Why the Chair of the Office for Environmental Protection will have their work cut out
The government has launched a recruitment campaign for the inaugural chair of the new independent environment watchdog, the Office for Environmental Protection (OEP). This is without a doubt one of the most exciting jobs around in both the environmental and regulatory worlds and a significant milestone in the journey towards a new domestic environmental governance system.
The responsibility of holding the government to account on its environmental commitments is no small task and with applications due by 8 September, there is a relatively short window to find a truly exceptional candidate to lead this new body through what are likely to be both uncertain and challenging times.
The OEP will be at the heart of our new governance system, scrutinising and reporting on plans and targets to improve the environment, assessing whether environmental principles are driving government policy making and investigating and, where needed, enforcing breaches of environmental law.
The chair will undoubtedly have a demanding ‘to do’ list. Here are some of the things I suggest should be towards the top.
Early budgets are critical
Ministers have told parliament that the size of the OEP will be somewhere between 60 and 120 people. Our assessment is that equipping the body with the necessary set of business capabilities and processes (covering scrutiny, advice, complaints and enforcement) points towards the upper end of this scale. The government has committed to giving the OEP a five year indicative budget which is formally ring fenced by HM Treasury within any given Spending Review period. The government has also said that it intends to review the first five year indicative budget during the first two years of the OEP’s operation to help assess the ‘steady state’ annual operational cost. These early years of budget setting will therefore be critical and the Chair will need to ensure that the OEP’s business case is robust and well argued, so that its funding is provided at a sufficient level from the outset.
Getting off on the right foot with the secretary of state
Personal relationships matter in politics and none more so than where accountability is involved. The vacancy description for the chair says that they will be accountable to the secretary of state, whom they will also have to police and hold to account. The OEP will report to parliament and be operationally independent from government but the government’s preferred model of a non-departmental public body means the secretary of state will appoint the chair and other board members (although parliamentarians have called for greater independence and transparency in the appointments process). Navigating these tricky waters will be a key early challenge for the chair.
Picking ‘the right’ cases
The OEP will have the power to investigate complaints into potential breaches of environmental law and will also have the ability to launch its own investigations. Where there are serious or urgent cases of suspected non-compliance, the OEP will be able to take enforcement action which could result in it taking a case to the Upper Tribunal. While it will entirely be within the OEP’s discretion as to which cases it decides to pursue, it is generally accepted that it should be a strategic litigator rather than a serial nit-picker, picking up on egregious, urgent, serious or systemic breaches of the law. The effective exercising of its negotiating and influencing skills, coupled with a carefully thought through and targeted approach to enforcement, will help it watch over our environmental rule book with the greatest impact and the chair’s steady hand will be critical in delivering this.
Establishing productive relationships with regulatory counterparts
The OEP will cover England and possibly Northern Ireland, should the Northern Ireland Executive and the Assembly agree. A new Scottish watchdog, Environmental Standards Scotland, will be set up and there is an expectation that Welsh Government will follow suit at some point. Between them these new governance bodies will provide independent oversight of environmental laws across the UK, and they will have much to share and learn from each other. Environmental issues such as pollution, invasive species and catchment management don’t respect administrative boundaries with many issues requiring close co-operation between public authorities across borders. Productive relationships between the watchdogs whose role it is to hold those authorities to account will therefore be very important.
The OEP’s culture and its impact are fatally intertwined
Even though progress on the Environment Bill has recently faltered, the work to set up the OEP has continued and the recent Contingency Fund Advance means that important work such as the recruitment of the chair can pick up pace. Defra, to its credit, has involved stakeholders from the outset in the work to set up the new watchdog. This process has been open and collaborative, inviting ideas and advice and not shirking challenge. The OEP’s culture must similarly embrace these important principles of engagement; indeed, it will only be effective if it operates transparently and forms strong relationships with those it is seeking to hold to account as well as the wider stakeholder community and public who care about its work.