to assess improvement established, and for early results to be obtained. This time also allows for weaknesses and gaps in the EIP and policy changes to be identified that may require a revision to the EIP.
123 Subsection (4) applies to future EIPs, and ensures that they too are first reviewed within five years of taking effect.
124 Subsection (5) provides that, following the first review of an EIP, further reviews must be undertaken within every five year period for the duration of the EIP. In accordance with this, the 25 Year Environment Plan must be reviewed for a second time before 31 January 2028.
125 Subsection (6) requires that when the Secretary of State has completed a review and determined it appropriate to revise the plan, then this revised plan must be laid before Parliament along with a statement explaining what revisions have been made and why. This statement may be part of the same document as the revised plan or a separate document.
126 Subsection (7) requires that, if the Secretary of State completes a review but does not consider it appropriate to revise the EIP, then the Secretary of State must lay before Parliament a statement to this effect and the reasons for this. Whilst the Secretary of State is required to complete a review within the five year timeline there is no duty to revise the EIP if a revision is not appropriate. (However, the Secretary of State must revise the EIP if so required under clause 10.) This allows for a revision to the EIP to be delayed if the Secretary of State considers it appropriate, but such a decision must be justified to Parliament.
127 Subsection (8) requires the Secretary of State to publish any documents laid before Parliament following a review of an EIP. These will be the revised plan and reasoning as in subsection (6), or the statement as to why no revision is considered appropriate as in subsection (7).
128 Subsection (9) specifies that a review is to be considered completed when documents have both been laid before Parliament and published. This is the completion date for the purpose of meeting the requirement to complete a review within five years of an EIP being published or previous review. It also becomes the start date for the next five-year time period for completing the subsequent review.
129 Subsection (10) clarifies that, when the EIP is revised in accordance with this clause, the references to an EIP in this Bill refer to the now revised EIP.
Clause 10: Reviewing and revising plans: interim targets
130 Clause 10 provides for interim targets to be included in environmental improvement plans (EIPs), and sets out the requirements for those interim targets. Given clause 7(6), this clause applies only in relation to England.
131 Subsection (1) requires the Secretary of State, during the first review of the first EIP, to revise the plan so as to include at least one interim target in relation to the targets set under clauses 1 and 2 (for a "relevant matter", see subsection (3)), and to ensure that from the date that the first review is completed (for the "relevant date", see subsection (9)) there is an interim target for each such target for the next five years.
132 Subsection (2) contains an equivalent provision for subsequent reviews of the EIP. It requires the Secretary of State, during each review of the EIP, to make any revisions necessary to include at least one interim target in relation to any targets set under clauses 1 and 2 since the previous review, and to ensure that from the date that the relevant review is completed there is an interim target for each target for the next five years.
133 Subsections (1) and (2) give the Secretary of State the flexibility to set just one interim target for the five year period between EIP reviews, or multiple, shorter interim targets for this same period.
134 Subsection (3) provides that the term "relevant matter" means any matter where there is a target under clauses 1 or 2.
135 Subsection (4) ensures that the requirement in subsection (2)(b) to maintain an interim target does not apply where the specified end date of the relevant target under clauses 1 or 2 falls within the relevant five-year period. For example, if a long-term target expires four months after the date on which an EIP review is completed, there is no requirement for the Secretary of State to set an interim target because the long-term target expires so quickly.
136 Subsection (5) clarifies that the Secretary of State may revise or replace interim targets during any EIP review, regardless of whether revisions are needed pursuant to subsections (1) and (2).
137 Subsection (6) provides that interim targets must consist of an objectively measurable standard to be achieved across a specified time period. Subsection (7) provides that this time period must be no longer than five years. For the first interim targets, that period starts on the date on which the relevant EIP review is completed. For subsequent interim targets, that period starts on that date or the date on which the previous interim target expired.
138 Subsection (8) provides that, when setting or revising any interim target, the Secretary of State must be satisfied that meeting it will make an appropriate contribution towards meeting the relevant target under clauses 1 or 2. This will ensure that the Secretary of State takes account of the overall trajectory of environmental improvement required in order to meet those targets.
139 Subsection (9) provides that the term "relevant date" means the date on which a review is completed.
Clause 11: Reviewing and revising plans: other requirements
140 Clause 11 sets out what the Secretary of State must consider when reviewing an environmental improvement plan (EIP). Given clause 7(6), this clause applies only in relation to England.
141 Subsection (1) sets out that the Secretary of State must take the following into consideration when reviewing an EIP:
● what steps the government has taken to implement the EIP since it was published, or (if it has been reviewed before) since it was last reviewed;
● whether the natural environment (or particular aspects of it) has improved during that period; and
● whether the government should take further or different steps compared to those in the plan to improve the natural environment in the remaining period of the EIP.
142 When considering whether the natural environment has improved, the Secretary of State must have regard to data obtained under clause 15 and reports made by the Office of Environmental Protection under clause 25.
143 In addition, subsection (2) requires the Secretary of State, when considering whether the natural environment (or particular aspects of it) has improved, to consider the progress made towards meeting the targets (or any relevant targets) set under clauses 1 and 2, and the interim targets (or any relevant interim targets) set under clauses 10 or 13.
144 Subsection (3) requires the Secretary of State, when considering whether further or different steps should be taken to improve the natural environment, to consider whether further or different steps should be taken to meet those targets.
Clause 12: Renewing environmental improvement plans
145 Clause 12 provides for the Secretary of State to replace the environmental improvement plan (EIP) with a renewed version, and what the Secretary of State must consider as part of this process. Given clause 7(6), this clause applies only in relation to England.
146 Subsection (1) requires the Secretary of State to prepare a new EIP before the end date of the existing EIP.
147 Subsection (2) requires the new EIP to cover a period that starts no later than immediately after the end of an existing EIP, ensuring there is no gap between EIPs.
148 Subsection (3) requires the Secretary of State to publish and lay before Parliament the new EIP on or in advance of the end date of the existing EIP.
149 Subsection (4) specifies when the new EIP begins. At its earliest, this will be when the EIP has been laid before Parliament and published, but it can be later if the period to which the EIP relates begins after this date.
150 The provisions in clauses 12 to 14 allow for plans to be completely replaced (as distinct to clauses 9 to 11, which allow for the amendment of existing plans). It is anticipated that future governments may choose to renew EIPs before they reach the end of their lifetime to enable them to include longer term actions.
Clause 13: Renewing plans: interim targets
151 Clause 13 provides for interim targets to be included in new environmental improvement plans (EIPs), and sets out the requirements for those interim targets. Given clause 7(6), this clause applies only in relation to England.
152 Subsection (1) requires that a new EIP include at least one interim target in relation to the targets set under clauses 1 and 2 (for a "relevant matter", see subsection (2)), and to ensure that from the date that the new EIP commences for the "relevant date", see subsection (7)) there is an interim target for each such target for the next five years.
153 Subsection (2) provides that the term "relevant matter" means any matter where there is a target under clauses 1 or 2.
154 Subsection (3) ensures that the requirement in subsection (1) to maintain an interim target does not apply where the specified end date of the relevant target under clause 1 or 2 falls within five years of the start of the new plan. For example, if a long-term target expires four months after the date on which a new EIP period commences, there is no requirement for the Secretary of State to set an interim target because the long-term target will expire so quickly.
155 Subsection (4) provides that interim targets must consist of an objectively measurable standard to be achieved across a specified time period. Subsection (5) provides that this time period must be no longer than five years. For the first interim targets, that period starts on the date on which the new EIP period commences. For subsequent interim targets, that period starts on the date the previous interim target expired.
156 Subsection (6) provides that, when setting any interim target, the Secretary of State must be satisfied that meeting it will make an appropriate contribution towards meeting the relevant target under clause 1 or 2. This will ensure that the Secretary of State takes account of the overall trajectory of environmental improvement required in order to meet those targets.
157 Subsection (7) provides that the term "relevant date" means the date on which the new EIP period commences.
158 Subsection (8) clarifies that references to a "new plan" are to be read in accordance with the definitions in clause 12(1).
Clause 14: Renewing plans: other requirements
159 Clause 14 sets out what the Secretary of State must consider when renewing an environmental improvement plan (EIP). Given clause 7(6), this clause applies only in relation to England.
160 Subsection (1) sets out that the Secretary of State must take the following into consideration when renewing an EIP:
● what steps the government has taken to implement the old EIP during the period to which it related;
● whether the natural environment has improved since the beginning of the period to which the old plan related; and
● whether the government should take further or different steps (compared to those in the old plan) to improve the natural environment in the period to which the new EIP relates.
161 When considering whether the natural environment has improved, the Secretary of State must have regard to data obtained under clause 15 and reports made by the Office of Environmental Protection under clause 25).
162 In addition, subsection (2) requires the Secretary of State, when considering whether the natural environment has improved, to consider the progress made towards meeting the targets set under clauses 1 and 2, and the interim targets set under clauses 10 or 13.
163 Subsection (3) requires the Secretary of State, when considering whether further or different steps should be taken to improve the natural environment in the new EIP, to consider whether further or different steps should be taken to meet those targets.
164 Subsection (4) clarifies that references to "old plan" and "new plan" are to be read in accordance with the definitions in clause 12.
Clause 15: Environmental monitoring
165 Clause 15 establishes a duty on the Secretary of State to obtain and publish metrics for the purpose of seeking environmental improvement. The metrics will measure outcomes achieved through the implementation of the actions set out in the environmental improvement plan (EIP) and inform updates to it. The data will also allow the progress being made towards meeting targets to be monitored. Given clause 7(6), this clause applies only in relation to England.
166 A suite of indicators and metrics has most recently been published by government, in May 2019, as Measuring environmental change: outcome indicator framework for the 25 Year Environment Plan.
167 Subsection (1) requires the Secretary of State to obtain data about the natural environment appropriate for monitoring whether the natural environment (or particular aspects of it) is improving in accordance with the EIP, and for monitoring progress towards meeting any targets set under clauses 1 and 2 and any interim targets set under clauses 10 and 13.
168 Subsection (2) requires the Secretary of State to specify in a statement what kinds of data will be obtained, and to lay this statement before Parliament and publish it. This statement will provide the details of how the environment is to be monitored to determine whether there has been an improvement in the environment in accordance with the EIP and progress towards meeting targets.
169 Subsection (3) specifies that the first statement on monitoring data must be laid before Parliament within four months of this clause coming into force.
170 Subsection (4) allows for the Secretary of State to revise the statement on monitoring data at any time. This may be necessary if it becomes clear that additional data is needed, or that current measures do not adequately assess environmental improvement or target progress. Such a revised statement must also be laid before Parliament and published (subsection (2)).
171 Subsection (5) requires that data collected under the clause must be published.
Clause 16: Policy statement on environmental principles
172 Clause 16(1) requires the Secretary of State to prepare a policy statement on the environmental principles set out in subsection (5).
173 Subsection (2) provides specific information on what the environmental principles policy statement must include. The policy statement will explain how Ministers of the Crown should interpret and proportionately apply the environmental principles when developing policies. Proportionate application means ensuring that action taken on the basis of the principles balances the potential for environmental benefit against other benefits and costs associated with the action. This means that a policy where there is the potential for high environmental damage would require more stringent action than a policy where the potential environmental damage is low. This consideration of the principles policy statement throughout the policy-making process may be carried out by policy-makers on behalf of Ministers of the Crown, though Ministers will retain the responsibility to have due regard to the policy statement.
174 Subsection (3) sets out that the Secretary of State may explain in the statement how other considerations should be taken into account by Ministers of the Crown when they are interpreting and applying environmental principles. For example, it may be necessary to balance the application of a specific environmental principle against other considerations, such as economic and social benefits, whilst taking care to ensure that these do not supersede environmental benefit but are considered alongside.
175 Subsection (4) details two aims that the Secretary of State must be satisfied that the statement will contribute to. These are:
● The improvement of environmental protection. This means being satisfied that the policy statement will be used to shape policies in a way that protects the environment. It underpins the interpretation and application of the environmental principles. This consideration is to be taken in line with other necessary considerations in these clauses, such as in subsection (3).
● Sustainable development. Sustainable development can be summarised as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It involves trying to achieve environmental benefit alongside economic growth and social progress. Therefore, the Secretary of State must be satisfied that, when using the policy statement, Ministers of the Crown will consider the needs of future generations. This means that Ministers should consider the environmental impact of their policies together with the economic and social factors and, as much as possible, ensure policy achieves all three aims.
176 Subsection (5) sets out the list of environmental principles the policy statement will cover. These principles are drawn from a number of sources, including, for example, the Rio Declaration on Environment and Development (1992).
177 There is no single agreed definition of the environmental principles. The policy statement will explain in more detail how these are to be interpreted, and provide information as to how they should be applied.
178 The meaning of the individual environmental principles is as follows:
● The principle that environmental protection must be integrated into the making of policy: environmental protection must be embedded in the making of policies.
● The principle of preventative action to avert environmental damage: preventive action should be taken to avert environmental damage.
● The precautionary principle so far as relating to the environment: where there are threats of serious irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. This applies to issues regarding the natural environment and includes where human changes to the natural environment impacts upon human health, such as air quality.
● The principle that environmental damage should as a priority be rectified at source: environmental damage should as a priority be rectified by targeting its original cause and taking preventive action at source.
● The ‘polluter pays’ principle: the costs of pollution control and remediation should be borne by those who cause pollution rather than the community at large.
179 Further direction on these environmental principles will be set out in the policy statement. These principles cannot be changed without primary legislation.
Clause 17: Policy statement on environmental principles: process
180 Clause 17 establishes the process by which the Secretary of State will develop and publish the environmental principles policy statement.
181 Subsection (1) sets out the duty for the Secretary of State to prepare a draft policy statement. This will be an initial version of the statement before public and parliamentary scrutiny.
182 Subsection (2) requires the Secretary of State to conduct a public consultation.
183 Subsection (3) requires that a draft must be produced and laid before Parliament for its consideration. This must take place before the policy statement is finalised.
184 Subsection (4) includes provisions for cases where Parliament chooses to respond to the draft policy statement, either by passing a resolution in respect of the draft policy statement, or recommending changes to the statement, within the period of 21 sitting days after the draft statement has been laid. The Secretary of State is required to lay a response to any resolution passed or recommendations made by Parliament.
185 Subsection (5) requires the final policy statement to be presented to Parliament before being published. The Secretary of State must not publish the final statement before laying a response if required under subsection (4) or, otherwise, before a period of 21 sitting days has passed since the draft statement is laid. This is intended to allow Parliament sufficient time to scrutinise the draft policy statement.
186 Subsection (6) provides that the final policy statement comes into force when laid before Parliament, at which point the Secretary of State is required to publish it (subsection (7)).
187 Subsection (10) enables the requirements in subsections (1) and (2) as to preparation of the statement and consultation to be met prior to the coming into force of the relevant provisions of the Bill.
188 Subsection (11) allows the Department to revise the policy statement at any time and requires the process set out in sub-paragraphs (1) to (9) to be followed each time that the policy statement is revised.
Clause 18: Policy statement on environmental principles: effect
189 Clause 18 sets out the legal duty on Ministers of the Crown in using the environmental principles policy statement. It also details the relevant exemptions to the duty to have due regard to the policy statement.
190 Subsection (1) requires Ministers to have due regard to the environmental principles policy statement when making policies included in the scope of the duty (in other words, policy that is not excluded). This means that, when making policy, Ministers of the Crown must have the correct level of regard to the content of the environmental principles policy statement.
191 Subsection (2) sets out that the policy statement does not require Ministers to take, or refrain from taking, any action that would have no significant environmental benefit, or if the environmental benefit would be disproportionate when compared to other factors.
192 In this context:
● "Significant" is to be understood as meaning ‘not negligible’. This means that the policy statement does not need to be used to change a policy direction, if the environmental impact would be negligible.
● "Disproportionate" indicates situations in which action would not be reflective of the benefit or costs, environmental or otherwise. Action taken must reflect the potential for environmental benefit, as well as other costs and benefits. For example, there is no need for a Minister to change a policy in light of the principles policy statement if the cost of this change would be very high and the benefit to the environment would be very low. Equally, if the potential environmental benefit is high, then it is proportionate to take a more significant action based on the policy statement.
193 Subsection (3) sets out which policies are excluded from the duty to have due regard to the policy statement. The three areas covered are set out in paragraphs (a) to (c).
194 The exclusion in subsection (3)(a) refers to armed forces, defence and national security policy. For example, policies that would be excluded include:
● Armed Forces policies relating to the Royal Navy, the Royal Marines, the Army, and the Royal Air Force; and
● national security policies, such as the Strategy and Strategic Defence and Security Review.
195 In subsection (3)(b), "taxation" refers to taxes in a legal sense, and therefore does not include other regulatory schemes which 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. "Spending or the allocation of resources within government" refers to decisions about how money and resources are allocated to or between government departments or agencies, including at fiscal events such as Budgets and Spending Reviews. It does not refer to individual policies on which government funds could be spent. For example, in decisions on which departments should receive funds and how much, the policy statement will not apply. However, it would apply to policies which relate to spending this allocated funding which are decided by a Minister of the Crown, such as when setting up a new innovation scheme.
196 Subsection (3)(c) sets out that the duty in subsection (1) does not apply to policy relating to or applying in Wales.
Clause 19: Statements about Bills containing new environmental law
197 This clause requires that, where a Bill introduced into either House of Parliament contains a provision that, if enacted, would be environmental law, the Minister in charge of the Bill must make a statement to that House. The statement must set out that the Minister is of the view that the Bill does not have the effect of reducing the level of protection provided by any existing environmental law, or that the Minister cannot make such a statement but wishes the House to proceed with the Bill. The requirement does not apply to the wider planning regime, other than explicit environmental legislation such as Environmental Impact Assessments and Strategic Environmental Assessments.
198 Subsection (1) sets out that the provisions apply where a Minister in charge of a relevant Bill is of the view that the Bill contains a provision that, if enacted, would be environmental law.
199 Subsection (2) outlines that the Minister must make a statement, before Second Reading of the Bill in the House, that in the Minister’s view the Bill contains a provision that, if enacted, would be environmental law. In addition, the Minister must make a statement under subsection (3) or (4).
200 Subsection (3) is applicable where a Minister is able to make a statement that in the Minister’s view the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law. Subsection (4) is applicable where a Minister is unable to make that statement but wants to confirm that they still wish to proceed with the Bill – for example, where an existing UK environmental protection is no longer justified by new scientific evidence.
201 Subsection (5) sets out that, in making a statement under subsection (3), the Minister may in particular take into account that the same or greater levels of environmental protection might be provided by provisions that are different to those contained in existing environmental law – that is, to allow for different mechanisms for achieving the same or better environmental outcomes.
202 Subsection (6)(a) provides that a Minister, in considering whether they can make a statement under subsection (3), must consider any protection provided for under powers conferred by the existing environmental law even if those powers have not been used. Subsection (6)(b) makes similar provision in enabling a Minister to take into account any new powers conferred by the Bill to provide for any environmental protection.
203 Subsection (7) requires all statements made under this clause to be in writing and to be published in such manner as the Minister considers appropriate.
204 Subsection (8) provides for two definitions for the purpose of this clause. Firstly, "environmental protection" is defined as:
● protection of the natural environment from the effects of human activity;
● protection of people from the effects of human activity on the environment;
● maintenance, restoration or enhancement of the natural environment; or
● monitoring, assessing, considering or reporting on anything in relation to the previous bullets.
205 Secondly, "existing environmental law" is defined as environmental law existing at the time that the Bill to which the statement relates is introduced into the House, whether or not the environmental law is in force.
206 Clause 43 provides the definition of environmental law for the purposes of this clause.
Clause 20: Reports on international environmental protection legislation
207 This clause places an obligation on the Secretary of State to produce a report on significant developments in international environmental protection legislation.
208 The report will cover significant developments in the environmental protection legislation of particular countries or territories outside the UK or international organisations.
209 The scope and content of the report will be determined by the Secretary of State – see subsection (5). However, in a given reporting period it could cover: significant developments in the legislation of other countries that are mainly concerned with seeking to protect the natural environment from the effects of human activity or protecting people from the effects of human activity on the environment; legislation on the maintenance, restoration or enhancement of the natural environment; or legislative provisions around monitoring, assessing, considering and reporting and monitoring on these matters. The report will not extend to reviewing or considering the planning systems of other countries.
210 Subsections (3), (4) and (6) require a report to be prepared every two years and to be published and laid before both Houses of Parliament as soon as reasonably practicable after the end of the reporting period.
Chapter 2: The Office for Environmental Protection
Clause 21: The Office for Environmental Protection
211 Clause 21 provides for the establishment of a new body called the Office for Environmental Protection (OEP), and introduces Schedule 1 which makes further provision about this independent Non-Departmental Public Body.
Clause 22: Principal objective of the OEP and exercise of its functions
212 Clause 22 sets out the strategic framework for the OEP, making provision for how it will carry out its functions and establish its independence from government and other bodies. The clause requires the OEP to take an objective and impartial approach to the delivery of its functions, and requires it to set out how it will exercise its functions in a strategy that takes into account where extensive governance already exists, for example in the planning system.
213 Subsection (1) establishes that, when exercising its functions, the OEP’s principal objective is to contribute to two aims. These are:
● Environmental protection.
● The improvement of the natural environment.
214 The term "principal objective" is used to emphasise that it is a key objective for the OEP, but not the only one it has to consider when exercising its functions. The principal objective should also guide the OEP when exercising its discretionary powers.
215 Subsection (2)(a) requires the OEP to act objectively and impartially, thereby ensuring it is capable of holding government to account. Subsection (2)(b) provides that the OEP must have regard to the need to act proportionately and transparently, helping to ensure balance and accountability in the body’s exercise of its statutory functions. The term "have regard to" is used here because an absolute legal duty would not allow for the OEP to exercise its judgement in individual circumstances. For example, in the interest of transparency, the OEP would normally make information about its work publicly available; however, there may be certain situations where it is inappropriate for it to do so at an early stage, such as during the investigation of a complaint. The OEP will consider proportionality when balancing the need to improve and protect the natural environment against other considerations, such as the protection of the historic environment.
216 Under subsection (3), the OEP is required to prepare a strategy setting out its approach towards exercising its functions; the process for revising and reviewing this strategy is set out in clause 23. Paragraphs (a) to (c) of subsection (4) require the OEP to set out in its strategy how it will further its principal objective, how it will act objectively and impartially, and how it will have regard to the need to act proportionately and in a transparent manner.
217 Subsection (5) provides that the OEP must set out how it intends to avoid any overlap with the Committee on Climate Change in exercising its functions. This is intended to ensure that the OEP does not seek to replicate the role of the Committee on Climate Change under section 57 of the Climate Change Act 2008, or the reporting role of the Committee under section 59 of the Act. In its strategy, the OEP may also seek to explain how it will resolve any potential for duplication of effort with other relevant bodies, such as Natural England and the Joint Nature Conservation Committee. This strategy could be supported by entering into memoranda of understanding with such bodies.
218 Subsection (6) provides that the OEP’s strategy must contain an enforcement policy. Paragraphs (a) to (e) describe what this policy must set out.
219 Paragraph (a) requires the OEP to set out in its policy how it will reach decisions about whether a failure to comply with environmental law is "serious", as required in clauses 30(1)(b) and (2)(b), 32(1)(b), 33(1)(b) and 36(1).
220 Paragraph (b) also requires the OEP to set out in its policy how it intends to judge whether damage to the natural environment or to human health is "serious", as required in clause 36(2) in order to make an application for judicial review.
221 Paragraph (c) provides that the policy must set out how the OEP intends to exercise its enforcement functions in a way that respects the integrity of other relevant statutory regimes (including appeals processes), meaning where a decision is itself subject to the possibility of intervention by, or appeal to, another body. Statutory regimes could include decision-making functions, complaints, investigation, enforcement or appeals functions, and legal challenges. For example, some decisions made by the Environment Agency, or by a Planning Authority, may be subject to call-in by, or appeal to, the Secretary of State or the Planning Inspectorate. In normal circumstances, it is expected that the OEP would allow the usual regulatory processes to take their course, where they could affect a matter concerning a possible failure to comply with environmental law, before taking enforcement action. This provision therefore requires that the OEP’s strategy should set out how it intends to operate with a view to effective alignment, and avoidance of conflict or duplication, with such procedures.
222 Paragraph (d) requires the OEP to specify in its policy how it intends to avoid any overlap between its activities in relation to its complaints function and the work of a relevant ombudsman. Subsection (9) sets out that for the purposes of these provisions, the Commission for Local Administration in England (the official body that runs the Local Government and Social Care Ombudsman service) and the Parliamentary Commissioner for Administration (otherwise known as the Parliamentary and Health Service Ombudsman) shall each be considered a relevant ombudsman.
223 Paragraph (e) also requires that the OEP’s enforcement policy set out how it will prioritise cases. Further requirements on this point are set out in subsection (7).
224 Subsection (7) sets out certain types of case which the OEP should seek to prioritise when developing and reviewing its enforcement policy. In particular, the OEP must have regard to the particular importance of prioritising cases that it considers have, or may have, national implications. This provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of narrow local concern; for example, some individual local planning or environmental permitting decision may not have implications beyond the local area.
225 Other types of cases which the OEP must have regard to the need to prioritise are set out under paragraphs (a) to (c):
● those which concern persistent issues; that is, currently ongoing or recurring problems, or systemic failures;
● those concerning decisions that the OEP considers have caused, or could cause, serious damage in terms of their environmental impacts or effects on human health; and
● cases that deal with points of law of general public importance, such as addressing those that could otherwise set a potentially damaging precedent, or where there is potential for the OEP’s intervention to clarify a point of widespread uncertainty.
226 Subsection (8) defines the OEP’s enforcement functions as those provided for under clauses 29 to 38.
227 Subsection (9) sets out what is meant by "a relevant ombudsman" for the purposes of subsection (6)(d) above, and other provisions in this Part.
Clause 23: The OEP’s strategy: process
228 Clause 23 sets out the process for publishing and revising the OEP’s strategy, which it must prepare under clause 22. The strategy sets out how the OEP will carry out its functions. A number of other public bodies, such as the Equality and Human Rights Commission, have a similar statutory duty to prepare a strategic plan.
229 Subsection (1) requires the strategy (and each subsequent revised strategy) to be laid before Parliament and published. This is intended to provide transparency and clarity to government, Parliament, and other stakeholders on the operational framework and strategic direction of the OEP, which it itself determines.
230 Subsection (2) allows the OEP to revise its strategy at any time. For example, it may need to reprioritise its work programme based on the types of complaint received during a particular period, or to address a newly emerging substantive issue that falls within its remit.
231 Subsection (3) ensures that the strategy remains a live document, which is kept up to date and relevant to the OEP’s statutory remit, by requiring a review of the strategy at least once in every "review period". Subsection (4) specifies the review period as three years for the first strategy and for each subsequent strategy. The three-year review period is designed to be an appropriate amount of time to ensure that the production of the plan is not overly burdensome, yet to also ensure that it stays up to date.
232 Subsection (5) provides that before producing, revising or reviewing the strategy, the OEP must consult relevant stakeholders as it considers appropriate. This could include government, although ministers or other parties will not have powers to veto any part of the strategy.
Clause 24: Co-operation duties of public authorities and the OEP
233 This clause establishes a duty on public authorities to co-operate with the OEP, and provide the OEP such reasonable assistance as it requests, in connection with the exercise of its statutory functions. This includes the provision of information in relation to investigations under clause 30, information notices under clause 32 and decision notices under clause 33, as well as activities that form its scrutiny and advice functions under clauses 25 to 27. The intention of the duty to co-operate is to help the OEP and public authorities resolve issues constructively, and to share relevant information. It applies only to reasonable requests and would not replace the need for the OEP to commission work from public authorities, for which a fee might be payable: for example, if the OEP commissioned the Environment Agency (EA) to analyse data and that analysis was outside the EA’s planned work programme.
234 The obligation under subsection (1) is for any person whose functions include functions of a public nature to co-operate with the OEP, and to give the OEP such reasonable assistance (including the provision of information) as the OEP requests. This reflects the definition of a "public authority" in clause 28(3).
235 Subsection (2) sets out the persons to whom, and circumstances where, the duty to co-operate does not apply. The duty excludes courts and tribunals, Parliament, devolved legislatures, Scottish and Welsh Ministers and Northern Ireland departments, persons exercising parliamentary functions, and persons who exercise only devolved functions. The duty does not apply to any person whose functions are wholly devolved; however, if only some of their functions are devolved, they need only comply with the duty in relation to their non-devolved functions, as set out in subsection (3).
236 Subsection (4) provides that the OEP should consult a devolved environmental governance body if the work it is undertaking would be of relevance to such a body. This could include the OEP consulting the relevant body during an investigation if it became aware of a transboundary environmental issue that may have involved a breach of devolved legislation outside of the OEP’s own remit, but would be within the remit of the devolved environmental governance body. "Devolved environmental governance body" is defined in clause 44.
Clause 25: Monitoring and reporting on environmental improvement plans and targets
237 Clause 25 describes the monitoring and reporting functions of the OEP in relation to the environmental improvement plans and targets. Under this clause, the OEP will monitor and assess environmental statistics and reports on an ongoing basis to ensure that it has an effective knowledge base. This information will then be analysed alongside information published by the government to provide an independent assessment of progress made in improving the natural environment in accordance with the current environmental improvement plan and targets.
238 Subsection (1) provides that the OEP must monitor progress:
● in improving the natural environment in accordance with the government’s current environmental improvement plan (the first such plan is known as the 25 Year Environment Plan), as set out in clause 7;
● towards meeting any long-term targets as set under clause 1, and the particulate matter target as set under clause 2; and
● towards meeting any interim targets as set out in the environmental improvement plan.
239 This monitoring and reporting function will hold government to account on its environmental improvement commitments.
240 Subsection (2) requires the OEP to produce a progress report for each annual reporting period. As set out in subsection (3), the reports will inform on progress made related to improving the natural environment that has occurred within the annual reporting period. This will be measured against the current environmental improvement plan and targets. An annual reporting period is the period for which the Secretary of State must produce a report under clause 9, as set out in subsection (4).
241 When making a progress report, subsection (5) requires the OEP to take into account the annual report made by the Secretary of State on progress against the implementation of the environmental improvement plan and targets for that period, as set out in clause 9. The OEP will also consider the data published under clause 15 for that period, as well as any other documents or information that the OEP believes are relevant. In reporting on progress made in an annual reporting period, the OEP will undertake any analysis and interpretation it believes is necessary.
242 Subsection (6) specifies that a progress report may advise how the OEP believes progress could be improved – for example, through comparison with other countries, including the devolved administrations. It may also consider the adequacy of data published under clause 15, enabling the OEP to independently determine whether the right information is being collected to evaluate progress in improving the natural environment, and whether it is accurate and sufficiently comprehensive.
243 Subsections (7) and (8) require that the OEP’s reports must be laid before Parliament and published. This is intended to provide the OEP with sufficient independence from government when carrying out its reporting functions. The OEP’s report must be laid before Parliament within six months of the relevant report under clause 8 being laid. This gives the OEP sufficient time to carry out its scrutiny of the clause 8 report whilst tying it to a fixed reporting deadline.
244 Subsection (9) requires the Secretary of State to respond to the OEP’s report, publishing their response and laying it before Parliament. Subsection (10) requires that the Secretary of State’s response must specifically address any recommendations made by the OEP as to how progress with the environmental improvement plan and targets could be improved. This requires the Secretary of State to evidence and justify any decisions whereby the OEP’s recommendations will not be taken forward. Subsection (11) specifies that the Secretary of State must lay their response within 12 months of the OEP’s report being laid, and may include this response in the Secretary of State’s subsequent report made under clause 9. This allows the Secretary of State to include the response to the OEP’s progress report as part of the following year’s annual report on the environmental improvement plan and targets.
Clause 26: Monitoring and reporting on environmental law
245 Clause 26 requires the OEP to monitor the implementation of environmental law and provides a power to issue reports on any matter to do with the implementation of environmental law.
246 Subsection (1) requires the OEP to monitor the implementation of environmental law. Environmental law is defined in clause 43 of this Bill. An example of environmental law caught by this duty would be the Habitats Regulations.
247 Subsection (2) allows the OEP, as it deems appropriate, to produce a report on any matter concerned with the implementation of environmental law. This provision would, for example, allow the OEP to produce a report considering the operation of existing environmental legislation, highlighting particular strengths and weaknesses. For example, if the OEP identified a significant issue in the implementation of part of the Marine and Coastal Access Act 2009 relevant to its remit, it may choose to report on this.
248 Subsection (3) requires the OEP’s reports to be laid before Parliament and published. This reflects the OEP’s independence from government when carrying out its reporting functions.
249 Subsection (4) requires the Secretary of State to lay before Parliament and publish a response to a report issued by the OEP under this clause within three months of that report being laid.
Clause 27: Advising on changes to environmental law etc.
250 Clause 27 sets out the circumstances in which the OEP can give advice to Ministers of the Crown, and how this advice must be published and may be laid before Parliament.
251 Subsections (1), (2) and (4) enable a Minister to require the OEP to provide written advice on proposed changes to environmental law, or on any other matter relating to the natural environment. The OEP must take into consideration any specific matters the Minister outlined in their request when providing this advice, as per subsection (2). The natural environment is defined in this Bill in clause 40. For example, the OEP could be asked by the government to give recommendations on proposals to make amendments to the Natural Environment and Rural Communities Act 2006, or about a proposal to include additional goals in the environmental improvement plan. Subsection (3) provides a power for the OEP to give written advice to a Minister concerning any proposed changes to environmental law.
252 Subsection (5) requires the OEP to publish its advice, along with details of the specific request and any matters it was required to take into account, if it was asked to provide advice by a Minister. The publication of this information ensures transparency in the relationship between the OEP and any Minister asking it for advice.
253 Subsection (6) provides that the relevant Minister may lay the OEP’s advice and any response to it before Parliament. This is a discretionary power to reduce burden on Parliament. For example, where advice has been sought by a Minister regarding a specific technical detail that is apolitical, the Minister can decide not to lay this advice before Parliament.
Clause 28: Failure of public authorities to comply with environmental law
254 This clause sets out definitions for certain terms that are referred to throughout Chapter 2, which concerns the functions of the OEP. Subsection (1) states that clauses 29 to 38 provide for the functions of the OEP relating to failures by public authorities to comply with environmental law. (The term "environmental law" is defined in clause 43.)
255 "Failing to comply with environmental law" is defined in subsection (2) as meaning where an authority is:
● Not taking proper lawful account of environmental law when exercising its functions. For example, as set out in clause 18, a Minister of the Crown must have due regard to the policy statement on environmental principles in making, developing and revising policies. Failure to have due regard to the policy statement where required would therefore constitute a failure to take proper account of environmental law; or
● Unlawfully exercising or failing to exercise functions it may have under environmental law. For example, various authorities are charged with establishing and implementing permitting or other types of regulatory control regimes for different activities that can affect the environment. Failing to meet such requirements, or implementing them in a deficient way (for instance, by omitting certain prescribed activities or applying standards that are less rigorous than the law demands), would also constitute a failure to comply with environmental law. A failure to meet a statutory environmental quality standard for which a public authority was responsible for ensuring compliance would also be captured by this provision.
256 No restrictions regarding the date of a failing are included in the definition in subsection (2). This means that the OEP will still be able to take action against failings that occurred after the UK’s date of exit from the EU but before it was fully established.
257 In subsection (3), a "public authority" is defined as a person carrying out a function of a public nature, that is not a devolved function, a parliamentary function, or a function of one of the bodies specified in paragraphs (a) to (e). This follows a similar approach to section 6(3) of the Human Rights Act 1998. The term "public function" is not defined in the Bill (or in the Human Rights Act 1998), so it will ultimately be for the courts to determine what constitutes a public function. The courts have previously recognised that a body can act in more than one capacity. As such, bodies that undertake some public and some private functions, such as statutory undertakers, will be within scope of the OEP only with regard to the exercise of their public functions. The term "person" means any legal or natural person. For example, a Minister of the Crown, a government department, non-departmental public body, or local authority would be considered a public authority.
258 Where a person is undertaking a devolved or parliamentary function, they will not fall within this definition. This means that any public authorities implementing devolved functions under environmental law in Scotland, Wales and Northern Ireland will not be covered by the remit of the OEP in respect of devolved matters. Bodies exercising such functions would typically include devolved public bodies such as Scottish Natural Heritage, the Scottish Environment Protection Agency, Natural Resources Wales and the Northern Ireland Environment Agency. "Devolved function" is defined in clause 44.
259 Paragraphs (a) to (e) of subsection (3) also set out certain bodies that are excluded from this definition, including, for the purposes of this Bill, the OEP itself. This exclusion is to avoid the OEP having to consider whether to exercise its statutory complaint and enforcement powers in relation to a complaint made against it; the OEP could still consider complaints about its conduct outside of its statutory functions, or complaints could be made to the parliamentary ombudsman, as provided for in paragraph 21 of Schedule 1. Among the other excluded bodies are courts and tribunals and both Houses of Parliament. The devolved legislatures, and the Scottish and Welsh Ministers and Northern Ireland departments are also excluded. Any person carrying out a devolved function on behalf of the devolved ministers, such as a devolved public body, is also excluded from the OEP’s remit.
Clause 29: Complaints
260 This clause provides that a person may make complaints to the OEP regarding alleged contraventions of environmental law by public authorities. It sets out who may make such complaints, what form they must take, and the time limits within which they should be made. The contraventions and public authorities about which complaints may be considered by the OEP are set out in clause 28, while "environmental law" is defined in clause 43. Figure 1 illustrates the process by which the OEP’s management of complaints is expected to operate, as set out in this clause and in clause 30 (investigations).
261 Subsection (1) allows for any legal or natural person to make a complaint to the OEP if they believe that a public authority has failed to comply with environmental law, subject to the exclusions set out in subsection (4).
262 Subsection (2) sets out that the OEP must prepare and publish a document that sets out the procedure by which complaints can be made, and subsection (3) provides that complaints must be submitted in accordance with the most recently published version of that procedure. This is to allow the OEP to specify the means by which it will accept complaints. The OEP may or may not allow, for example, complaints in writing, by telephone or through an online complaints portal. Complaints that are not submitted in accordance with the procedure do not have to be considered by the OEP.
263 Under subsection (4), public authorities themselves are excluded from complaining to the OEP, as this would amount to one arm of government or the public sector complaining about another.
264 Subsection (5) requires that the complainant must have exhausted all internal complaints procedures of the allegedly offending body before they submit the complaint to the OEP. A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures that will apply to their functions, which are concerned with the implementation of environmental law. This provision is intended to give the public authority in question the opportunity to consider and seek to resolve the matter through its own procedures before it is considered by the OEP.
265 Subsection (6) makes provision regarding the timing of making a complaint to the OEP. The complaint must be submitted no later than one year after the last occurrence of the alleged breach of environmental law (paragraph (a)), or three months after the conclusion of any internal complaints procedures (paragraph (b)), whichever is later. This is intended to encourage complainants to bring their complaints in a timely manner, whilst also allowing a reasonable time period for people to bring complaints. An open-ended ability to complain long after the event in question could lead to uncertainty over certain decisions, particularly given that it could lead to enforcement action.
266 The provision in subsection (7) means that the OEP will not be entirely precluded from investigating serious matters on the basis of a complaint being late. Subsection (7) allows the OEP to waive the time limit in subsection (6) if there are exceptional reasons for doing so. This judgement will be a matter for the OEP’s discretion, and as such it could cover a number of circumstances, although it can be used only where there is an exceptional reason to disapply the normal time limit. It is possible that the OEP may wish to use this provision in a case where, for example, environmental harm resulting from a failure to comply with the law has taken some time to materialise and therefore for that failure to be identified, or where details of a decision only came to light long after it was taken.
267 The time limits specified in subsection (6) set out the periods after which complaints will not normally be accepted by the OEP, but do not affect its wider ability to investigate or take enforcement action (which may be prompted by triggers other than a complaint) under subsequent clauses.
268 It should be noted that no provision is made to grant the OEP the power to impose charges in relation to its receipt and handling of complaints. As such, the complaints system will be free of charge to all complainants.
269 A summary of the procedure for handling complaints is provided in figure 1.
