Will the Office for Environmental Protection be able to hold the government to account?

The UK’s departure from the EU left many concerned by a ‘governance gap’ in relation to environmental law. As well as no longer being held to account by the EU Commission, the UK can now repeal any retained environmental law and does not have to keep up with developing EU standards. In order to fill this gap, the Environment Bill (the Bill) makes provision for a new public body, the Office for Environmental Protection (the OEP) whose objective is to:

‘protect and improve the environment by holding the government and public authorities to account against their commitments and environmental law’.

What will the OEP do?

The Bill gives the OEP scrutiny, advice and enforcement functions. These include monitoring and reporting on the government’s plans, targets and the implementation of environmental law, which in the Bill is any legislative provision ‘mainly concerned with environmental protection’ apart from some excluded matters.

The OEP will have an overarching role to enforce against ‘failures by public authorities to comply with environmental law’. Any person 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. 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. The OEP can issue a public authority with an information notice to request information and the public authority is required to provide a written response. If the OEP is satisfied on the balance of probabilities that there has been a serious failure, 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 and judicial review

Where the OEP has issued a decision notice, it may apply to the High Court for an environmental review if it is satisfied that the authority has failed to comply with environmental law and it considers the failure a serious one. If the High Court makes a statement of non-compliance, it may grant any remedy that could be granted by a court in a judicial review other than damages. The Bill builds in necessary pre-litigation steps in order to give the authority a chance to remedy its actions before reaching the enforcement stage but no doubt public bodies will wish to avoid being the subject of either complaints, investigations or environmental review.

If the OEP considers there has been conduct which constitutes a serious failure to comply with environmental law, it may apply for judicial review where it considers the application necessary to prevent or mitigate serious damage to the natural environment or to human health. This is termed the ‘urgency condition’ in the Bill and may be used whether or not it has issued an information notice or decision notice.

How effective will the OEP be?

There are questions about how effectively the OEP will be able to hold government to account including criticisms that some provisions in the Bill allow the government to ‘mark its own homework’ such as the OEP having to have regard to guidance issued by the Secretary of State. Other restrictions, such as the OEP only being able to bring a judicial review when the ‘urgency condition’ is met, undermine its ability to meet its principal objective of contributing to environmental protection through enforcement. The Bingham Centre for the Rule of Law goes as far as to say that the Bill has the potential to:

‘radically alter the balance of power in favour of executive action, and against the environment, the courts and the citizen’.

Amendments are tabled for the House of Lords report stage which starts on today (6 September 2021), so how fierce a watchdog the OEP ends up being may still be decided before the Bill finally receives Royal Assent.