Is the independence of the Office for Environmental Protection already compromised?

After its progress was stalled due to the COVID-19 pandemic, on 3rd November the Environment Bill resumed its journey through the House of Commons. The Bill is currently at the committee stage in the House of Commons, the point at which the Bill is considered line by line and changes to the wording made, where the House deems it appropriate.

One of the most vaunted measures introduced under the Environment Bill is the establishment of the Office for Environmental Protection (OEP), lauded as “a powerful new independent regulator” that will “hold the government to account” and ensure that environmental legislation and protections are adhered to. At first glance, the OEP appears to be a welcome addition to the UK’s regulatory framework, particularly because it has the power to take public authorities to court over breaches of legislation.

However, as the Bill has progressed and amendments made, it has become clear that this watchdog is not the independent body that was promised. In the Committee Debates taking place on the 3rd, 5th and 10th November, the opposition expressed its concern that the independence of the OEP was being “eroded”. The main issue, it contended, is that too much power is concentrated in the Secretary of State, thus compromising the independence of the OEP.

Does the formulation of the OEP promote independence?

Currently the Bill stipulates that the members of the OEP are to be appointed by the Secretary of State. It was made clear in the committee debate on 3rd November that the Secretary of State will appoint the Chair of the OEP and will subsequently, in consultation with the Chair, appoint the non-executive members. This presents a problem. At present, there is no information on what, if any, criteria is to be used in the appointment of the Chair. Theoretically, the Secretary of State could appoint any person they see fit, a decision made subjectively, not objectively.

The dangers of this are obvious. The appointment of persons to roles to which they are simply not suited or qualified, is not unheard of. Whilst there is no suggestion that such circumstances will come to pass in relation to the OEP, as a matter of good practice, processes should be put in place to ensure that any appointment stands up to robust scrutiny. During the debate, it was noted by Dr Whitehead, Labour MP for Southampton, that the method of appointment proposed could “create a cascading lack of independence”.

The Government’s response to this criticism was that The Environment, Food and Rural Affairs Committee and the Environmental Audit Committee will jointly carry out a pre-appointment hearing with the Secretary of State’s preferred candidate for the OEP chair. Yet notably this process is not enshrined in the law. The Bill does not state that the two committees will undertake this role. There is nothing in the legislation which prevents the Secretary of State from appointing who they like without any assistance. Anthony Browne, the Conservative MP for South Cambridgeshire suggested that the reason for this omission is that the Government does not want to “bind” the Committees’ “hands into the future” should they wish to do things another way. This argument is weak.

The point of the legislation is to enshrine the OEP and its role as an independent regulator, into law. This gives those regulated by the OEP confidence and certainty in it. If having bound the committees, it was decided that there was a better way of undertaking the appointment process, it is open to Parliament to amend the legislation accordingly. There can be no reasonable excuse for not legislating the appointment process. In short there are no checks and balances in place. The process of appointment relies on the Secretary of State doing what is right, a position which is both unusual and concerning given the mandate of the OEP and its ability to regulate the government.

Furthermore, during the debate of 3rd November it was revealed by Rebecca Pow Parliamentary Under-Secretary of DEFRA, until the OEP is established an interim chief directed by the Secretary of State will fulfil its role. The chief will be aided by a team from DEFRA who will deal with complaints. Whilst it is clear that there is not enough time for the OEP to be up and running by 1st January, the concern is that the infancy of the OEP will be moulded by the Secretary of State and DEFRA. Whilst the Government is eager to emphasise that this is a temporary position, there is a risk that systems and procedures will be put in place which will then be adopted by the OEP, meaning that the Secretary of State has determined how the OEP is to operate. In light of this, there is an argument that the formulation of the OEP as an independent body has been compromised.

The issue of funding

In addition to the appointment of the OEP, concerns have been raised about how the body is to be funded. At the committee debate on 5th November, it was proposed by the opposition that an amendment be made requiring the Secretary of State to publish and lay before Parliament an indicative five year budget every five years. The OEP would then be able to decide how this money is be used, allowing it to manage its own budget and remain independent. Currently under the Environment Bill, the Minister can designate funds from time to time to the OEP as he or she directs. Again, this measure can be criticised because it means that the Government ultimately has control over the money allocated to the OEP. It is not clear how the Minister will decide the budget amount or whether this process will involve their assessing how the budget will be spent. The Government indicates that its funding to the OEP will be scrutinised and it will be held to account if necessary so there is a system of checks and balances in place. However, this does not address the fact that the OEP has been touted as an independent body when clearly the Government has the power to control what funding is given to that body to carry out its role. Despite the impact of the current funding arrangement on the independence of the OEP being raised during the committee debate, the amendment suggested by the opposition did not succeed.

A toothless watchdog?

When the creation of the OEP was first announced, it appeared to be a move in the right direction. For the first time there would be a way to hold all public regulatory authorities (including local authorities and the Environment Agency) to account where they failed to comply with the law. The ability to report regulators who misuse their powers or fail to regulate in accordance with their statutory duties to an independent, objective body was welcome news to legal practitioners and businesses alike. Experience shows that all too often internal complaints procedures exist merely to pay lip service to the fact that such a procedure needs to be in place. On many occasions, clients have exhausted the complaints procedure to find that their concerns remain unresolved by a regulator who is more concerned with justifying poor behaviour than acknowledging that their conduct has fallen short of what is acceptable. However, as the Environment Bill has evolved, the power exercised by the OEP and its usefulness has been called into question. At the committee debate on 5th November, Leo Docherty, Conservative MP for Aldershot, asserted that the “OEP’s enforcement policy will set out a consistent approach in determining whether a serious failure has occurred throughout its enforcement process.” He went on to state the following:

“Unlike the European Commission, which can only take action against member state Governments, the new Office for Environmental Protection will enforce the delivery of environmental law by all levels of public authority, from local authorities and arm’s length bodies to central Government. On that basis, it is important that the OEP should have the ability to focus on the most significant or serious breaches of environmental law.”

This comment is concerning. The contradiction is clear; whilst the Bill mandates that “all levels of public authority” can be scrutinised by the OEP, it is highly unlikely that “the most significant or serious breaches of the environmental law” will be undertaken by bodies such as local authorities, given their remit. In reality, it will arguably be very rare for alleged breaches by such bodies to be “significant” enough to warrant intervention. The claim that the OEP has a unique power to enforce against all levels of public authority, such as local authorities, then, seems hollow. It pays lip service to the idea that this is a new body with broad powers. Moreover, the Bill does not provide any definition of what would constitute a “serious” breach, a surprising omission. It can only be assumed that guidance will be issued clarifying the types of breaches which would meet the threshold necessary to fall within the remit of the OEP.

The matter of what action (or perhaps more accurately, the lack of it) can be taken by the OEP has also come under fire. In the committee debate of 5th November, the opposition pushed for an amendment which would mean that any authority issued with a decision notice by the OEP would be bound to follow its recommendations. Under the amendment, the OEP would have the power to issue directions to the authority requiring it to take action to rectify its failure and comply with environmental law. This amendment, however, was rejected. The Government stated that “binding notices would not be appropriate”. Conservative MP, Leo Docherty, asserted that where an authority fails to follow the recommendations, the OEP could refer the matter for an environmental review.

This curtailment of power is not what one would expect from a supposedly “powerful new independent regulator” able to hold the Government to account. It cannot make the authorities it investigates follow its recommendations. The best it can do is trigger yet another process, a procedure which is unnecessarily onerous and bureaucratic. One has to question what the point of the OEP is. Is it there merely to try and encourage non-compliant authorities to do better by its disapproval? If so, complainants will be disappointed. In justification of the OEP’s perceived lack of powers Mr Docherty indicated that binding notices would mean that the OEP would “effectively be able to superimpose its own decisions in place of those made by the relevant authorities appointed or elected for this purpose.” Again, this statement is confusing. The OEP has repeatedly been promoted as an independent, objective regulator. As such, one would expect that its purpose is to ensure that authorities who have acted outside of the law, are scrutinised and held to account by an unbiased body who is not conflicted or subject to any political pressure. If public authorities could be relied upon to act in accordance with the law, there would be no need for the OEP to exist at all. The current incarnation of the Bill presents the OEP as an advisory body rather than the robust regulator we were expecting.

Legislative gaps

Perhaps the most concerning thing about the OEP provisions is what they fail to say. A review of the legislation reveals that it is full of gaps. As mentioned above, the procedure for appointing the members of the OEP was explained by the Government, yet remarkably those details are not included in the legislation. It is expected that public authorities who receive a decision notice from the OEP rectify any breaches or failures, but again, they are under no statutory duty to do so. It is evident that the formation and power accorded to the OEP relies upon good faith and people doing what they ought to do. This is simply not good enough. The Government has proudly declared that the OEP, unlike the European Commission, will enforce the delivery of environmental law by all levels of public authority, from local authorities all the way up to central Government. However, on closer inspection, it is clear that the OEP’s remit is to investigate the “most serious” breaches, which somewhat reduces its ambit. In truth, the legislation lacks detail. The Government does not want to “bind” itself to anything, which is extraordinary given that the purpose of legislation is to set out clearly and concisely the parameters of what can and cannot be done. Whilst the Bill is still in progress, there is hope that these issues can be rectified. Whether we get the promising new watchdog we were anticipating remains to be seen.

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