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The scrutiny and Advice Functions of the Office for Environmental Protection

The scrutiny and Advice Functions of the Office for Environmental Protection

Environmental protection

The Office for Environmental Protection (“OEP”) is to be a new, independent, statutory body created under the Environment Bill to support environmental protection, improve the natural environment and hold public bodies to account. It is expected that the OEP will begin implementing its non-statutory functions in July.  

The OEP will have the power to run its own independent investigations and enforce environmental law, excluding any overlap with the work of the Committee of Climate Change (Cl 22(5)). It is to be equipped with legal authority to ensure long-term environmental governance, although its ability to take legal action is viewed by the government as a ‘last resort’. The OEP’s functions will include scrutiny and advice on the implementation of environmental law, as well as monitoring and reporting on progress against environmental improvement plans and targets. 

The scrutiny and advice functions of the OEP are set out in the Environment Bill in clause 22:

“22. Principal objective of the OEP and exercise of its functions

(1)    The principal objective of the OEP in exercising its functions is to contribute to -

(a)    environmental protection, and
(b)    the improvement of the natural environment.

(2)    The OEP must - 

(a)    act objectively and impartially, and
(b)    have regard to the need to act proportionately and transparently.

(3)    The OEP must prepare a strategy that sets out how it intends to exercise its functions”

The strategy is to contain an enforcement policy to govern the exercise of its enforcement functions (cl 22(6)-(8)).  

Overall, the OEP should retain an independent voice. The Defra Secretary of State, George Eustice, has stated that the OEP ‘will be a world leader in environmental regulation - setting how government will have to stand up to its pledge to protect and enhance the environment…’

The role of the chair of the OEP will be important, as the chair will lead the OEP and provide strategic vision. Dame Glenys Stacey’s appointment as chair was announced in December 2020 and Natalie Prosser will be the Interim CEO-designate.  Dame Glenys qualified as a solicitor and has worked for a number of regulators, although in December 2020 she accepted that she did not have a deep environmental understanding.  She has stated that she will hold the government and public authorities to account ‘without fear or favour.’  Natalie Prosser is too a qualified solicitor and was General Counsel at the Gambling Commission

Concerns have, however, been raised about clause 24 of the Environment Bill, which was added by a government amendment during the committee stage of the Bill. It provides:

“24. Guidance on the OEP’s enforcement policy and functions

(1)    The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6) (OEP’s enforcement policy).

(2)    The OEP must have regard to the guidance in -

(a)    preparing its enforcement policy, and
(b)    exercising its enforcement functions.

(3)    The Secretary of State may revise the guidance at any time. 

(4)    The Secretary of State must lay before Parliament, and publish, the guidance
(and any revised guidance).”

The Secretary of State may issue guidance and the OEP ‘must have regard’ to this guidance in preparing its enforcement policy, and when exercising its enforcement functions.  

Greener UK described this new provision as a ‘get out of jail free’ card, to direct the watchdog away from awkward or inconvenient cases.  Others have described this clause as ‘the government marking its own homework’.

Describing this provision at the committee stage, the Minister, Rebecca Pow, said:

‘This is an important new provision, which will allow the Secretary of State to seek to address any ambiguities or issues relating to the OEP’s enforcement functions where necessary. We expect the OEP to develop an effective and proportionate enforcement policy in any event, but Secretary of State guidance can act as a helpful resource for the OEP in the process. For example, the Secretary of State may issue guidance to the OEP relating to how it should respect the integrity of other statutory regimes, including those implemented by regulators such as the Environment Agency. That could also be invaluable to resolve and clarify any confusion that may arise regarding the wider environmental regulatory landscape.

As the Minister ultimately responsible to Parliament for the OEP’s use of public money, it is appropriate that the Secretary of State should be able to act if the OEP were not exercising its functions effectively or needed guidance from the Secretary of State to be able to do so, for instance, if it were failing to act strategically and, therefore, not taking appropriate action in relation to major systematic issues. The new clause will not provide the Secretary of State with any power to issue directions to the OEP—that is important—or to intervene in specific decisions. Rather, the OEP is simply required to have regard to the guidance in preparing its enforcement policy and exercising its enforcement functions.’  

It is important to note that guidance is just guidance.  It is not binding and the OEP does not have to follow it.  The guidance also has to be laid before Parliament and published, so that it will be open to scrutiny. Nonetheless, the addition of this clause to the Bill has encouraged those who suggest that the OEP will not have the “teeth” it requires to ensure that environmental regulations and protections are adhered to by government.  

Other doubts which have been expressed about the scrutiny and advice functions of the OEP include its inability directly to fine the government for breaches of environmental responsibilities. It is in truth still too early to judge with confidence how the OEP will perform its functions

The final position reached with the Environment Bill in relation to the OEP’s powers, and the development of the OEP’s enforcement policy, are certainly important spaces to watch, to try to judge how the OEP will work in practice.  Dame Glenys Stacey sounds optimistic about the OEP’s effectiveness in holding the government to account, stating: “I am thrilled have the opportunity to lead and develop OEP, so that it becomes the unstinting and resolute watchdog we all want it to be.” 

By Richard Honey QC and Alexi Norris (QMUL)