The consultation document and the draft strategy and enforcement policy (Annex A to the strategy) are here. The consultation runs until 22 March 2022. The documents are drafted so as potentially to apply to Northern Ireland – behind square brackets. The provisional inclusion of Northern Ireland-specific content is intended to demonstrate how the OEP would exercise its functions there, although whether the OEP’s remit will be extended in this way is dependent on a forthcoming decision of the Northern Ireland Assembly.
Objectives and functions
What is not the subject of the consultation is the OEP’s principal objective and the content of its functions – they are fixed by the 2021 Act. Part 1 of the draft strategy sets out four strategic objectives which capture how the OEP intends to pursue its principal objective and achieve its mission:
“1. Sustained environmental improvement
Government is held to account for delivery of environmental goals and targets, and its plans for environmental improvement.
2. Better environmental law, better implemented
The environment is protected and improved, and people are protected from the effects of human activity on the natural environment, through better design and implementation of environmental laws.
3. Improved compliance with environmental law
Government and other public authorities abide by environmental law so it can protect people and protect and improve the environment as intended.
4. Organisational excellence and influence
We are effective and efficient, with the authority, relationships, expertise, and voice to play our full part in national environmental governance.”
Albeit overarching, these objectives may be seen to echo the OEP’s key functions.
Objective 1 relates to statutory reporting on targets set under the 2021 Act and the environmental improvement plan (“EIP”). The draft strategy commits the OEP to publishing the first EIP monitoring report “in early 2022” – that will assess progress under the Government’s (2018) 25 Year Plan. That Plan was not written with the current statutory framework in mind – and contains few measurable targets.
Objective 2 relates to the OEP’s scrutiny and advice functions, which give it broad discretion to assess the implementation of environmental law and to issue reports and recommendations.
Objective 3 relates to the OEP’s enforcement functions – a staged set of bespoke functions that apply where there has been a serious failure of a public authority to comply with environmental law – ranging from the OEP receiving complaints to bringing ‘environmental review’ challenges against public authorities in the High Court. The draft enforcement policy makes clear, however, that court proceedings “should only be necessary as a last resort”.
Objective 4 is overarching. To some extent it reflects the co-operation duties in s.27 of the 2021 Act, but it goes beyond that, reflecting the OEP’s broader ambitions. Section 3.8 of the draft strategy sets out how the OEP will work with others more generally, including its Scottish and Welsh counterparts. Some environmental issues, such as river quality or coastal habitats, may obviously require a joint or co-ordinated approach.
The draft strategy – and the draft enforcement policy – set out information on the OEP’s functions and operating principles which this post will not attempt to summarise.
While there has been a lot of discussion among lawyers about the OEP’s enforcement functions, one thing that is clear is that enforcement is only one part – and very possibly not the most important part – of what the OEP will do. Further, the various functions should complement each other. The draft strategy introduces what it calls an “issue-based approach”, explaining:
“For example, we may scrutinise progress against an area of the EIP or targets, and implementation of associated environmental law, in concert. We may also decide to prioritise issues in that same area in our advice and enforcement functions.”
What issues the OEP may prioritise are not set out – something that is probably not helped by the lack of an up-to-date EIP or targets (which will be set later this year). However, the OEP’s unique ability to enforce compliance, monitor implementation and recommend improvements in the law suggests that such co-ordination will amount to more than the sum of its parts.
The draft enforcement policy also sets out a complaints procedure. The document explains that the OEP will need to be strategic in its prioritisation of cases. The OEP is required by the 2021 Act to consider prioritising matters with national implications. In the draft enforcement policy, the OEP recognise that local cases – such as the Grenfell Tower tragedy – may, of course, give rise to wider implications. Grant Daley, the OEP’s Principal Complaints Manager, drew a helpful analogy at the launch event, saying that complaints would be one source of information feeding into the organisation’s workstream – like tributaries into a river. It may be that such complaints do not warrant immediate individual investigation, but they might – in combination with other complaints and information – reveal areas where more intelligent action by the OEP is justified. In line with the “issue-based approach” that may mean scrutiny or advice on law reform, rather than enforcement.
The OEP is committed to transparency. Board meeting documents and minutes are already published online. The draft enforcement policy indicates that the OEP will seek to publish the outcomes of any agreements resolving issues with public authorities and to publish investigation reports in full. So whatever the OEP does do, it is likely that we will know about it.
Ned Westaway is a barrister at Francis Taylor Building, an honorary member of the UCL Centre for Law and the Environment and the current Chair of the UK Environmental Law Association.
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