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.