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.

Environment Bill (UK)

The Environment Bill has come out of hibernation and is scheduled to have its House of Commons Committee Stage today, 3rd November.

This very wide reaching and important Bill is a re-introduction (with some changes) of the Environment Bill introduced by the previous administration, but not enacted.

I Blog posted in 2019 about it. To reprise – the Environment Bill comprises two thematic halves. The first provides a legal framework for environmental governance, including setting up the Office for Environmental Protection – the OEP (the new additional regulator in England, and Northern Ireland). The second makes provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

The Bill also makes further Brexit changes to REACH Legislation.

The Bill is a very lengthy document – an unofficial version of tracked changes (from the earlier Bill) is here.

Re the OEP – the government has tabled its own amendment to the bill to enable it to guide the OEP how to use its enforcement powers. Note, with the current Bill drafting, the government will itself choose the people in charge of the OEP – the chair and the board.

Depending on the rate of progress, I will commence reprising the earlier Blog posts I wrote, and adding new ones.

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.

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.

Queens Speech (UK)

Exit day is 31st January 2020 – DExEU government department will close on that day

Of relevance (for this Blog) in the Queen’s Speech today are :

(1) the Environment Bill – this will be brought back with alterations

(2) a new Fire safety and Building safety bill or bills

(3) the withdrawal agreement bill and associated Brexit bills

Please look out for further Blog posts when the bill text is published.

Environment Bill (published) – Part 5 (England & UK part)

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

I posted three Blog posts so far about the first thematic half – one on UK REACH, one on Parts 1&2, and one on the OEP.

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

SPECIFIC IMPROVEMENT of the ENVIRONMENT

Part 5 – Water – includes –

– improving water resources planning, which facilitates collaborative regional planning and considers the needs of all sectors of water users, including the environment;

[in the context of water scarcity in certain locations, although not specifically mentioned, we may need to see the construction of further reservoirs]

– placing on a statutory footing drainage and wastewater planning to assess risks to sewerage networks and network capacity;

– modernising water regulation by reforming elements of the abstraction licensing regime to link it more tightly to the government’s objectives for the water environment;

– enabling updates to be made to the valuation calculations relevant to the apportionment of internal drainage board (IDB) charges in secondary legislation, allowing for the creation of new or expansion of existing IDBs where there is a local desire to do so;

enabling updates to the lists of priority substances that pose a threat to water bodies in line with the latest scientific knowledge, when there are no longer powers under section 2(2) of the European Communities Act 1972.

Clause 79 sets out these powers. Note the consent requirements re the devolved administrations –

– Clause 79 Subsection (4) establishes that the Secretary of State can only exercise the powers in this section to make provision that could be made by the Welsh Ministers or Northern Ireland Department of Agriculture, Environment and Rural Affairs under their own powers in clauses 80 and 81 respectively with their consent.

– Clause 79 Subsection (5) establishes that the Secretary of State cannot exercise the powers in this section to make provisions which would fall within the Scottish Parliament’s devolved competency, given effect by powers under an Act of that Parliament, with the exception of parts of the cross border river basin districts lying in Scotland, where the Secretary of State could exercise the powers to make provisions but only with Scottish Ministers’ consent.

– Clause 79 Subsection (6) establishes the consultation requirements attached to the exercise of the powers. Subsection (6)(b) requires the Secretary of State to consult with Welsh Ministers when making regulations applying to an England and Wales cross-border River Basin District (RBD) that lies in England, and when the Welsh Ministers’ consent is not required under subsection (4). This would mean consultation is only required if the provision being made is only for the English part and does not apply to the part in Wales. Subsection (5)(c) places the same consultation requirements on the Secretary of State in relation to the cross-border RBDs shared with Scotland.

Note –

– Clause 80 confers a regulation, broadly comparable to that in clause 79, on the Welsh Ministers in relation to Wales. Subsection (4) requires consultation with the Natural Resources Body for Wales, other interested persons or bodies, and with the Secretary of State when exercising the power in relation to the Welsh part of a cross-border RBD.

– Clause 81 confers the same power on the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland.

—————

As a Bill, this document would need to pass both Houses of Parliament to enter the statute books. You note, I pegged this as England.

However, some Clauses are intended to have effect outside England – see page 194 of the Explanatory Memorandum which has a table. And see earlier re environmental quality standards and substance lists.

If the Bill enters the statute books, the provisions then need to be commenced, some may be commenced immediately, such as those that are needed directly for EU Exit, but there could be a substantive delay in the commencement of other Part, such as Part 5.

I will issue further Blog posts, please look out for them.

Environment Bill (published) Parts 1&2 (UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

Part 1 – the Environmental Governance Part of the Environment Bill – includes –

– allowing the 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;

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

– requiring the 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;

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

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

– establishing the process by which a long-term target is set and amended, as well as an enhanced process where a long-term target is lowered or revoked;

– requiring the government to have, and maintain, an Environmental Improvement Plan, a plan to significantly improve the natural environment, which sets out the steps the government intends to take to improve the natural environment, and which sets out interim targets towards meeting the long-term targets;

– requiring the government to produce an annual report on the Environmental Improvement Plan, to consider progress towards improving the natural environment and meeting the targets;

– requiring the government to review the plan periodically, to consider progress and whether further or different steps are needed to improve the natural environment and meet the targets, and if appropriate revise the plan;

– requiring the government to collect and publish data used to measure progress in improving the natural environment and meeting the targets;

– requiring the publication of a policy statement on environmental principles setting out how environmental principles specified under the Bill are to be interpreted and applied by Ministers of the Crown during the policymaking process;

creating a new, statutory and independent environmental body, the Office for Environmental Protection (OEP), to hold government to account on environmental law and its Environmental Improvement Plan once the UK leaves the EU;

– defining the scrutiny, complaints and enforcement functions of the OEP and their scope;

– establishing an OEP enforcement process of environmental review in the Upper Tribunal; and

– defining the nature of the OEP, including considerations of membership, remuneration, staffing, powers, reporting, funding, accounts and other issues.

Part 2 – the Environmental Governance: Northern Ireland Part of the Environment Bill – includes –

– extending the application of the OEP to Northern Ireland, and making separate provision for Environmental Improvement Plans and environmental principles in Northern Ireland.

Delegated Powers Statement is here. [Environment is a delegated responsibility in the UK]

The delegated powers in the Bill fall into five thematic categories.

(1) there are powers that are needed as a result of the UK leaving the EU;

(2) there are provisions which modify, or are based upon, existing delegated powers;

(3) there are provisions which create new delegated powers to give effect to new environmental policy;

(4) there are powers for devolved administration ministers to make equivalent provision to UK Ministers;

(5) there are general provisions which are required for the Bill to have effect.

Provisions falling into the first category are intended to avoid a governance gap and to ensure the government can deliver on its environmental ambition when the UK leaves the EU.

All of the powers in Parts 1 and 2, plus six other powers fall into this category, as below:

– Existing environmental targets are largely derived from EU law and when the UK leaves the EU it may wish to set its own targets that differ and go beyond those of the EU that will have been retained for the time being in domestic law.

– Clauses 1 and 2 provide for regulations to set targets for matters relating to improving the natural environment or people’s enjoyment of it, and an air quality target in respect of the pollutant fine particulate matter (“PM2.5”).

– Environmental principles are reflected in various international instruments and are set out in the EU treaties. However, a clear articulation of these principles has never been laid out clearly at a national level. The Environment Bill will change this through requiring the publication of a statutory policy statement (clause 16) on the interpretation and proportionate application of the principles, to which Ministers will have a duty to have due regard when making policy. (This is not a delegated legislative power but it is included in Annex A. Northern Ireland has the same power in paragraph 6 of Schedule 2.)

– Clause 40(5) would allow the Secretary of State to set out in secondary legislation which legislative provisions come within the definition of “environmental law”, if required, in order to ensure that there is clarity about the scope of that definition (which in turn will define the scope of the OEP’s enforcement function). Northern Ireland would have the same power in paragraph 18(6) of Schedule 3. The aim of this power is to provide certainty to the OEP, public authorities and the public about the OEP’s remit, in the unlikely case that uncertainty cannot be resolved by other means.

– A number of regulation-making powers (clauses 56, 58, 79-81, 122 and Schedule 20) allow Ministers to make changes in relation to regulations made under section 2(2) European Communities Act 1972. This will, for example, ensure that the lists of priority substances for surface waters and groundwater and their environmental quality standards do not remain fixed and therefore potentially out of date or unsuitable for domestic conditions after the UK has withdrawn from the EU. Tying the UK’s standards to those set historically in the EU could increase risks to the water environment. A further example is a power that would ensure the regulation of international waste shipments can respond to the changes in the methods and practices of those engaged in illegal waste shipment activity.

Further Blog posts will cover the other parts of this important Bill.

Environment Bill (England & UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

Today, the announced new Environment Bill was given its First Reading. This Bill encompasses the governance aspects already announced by the previous administration (Bill that lapsed) and covers a range of matters, including Waste and Air Quality.

The Policy Statement is here. The Bill generally extends to England only, but its provisions are intended to create a UK wide approach, and some provisions clearly directly extend to the UK (e.g. UK REACH, below) –

On UK REACH – the Environment Bill gives the Secretary of State the power to amend two pieces of legislation regulating the use of chemicals in the UK.

(1) The REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulation regulates the manufacture, placing on the market and use of chemicals. This is a Retained EU Law.

(2) The REACH Enforcement Regulations 2008 set out how the requirements of the REACH Regulation are enforced. This is a domestic UK Law.

Both of these laws are amended by Brexit Law effective from Exit day. Subscribers will find them in the Brexit Consolidated Law List in EHS Legislation Registers & Checklists.

The Policy Statement asserts the powers will enable the Secretary of State to take further steps where necessary to ensure a smooth transition to a UK chemicals regime following the UK’s exit from the EU.

The Policy Statement asserts it will also make it possible to keep the legislation up to date and respond to emerging needs or ambitions for the effective management of chemicals.

The Bill text is not yet public. I will issue further Blog posts once the text is public.

Environment Watchdog Bill (UK Brexit)

DEFRA has just published its draft Environment (Principles and Governance) Bill. This document is here.

The consultation response is here.

This Brexit bill is necessary because without oversight of the EU institutions and mechanisms, environmental governance in the U.K. would face gaps.

The draft Environment (Principles and Governance) Bill sets out how the government will maintain environmental standards as the UK leaves the EU. It also details how the UK will build on the vision of the 25 Year Environment Plan.

This includes creating an independent body – the Office for Environmental Protection (OEP) – which will:

• scrutinise environmental law and the government’s environmental improvement plan (EIP)

• investigate complaints on environmental law

• take enforcement action on environmental law

The draft Bill commits the government to publishing a policy statement which will set out how ministers should interpret and apply environmental principles. It also commits government to have a plan for environmental improvement.

In essence this Bill is the first part of the broader Environment Bill (not yet published). The broader Environment Bill will also include measures on air quality, nature recovery, waste and resource efficiency and water management. A policy paper is also published today (in connection with the Environment Bill). This policy paper is here.

New Environment Bill (UK)

Today 18th July (in fact just now), the UK Prime Minister announced the Government will bring forward the first Environment Bill since 1995. This is a highly significant development. At the Liaison Committee (of select committee chairs) underway at the moment, Mrs May stated this would encompass more ambitious objectives for air quality and also the opportunities that leaving the EU might bring.

I will issue a new Blog post when further detail is published. And obviously, in due course, Email Alert(s) will be issued to subscribers to the Cardinal Environment EHS Legislation Registers and Law Checklists.