Environmental Standards Scotland (Scotland)

Environmental Standards Scotland (ESS) is a public sector body, set up as a non-ministerial office, independent of but accountable to the Scottish Government.

The ESS is set up under the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (enacted by the Scottish Parliament).

The ESS Interim Strategic Plan (here) states it is mindful of the commitments given by the Scottish Government to fulfil its international obligations and to ‘keep pace’ with the European Union.

The ESS has been established to fill the environmental governance gap caused by the UK’s departure from the European Union. Its task is to ensure that there is effective scrutiny of public authorities’ compliance with environmental law and that the application of the law is effective in protecting and enhancing nature and human health. The Office for Environmental Protection (OEP) is a similar body in England, and also in Northern Ireland.

Live investigations are published on the ESS website – here.

Office for Environmental Protection (England and NI)

The Office for Environmental Protection (OEP) was established by the Environment Act 2021 and its remit covers England and Northern Ireland. The OEP has now published its work programme for its first year, and also its Strategy and Enforcement Policy.

The work programme is here.

The Strategy and Enforcement Policy is here.

The OEP’s role is to hold government and other public authorities to account for their environmental commitments in environmental law.

The documents published clarify that the OEP will monitor and report on a wider set of targets that fall under the definition of environmental law, rather than just those that come under the Environment Act 2021, to pursue its objective of sustained environmental improvement. The OEP will also look at the landscape of international environmental targets, assess progress towards these and use this evidence to flag any potential gaps in government’s targets as part of OEP monitoring and reporting on environmental improvement plans and the implementation of environmental law.

The way in which OEP can take public authorities to court differs in England and in Northern Ireland. In England, the statutory process is ‘environmental review,’ which is a bespoke process available to the OEP, the detail of which is set out in the Environment Act. In Northern Ireland, the OEP can take public authorities to court through making a ‘review application,’ which is a challenge by way of judicial review. The OEP has reviewed its enforcement policy to ensure that the differences between these two procedures are highlighted in the appropriate places.

The OEP is only able to take enforcement action in situations where public authorities are alleged to have failed to comply with environmental law. Environmental law means any legislative provision to the extent that it is mainly concerned with environmental protection. In considering whether law is environmental, the OEP will assess whether the relevant individual provision in question is mainly concerned with environmental protection. The OEP’s enforcement policy is updated to further explain the meaning of environmental law in this context.

Environment Act 2021 OEP (England & NI)

Today (17th November 2021) section 22 of the Environment Act 2021 and Schedule 1 which establish the Office for Environmental Protection (“OEP”) as a body corporate are commenced.

Commencement also brings into force today:

* section 23 which defines the OEP’s principal objective when exercising its functions and provides that the OEP must prepare a strategy that sets out how it intends to exercise its functions

* section 24 which sets out the process by which the OEP must publish, revise or review the strategy and how it must consult on it

* section 26 which sets out that the OEP and the Committee on Climate Change must prepare a memorandum of understanding which sets out how the OEP and the Committee intend to co-operate.

In addition, certain terms used in Part 1 of the Act are now in force:

* section 44 (meaning of “natural environment”)

* section 45 (meaning of “environmental protection”)

* section 46 (meaning of “environmental law”)

* section 47, which provides for the interpretation of further terms.

An interim OEP is already established.

Here is the OEP website

Here is the statement from DAERA (Northern Ireland)

Environment Act 2021 – summary (UK)

The Act is not yet published, neither is any commencement order, nor any regulation.

The closest text is the text as introduced to the House of Lords – here. Note, Environment is a devolved matter, which means the bulk of the Environment Act 2021 provisions relate to England only.

Key points –

(1) the government must set long-term targets in priority areas for England (and may set other long-term targets) – by regulations – air quality, water, biodiversity, resource efficiency and waste reduction. The government must then review these targets in the context of the significant improvement test in section 6.

(2) the government must publish a statement of environmental principles, to be used in policy making.

(3) the government must publish a report (at specified intervals) on developments in international environmental law.

(4) an Office for Environmental Protection (OEP) must be established in England, to carry out certain scrutiny and advice functions. Schedule 3 deals with the OEP as respects Northern Ireland.

(5) Schedule 4 confers powers to make regulations on producer responsibility, replacing authority in earlier legislation which is revoked. Schedule 5 confers powers to charge for disposal costs.

(6) Schedule 8 confers powers to make regulations to create deposit schemes.

(7) Schedule 9 confers powers to make regulations about charges for single-use plastic items.

(8) the Environmental Protection Act 1990 is amended with provisions about the separate collection of recyclable waste in England – glass, metal, plastic, paper and card, food waste.

(9) the Environmental Protection Act 1990 is amended with updated provisions for hazardous waste in England and Wales.

(10) the Waste and Contaminated Land (Northern Ireland) Order 1997 is amended with updated provisions for hazardous waste.

(11) the Environmental Protection Act 1990 is amended with updated provisions for transfrontier waste shipment.

(12) the government may make regulations to recall vehicles or engines on environmental grounds (section 73).

(13) the Water Resources Act 1991 (applicable England and Wales) is amended to require sewerage undertakers to publish and maintain a drainage and sewerage management plan. These provisions were strengthened slightly following consideration in the House of Lords (final Act text not yet published).

(14) the government (and the relevant authorities in the devolved administrations) may make regulations to change water quality standards.

(15) Schedule 14 provides for biodiversity gain to be a planning condition.

(16) the Natural Environment and Rural Communities Act 2006 section 40 duty to conserve biodiversity (England) is substantively enhanced.

(17) local authorities in England must publish biodiversity reports at specified intervals.

(18) there must be more local nature recovery strategies so that they cover the whole of England.

(19) Natural England is empowered to publish a strategy for improving the conservation status of any species of flora or fauna (a special conservation strategy).

(20) Natural England is empowered to publish a strategy for improving the conservation and management of a protected site (a protected site strategy).

(21) local authorities in England must consult before felling street trees.

Office for Environmental Protection (England & UK)

I Blog posted before about the new environmental regulator that will be set up, operating in England and possibly also in Northern Ireland. This regulator is termed the Office for Environmental Protection (OEP – see the OEP category in the Blog subject archive online) and is provided for by the Environment Bill, that has restarted its progress.

Since it is not expected the Environment Bill will become law by the 1st January 2021, yet the new regulator is required then, an Interim Environmental Governance Secretariat will be set up by DEFRA to be hosted within DEFRA. This Secretariat will operate from 1st January 2021 until the OEP can begin its statutory functions following the passage and Royal Assent of the Environment Bill. The interim arrangements will support the Chair of the OEP once he/she has been engaged following the regulated public appointments process which is already at an advanced stage. The interim Secretariat will operate under the guidance of both the Chair and the other Board members when they have been confirmed in post, initially on a designate basis if needed ahead of Royal Assent of the Bill.

The Office for Environmental Protection (OEP) is established through the Bill as a new, independent, public body which will be legally separate from the Crown. The interim arrangements, are non-statutory, are introduced because of the delay in the Bill’s passage. The DEFRA Secretary of State asserts the interim arrangements need only to operate for a limited time period. The interim Secretariat will operate as a specific, dedicated team within the Environmental Governance Division in DEFRA. While the Secretariat is not legally the same as the Office for Environmental Protection, it is intended to be a precursor to it, exercising some functions on a non-statutory basis in the interim period, and transitioning to and paving the way for the permanent body to deliver its full, statutory functions.

In its preparatory role, the Secretariat will create draft documents and processes to hand over for further development and adoption by the OEP, for example in relation to its strategy and working framework.

As regards its interim delivery function, the Secretariat will have two main areas of responsibility.

(1) it will receive and assess complaints submitted by members of the public about alleged failures of public authorities to comply with environmental law. The Secretariat will check the complaints against the criteria specified in the Environment Bill to determine if they will fall within the remit of possible investigation by the OEP, interacting with the relevant complainants and public authorities to gather further information where necessary to determine these facts. It will assess the information received and pass it on to the OEP once established, so that the permanent body can determine which complaints to consider further through the exercise of its legal functions including formal investigations and enforcement.

(2) the interim arrangements will provide for continuity and handover of the technical work currently undertaken by the Natural Capital Committee and its Secretariat in relation to monitoring progress in implementing the 25 Year Environment Plan, which will become the first statutory Environmental Improvement Plan under the Bill.

The interim Secretariat derives its non-statutory ability and remit to act from the Secretary of State, and the team will be formally managed and governed within DEFRA.

The government plan is to identify and announce the DEFRA Secretary of State’s preferred candidate for the Chair of the Office for Environmental Protection before the end of 2020, for appointment as Chair-designate (before the Bill’s Royal Assent) after the joint EFRA and EAC (select committee) hearing in December. Once the Chair-designate is in post, he/she will be supported by and provide leadership to the interim Secretariat. The Secretariat will report to the Chair-designate on matters such as the numbers and subject areas of complaints received, including any significant issues that emerge and any lessons learned for the OEP.

An interim Board will not be appointed to support the Chair-designate. As well as being at an advanced stage of the public appointments process for the Chair campaign, DEFRA is also currently moving ahead with plans to identify the OEP’s other Non-Executive Directors and additionally to recruit an Interim Chief Executive Officer. These will allow the Board of the Office for Environmental Protection to become quorate soon after the Bill receives Royal Assent.

The OEP’s remit will cover England and matters that are not devolved (termed reserved matters). It will be able to investigate and enforce potential breaches of English environmental law and of reserved areas of environmental law. The interim Secretariat will have the same remit in respect of its initial, non-statutory functions.

If the Secretariat receives a complaint that is about another part of the United Kingdom and is not concerned with a reserved matter, they will refer it to the relevant devolved government for consideration.

This means that remit of the Secretariat (and the OEP) in Scotland and Wales will be limited, triggered when the UK Government or public bodies are exercising reserved functions in those locations. The Secretariat (and the OEP) will operate in Northern Ireland if Northern Ireland’s Ministers agree.

DEFRA officials are in contact with their counterparts in Northern Ireland as they consider whether and how any similar interim arrangements might operate there. This is a matter for Northern Ireland’s Ministers to determine.

DEFRA officials plan to discuss the interim arrangements with Welsh Government and would be pleased to do likewise with colleagues in Scottish Government.

A new Scottish watchdog, Environmental Standards Scotland, will be set up (posts are advertised).

Further information on the OEP is here.

Details of Scotland’s Advertisement are found here.

Scotland EU Continuity Bill (Scotland 1st Jan 2021)

On 18 June 2020, the Scottish Government introduced the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. Details are here.

The purpose of the Bill is to:

a. enable the Scottish Ministers to make provision in secondary legislation to allow Scots law to be able to ‘keep pace’ with EU law in devolved areas, where appropriate;

b. ensure that there continue to be guiding principles on the environment in Scotland;

c. establish an environmental governance body, Environmental Standards Scotland;

[The UK Environment Bill at Westminster seeks to establish, amongst other matters, an environmental governance body, the Office for Environmental Protection, in England]

d. continue the role and functions of the European institutions in ensuring the complete and effective implementation of environmental law.

Environment is a devolved area.

In the Scottish Parliament, the Finance and Constitution Committee (FCC) is the lead Committee for considering this Bill and focuses on the constitutional aspects of the Bill. 

The Environment, Climate Change and Land Reform Committee (ECCLRC) is a secondary committee and focuses on the environmental policy aspects of the Bill. 

The FCC is currently conducting a consultation (ends 7th August 2020). This seeks views on questions – including –

The policy memorandum states that “the Scottish Government considers it necessary to give Scottish Ministers the power to ensure that Scotland’s laws may keep pace with changes to EU law, where appropriate and practicable.”

The Committee would welcome your views on how wide-ranging this power is likely to be given the following statutory and non-statutory constraints –

* Compliance with UK international obligations including future trade deals and other international agreements;

* Statutory and non-statutory common frameworks;

* The functioning of a UK internal market;

* The replacement of EU funding.

More details are here.

The ECCLR has its own consultation (ends 31st July 2020). This seeks views on questions – including –

• The extent to which the proposals will address the governance issues arising from EU exit

• The limit of the obligations of ‘public authorities’ and the exclusions

• How the proposed model will align with that proposed for functions in the rest of the UK, and for reserved matters in Scotland, through the UK Environment Bill and any potential for gaps in the oversight arrangements; and the ability to co-operate and share data

More details are here.

Environment Bill (England & UK Brexit)

The Environment Bill returns to the Commons for Second Reading today. It is a slightly different Bill to 2019. Please reprise the posts I wrote in 2019, I summarise the changes (from those posts) below – I had got as far as Water – please find those posts in the Environment Bill category on this blog.

Targets (unchanged from 2019 Bill) – reprising because I didn’t set these out before – England only (targets are within the competencies of devolved legislatures)

– allow government to set long-term targets (of at least 15 years duration) in relation to the natural environment and people’s enjoyment of the natural environment via statutory instrument;

– require government to meet long-term targets, and to prepare remedial plans where long-term targets are not met;

– require government to set, by October 2022, at least one long-term target in each of the priority areas of air quality, water, biodiversity, and resource efficiency and waste reduction;

– require government to set and meet an air quality target for fine particulate matter in ambient air (PM2.5);

– require government to periodically review all environmental targets to assess whether meeting them would significantly improve the natural environment in England.

Note Clause 20 – Clause 20: Reports on international environmental protection legislation (this is unchanged from 2019 Bill, but I did not spell it out before) – this clause places an obligation on the Secretary of State to produce a report on significant developments in international environmental protection legislation, every two years, and lay it before Parliament. England only (competencies are within the competencies of devolved legislatures).

The scope and content of the report will be determined by the Secretary of State – see subsection (5). However, in a given reporting period it could cover: significant developments in the legislation of other countries that are mainly concerned with seeking to protect the natural environment from the effects of human activity or protecting people from the effects of human activity on the environment; legislation on the maintenance, restoration or enhancement of the natural environment; or legislative provisions around monitoring, assessing, considering and reporting and monitoring on these matters. The report will not extend to reviewing or considering the planning systems of other countries.

OEP (Office for Environmental Protection) – unchanged from 2019 Bill – see Blog posts on this – England only (establishing an OEP is within the competencies of devolved legislatures – Scotland indicated it would go this direction see its Environmental Strategy – see my post of yesterday).

Changes to UK REACH – unchanged from 2019 Bill

Waste, Air and Water appear unchanged from the 2019 Bill, and I have Blog posted before about these topics. Nonetheless, I will Blog again re Waste, because this is highly complex and a lot of new processes are announced. Please read the Explanatory Notes – here.

New Blog posts will be made about the rest of the Bill, please look out for those.

Environmental Strategy (Scotland Brexit)

The Scottish Government has today published its Environmental Strategy.

The Link is here.

The Strategy confirms the Scottish Government will enact legislation to ensure that the four EU environmental principles continue to influence the development of policy in Scotland.

o Precautionary principle. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost- effective measures to prevent environmental degradation.

o Polluter pays principle. The polluter should bear the cost of pollution control and remediation.

o Prevention principle. Preventative action should be taken to avoid environmental damage.

o Rectification at source principle. Environmental damage should, as a priority, be rectified at source.

The Strategy confirms the Scottish Government will develop a system of environmental governance, to ensure the continued effective implementation of environmental law.

[England is setting up an Office for Environmental Protection.]

The Strategy confirms the Scottish Government will develop a monitoring framework to track progress in delivering the Environment Strategy.

Environment Bill (England & UK, Brexit)

Exit day is tomorrow, the transition period will last until 31st December.

The Environment Bill (from the previous session) is being brought back today and given its First Reading in the UK Parliament.

I Blog posted already about the earlier Environment Bill (various sections). When the Bill is published I will reprise those areas that are changed, and Blog post as well on the further sections I had not covered.

To remind – the Environment Bill is an important Bill setting up the Office for Environmental Protection (England) and making further changes to UK REACH to enable it to function from 1st Jan 2021, and additionally setting out other measures (England, and some provisions for Scotland, Wales and Northern Ireland).

The government announcement last night signals :

(1) A ban on the export of plastic waste (which was in the Conservative manifesto), additional to the waste provisions in the previous Bill. Note, the waste provisions as signalled do not align with the 2019 EU Single-Use Plastics Directive.

(2) A bi-annual review of international developments in environmental law that it says will inform domestic law making.

Please look out for further Blog posts on the matter, when the Bill is published.

Environment Bill (the OEP) (England & UK part)

The Environment Bill creates a new Office for Environmental Protection (OEP), in England (with extension to Northern Ireland), I identified this in an earlier post.

This is necessary because Exiting the EU will leave a gap in governance.

The Bill –

– creates a statutory obligation on the Secretary of State, in exercising functions relating to the OEP, for example when making ministerial appointments to the OEP, to have regard to the independence of the OEP

[a Ministerial Statement will confirm the OEP will be given five year ring fenced indicative budget]

– covers climate change – the earlier exclusion of climate legislation is removed

– could consider in scope the spending of other departments on matters that related to environmental law (this is not however, the same, as the EU’s explicit incorporation of the environment in the policy making of all departments)

– envisages and facilitates (via information sharing) cooperation and mandates consultation (on transboundary areas) with any equivalent ‘devolved environmental body’ that is set up in Scotland and Wales

– extends to Northern Ireland (a Schedule in the Bill covers this) if so mandated by a restored Stormont – the Schedule provides for the Chair of such a NI extension to be selected by the Secretary of State for NI and DAERA (the environment department in NI)

– includes ‘environmental review’ enforcement powers in the Upper Tribunal

The OEP will launch to coincide with the IP (Implementation Period) completion day – 31st Dec 2020.

Scotland and Wales have made no announcements re their own bodies.