Pre-appointment hearing for the Chair-Designate of the Office for Environmental Protection (OEP) Contents

1The Office for Environmental Protection

1.A large proportion of existing environmental law and policy in the UK derives from the EU, with its implementation largely monitored and enforced by EU institutions such as the European Commission. The Environment Bill provides a new domestic framework for environmental governance upon leaving the EU.1 The Bill has not yet completed Report stage in the Commons and will then need to be considered by the House of Lords. Given the early stage of the Bill’s passage, our conclusions in this report are provisional upon their being no subsequent relevant amendments, and we reserve the right to revisit them in the event that there are.

2.The Environment Bill establishes an Office for Environmental Protection (OEP), which will have scrutiny, advice and enforcement functions in England and on reserved matters. The Bill also makes provisions for the OEP to function in Northern Ireland since there was no functioning Executive at the time of introduction.2 The Northern Ireland Assembly has since agreed that consent for the UK Parliament to legislate in these devolved areas should be granted. Part 1 of the Bill on environmental governance and principles stems from a draft Environment (Principles and Governance) Bill, which was published in December 2018. The Environmental Audit (EAC) and Environment Food and Rural Affairs (EFRA) Committees conducted pre-legislative scrutiny on this part of the Bill (Part 1 and Schedule 1).3

3.The OEP will have two main sets of functions:

    a) Scrutiny and advice functions—Monitoring and reporting on environmental improvement plans and targets (clause 27); Monitoring and reporting on environmental law (clause 28); Advising on changes to environmental law, where requested by a Minister (clause 29).

    b) Enforcement functions—Investigation followed by environmental review (clauses 30–37); Judicial review by OEP itself (clause 38).

4.The OEP is to be a Non-Departmental Public Body (NDPB). The Secretary of State will be responsible for appointing the non-executive members of the OEP, including the Chair. The Chair is to appoint the chief executive following consultation with the Secretary of State.

5.The Government has acknowledged that interim arrangements will be needed since the OEP will not be operational by 1 January 2021, and has said that there will be a mechanism for the OEP to receive a report of any perceived or claimed breaches of environmental law made during this period. We wrote to the Secretary of State on 23 October 2020, questioning the powers and structure of the provisional OEP. In response, the Rt Hon George Eustice MP told us:

Defra is establishing an Interim Environmental Governance Secretariat, which will be hosted in Defra and will operate from 1 January 2021 until the Office for Environmental Protection can begin its statutory functions following the Royal Assent of the Environment Bill. The interim Secretariat will operate under the guidance of both the Chair and the other Board members when they have been confirmed in post, initially on a designate basis if needed ahead of Royal Assent of the Bill.

…my officials are in contact with their counterparts in Northern Ireland as they consider whether and how any similar interim arrangements might operate there. This is a matter for Northern Ireland’s Ministers to determine but we are pleased to assist.4

Independence of the Office for Environmental Protection

6.The predecessor EAC in its report into the 25 year plan for the environment recommended that the OEP should report to Parliament, similar to the National Audit Office, 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.5 This recommendation was repeated in its pre-legislative scrutiny report which was concerned that in the drafting of the Environment Bill, the OEP was not independent enough from Government.6 The Committee heard from constitutional experts who said there was no impropriety in the OEP being established in this way. The predecessor EAC also recommended that Parliament must have a greater role in the appointments process with a Parliamentary Committee having a veto over the appointment of the OEP’s Members and Chief Executive.

7.The predecessor EFRA Committee in its pre-legislative scrutiny report stated that the OEP must not be seen to be just another arm’s length public body attached to Defra, given its elevated watchdog status.7 It did not consider that the Office for Environmental Protection will have anything close to the same level of independence as currently exercised by the European Commission. The predecessor EFRA Committee recommended that the Government should revisit the legal status of the Office for Environmental Protection to provide greater independence than a standard Non-Departmental Public Body allows. It said lack of precedent should not be a barrier to establishing a constitutionally innovative model, especially given the Secretary of State’s ambition for the watchdog to be “world leading”. It also supported strengthening the appointment process for the Chair, recommending that the Secretary of State’s appointment should be subject to confirmation by the relevant Select Committee, following the process for the appointment of the Chair of the Budget Responsibility Council at the Office for Budgetary Responsibility.

8.The Government did not accept the Committees’ recommendations and maintained that the body will be a non-departmental public body and all non-executive members should be appointed by the Secretary of State.

9.At Committee stage, the Government amended the Bill in a manner which green groups suggested would weaken the independence of the OEP further.8 A new power was added for the Secretary of State to issue guidance to the OEP on matters concerning its enforcement policy; a new power for the Government to direct an interim chief executive; and the “environmental review” enforcement action proceedings will not now be held in the Upper Tribunal and will instead go back to being held in the High Court. This, it is argued, will reduce the effectiveness of an environmental review and make it more like a judicial review, where there are very narrow and limited grounds for bringing a case.

10.We note our predecessors’ concerns about the need for the Office for Environmental Protection and its Chair to have its independence from Government enhanced, and note the concerns of stakeholders about the recent Government amendments to the Bill. The independence of the Chair of the Office for Environmental Protection will be crucial to its ability to hold the Government to account. This therefore formed a central plank of our questioning of the Secretary of State’s preferred candidate.

11.We are encouraged by Dame Glenys Stacey’s recognition that the OEP’s effectiveness as a regulator will rely on its ability to act independently from Government. In the absence of the statutory safeguards on independence that our predecessor Committees recommended, we will continue to monitor the ability of the OEP to maintain its independence from Government and encourage Dame Glenys to raise any concerns in this area with our two Committees, should the need arise.

1 All references to the Bill in this report are to the version as amended in Commons Committee, see Environment Bill 2019–21.

2 Clause 48 and Schedule 3

3 Environmental Audit Committee, Scrutiny of the Draft Environment (Principles and Governance) Bill, Eighteenth Report of Session 2017–19, HC 1951, 25 April 2019. Environment, Food and Rural Affairs Committee, Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill, Fourteenth Report of Session 2017–19, HC 1893, 30 April 2019.

4 Letter from the Rt Hon George Eustice MP to the Chairs of the Environmental Audit and Environment, Food and Rural Affairs Committee Chairs, November 2020

5 Environmental Audit Committee, The Government’s 25 year plan for the Environment, Eighth Report of Session 17–19, HC 803, 18 July 2018

6 Environmental Audit Committee, Scrutiny of the Draft Environment (Principles and Governance) Bill, Eighteenth Report of Session 2017–19, HC 1951, 25 April 2019.

7 Environment, Food and Rural Affairs Committee, Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill, Fourteenth Report of Session 2017–19, HC 1893, 30 April 2019.

Published: 18 December 2020 Site information    Accessibility statement