Statutory Framework

On June 23rd the Office for Environmental Protection (“OEP”) published its first Strategy and Enforcement Policy. This follows the draft Strategy and Enforcement Policy, which was published on January 25th and covered in a previous blog post by Ned Westaway.

Under section 23 of the Environment Act 2021 (“the Act”), the OEP must publish a strategy that sets out how it intends to exercise its functions. In particular, the strategy must set out:

1)    how the OEP will further its principal objective (defined in section 23(1) as contributing to environmental protection and the improvement of the natural environment), 
2)    how the OEP will act objectively and impartially, 
3)    how the OEP will have regard to the need to act proportionately and transparently,  
4)    how the OEP intends to avoid any overlap between the exercise of its functions and the exercise by the Committee on Climate Change (which is responsible for monitoring and reporting on progress under the Climate Change Act 2008) of that committee’s functions, and 
5)    how the OEP intends to co-operate with devolved environmental governance bodies. 

Under section 23(6), the Strategy must also contain an enforcement policy that sets out: 

1)    how the OEP intends to determine whether failures to comply with environmental law are serious for the purposes of sections 33(1)(b) and 2(b) (carrying out investigations), section 35(1)(b) (issuing information notices), section 36(1)(b) (issuing decision notices), section 38(1)(b) (applying to the court for an environmental review) and sections 39(1)(a) and (7) (applying for judicial or statutory review in urgent cases), 
2)    how the OEP intends to determine whether damage to the natural environment or to human health is serious for the purposes of section 39(2) (the ‘urgency condition’ when applying for judicial or statutory review), 
3)    how the OEP intends to exercise its enforcement functions in a way that respects the integrity of other statutory regimes (including statutory provision for appeals), 
4)    how the OEP intends to avoid any overlap between the exercise of its functions under sections 32 to 34 (complaints) and the exercise by each relevant ombudsman of their functions, and 
5)    how the OEP intends to prioritise cases. 

Under section 23(7), in considering its enforcement policy, the OEP must have regard to the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases- 

1)    That relate to ongoing or recurrent conduct, 
2)    That relate to conduct that the OEP considers may cause (or has caused) serious damage to the natural environment or to human health, or 
3)    That the OEP considers may raise a point of environmental law of general public importance. 

Points of Interest

What the Strategy and Enforcement Policy must contain is therefore defined in some detail in the Act, and much of the Strategy and Enforcement Policy is devoted to fulfilling the statutory requirements outlined above. The Strategy also sets out four strategic objectives as follows: 

1)    Sustained environmental improvement
2)    Better environmental law, better implemented
3)    Improved compliance with environmental law, and 
4)    Organisational excellence and influence. 

The Strategy then sets out four main functions (contained within the Act), which will contribute to the four strategic objectives: 

1)    Scrutinising Environmental Improvement Plans and targets
2)    Scrutinising environmental law
3)    Advice, and 
4)    Enforcement. 

Detail on how each of the main functions will be undertaken is provided in the Strategy, which builds on the definitions of the OEP’s functions in sections 28-30 (scrutiny and advice functions) and sections 32-41 (enforcement functions). This blog post will draw out a few points of interest from what is within the Strategy, focusing in particular on points that the OEP has included in its Strategy that it is not required to by the Act.  

First, under the Act, the OEP in considering its Enforcement Policy is required to have regard to the particular importance of prioritising cases. The importance of prioritisation when formulating the Enforcement Policy therefore has statutory basis, but there is no equivalent provision for the Strategy as a whole (apart from the general requirement that the Strategy must set out how the OEP will act proportionately). Nonetheless, the OEP in its Strategy emphasises the importance of prioritisation, not just for enforcement but for all of the OEP’s functions. The approach to prioritisation (which is set out at the beginning of the section on how the OEP will deliver its functions) is as follows: 

1)    We will prioritise by outcome and across our functions so that our work makes the most difference 
2)    We will prioritise by judgment, supported by the evidence available at the time 
3)    Our judgments on what we prioritise, and when, will be guided by four main questions: 

a.    How large an effect could our action have? 
b.    How likely is our ability to have that effect? 
c.    What is the strategic fit? 
d.    What is our capacity and capability to deliver? 

4)    We will be transparent about the matters we prioritise. 

The OEP is a relatively small organisation (currently with a maximum staff of 71, which is set to drop to a maximum staff of 53 during 2023/2024) with a very wide remit. The emphasis on prioritisation throughout the Strategy and not just in the Enforcement Policy is a pragmatic acknowledgment that the OEP will have to make difficult choices about what to focus on. In the Corporate Strategy focusing on the year ahead, some of the OEP’s priorities include publishing a monitoring report providing a stocktake of the UK government’s progress in delivering its 25-year environment plan for England, providing and publishing advice to the UK government on its approach to setting targets and on the proposed targets to be set under the Environment Act and publishing reports on the implementation of the HRA, SEA and EIA regimes. 

Second, it is noteworthy that one of the Strategy’s four strategic objectives is ‘organisational excellence and influence’. This objective is not an end in and of itself, but it is given equal importance because the OEP will only be effective in its other functions if it is trusted and respected. In its Corporate Strategy, setting out the OEP’s plans for the upcoming year, this strategic objective receives the most funding and staff time out of any of the four strategic objectives. This might change in the future once the OEP becomes more established, but one of the main challenges facing the OEP in its first year is establishing itself as a public body that is taken seriously.   

Third, at the end of the Strategy there is a very short section called ‘Measuring Success’. There is no requirement within the Act for the OEP to assess its own performance (beyond a general requirement to review the Strategy at least once every three years), but it is fitting that a body which is meant to hold others to account does the same for itself. There is little included within this section as yet, but the initial performance framework that is currently in place will be improved over time based on experience. Given the OEP’s commitment to transparency, by the time the Strategy is reviewed (currently the aim is for it be reviewed in 18 months’ time), we should be in a fairly good position to assess how effective the OEP and the Strategy has been.    

Enforcement Policy

The OEP’s enforcement functions are defined in statute, from sections 32 to 41 of the Act. Those sections will not be summarised here, but on page 55 of the Enforcement Policy there is a helpful figure showing how the OEP’s decision-making framework will function. 

At the outset of the Enforcement Policy the OEP states that three principles will underpin the OEP’s approach: 

1)    Public authorities must comply with the law 
2)    Enforcement activity should be targeted to where it is most needed 
3)    Enforcement activity should take account of all relevant circumstances 

These principles are not set out in statute, and the emphasis in particular on enforcement activity being targeted to where it is most needed is significant. The final principle allows the OEP to act with significant flexibility, but the second principle makes it clear that given the limited resources of the OEP and its wide remit, the focus will always be on where the OEP’s actions can be most effective and efficient. It should be noted that under section 25 of the Act the Secretary of State may issue guidance which the OEP must have regard to when preparing its enforcement policy and exercising its enforcement functions. This guidance has not yet been produced, so what is currently in the enforcement policy (and how the OEP exercises its enforcement functions) may change if any guidance is produced. 

Many will be most interested in the OEP’s enforcement functions, but as Ned Westaway observed in the previous blog post on the draft Strategy and Enforcement Policy, the OEP’s enforcement functions are just one of its main functions and perhaps not even the most important. Any enforcement action that the OEP does take will be more likely to make the headlines than reports advising on the implementation of existing environmental law, but that is no reason to say that one is more important than the other. As the Enforcement Policy itself notes, even if enforcement action is not taken against a public authority, that does not mean that the OEP cannot exercise its other functions to secure a better environmental outcome. 

Early Actions

Despite the Strategy being published just over two weeks ago, the OEP has already sprung into action. It has published its advice on the Government’s Nature Recovery Green Paper, it has launched an investigation into the roles of Ofwat, the Environment Agency and the Defra Secretary of State in the regulation of combined sewer overflows in England and it has published a consultation response on the government’s environmental targets. 

The OEP’s advice on the Nature Recovery Green Paper is particularly interesting. It states that change to the well-established HRA process will cause uncertainty, and it emphasises the beneficial effects that non-legislative change can have. The OEP’s advice also addresses the moratorium on housebuilding in the catchments of Special Areas of Conservation, stating that ‘the HRA can be seen as a blocker to development, when in truth it is simply a reflection that the existing pressures affecting the protected sites means that no additional pressures can be added without undermining their conservation objectives further. Any new process, designed to support nature’s recovery, must inevitably lead to the same outcome.’ Whilst it is far too early to assess how the OEP is applying its own Strategy, the early signs are that the OEP intends to act robustly to fulfil its statutory mission.

Michael Feeney is a pupil barrister at Francis Taylor Building.