The suspension of the passage of the Environment Bill 2019-21 through Parliament due to the Covid-19 pandemic provides an opportunity for more in-depth consideration of some of the key issues the Bill aims to address. The Bill is still at a very early stage in its passage through Parliament and so there is scope for amendments to be introduced. In each of this series of articles, we will explore an area of interest and the approach the Bill takes towards it.
Office for Environmental Protection
Chapter 2 of Part 1 of the Bill, alongside Schedule 1 to the Bill, introduce a new body corporate to be called the Office for Environmental Protection (“the OEP”). Clause 22 of the Bill sets out the principal objective of the OEP as being “to contribute to environmental protection, and the improvement of the natural environment”. It is clear that the OEP is meant to be an independent body and the Bill imposes duties to “act objectively and impartially” and to “have regard to the need to act proportionately and transparently”. Although these initial concepts seem clear, the Bill goes on to set out a wide range of functions for the OEP and it will remain to be seen how the body is able to operate in practice.
Scrutiny and advice functions
Under clauses 25 and 26, the OEP is obliged to monitor and report on the current environmental improvement plan (“EIP”), environmental and interim targets and the implementation of environmental law.
Clause 25 sets out strict timeframes in relation to OEP reports on the EIP and targets such that
a progress report must be laid before Parliament no later than 6 months after the report the Secretary of State is required to prepare under clause 8 is so laid. The Secretary of State is then required to publish a written response to the progress report.
The clause 26 reporting function is much broader because the OEP “may report on any matter concerned with the implementation of environmental law”, which means “any legislative provision to the extent that it…is mainly concerned with environmental protection, and…is not concerned with an excluded matter” (clause 43). The excluded matters relate to disclosure of information, national security and taxation.
The Secretary of State is obliged to respond to both forms of report in writing.
The final element of the OEP’s scrutiny and advice functions is its role under clause 27 in advising on changes to environmental law. The OEP is obliged to give advice to a Minister when requested but also has the power to give such advice even when not requested. In the interests of transparency, the OEP must publish such advice and the Minster may, if they think fit, lay both the advice and their response to it before Parliament.
Clauses 28 to 38 set out a large number of enforcement functions for the OEP. The overarching role of the OEP set out in clause 28(1) is to enforce against “failures by public authorities to comply with environmental law”. Public authority has a fairly broad definition of “a person carrying out any function of a public nature” but does not include devolved functions, parliamentary functions or functions of a specified list of public bodies (the OEP, a court or tribunal, either House of Parliament, a devolved legislature or ministers of the devolved nations). The Explanatory Notes to the Bill add a little more detail but confirm that “it will ultimately be for the courts to determine what constitutes a public function” in the same way they do for the same wording in the Human Rights Act 1998. It should be noted that some bodies can act in more than one capacity so some, such as statutory undertakers, “will be within the scope of the OEP only with regard to the exercise of their public functions”.
The forms of such enforcement are set out in the clauses which follow:
- Complaints (clause 29) – any person (who does not have functions of a public nature) may complain to the OEP if they consider a public authority has failed to comply with environmental law, within one year of the alleged failure.
- Investigations (clause 30) – after receiving a complaint, the OEP may carry out an investigation if in its view the public authority may have failed to comply with environmental law and the failure would be a serious one. Such investigation can also be carried out even without a complaint if the OEP has information on a potential failure.
- Information notices (clause 32) – the OEP can issue a public authority with an information notice to request information in relation to an alleged failure to comply with environmental law and the public authority is required to provide a written response.
- Decision notices (clause 33) – if the OEP is satisfied on the balance of probabilities that there has been a serious failure to comply with environmental law then it can issue a decision notice to set out the steps it considers the authority should take to remedy, mitigate or prevent reoccurrence of the failure.
- Environmental review (clause 35) – where the OEP has issued a decision notice, it may then apply to the Upper Tribunal for an environmental review of the public authority’s alleged conduct. The Upper Tribunal will then determine whether there has been a failure to comply with environmental law, applying judicial review principles. If the Upper Tribunal makes a statement of non-compliance, it may grant any remedy that could be granted by a court on a judicial review, other than damages, so long as the grant would not be likely to cause substantial hardship to or substantially prejudice the rights of any person other than the authority or be detrimental to good administration.
- Judicial review (clause 36) – if the OEP considers there has been conduct which constitutes a serious failure to comply with environmental law, it may apply for judicial review whether or not it has issued an information notice or decision notice. However, the OEP is only entitled to do so where it considers the application necessary to prevent or mitigate serious damage to the natural environment or to human health.
Interaction with other bodies
The apparently wide scope of the OEP’s functions has already led people to question how it will interact with other environmental bodies, for example the Environment Agency or Natural England. The Bill does not contain much information on this point other than that the OEP is obliged to publish a strategy on how it intends to exercise its functions which must also contain an enforcement policy (clause 22) so it might be expected that this document could make references to how any potential overlaps be avoided.