Introducing the OEP: Part 3
This blog post on the Office for Environmental Protection follows on from part 2, which discusses the body’s enforcement procedure. This post analyses some of the features of the Act that may affect the OEP’s ability to carry out its functions.
The OEP is only concerned with the way in which public bodies comply with environmental law. The Act defines environmental law as ‘any legislative provision that is mainly concerned with environmental protection, and is not concerned with an excluded matter.’ At first glance, this seems like a fairly broad definition; any legislative provision – or, anything that passes through Parliament – that is mainly concerned with environmental protection will be within the OEP’s competence. But the government’s environmental obligations do not solely arise by virtue of domestic legislation; they also come from international agreements, which would not fall within the meaning of ‘legislative provision’. The OEP is therefore unable to hold the government to account in respect of its international environmental obligations which is a significant omission given that the body which it is intended to replace, the Commission, possesses this power.
To illustrate, the EU-UK Trade and Cooperation Agreement contains provisions relating to environmental protection which would be outside the OEP’s jurisdiction, whereas the Commission would have the power to enforce them. Optimistically, Stephen Tromans QC suggests there may be a way of bringing the Trade Agreement within the OEP’s competence by reading the Act with section 29(1) of the European Union (Future Relationship) Act 2020, which requires domestic law to be read in such a way as to give effect to the Trade Agreement.
For a legislative provision to be environmental law it must not be concerned with an ‘excluded matter’. In addition to the excluded matters expressly outlined in the Act, the Secretary of State is empowered to make regulations to exclude any pre-existing legislative provision from the definition of ‘environmental law’. This provision is concerning because it gives the government a ‘backdoor’ power to remove the OEP’s jurisdiction from areas which would otherwise be within its remit. A government could use this to chip away at the OEP’s power if it wanted to evade its environmental obligations and prevent scrutiny. Regulations have to be made using the affirmative procedure, which requires a positive endorsement of both houses of Parliament, but in reality the last time Parliament failed to pass an affirmative instrument was over 40 years ago.
Independence
The power of the executive to remove legislation from the OEP’s jurisdiction raises questions about the body’s independence. The government is responsible for its budget, appointing its chair, and its non-executive directors. Moreover, the Secretary of State has the power to publish guidance on the OEP’s enforcement policy; the OEP is obliged to have regard to this when preparing and executing its enforcement policy. What if that guidance advises the OEP not to enforce against the government in particular circumstances? Failing that, the guidance could be used to emasculate the regulator more subtly if it falls into disfavour. When added to the fact that many of the OEP’s general and enforcement functions are discretionary, there is a risk that the OEP will lack the independence necessary to make it effective.
But that risk is not without safeguards. The Secretary of State is obliged to have regard to the need to protect the OEP’s independence. In addition, Glenys Stacy has stated that she ‘probably has a damehood for [her] independence’ and she will not compromise on this. Therefore, the organisation appears to be in good hands while Stacey is at the helm if it comes up against a government threatening to interfere.
Independence will surely be an indicator of the OEP’s strength as an environmental enforcer, but there is a concern that it will be a weak body. Decision notices will not be binding and, significantly, if the OEP successfully brings an environmental review the Court will not have the power to award damages against the breaching party. This is consistent with the judicial review-like nature of environmental review, though it is in sharp contrast to the CJEU’s power to impose financial remedies against non-compliant member states. With this in mind, even if the OEP is independent, it may not be feared.
One might suggest that it is appropriate for a court not to impose damages because such an award would simply result in money flowing from one government funded body to another. However, this is a warped and overly simplistic way of looking at the relationship between public bodies. Although they do not exist in a vacuum, each body is an independent legal person with its own budget, staff, and objectives. Damages would still be a drain on a breaching party’s resources and, at a guess, local authorities will be the primary defendants in environmental review claims. With shrunken budgets and over-stretched resources, it is not unreasonable to think that the prospect of damages would be something that authorities, like most rational entities, would be eager to avoid.
Final thoughts
How well staffed will the OEP’s casework unit be? What is a ‘serious’ breach of environmental law? Given judicial review is a remedy of last resort, will all potential litigants in environmental judicial review claims have to complain to the OEP before bringing proceedings? Only time will tell. The Act had a frustratingly drawn-out run through Parliament; it will be interesting to observe how the OEP fares in the future and whether it will be as world-leading as the government intended.
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/.
