69.The Government has stated that the forthcoming Environment Bill will provide for domestic adoption of some EU environmental governance functions. The implementation of UK environmental law and policy is currently monitored and enforced by EU mechanisms and institutions, mainly the European Commission, as provided for by the EU Treaties. Where necessary, the Commission brings enforcement cases in the Court of Justice of the European Union (CJEU), which provides rulings on the interpretation of EU environmental law to ensure it is applied correctly by Member States. The Commission is also supported in its environmental governance functions by the European Environment Agency (EEA), a statutory body of the EU, which is tasked with providing sound, independent information and conducting assessments on wide range of issues relating to the environment.
70.The Office for Environmental Protection is therefore an important attempt to fill the wider environmental governance gap that will emerge after the UK’s exit from the European Union. Analysis from the IfG in 2017 showed the central role currently played by EU institutions in enforcing environmental law in the UK. Around half of the European Court of Justice cases fought by the Commission against the UK between 2003 and 2016 concerned the environment and the Commission won the majority.
Figure 1: CJEU cases involving the UK and the European Commission
The IfG noted that this represented less than a third of the Commission’s environmental enforcement action against the UK, and that most infringement cases were resolved before they reached court stage.
Case Study: Air Quality
European Union legislation sets limits on the levels of permissible outdoor air pollution. The UK is in breach of the EU 2008 Directive on Ambient Air Quality for nitrogen dioxide (NO2) concentrations, which had a compliance deadline of 2010. In February 2014, the European Commission initiated an infringement case against the UK for its failure to cut ‘excessive’ levels of NO2. In February 2017, the UK received a Reasoned Opinion (RO), a final written warning before a case is referred to the Court of Justice of the European Union (CJEU). The RO required the UK to show how it would comply with legal limits within the European Commission’s timeline. The UK submitted its response in April 2017.
Several judgements of the CJEU have clarified that where the limit values set by the Ambient Air Quality Directive are breached, concerned individuals and groups have the right to go before national courts to demand that action is taken. The CJEU has also clarified that Member States are under an obligation of result to achieve compliance with the limit values. This means that the fact that an air quality plan has been adopted is not enough to achieve compliance. National courts should review the content of the plan and determine whether it contains all the measures necessary to secure compliance in the shortest time possible.
71.Clauses 17 to 29 of the draft Bill outline the OEP’s investigation and enforcement functions. Following a complaint, the Bill gives the OEP powers in the form of a three-step procedure: information notices; decision notices; and a review application to the courts. The model proposed is similar to the existing European Commission infringement procedure, which incorporates a formal letter of infringement, a Reasoned Opinion, and a reference to the European Court of Justice. The process in the draft Bill is illustrated in a diagram included in the explanatory notes:
Figure 2: Proposed enforcement model
72.As a first step, the draft Bill proposes that the OEP will have a complaints function that would allow a person or organisation (other than another public body) to submit a complaint to the OEP if it believes that a public authority has failed to comply with environmental law. The OEP is given the power to investigate the complaint, and must prepare a report once the investigation is concluded, which must then be passed on to the public authority in question. The OEP would also have the power under the draft Bill to issue an information notice and request information from the public authority, where it has reasonable grounds for suspecting a failure to comply with environmental law and when it considers that the failure is “serious”.
73.Once an information notice has been issued, should the OEP decide that, on the balance of probabilities, the public authority has failed to comply with environmental law, and that it considers that failure to be serious, then the OEP would have the power to issue a decision notice setting out the steps it considers the public authority should take in relation to the failure. Under the proposals in the draft Bill, while the authority would be required to respond to the decision notice, it would not be compelled to carry out the steps detailed in the notice. As a final step in the enforcement procedure, the OEP may make a “review application”, defined as an application to the High Court in England and Wales or Northern Ireland, or an application to the supervisory jurisdiction of the Court of Session in Scotland.
74.Water UK expressed concern that the definition of “public authority” in draft Clause 17(3) “inadvertently creates an overlap with existing regulators that could be inefficient, confusing and unpredictable”. Clause 17(3) defines a “public authority” as “a person carrying out any function of a public nature that is not a devolved function” and sets out a list of bodies which are excluded from the definition. Water UK noted that the Government’s intention was that “private companies, NGOs or landowners” would not be within the OEP’s scope. However, Water UK argued that the definition in the draft Bill was sufficiently broad that it could be interpreted to include statutory undertakers (private organisation that carry out functions of a public nature). It argued that it would be “entirely unnecessary for statutory undertakers to be within the scope of the OEP as existing regulators (for example the Environment Agency) already enforce compliance”. It therefore suggested that a specific exclusion for statutory undertakers should be added to Clause 17(3) to avoid a duplication of functions with existing regulators and unnecessary litigation.
75.The purpose of the Office for Environmental Protection is to replace the governance functions of the European Commission and hold public authorities to account. The Government should avoid unnecessary duplication with existing domestic regulators who already enforce compliance by private companies, NGOs or landowners. The definition of “public authorities” in Clause 17(3) should be clarified, with a specific exclusion added for statutory undertakers.
76.ClientEarth suggested that a weakness of the OEP’s enforcement powers was the restrictions “on when the OEP can act”. As currently provided in the draft Bill, ClientEarth noted that the OEP could only respond to a complaint received and had no powers to conduct its own investigation of a potential failure. Greener UK and the Aldersgate Group both also argued that the draft Bill needed to be redrafted so that the OEP could initiate an investigation without a complaint. ClientEarth also questioned why a definition of “failing to comply with environmental law” in Clause 17(2) was needed and why a definition which constructed such a “narrow remit” had been chosen. ClientEarth suggested that this Clause “problematically curtailed” the scope of the OEP’s powers and limited “its ability to increase the efficacy of environmental law”.
77.UKELA drew attention to the test included in Clause 19 (and also in Clause 22) that any failure to comply with environmental law by a public body must be deemed “serious”. It pointed out that the explanatory notes defined serious as not “trivial”. Client Earth stated that the failure to define “serious” rendered the purpose of its inclusion “opaque” and that it should either be defined or removed from the Bill. UKELA similarly stated that the test meant that the OEP would need to make a value judgement “which could be the subject of much argument where the OEP chooses not to exercise its powers”.
78.Andrew Bryce, Co-Chair of the Brexit working group for UKELA, suggested that the OEP would need to be very clear in its strategy (under Clause 12) about the nature of the cases it would pursue, and that the Bill might need to be amended to ensure that the OEP was not “endlessly judicially reviewed about its decisions on complaints”. Professor Richard Macrory QC suggested that an amendment to Clause 19 to require that a complaint is consistent with the OEP’s complaints and enforcement policy would help to provide clarity to the public on the types of complaint it is likely to investigate.
79.The OEP should have the power to initiate investigations into a suspected breach of environmental law and should not have to wait for a complaint to have been lodged to do so. It is important that members of the public are clear about the specific role of the OEP, and the types of complaints it is intended to deal with. The Bill should be redrafted to ensure the OEP has the power to proactively carry out investigations into a serious failure to comply with environmental law on its own initiative, rather than just in response to a complaint. The discretionary and strategic nature of the OEP’s enforcement provisions should be made clearer in the Bill to ensure that it does not become inundated with complaints relating to local matters. The word “serious” in relation to a breach of environmental law should be clarified on the face of the Bill.
80.Client Earth highlighted that the decision notices which the OEP could issue are not legally binding, and that although public authorities must respond to decision notices “they are not bound to take the steps set out in them”. The same arguments about the lack of binding powers for the OEP were made by environmental groups, academics and representatives of business. The British Heart Foundation highlighted that legally binding notices were particularly important in cases where a breach of environmental law had an impact on human health, such as air pollution. It argued that legally binding notices could be a “tool to instigate preventative and remedial action” and must be considered as “proportionate powers” and made available to the OEP in its enforcement role. Professor Maria Lee suggested that binding notices would provide a “minimal set of teeth for the watch dog” whereas Dr Tom West, representing Client Earth, suggested that they could help to give “meaning and effect to the rest of the OEP’s functions”.
81.Conversely, Professor Richard Macrory QC argued that the information and decision notices did not need to be legally binding and expressed concern that this change “could simply encourage an over-litigious approach in the early stages of the procedure when more constructive dialogue should be encouraged”. He said that it was unclear what sort of legal penalty could be attached to a notice at an earlier stage in the process that would make it binding, and suggested that compliance should instead be driven by the “ratcheting” process of the three steps as drafted in the Bill. He suggested that a guiding proverb for the OEP might be to “talk softly but carry a big stick” and argued that invoking binding procedures at too early a stage in the infringement process might lead to more defensive attitudes from the relevant public authority, which in turn might increase the number of cases ending up in the courts.
82.The regulators expressed slightly different views on the OEP’s notice procedure. Natural England recommended that the decision notices should be “of a binding rather than advisory nature”. Alan Law, Deputy Chief Executive of Natural England, suggested there should “be more bite at the upper end of the escalating enforcement process”, as this encouraged bodies to engage with earlier advisory notices, before escalation to the formal enforcement stages. The Environment Agency on the other hand did not comment on the need for binding notices in either written or oral evidence, but stated that they believed the process of the OEP issuing information and then decision notices would lead to resolution in most cases, and would be equivalent to the “reasoned opinion” stage of infringement proceedings commenced by the European Commission.
83.Andrew Bryce, Co-Chair of the UKELA Brexit taskforce, outlined the need for the OEP to have emergency powers beyond the notice procedure (the information and decision notices) to act in cases where there was an urgent need to prevent environmental harm. He drew attention to the explanatory notes which outlined the approximate timings of the prelitigation period and enforcement procedure:
Given the normal two month response periods (Clauses 22 and 23) for notices, the prelitigation period would take at least 4 months. Since the OEP will need time to investigate a matter and consider responses to its notices, more realistically this could be over 6 months. If the OEP decides to apply for Judicial Review, it would normally need to do this within 3 months of the response to the decision notice (Clause 25). This could therefore be within a year of the matter in question coming to the OEP’s attention, although its precise duration will vary from one case to the next.
Andrew Bryce, along with other legal experts, pointed out that the process in the Bill was “relatively long-winded” and only suitable to deal with “non-urgent matters of long-term compliance”. UKELA told us that this was “a major defect” with the OEP’s enforcement powers and lamented “its inability to act quickly in an emergency or where third-party rights will rapidly be acquired”. Andrew Bryce therefore argued that the OEP should have additional powers to issue emergency measures and to apply for an injunction in urgent cases where it was needed to prevent a public body causing harm prior to a judicial review process. These additional powers were supported by Client Earth who said such powers may prove “especially pertinent given the potentially irreversible nature of environmental harm”. Dr Tom West argued that the ability to issue such interim measures would help to ensure that we did not end up in the “regretful situation, where down the line you rule that that is not what should have happened, but the damage has been caused”. Drawing on its own experience of using “Stop Notices, Restoration Notices and Enforcement Undertakings”, Natural England supported the OEP having a “range of remedies [that] would offer the OEP lighter-touch and quicker remedies as alternatives to judicial review”. Alan Law explained that such tools had been useful in Natural England’s experience of regulating sites of special scientific interest (SSSIs).
84.The Secretary of State defended the model of information and decision notices proposed in the Bill, adding that it would take a “brave government” to ignore any notice issued by the OEP in the first instance. He explained that the intention had been to replicate “in broad respects” the infringement proceedings of the Commission, but that he was also “open-minded” to ways in which the watchdog’s teeth might be “sharpened”. The Environment Minister added that the Commission currently did not have powers to serve legally binding notices, so noted that this would be a change to the current arrangement. She further suggested that if the OEP were able to issue legally binding notices, it could undermine the independence of other regulators, such as the Environment Agency. She suggested that the OEP should not be able to just issue legally binding notices and thus override decision made by bodies, such as the Environment Agency, without the further step of going to court.
85.Clause 25 gives the OEP powers to bring legal proceedings, in the form of a “review application”, against a public authority that is deemed in breach of environmental law. Clause 25(3) states that a “review application” would be an application for judicial review (JR) in England, Wales or Northern Ireland; or an application to the supervisory jurisdiction of the Court of Session in Scotland. The Courts and Tribunals Judiciary define judicial review as:
a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body […]
It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.
This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
Clause 25(9) outlines that once any legal proceeding has been concluded, the public authority in question must publish a statement outlining what steps it intends to take in light of the outcome of the proceedings. In evidence, the Minister suggested that judicial review was an appropriate enforcement mechanism for the OEP, and argued that it was an “established mechanism we already have in law in this country, in England and Wales, to establish the legality of the actions of public authorities”. The Minister also told us it was her belief that the process that CJEU undertakes was “similar, in effect the same, as the JR process”.
86.The Countryside Alliance was critical of judicial review as a legal recourse in environmental cases. It stressed that judicial review was flawed in that it “looks largely at process rather than the merits of a decision” and that “the remedies under judicial review are less dissuasive than those under the existing EU procedure”. Debbie Tripley, representing WWF, stated that there was a different “standard of review” between the European Court and the UK court. She explained that judicial review differs from the review powers in the European Court because it focuses solely on the Minister’s discretion and whether it was procedurally irregular or irrational, rather than the substance of any decision. She suggested therefore that the Bill contained an “incoherent mechanism” in that the OEP would look at the substance in the decision notice, but “we have no idea how that decision notice will be taken into account by the court” when the process is escalated to judicial review, because the court would be reviewing the Minister’s original decision. Professor Richard Macrory QC similarly said to us that “it is clear that the European court is more intensive in its review”. Referring to a recent study on the enforcement of European Court environmental law, Professor Macrory noted that the CJEU was prepared to engage in quite complex evidential issues, unlike its equivalent UK Court. Professor Eloise Scotford argued that the UK’s system of judicial review was “not designed to enforce the meeting of standards and targets or other environmental requirements” and suggested that judicial review was a “fundamentally inappropriate to resolve many failures of environmental law, which do not necessarily involve unlawful action by a public body but simply a failure to get to grip with a policy issue”.
87.Dr Tom West suggested that the experience of Client Earth taking the Government to court exemplified the need for a system that had additional powers beyond judicial review to ensure legal compliance. He argued that as a result of Client Earth’s air quality challenges, policy had improved but “not quick enough or to a deep enough extent” and he pointed out that we still have illegal levels of air pollution in the UK. Dr West made the case therefore that “when you have long-term and repeated failures to comply with the law—for example illegal levels of air quality—we think we need measures that go beyond those that are currently available to us”.
88.The Marine Conservation Society considered that judicial review was “expensive, time critical, with a high bar to overcome requiring permission to be granted by the High Court and relies on challenging a specific decision”. The Countryside Alliance stated that the “current EU process has minimal costs” and suggested that if the OEP were to rely on judicial review as the ultimate sanction, then “the use and operation of the judicial review process needed to be reconsidered, incorporating some of the “distinctive features of the CJEU”.
89.As an alternative to the enforcement procedure outlined in the Bill, numerous academics and NGOs suggested that an enhanced Judicial Review procedure involving the First-Tier (Environmental Tribunal) could be established. The Environment Tribunal is “an independent judicial body that has been in existence since 2010 and handles appeals in some 44 areas of environmental legislation, from civil sanctions to emissions trading”. Professor Richard Macrory QC explained how the Tribunal could be incorporated into an enhanced enforcement procedure:
On this model, if the OEP is dissatisfied with the response to a Decision Notice, it could seek to have the Notice confirmed by the Environment Tribunal. The Tribunal would then decide whether there has been a breach of environmental law (if that is in issue) or whether the steps proposed to deal with the situation are adequate or reasonable.
Debbie Tripley, WWF, further explained to the Committee how incorporating the First-Tier Environment Tribunal might work in practice:
For instance, let us say the OEP issues a decision notice in the air quality case; the Government have failed to meet their targets, so the OEP says, “That is a breach of the law. We have looked at the facts and at the law, and we have issued a decision notice. We want you to do X, Y and Z”. The Government say, “No, we do not agree with you”. That could go before the First-tier Tribunal, which looks at the decision notice and says, “Yes, the Government do need to comply with the decision notice”, or, “No, you do not”. There remains an important public interest point of law there, which would have to go to the Upper Tribunal, which has a judicial review function.
Professor Richard Macrory QC stated that the Environment Tribunal brought in “specialist expertise in environmental law, could involve non-legal members with relevant expertise (such as environmental science) where appropriate, and had very flexible rules of procedure”.
90.Andrew Bryce supported the involvement of the tribunal courts as it “would enable the court to consider in detail the full factual background [of any case] and if necessary alter the Notice before confirming its binding nature and thereby provide what steps need to be taken by the public body to remedy the situation”. Client Earth stated that “the existing first-tier Environment Tribunal should be deployed as a forum for further substantive review of non-compliance with a notice”. It cautioned however that “the creation of a bespoke procedure for the OEP must not create new barriers to access to justice for citizens”.
91.Dr David Wolfe QC highlighted some potential problems with the Tribunal process; first, that it did not have the same public profile as the High Court which might in turn reduce the dissuasive effect of its decisions; second, that the Tribunal did not have, and would need to be given, contempt of court powers to be equivalent to the Administrative Courts. However, he suggested that “if the OEP enforcement approach were recast more generally”, the Tribunal and its approach could be “entirely appropriate”. He also noted that there was a good model for such an approach in the way in which the Information Tribunal deals with appeals from the Information Commissioner (ICO); he noted that “the ICO can order public authorities (including Government) to produce information and documents” and that if “such bodies do not wish to, following an appeal, the Tribunal can look at the matter afresh and confirm the order that the information must be produced”. This existing model could “provide a powerful template for the OEP and Environment Tribunal to take a similar approach”.
92.When asked whether the existing EU infringement procedure could be improved, the Secretary of State stated that people had “a degree of confidence in the process whereby the Commission can give an opinion then, if necessary, go with infraction proceedings”, and that “people have a confidence […] it is a good working model”. When questioned whether Defra might seek to incorporate tribunals, the Minister stated that they had considered the arguments and concluded that the “same outcomes are there [in the proposed procedure]”, and cited the air quality case as an example. The Secretary of State reaffirmed that he was “open-minded” and had sought “to replicate an easily understandable process, as far as possible”. He also added that the Administrative Court might have an advantage over a tribunal in that it “would probably have a bigger stick with which to beat the Government and a more profound way of exacting penalties that would determine compliance”.
93.The Office for Environmental Protection needs to have the right balance of investigatory and enforcement powers, with sufficient legal teeth to ensure that compliance with environmental law is achieved without a majority of cases ending up in the courts. We welcome the OEP’s powers to issue information and decision notices but are concerned that at present these notices will not have sufficient legal force to compel action.
94.The OEP’s enforcement powers are entirely reliant on judicial review, which largely focusses on process and not the substance of a decision. We therefore do not consider that judicial review will be an appropriate or effective tool in all environmental cases. The OEP will need a more bespoke enforcement procedure to ensure wider compliance with environmental law. The Bill needs to incorporate other enforcement routes and appropriate tools to resolve environmental cases before they are taken to the High Court.
95.Given the weaknesses of the traditional judicial review process for dealing with environmental cases, an enhanced enforcement procedure should be established for the OEP. Clause 25 should be redrafted to ensure that there is a legislative requirement on the court to take account of the issued decision notice as part of the review process.
96.The OEP should be empowered to issue emergency and interim measures in urgent cases and to intervene in other legal proceedings relating to its purposes. These additional powers are essential given the potentially irreversible nature of environmental harm.
97.Defra should also continue to engage with legal experts on how best to incorporate the First Tier (Environmental) Tribunal into the enforcement process. An appropriate role for the Tribunal would be to confirm any decision notices issued by the OEP. The Tribunal could have a role in deciding whether there has been a breach of environmental law or whether the steps proposed to deal with the situation are adequate or reasonable.
98.The Brexit and the Environment group pointed out that there were some “important differences” between the OEP’s procedure and the Commission’s; including that EU members states must comply with the infringement procedure under the EU Treaties, and that in the later stages of the EU’s process the Commission has the power to recommend significant fines. It described fines as “the new watchdog’s sharpest teeth” and stated that although there were complications to applying them in a domestic context, fines should be given more thought before they were removed entirely. The RSPB, WWF and the Wildlife Trusts also all suggested the OEP should have the power to issue fines in cases of non-compliance. The Countryside Alliance and the Royal Town Planning Institute both highlighted how effective the threat of fines had been in bringing about compliance with environmental law.
99.Not all stakeholders regarded fines as an appropriate enforcement tool for the OEP. UKELA stated that “without an elaborate structure for the application of fines for environmental purposes, little would be gained by this process” and that “however structured, it would simply divert resources from public authorities”. Dr David Wolfe QC similarly argued that “such organisational fines do not necessarily deter” and “may simply undermine the ability of the public authority in question to get on with the job of environmental protection”.
100.Instead of fines, Dr David Wolfe QC stated that “what can really focus minds is a system of personal accountability” as senior officials or board members were rarely “publicly called to account for their failures or their organisation’s failures”. He argued that the Bill could be revised to give the OEP the power “directly and/or in the court of an OEP JR to require (say) the Chair and Chief Executive of the public authority under scrutiny to attend and publicly account for what has gone wrong”. Professor Richard Macrory QC similarly called for an enhanced enforcement procedure that incorporated an “extended notion of responsibility in public law” and suggested that, to reflect the force of the Commissions infringement proceedings, the OEP’s enforcement powers should be directed solely at the Secretary of State. Overall, he considered that “we should be looking to novel ways of resolving difficult issues concerning the implementation of environmental law duties”.
101.In contrast, the NFU considered that the proposed enforcement powers for the OEP were proportionate. Whilst noting that the Commission had greater enforcement powers, such as the power to fine, it argued that these powers were only appropriate in the context of the European Union and ensuring the compliance of member states. They argued that, given that the OEP would be working in a “purely national context”, the enforcement tools available to the Commission would be inappropriate. This was also the position of the Environment Agency, which considered that the powers in the draft Bill provided a “proportionate and workable mechanism to take enforcement action”.
102.Defra has previously stated that it would not be necessary or appropriate to give the OEP the power to issue fines against the government. It argued that public authorities have a duty to comply with court judgements, and that failure to comply with a court order would not only be a breach of the ministerial code but could lead to the responsible person being held in contempt of court, which could subsequently lead to fines, sequestration or even imprisonment. Defra also argued that fines could be “counterproductive” if they led to a reduction in a department’s budget, and limited the capacity of a department to fully implement environmental law due to resource limitations.
103.Given the structural differences between the European Commission and the proposed OEP, we agree that it is inappropriate to simply try to replicate the Commission’s current enforcement powers. While fines have proven to be a powerful tool for compliance within the context of the Commission, we do not believe they are a suitable mechanism within a domestic context as they could reduce already depleted public authority budgets. However, in the absence of fines, we believe there needs to be an appropriate enforcement alternative. The watchdog will need sharper teeth than it is currently given. In the absence of the power to fine, additional tools need to be given to the Office for Environmental Protection enforcement powers to ensure compliance with environmental law. Appropriate mechanisms to ensure greater personal accountability for failings will help to sharpen the watchdog’s teeth.
104.Beyond its enforcement function, the draft Bill sets out scrutiny and advisory functions for the OEP to undertake. The Secretary of State has committed to ensuring that the Government “is obliged to have a long-term plan for improving the environment; to publish indicators; and to measure and report on progress”. The explanatory notes state that the OEP will “generally assess progress in the implementation of the Environmental Improvement Plan and environmental law, and identify how the strategic direction could be improved”. It will fulfil this role “alongside” the Environment Agency and Natural England who will also monitor progress and advise on possible improvements in specific areas.
105.Some of the key functions outlined in the draft Bill include:
106.Professor Maria Lee argued that the OEP’s wider scrutiny and advice functions could be amended to empower the OEP and ensure wider political accountability for protecting the environment. She suggested that Clause 14 could be amended so that the OEP was empowered to advise on the development of environmental policy. Professor Maria Lee also argued that Clause 15, “suitably strengthened”, could make a “significant contribution to both accountability and environmental learning”. She suggested that this provision could allow the OEP to “delve into the exercise of discretion around the implementation” of environmental Law. She suggested that Clause 15 could be strengthened in two ways; first, by placing an obligation on public authorities to report on their implementation of environmental law; and second, by introducing a governance structure to support the work on implementation. She considered that, strengthened in this way, Clause 15 had the potential to be “genuinely world leading” as it would allow the OEP or parliamentary committees to enter into dialogue with environmental regulators about the ways in which they implement environmental law. Professor Richard Macrory QC similarly stated that Clause 15 had been drafted in very broad terms, and called for more systematic reviews to be incorporated in the Bill.
107.UKELA expressed concern that there was “an inevitable tension between the OEP’s two roles of being an advisory body to Government on environmental law and simultaneously being its regulator”, which might in turn “compromise its independence”. UKELA suggested that the Government could seek appropriate legal advice when needed externally without depleting OEP resources. Andrew Bryce, Co-Chair of the UKELA Brexit taskforce, argued that the OEP should not be required to give legal advice to a body it is regulating, and that any advice given should be at the discretion of the OEP. The Countryside Alliance advocated a revision to Clause 16 to give the OEP power to offer advice to Ministers at its own discretion and suggested that “this would be a closer reflection of the current arrangements between the EU institutions”. The Agricultural Law Association expressed concern that Clause 16 allowed discretion to the Minister as to whether to present the OEP’s advice to Parliament or not, and suggested that Ministers should be obliged to present all advice they received from the OEP. The Committee on Climate Change also suggested that there was “a potential for conflict of interest within a body that both provides advice on aspects of environmental law, and then enforces that law”.
108.The NFU expressed concern about the possible duplication of roles and responsibilities, in particular between the OEP and the Natural Capital Committee, Natural England, the Joint Nature Conservation Committee and the Committee on Climate Change. It suggested that it would be worthwhile to examine the functions of all of the bodies to resolve any potential future confusion or overlap. Mark July, a retired employee of the statutory nature conservation bodies in England, considered that the OEP’s role should be as a “high level, committed advocate based on the facts” and “not to duplicate or take-over established monitoring functions undertaken by other specialist statutory bodies”. The Nature Friendly Farming Network also noted that it was not clear how the proposed Office for Environmental Protection (OEP) would work with the reformed farming regulation system proposed in the December 2018 Farm Inspection and Regulation Review.
109.The Environment Agency did not see any material conflicts of interest between the OEP and “existing government bodies” but highlighted the risk of the OEP “having to employ from finite public money a parallel team of technical staff for specialist areas when that expertise already exists” and is “needed to regulate industry effectively”. The Environment Agency suggested that such factors might be sensibly considered in the OEP’s overall strategy (in Clause 12). Alan Law, Deputy Chief Executive of Natural England, suggested that the OEP’s relationship with Defra’s regulatory bodies could be captured through Memorandums of Understanding, and that he saw the OEP possessing quite “a distinct capability, particularly around its legal capability, and around audit and analysis, rather than being a body of technical environmental experts”.
110.When asked whether there was potential for turf wars between the OEP and existing bodies, the Secretary of State dismissed this concern and explained that efforts had been made to “delineate pretty clearly what functions the OEP would fulfil”. The Environment Minister explained that she foresaw the OEP playing a similar advisory role to the Committee on Climate Change, driving a more strategic debate rather than reflecting on individual decisions. With regards to the use of memorandums of understanding, she considered that initially “there may be some trying to work out who is doing what” which was already the case to some extent. The Secretary of State later informed us that Defra was considering the “future landscape of Defra” and that this could include examining the responsibilities of each of its NDPBs. Suggesting there might be “an element of overlap” and also some “potential gaps”, he proposed that the project might “review whether or not responsibilities [of Defra’s NDPBs] need to be extended” or whether some NDPBs might be “merged”.
111.The advisory and scrutiny functions of the Office for Environmental Protection are welcome but need to be clarified and revised. The OEP’s primary function must be to hold the Government to account on its obligations to protect the environment. It is therefore important that its wider scrutiny and advisory functions do not compromise its ability to enforce, either by limiting its independence or by restricting its resources. To avoid any tension between the OEP’s two roles as an advisory body and a watchdog, Clause 16 should be redrafted so that the OEP only has to offer advice to Ministers at its own discretion.
112.The Office for Environmental Protection (OEP) should act as a high-level strategic body. It should advise on matters relating to environmental law and the implementation of the Environmental improvement plans. The OEP must not take over well-established monitoring functions undertaken by other specialist statutory bodies. To avoid unnecessary and costly duplication of technical expertise the OEP must set out in its strategy how its wider scrutiny and advisory roles will relate to and impact upon the other statutory bodies within the ambit of Defra.
113.Clauses 30 and 31 define the meaning of “natural environment” and “environmental law” in the draft Bill. The definitions “are important for understanding the scope and nature of the new domestic governance and principles arrangements”. For example, many of the OEP’s functions in the draft Bill are described by reference to “environmental law”.
114.Clause 30 defines the meaning of “natural environment” as:
(a) wild animals, plants and other living organisms;
(b) their habitats;
(c) land, water and air (except building or other structures and water or air inside them);
and the natural systems, cycles and processes through which they interact.
Clause 31 outlines that “environmental law” in the draft bill relates to areas that are “(a) mainly concerned with an environmental matter, and (b) is not concerned with an excluded matter”. Clause 31(3)(c) specifies which matters do not fall under this interpretation of “environmental law” and are therefore exempted from the scope of the OEP:
(a) Emissions of greenhouse gases (within the meaning of the Climate Change Act 2008), but not the subject matter of the Fluorinated Greenhouse Gases Regulations 2015 (S.I. 2015/310);
(b) disclosure of or access to information;
(c) the armed forces, defence or national security; and
(d) taxation, spending, or the allocation of resources within government.
The explanatory notes further clarify that the policy areas that would “normally be considered to constitute environmental law” include “air quality (although not indoor air quality); water resources and quality, marine, coastal or nature conservation; waste management; pollution; and contaminated land”. Policy areas which “would not normally constitute environmental law as defined here” and therefore “would be outside of the scope of the OEP” were listed as:
115.Ruth Chambers, representing Greener UK, suggested that the definitions of both environmental law and the natural environment needed “some very careful scrutiny” and were “not very clear” in the way they were currently drafted. Greener UK suggested that the definition in Clause 31(1)(a) should be changed from law “mainly concerned with an environmental matter” to “relating to” such matters. Ali Plummer, representing the Royal Society for the Protection of Birds argued that the definition of environmental law did not match the existing definitions of environmental law, for example the definition of environmental information from the Aarhus Convention and the definition used for environmental impact regulations. She also drew attention to the exclusions in the explanatory notes, such as town and country planning, flooding and forestry, and suggested that if these areas were to be excluded “the Bill needs to be clearer as to why that is the case.” Ruth Chambers explained to us that as drafted the Bill did not necessarily exclude these areas, but rather that they fell into a “category of accidental confusion”.
116.In addition to some “accidental confusions”, Ruth Chambers also suggested that there were some “plain old-fashioned mysteries” in these definitions, including the exclusion of international law from the definition of environmental law. She considered this to be “a rather startling omission” and suggested that international law “should very much be part of that definition so that the OEP can include them and factor them in”. Dr Tom West explained that despite losing the “overarching framework of EU law”, international law might be able to compensate to a certain extent, and that this inclusion could be valuable.
117.The National Trust drew specific attention to the definition of “natural environment” in Clause 30 and expressed concern that it did not include any reference to the “historic environment”. Similar concerns around this exemption were raised by the Heritage Alliance and the Chartered Institute for Archaeologists. The National Trust suggested that the specific exclusion of “buildings and other structures” from the definition might even proactively exclude historic features. It argued that the exclusion of features related to the historic environment contradicted and undermined the Government’s 25 Year Environment Plan, which identified enhancing “beauty, heritage and engagement with the natural environment” as a specific goal. The National Trust therefore recommended that the understanding of the environment in the Bill should be widened to include the historic environment.
118.On the policy areas exempted in the explanatory notes, Professor Maria Lee highlighted planning, noting that it “is a core institution in our framework of environmental protection, and the application of planning legislation (powers and duties) is an important way of ensuring compliance with environmental law as defined in the draft Bill”. She suggested that a similar analysis could be applied to forestry and flooding. Professor Maria Lee also noted that, as drafted, all these areas fell within the draft Bill’s definition of environmental law, and suggested that there was a lack of clarity in the explanatory notes.
119.Professor Richard Macrory QC suggested that the definitions were appropriate for the OEP’s enforcement role but advised that for the purposes of the OEP’s wider scrutiny and advice functions, there should be a “more generous definition”. UKELA expressed concern that the definitions could deny the OEP the power to review all elements of progress under the Environmental Improvement Plans (EIPs). It suggested that “significant difficulties” would exist if the OEP’s monitoring scope in relation to law and the EIPs was unduly constrained and that all matters of the EIPs needed to be within the jurisdiction of the OEP.
120.Natural England agreed that the definitions of the “natural environment” and “environmental law” in the explanatory notes would benefit from further clarification. In reference to the list of excluded policy areas, it would have expected forestry “to be in scope” and also advocated for “the inclusion of people’s enjoyment of the natural environment” as it was a potential component of the EIPs. The Environment Agency expressed concern that exemptions under the definition of environmental law were “too broad”. In response to the explanatory notes it argued that it “would be difficult to separate what relates to the environment, or not, in most of the legislation” and that in turn this could lead to a lack of clarity and transparency for the role of the OEP. It recommended that “legislation, for example on taxation, flooding and forestry, should be in scope of the OEP when it has and only insofar as it has a significant impact on the natural environment”.
121.The Minister conceded that the definitions within the explanatory notes had not been “worded brilliantly”. She confirmed that “anything environmental in there is completely in scope”.
122.The definitions in the draft Bill are currently a source of confusion. We therefore welcome the Minister’s commitment to review Clauses 30 and 31 and to rewrite the relevant explanatory notes. The definitions of natural environment and environmental law are of central importance as they will guide future Secretaries of State in their creation of Environmental Improvement Plans and frame the remit in which the new Office for Environmental Protection will operate. They must therefore cover all the necessary aspects of environmental law and the wider environment.
123.The definitions in Clauses 30 and 31 need to be expanded in scope and clarified in application and interpretation. We recommend that the Bill be redrafted to provide for a more holistic definition of the environment, with explicit reference made to the historic environment. Given the UK’s departure from the wider framework of EU environmental law, international law should be included within the definition of environmental law, so that the OEP can factor international law into its enforcement and wider advisory functions. The Bill should also be redrafted to ensure that the OEP has the power to review all aspects of the Environmental Improvement Plans in its monitoring role.
124.Clause 31 excludes greenhouse gas emissions (other than specific fluorinated gases) from its definition of Environmental Law and therefore from the wider remit of the OEP. In practice “most legislation concerning the mitigation of climate change, including that under the Climate Change Act 2008, will fall outside the remit of the OEP’s complaints and enforcement functions and its monitoring of environmental law, with the exception of the regulation of specific fluorinated greenhouse gases”.
125.In response to the Government’s consultation on governance and principles a significant majority of stakeholders called for climate change to be within the scope of the OEP. The Government stated its intention was to ensure that the “vital role” of the existing Committee on Climate Change is “protected and [that] it is able to operate as it does currently”. Clause 12 of the draft Bill requires the OEP to prepare a strategy in which it sets out “how the OEP intends to avoid any overlap between the exercise of its functions under sections 14 to 16 (monitoring, reporting and advising) and the exercise by the Committee on Climate Change of that committee’s functions”. The Government has stated that the OEP and CCC will “operate under a Memorandum of Understanding, which would require them to coordinate the exercise of their functions in a mutually beneficial and complementary way”.
126.The Mayor of London suggested that by excluding climate change from the Environment Bill, the Government was “creating a clear gap” in environmental governance. Professor Maria Lee argued that the exclusion of emissions of greenhouse gases may be unobjectionable in respect of the OEP’s monitoring and advisory functions but that its exclusion from its enforcement role was “significant,” given the Committee on Climate Change’s lack of enforcement powers. Ruth Chambers, Greener UK, explained that:
The Committee on Climate Change does not have enforcement powers, nor is it bidding to gain them. If the OEP is not able to enforce any potential breach of climate law in the future, there will be a gap in relation to the body that is going to do that. It is almost a basic principle of natural justice. The way to fix this is by including climate change within the definition of environmental law and, by extension, that would fall within the remit of the OEP and the public would be able to make complaints about any potential breaches of climate law.
Ruth Chambers suggested that the intention should not be to revise the role of the CCC, but instead to find ways to ensure there was an appropriate duty of cooperation, established both in legislation and via memorandums of understanding. Debbie Tripley, Director of Environment Policy and Advocacy, WWF, expressed concern that there could be some incoherence between the OEP and the CCC, especially where, for example, in their separate advisory capacities the OEP and the CCC might give contradictory pieces of advice on an aspect of the Climate Change Act. She advocated that it should remain the sole remit of the CCC to advise on the Climate Change Act and highlighted the need for “some coherence in the drafting”.
127.Chris Stark, Chief Executive of the CCC, did not foresee a gap in climate change enforcement but suggested there was an ambiguity. In particular, he explained that the ambiguity would arise with regards to the CCC’s scrutiny of climate change adaptation, a role undertake by the Adaptation Sub-Committee (ASC) of the CCC. He explained that:
As the Environment Bill is drafted, it is possible that we will run into a point where we are providing independent advice on the impacts of climate change on the national environment and the OEP is expected to do the same thing. That is possible to manage, but it would be important for us to establish a clear memorandum of understanding about how we will operate with the OEP.
Chris Stark explained that an “ideal arrangement” between the CCC and the OEP would allow the CCC to continue its independent assessment of climate change law directly to Parliament, but for it “as necessary” to direct its assessment to the OEP “to allow it to undertake its enforcement functions as regards the natural environment”. In July 2018, Lord Deben, Chairman of the CCC, recommended to the Secretary of State that to “avoid the risk of duplication” the analysis of the 25 year environment plan related to climate change should not be delivered by the new watchdog, but rather that the watchdog should receive its analysis from the Adaptation Sub-Committee and use it to inform appropriate enforcement actions as necessary.
128.The Secretary of State suggested that the extent to which climate law should be included within the remit of the OEP was “precisely an issue for pre-legislative scrutiny”. He stated that it was not his intention to upset the “smooth and effective working” of the CCC. He also expressed again that he was “open minded” to considering how the new body’s remit should be extended to the enforcement of climate law.
129.There must not be a governance gap in law in relation to climate change when the UK leaves the European Union. Given the lack of enforcement provision for the Committee on Climate Change, the Office for Environmental Protection should play a role in enforcing the Government’s targets and objectives relating to climate change. However, in undertaking this function, the OEP must not unnecessarily and negatively encroach upon the well-established advisory functions of the Committee on Climate Change.
130.The Government should make clear via memorandums of understanding published alongside the Bill, how the Committee on Climate Change intends to co-operate with the Office for Environmental Protection. As the Climate Change Committee has no enforcement role, Clause 31 of the Bill should be redrafted to include Climate Change within the enforcement remit of the OEP. A duty should be placed on the OEP to consult the Committee on Climate Change before conducting any enforcement action in this area.
131.Currently the European Commission’s enforcement relates to the whole of the UK. However, within the UK, environmental policy is a devolved matter, subject to a small number of areas that are reserved. Clause 34 therefore sets out the territorial extent of the clauses in the draft Bill. The explanatory notes explain that:
the draft Bill will apply to England. Clause 1 to 4 [the policy statement on environmental principles] apply to Wales, Scotland and Northern Ireland in respect of the functions of UK Ministers only. The remainder of the Bill will apply to Wales, Scotland and Northern Ireland in respect of environmental matters that are not devolved.
132.The explanatory notes state that “the new body could, subject to the ongoing framework discussions with the devolved administrations, exercise functions more widely across the UK”. In an accompanying policy paper, Defra also extended a welcome to the devolved administrations to co-design legislation on the environment:
Overall, we recognise that protecting the environment is inherently an issue that cuts across boundaries, and we continue to welcome the opportunity to co-design with the Devolved Administrations, should they wish to join any proposals, to safeguard our shared natural environment.
133.Professor Colin Reid and Dr Viviane Gravey, members of the Brexit and the Environment group, outlined the different arrangements for environmental governance in the devolved nations. Professor Reid stated that it was “important to realise” that as far as environmental governance is concerned “the different devolved administrations are starting in different places”. He stated that in Wales certain principles were already embedded in legislation and that there was an existing “machinery” with a “government architecture that could be used as a way of enforcing, implementing and reviewing what is happening”. In relation to Scotland, he suggested that there was “more interest in using existing audit mechanisms than perhaps setting up a separate body”. Professor Reid noted that Northern Ireland was in a “in a different position”. Dr Gravey stated that “giving the OEP jurisdiction over Northern Irish devolved environmental policy and law raises questions about local buy-in and legitimacy of an institution developed for England/Reserved matters made common by default”.
134.Despite the commitment to co-design, the Brexit and the Environment Group, concluded that there was “little concrete detail on how and when [co-design] will happen”. Whilst they acknowledged there were many incentives for co-operation, they expressed concern that “the limited trust between the devolved nations and the UK government may jeopardise the future development of environmental governance structures after Brexit”. The Royal Town Planning Institute considered that it was “unfortunate that the UK Government has pressed on with this process unilaterally”. It suggested that it “would have been preferable for the three sitting Governments in the UK to have jointly come to an agreement on how they wish to replace the European Commission and then consulted their peoples accordingly”. It further argued that the commitment to cooperation in the accompanying policy paper fell “far short” of the kind of cooperation which “which would effectively replace the role of the EU”.
135.Professor Colin Reid suggested that, in the short term, there were “two things that could usefully be added to the Bill” to improve cooperation. He advocated for a provision in the Bill that explicitly allowed for “collaboration, co-operation and the sharing of data” between the OEP and bodies fulfilling the same functions in the devolved Administrations. Professor Reid also argued that, given the different starting points of the Devolved Administrations and the shortage of time, it was “extremely ambitious to think we are going to get commonly agreed unified arrangements by the time this Bill gets through”. He therefore suggested that there should be “a commitment to a review” the arrangements with the devolved administrations after a stated period of time once the OEP had come into effect.
136.The Secretary of State informed us that he met with the Devolved Administration Ministers monthly on a ministerial level, and “not quite daily but regularly at official level”. The Environment Minister stated however that, apart from Northern Ireland, the Devolved Administrations had “not expressed any interest” in being part of the Bill. The Secretary of State stated that Defra was “more than happy” to cooperate should the devolved administrations wished to, and informed us that he had made the case to Fergus Ewing MSP that the OEP could be located in Scotland.
137.Further to our public session, Dr Denis McMahon, Permanent Secretary, informed the Chair of the Environmental Audit Committee that officials in Northern Ireland’s Department of Agriculture, Environment and Rural Affairs (DAERA) were “working with Defra officials to draft provisions that will extend the principles and governance measures in the Bill to Northern Ireland”.Dr McMahon stated that work was “at an early stage” but consideration was being given “to the new provisions to ensure that they will work effective in the Northern Ireland context, including amongst others the “applicability of the principles”, the “remit of the OEP in Northern Ireland” and “trans-boundary issues”.
138.Although environmental policy is a devolved matter, it is essential that the UK Government and the Devolved Administrations work together to protect the environment after the UK leaves the European Union. National boundaries are irrelevant in the context of environmental challenges such as air pollution or climate change. Common frameworks for governance after the UK’s exit from the European Union should be underpinned by common standards and principles to avoid gaps in the implementation of environmental policy across the UK.
139.We would welcome the extension of the Office for Environmental Protection to become a UK wide body but recognise that this decision sits within the power of the Devolved Administrations. The Bill should be redrafted so that, subject to the creation of separate bodies in the Devolved Administrations, the UK Government can establish the necessary mechanisms for cooperation and the sharing of data. Given the rushed timescales for the creation of the OEP, the Government should commit to a future review of the provisions for environmental governance across the UK within five years.
186 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, explanatory notes, para 29
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190 Institute for Government () para 2
191 Institute for Government () para 2
192 Institute for Government () fig 1
193 Institute for Government () para 3
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197 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clauses 22–23, 25
199 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, explanatory notes, p 59
200 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 18
201 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 19
202 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 22
203 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 23
204 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 23(4)
205 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 25(3)
206 Water UK () para 4
207 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 17(3)
208 Water UK () para 13; Department for Environment, Food and Rural Affairs, Environmental Principles and Governance after the United Kingdom leaves the European Union: Summary of responses and government response, 19 December 2018, p 29
209 Water UK () para 14; see also Thames Water (); Southern Water (); United Utilities ()
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218 UKELA () para 21; Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, explanatory notes, para 165
219 ClientEarth () p 4
220 UKELA () para 21
222 Emeritus Professor of Environmental Law Richard Macrory () para 2
223 ClientEarth () p 3
224 See for example RSPB (), WWF (); Professor Maria Lee (); Aldersgate Group ().
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227 Professor Maria Lee () para 15;
228 Emeritus Professor of Environmental Law Richard Macrory () para 7
230 Natural England () para 3.2
232 Environment Agency () para 3.2
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234 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, explanatory notes, para 162
235 Andrew Bryce () para 11; see also Law Society of Scotland (); Dr David Wolfe ().
236 UKELA () para 16
237 Andrew Bryce () para 11
238 ClientEarth () p 4
240 Natural England () para 3.3
247 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, , December 2018, Clause 25(1)
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Published: 30 April 2019