61.The Government’s ambition is to create “a new, world-leading, independent environmental watchdog” to hold Government to account on its environmental ambitions and obligations in the event of leaving the EU. Michael Gove suggested that the remit of this new body could go further and improve upon that of the European Commission. The Bill establishes the Government’s proposed oversight body - the Office for Environmental Protection (OEP), the governance of which is set out in the Schedule to the Bill.
62.The OEP’s constitution is not set out in the Bill, but the statement of impacts explained that it will be am arm’s length body, with the explanatory notes setting out that the OEP is to be a non-Departmental public body (NDPB). Many witnesses suggested that an arm’s length body would not provide enough independence for it to truly hold Government to account. The Brexit and Environment network said that the OEP “will be at arms-length from the Government but ultimately subject to its control”.
63.The National Audit Office (NAO) has previously raised concerns about inspectorates and their perceived independence because they were funded and appointed by the bodies they inspect. The NAO warned that the Government’s proposals could have risks for the independence of the OEP, highlighting that the perception of independence is important:
It will be funded through Defra, with a Chair appointed by the Secretary of State for Defra. While in principle this is not incompatible with it being functionally independent it could bring risks for its independence in practice, or for its perceived independence.
64.In our report into the 25 Year Plan we recommended that the new body should report to Parliament, like the NAO, and a statutory body of parliamentarians, modelled on the Public Accounts Commission, should set its budget, scrutinise its performance and oversee the governance of the oversight body. The House of Lords European Union Committee has since recommended that the OEP must be, and be seen to be, independent from Government and said that “the National Audit Office may offer a useful model of how this could be achieved”.
65.The Government’s position was that an arm’s length body “would provide sufficient scope and capacity to deliver the strategic objectives required”, and that it was “inappropriate in constitutional terms and without precedent” for the new body both to be an emanation of Parliament and be able to take enforcement action against the Government. ClientEarth told us that “constitutional innovation” is needed to create an enforcement body as independent as possible from Government with key ties to Parliament.
66.We asked Daniel Greenberg, Counsel for Domestic Legislation at the House of Commons, whether our previous recommendations were constitutionally inappropriate. He considered that the Government may have confused our recommendation with the OEP itself being created as a Parliamentary entity, rather than being accountable to it. He said, “anything is possible” and explained:
There is no reason why you should not have a body that reports in lots of different ways to Parliament, where Parliament takes a direct interest in its funding and its spending in exactly the same way as the NAO, which has a function of bringing reviews against public authorities, including the Government. There is no constitutional impossibility or impropriety in that.
67.Daniel Greenberg told the EFRA Committee that the OEP’s constitution should relate to each of its functions and that if the OEP “is going to have a role of enforcement against the Government, [then its] independence needs to be massive”. We asked Michael Gove why the OEP was not accountable to Parliament in the same way as the NAO. He responded:
The advice that we have received is that this body can exercise full independence as a non-Departmental public body. […] I think there are strong reasons and strong precedents why it should be a non-Departmental public body. I think that this is one of those bodies which, once established, it would impossible to terminate in the way that you refer to, but of course there is a very legitimate and respectable argument about other means of providing that independence.
68.We wrote to the Secretary of State asking him to provide the legal advice on the impediment to the OEP being set up as a fully independent body along the lines of the NAO. He told us that:
If a Parliamentary Body were to be given the power to initiate legal enforcement proceedings against the Government this would represent a fundamental change in the role of Parliament since Parliament has never taken legal enforcement action against the executive […] The Government’s position is based on constitutional principles, rather than on legal issues or advice.
This fails to address the evidence we heard from Daniel Greenberg on the accountability of the OEP to Parliament.
69.Raphael Hogarth from the IfG, said that in two key respects, through its proposed appointment and funding structures, the OEP’s relationship with Parliament is “weak”.
70.The Secretary of State is responsible for appointing the non-executive members of the OEP. This includes the Chair. Under the proposed arrangements, the Secretary of State and the OEP must also ensure that the number of non-executive members is always greater than the number of executive members. The Chair is to appoint the chief executive following consultation with the Secretary of State.
71.Several witnesses criticised the appointments process for not providing independent membership of the OEP. Many suggested a greater role for Parliament, particularly as this enables cross-party approval. The Aldersgate Group argued that the OEP’s enforcement functions warrant that its appointments are made in a more independent manner than that of the Committee on Climate Change. Raphael Hogarth described other precedents for appointments, all of which could provide a greater level of independence:
The appointment of the chair of the OBR is subject to confirmation by the Treasury Select Committee, so that is one way of increasing involvement. You could go a step further than that, which is to mimic the appointments process for the Comptroller and Auditor General and say that there has to be a Humble Address and a vote on the appointments. Or you could go a step further still and mimic the appointment structures for say the Electoral Commission and say not only does the appointment have to be approved by a vote, but the name has to be proposed by a parliamentarian.
72.Daniel Greenberg considered the appointment of the chief executive by the Chair, rather than a ministerial appointment, was “quite significant” as the chief executive is a key figure for robust independence within an organisation. Georgina Holmes-Skelton, from the National Trust, said she had concerns over the balance of power on the Board as it gives “quite a large amount of power to the Secretary of State” and what that might mean for the direction of the board.
73.Ruth Chambers, from Greener UK, said pre-appointment hearings were not a panacea to guarantee independence. The IfG suggested that the most applicable model would be to follow the process established for appointing both the Chair and the members of the Budget Responsibility Council at the Office for Budget Responsibility. This also has powers to protect members against dismissal by the Secretary of State. It said this would be “a clear way of underlining the Government’s commitment to the independence of the OEP”.
74.The IfG said that Non Departmental Public Bodies (NDPBs) are a misnomer as they are accountable to Departments, who control their budgets. Greener UK was concerned that the Bill gives “supreme power” to the Secretary of State to decide the OEP’s funding, with the only requirement being that its funding be “reasonably sufficient”, in the opinion of the Secretary of State, to enable the OEP to carry out its functions.
75.Many witnesses considered that the OEP’s funding should be determined by Parliament. Prospect and the Brexit and Environment network highlighted that the capacity of the Environment Agency and Natural England to fulfil their role as active watchdogs has been significantly restricted by resource constraints, a theme that arose during our 25 Year Plan inquiry (see box for a further example). The Environment Agency and Energy UK were concerned that the OEP may utilise technical staff from other agencies, placing an additional pressure on already stretched resources.
Budget cuts to enforcement bodies
The Equality and Human Rights Commission (EHRC), a non Departmental public body which can issue proceedings for judicial review of Government bodies if they are failing to comply with their equality or human rights obligations, reports to the Government Equalities Office, which currently sits in the Department for International Development and will soon move to Cabinet Office. The EHRC’s budget has been reduced from £70.3 million in 2007 to £18.3 million in 2018. The EHRC has repeatedly said that, in its view, it could better discharge its duties if it reported directly to Parliament.
76.Greener UK explained that the bulk of the OEP’s costs will be associated with its initial establishment and that the ongoing work of the OEP is unlikely to require the funding needed by other environmental public bodies, such as the Environment Agency, which incur grant and capital expenditure. Representing Greener UK, Ruth Chambers said there are three “critical” measures that could ensure that the OEP is properly and independently funded:
77.Natural England said further security could be provided by longer-term financial settlement, and that a five year settlement in-line with spending reviews would be “ideal” and would ensure that work programmes are not changed in-year. Several existing public bodies receive multi-annual budgets, including Highways England, the Environment Agency and the Office for Budget Responsibility. Greener UK agreed that multiannual budgets would help prevent the “slow but significant funding decline that many of Defra’s arms-length bodies have suffered over recent years”.
78.Chris Stark, chief executive of the Committee on Climate Change (CCC), highlighted that it was helpful that the CCC has the ability to go to Parliament and comment on its ability to meet its statutory duties with the funding it has been allocated. Professor Maria Lee, from University College London, considered that the OEP’s annual accounts must include an assessment by the OEP of their sufficiency. The IfG suggested that the OEP could have its own estimate that is negotiated directly with HM Treasury and voted on by Parliament in the yearly Supply and Appropriation (Main Estimates) Bill, rather than from the Department’s own budget. It said that Paragraph 15 of Schedule 1 to the Railways and Transport Safety Act 2003 which established the Office of Rail and Road (previously the Office of Rail Regulation), is an example of this.
79.We asked the Secretary of State whether he would allow the OEP to have more autonomy in preparing its own budget estimate and whether it would have a multiannual budget, he responded:
It is certainly the case that we wanted to make sure that it is properly and adequately funded, and it is the case that the OEP will have a responsibility to state whether or not it is receiving the funding necessary […] Of course you will appreciate that with non-Departmental public bodies we do not have to, but we have to take into account precedent, but I absolutely recognise the honest intent behind the suggestion. […] The most important thing is that the chair and the board feel that they have all the resources required …
80.Michael Gove added that he did not think the OEP would need the numbers of staff that an organisation like Natural England or the Environment Agency has and expected the numbers to be between 60 and 120.
81.Clause 12 sets out the exercise of the OEP’s functions. It requires the OEP to “have regard to the need to act objectively, impartially, proportionately and transparently”. Dr David Wolfe QC, Chair of the Press Recognition Panel, said it should also have to act “independently” and it should actually require the OEP to act, rather than to “have regard to” act. Daniel Greenberg suggested that the transparency of communications can provide for greater independence, as well as whether enforcement casework could be influenced by directions from the Minister. Dr Wolfe recommended that a duty to report interference could be included to guard against any attempt to undermine the OEP’s independence. This could be included in the Annual report process in paragraph 10 of the Schedule, to provide a disincentive for Ministers or Government officials to provide direction. Ruth Chambers also highlighted that the OEP needs to be free from direction and able to exercise its operations and functions independently.
82.The Government has promised the Office for Environmental Protection will be independent but has not provided enough evidence that its proposals do so. Nor has it provided enough reasoning for why it has not accepted our previous recommendations on governance which the majority of evidence supports and for which there are precedents. The Secretary of State suggested that the OEP could go further than the European Commission, yet the proposals in the Bill fall woefully short of this.
83.We stand by our previous recommendation that the Office for Environmental Protection should report to Parliament and that a statutory body of parliamentarians, modelled on the Public Accounts Commission, should set its budget, scrutinise its performance and oversee its governance. The Bill should be amended to require that this body of parliamentarians be established. Constitutional experts told us there was no impropriety in the OEP being established in this way.
84.The appointments process for Members of the Office for Environmental Protection does not provide for enough independence from Government as the balance of power lies with the Secretary of State. Parliament must have a greater role in the appointments process with a Parliamentary Committee having a veto over the appointment of the Office for Environmental Protection’s Members and Chief Executive.
85.We recommend that Schedule 1 should be amended to reflect Paragraph 1 of Schedule 1 to the Budget Responsibility and National Audit Act 2011 for the appointment of the Office for Environmental Protection’s Members and Chief Executive and paragraph 6(3) of Schedule 1 of the same Act to set out a process to protect Office for Environmental Protection members against dismissal by the Secretary of State. This appointments process would utilise the statutory body of parliamentarians as the appointing Committee.
86.We recommend that the Government makes a political commitment to providing the Office for Environmental Protection with a five year budget in line with spending reviews. Precedents for this exist for other non-Departmental public bodies.
87.We recommend that the Office for Environmental Protection should have its own estimate, to be negotiated directly with HM Treasury, and to be voted on by Parliament in the yearly Supply and Appropriation (Main Estimates) Bill. Paragraph 15 of Schedule 1 to the Railways and Transport Safety Act 2003 provides a useful precedent.
88.We recommend that the funding architecture for the Office for Environmental Protection mirrors that of the National Audit Office. For example, there would be a role for the Environmental Audit Committee to conduct an annual review of the Office for Environmental Protection’s work and progress against its purpose and objectives, including whether it is receiving adequate funding to fulfil its duties. The statutory body of parliamentarians would then scrutinise and review the funding estimate produced by the Office for Environmental Protection. The National Audit Office would audit and certify the Office for Environmental Protection’s annual accounts.
89.Clause 12(1)(a) and 12(3)(a) should have “independent” added to the list of requirements which the Office for Environmental Protection must follow and “have regard to the need to act” should be changed to “must act”. A duty to report interference should be added to Paragraph 10 of the schedule.
90.The definitions of natural environment (clause 30) and environmental law (clause 31) are important as they define the scope of the OEP’s enforcement remit. Clause 31 sets out that environmental law is “mainly concerned with an environmental matter” and “is not concerned with an excluded matter”. The excluded matters include most climate change mitigation legislation, disclosure of, or access to information legislation (to avoid overlap with the Information Commissioner’s Office); and legislation relating to the armed forces, defence, national security, taxation, spending or the allocation of resources within Government.
91.The draft explanatory note provides examples of what would normally be considered to fall within the definition of environmental law and what would be excluded. Yet this note has caused confusion between what is explicitly excluded by the Bill and what could be perceived as excluded through the explanatory note. Ruth Chambers said that this confusion on the definition could have implications for the public if they want to make a complaint about a breach of environmental law to the OEP. For example, although planning is listed as excluded in the notes, it would fall within the definition when it is environmentally relevant. Professor Richard Macrory QC, Emeritus Professor of Environmental Law at University College London, said that the explanatory notes should explicitly say that environmental assessment requirements (for forestry, drainage, agriculture, and planning etc.) and Strategic Environmental Assessment requirements are included within the definition.
92.Greener UK recommended that the definition of environmental law should be replaced with that of ‘environmental information’ in the Aarhus Convention, which includes climate, heritage and planning. Barrister William Wilson recommended that the Government use the definition of environment in the Environmental Protection Act 1990:
The “environment” consists of all, or any, of the following media, namely the air, water and land: and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground.
93.The National Trust considered that the definition of ‘natural environment’ excluded the historic environment because clause 30 explicitly excludes “buildings or other structures”. Other witnesses including the Campaign to Protect Rural England and the Heritage Alliance brought this to our attention. Professor Lee said that one could argue that the building or structure itself is excluded, but the impact of the building or structure on the ‘natural environment’ is included. She said that this lack of clarity should be resolved. Natural England said the definitions of both the natural environment and environmental law in the explanatory notes would benefit from further clarification. It considered the definition of natural environment does not align well with the Natural Environment and Rural Communities Act 2006, which includes landscape and people’s access to the natural environment.
94.When asked about the confusion in the drafting of the definition of environmental law, Minister for the Environment, Dr Thérèse Coffey MP said:
… in hindsight, some of the wording in some of the explanatory notes that came with this were being explicit about what Acts currently guide, say, the Forestry Commission. Absolutely, anything environmental in there is completely within scope. I do not think it has been worded brilliantly.
95.In the Bill, emissions of greenhouse gases (with the exception of fluorinated greenhouse gases (F-gases)) have been excluded from the definition of environmental law. This means that the OEP will not have an enforcement function for climate change even though the Committee on Climate Change (CCC) has no enforcement powers. We previously recommended that the OEP should be able to conduct its own investigations on climate change and should have a role for enforcement where legal duties are breached.
96.Chris Stark, chief executive of the CCC, explained that he did not think this power was needed, as Parliament is the ‘enforcer’ of climate budgets. He told us the governance framework set out in the Climate Change Act 2008, between Parliament, Government and the CCC “works very well” and would be “loosened” by the OEP being involved. He considered that there was a more legitimate space for the OEP to undertake enforcement around the Energy Efficiency Directive, the Renewable Energy Directive and the Waste Framework Directive.
97.The difficulty for the OEP in enforcing climate mitigation is that the requirement to meet, or fail to meet, carbon budgets will happen in the future. The CCC provides an assessment of how likely it is that the Government will meet its carbon budgets, so it would be difficult for the OEP to know when to intervene with enforcement based on this assessment and whether that would result in successful enforcement proceedings. Another aspect that requires consideration is that the geographical scope of the OEP, is limited to England (and now Northern Ireland), whereas the CCC has a four nation remit (see Chapter 6).
98.The National Farmers Union agreed with the approach set out in the Bill that the OEP did not need enforcement powers for climate change. Yet the majority of witnesses said that they would like to see climate change falling within the definition of environmental law and the OEP therefore having enforcement powers for climate change. Under the current governance arrangements there is nothing to stop a public challenge on climate change mitigation through a judicial review, but this could be prohibitively expensive for a member of the public. Allowing the OEP to enforce climate change mitigation would provide greater access to justice.
99.Michael Gove said he was open as to how climate change could be included in the Bill and said it was an issue to be resolved through pre-legislative scrutiny:
There is a delicate question as to whether and how the OEP should take into account these considerations. I am totally open-minded about how that is resolved, and would be grateful for the Committee’s advice.
100.International law has not been included in the definition of environmental law. Ruth Chambers from Greener UK said the omission was “startling” and Dr Tom West from ClientEarth considered there was an opportunity to be quite ambitious on international law. Professor Macrory explained that the UK has ratified over 40 international environmental treaties whose implementation will become increasingly important post EU exit. Witnesses agreed that the OEP need not have an enforcement role for international law, but it should be able to advise and investigate on its implementation.
101.The definition of environmental law has significant implications for the scope of the Office for Environmental Protection’s enforcement powers. As drafted, clauses 30 and 31 and their explanatory notes are confusing, and we welcome the Ministers’ acknowledgement of this.
102.We recommend that the Government provides greater clarity on the definition of environmental law and natural environment, particularly in the explanatory notes to the Bill. The notes should set out that environmental assessments and strategic environmental assessments are within the definition of environmental law.
103.Clause 31(1)(a) on environmental law should be changed from ‘is mainly concerned with’ to ‘relating to’. The Government should consider using existing definitions, such as those in the Natural Environment and Rural Communities Act 2006, the Environmental Protection Act 1990 and the Aarhus Convention.
104.We recommend that international law is included within the scope of the Office for Environmental Protection’s scrutiny and advice functions. Clause 31 should be amended by providing that, in relation to its functions under clauses 15 and 16, environmental law shall also include (a) any area of law with significant environmental implications and (b) international environmental law.
105.Climate change mitigation, except for the regulation of fluorinated gases, has been specifically excluded from the Bill. This will create a gap in enforcement which is currently undertaken by the European Commission, as the Committee on Climate Change has no enforcement powers. To date the governance framework established under the Climate Change Act has worked well and there has been no need for Parliament to intervene to achieve carbon budgets. Yet, according to the Committee on Climate Change, it is the forthcoming fourth and fifth carbon budgets that are not on track to be achieved. We therefore consider that there is a need for the enforcement of climate change law.
106.We recommend that the Office for Environmental Protection should have climate change mitigation in its remit and therefore clause 31(3)(a) should be deleted. This would allow the OEP to bring cases against the Government in relation to the implementation of the Energy Efficiency Directive, the Renewable Energy Directive, the Waste Framework Directive and the meeting of carbon budgets. We recognise that this will not resolve the issue that carbon budgets are in the future and therefore effective enforcement could be limited until after carbon budgets are missed. Yet we do not think this is a reason to preclude enforcement on climate change mitigation from the OEP and we recognise that there will still be a significant role for the Committee on Climate Change’s advice, and for Parliament to decide whether the Government’s plans are adequate to meet carbon budgets.
112 Governance and Principles Consultation
113 Rt Hon Michael Gove, 13 Nov 2017
114 clause 11 draft explanatory note and p8; Institute for Government ()
An arm’s-length body is an organisation that delivers a public service, is not a ministerial Government Department, and which operates to a greater or lesser extent at a distance from Ministers. The term can include non-Departmental public bodies (NDPBs). The Environment Agency is an example of an executive NDPB. Institute for Government. 2019.
115 Chartered Institution of Water and Environmental Management (); National Trust (); Greener UK (); ClientEarth ()
116 Brexit and Environment (); see also [Chris Stark]
117 National Audit Office. 2015. , paras 15–17
118 National Audit Office.2019. . HC1866, p11
119 House of Commons Environmental Audit Committee, 24 July 2018, HC803
120 , 28 February 2019
121 Draft Environment (Principles and Governance) Bill , page 8
122 ClientEarth ()
127 , 17 April 2019
129 Schedule 1
130 Schedule 1
131 Aldersgate Group (); British Heart Foundation (); APPG on Air Pollution (); Chartered Institution of Water and Environmental Management ()
132 Professor Maria Lee (); UK Sustainable Investment and Finance Association (); Natural England (); National Trust (); Emeritus Professor of Environmental Law Richard Macrory ()
134 Aldersgate Group (). The Committee on Climate Change Chairs and Members are appointed through the standard Cabinet Office public appointments process. Ministers have the final choice of appointees, in consultation with the devolved administrations. The Committee Chairs are responsible for selecting the Chief Executive, but the appointment is subject to Ministerial approval. Committee appointments, including the Chair, are made by the UK Government and the devolved administrations jointly.
139 Institute for Government (), para 11, 12; see Budget Responsibility and National Audit Act 2011,
140 Institute for Government (), see also Dr David Wolfe ()
141 Institute for Government ()
142 Clause 9, Schedule to the draft bill. Greener UK ()
143 UKELA (); UK Sustainable Investment and Finance Association (); ClientEarth (); Greener UK ();National Trust (); RSPB (); see also
144 Brexit and Environment (); Prospect (); House of Commons Environmental Audit Committee, 24 July 2018, HC803; see also [Amyas Morse]; [Andrew Sells]
145 Environment Agency (); Energy UK (); see also Mr Mark July ()
146 Institute for Government ()
147 Greener UK ()
148 A supply estimate is the means through which Government Departments and certain parliamentary bodies gain parliamentary approval to access public money to fund their operations.
150 ; ; RSPB (); Natural England ()
151 Greener UK ()
153 Professor Maria Lee ()
154 Institute for Government ()
155 Institute for Government ()
158 Clause 12(1)
159 Dr David Wolfe (); see also the National Audit Office , Jan 2015
161 Dr David Wolfe ();
163 Clause 31(1)
164 Clause 31(3)
165 Included are air quality; water resources and quality; marine, coastal or nature conservation; waste management; pollution; and contaminated land. Those suggested as normally outside of the scope are: forestry; flooding; navigation; planning; cultural heritage; animal welfare or sentience; animal or plant health; health and safety at work; and people’s enjoyment of or access to the natural environment. Draft Explanatory Note 31
166 E.g [Professor Jordan].
168 Professor Maria Lee ()
169 Emeritus Professor of Environmental Law Richard Macrory ()
170 Greener UK ()
171 Environmental Protection Act 1990, ; the same definition as was used in the Environment Act 1995,
172 [Georgina Holmes-Skelton]; National Trust ()
173 ; CPRE (); Chartered Institute for Archaeologists and Council for British Archaeology (); National Trust (); The Heritage Alliance ()
174 Professor Maria Lee ()
175 Natural England ();
178 Clause 31(3)(a)
179 Professor Maria Lee ()
180 House of Commons Environmental Audit Committee, 24 July 2018, HC803, para 74
183 ; Committee on Climate Change ()
186 Environmental Services Association (); see also Mineral Products Association (); National Farmers’ Union ()
187 ; ; ; Aldersgate Group (); Chartered Institution of Water and Environmental Management (); CIBSE (Chartered Institution of Building Services Engineers) (); ClientEarth (); Countryside Alliance (); Greener UK (); Emeritus Professor of Environmental Law Richard Macrory (); London Councils (); Mayor of London (); National Trust (); Professor Eloise Scotford (); Professor Maria Lee (); Professor Maria Lee (); RSPB (); Surfers Against Sewage (); The Woodland Trust (); WWF (); UKELA (); Broadway Initiative (); The Sustainable Soils Alliance ()
190 [Ruth Chambers]; [Dr West]
191 Emeritus Professor of Environmental Law Richard Macrory ()
192 [Dr West]; Emeritus Professor of Environmental Law Richard Macrory (); Greener UK ()
Published: 25 April 2019