Introducing the OEP: Part 1
On 31 December 2020, a chapter in the UK’s constitutional history came to an end as it withdrew from the EU. Arriving at this point was not straightforward. After the referendum, a new question arose as to precisely what sort of Brexit the public had voted for and a raft of choices emerged.
Famously, during her tenure as Prime Minister, Theresa May announced that she believed a ‘red, white and blue Brexit’ would be right for the UK. Two years later, in 2018, Michael Gove provided a variation on the theme when he made a speech on the Government delivering a ‘green’ Brexit. Tedious as these metaphors might seem, the latter was noteworthy because Brexit will have a marked impact on environmental law in the UK.
This is not surprising given that 80% of the UK’s pre-Brexit environmental legislation derived from the EU and, as a result, the European Commission (the “Commission”) effectively acted as the UK’s public environmental regulator in most matters. This is because when a member state is believed to be in breach of any EU legislation, the Commission has wide discretion to take action against the alleged breaching party which can eventually result in proceedings in the Court of Justice of the European Union (the “CJEU”). Furthermore, private parties can, under certain circumstances, force the Commission to take enforcement action against a member state. Harsh remedies can then be imposed on member states found not to be in compliance with EU law. Leaving the EU therefore ousted the Commission’s jurisdiction, abrogated enforcement mechanisms, and left the UK without an environmental regulator in many respects.
The Office for Environmental Protection
Against this backdrop, the Environment Act 2021 (the “Act”) establishes the Office for Environmental Protection (the “OEP”). In summary, the OEP is a non-departmental, arm’s length public body designed to replace the role of the Commission as an oversight body. The Government indicated it would be a new, world-leading, independent environmental watchdog to hold Government to account on its environmental ambitions and obligations. The organisation is chaired by previous Ofqual chief executive and former Chief Inspector of Probation, Dame Glenys Stacey, whose appointment has was met with praise. Stacey appears enthusiastic about the role; she hopes the body will be inquisitorial and ask ‘why, why, why’ public bodies fail to comply with environmental law.
Objectives and Functions
The OEP’s overriding objective is to ‘contribute to environmental protection and the improvement of the natural environment’, with a duty to act impartially when discharging its functions. Impartiality is especially important in this case given that the OEP is intended to take over the Commission’s role and thus has the sensitive job of holding other government bodies to account. Furthermore, the body has an active duty to monitor the implementation of environmental legislation. This is reminiscent of the Commission, which monitors how EU law is implemented in member states, although, unlike the Commission, the OEP will have discretion over whether to report on how the law is actually implemented. Advice functions are also set out in the Act.
When requested by a minister, the OEP will be obliged to give advice about any proposed change to environmental law or any other matter relating to the natural environment. The body also has a more general power to advice where there is a proposed change in environmental law. The OEP must publish a strategy setting out how it intends to exercise its functions which, importantly, must contain its enforcement policy. Indeed, the OEP has published its draft strategy which was put out for consultation. The consultation closed on 22 March 2022. The next part in this series will discuss the OEP’s enforcement procedure
This is the first in a three-part series of blog posts about the Office for Environmental Protection. Originally appearing in the July/August 2021 edition of UKELA’s elaw newsletter as one article, each part has since been edited and reprinted here with UKELA’s kind permission. References are located in the original version. UKELA’s website can be found at: https://www.ukela.org/.
