It is good news that the Environment Bill will resume its parliamentary journey on 3 November after a delay of more than six months. The not-so-good news is that the government has proposed some amendments to the Bill (for example, see NC24 on page 50) which would weaken the already precarious independence of the new green watchdog, the Office for Environmental Protection (OEP).
The OEP will replace the EU Commission and Court of Justice in monitoring and enforcing environmental laws in England and Northern Ireland from 1 January 2021. The UK Government has given the OEP certain powers, including the ability to start its own investigations – but serious questions have already been raised over the body’s independence. Defra ministers will appoint the OEP’s chair and other board members and determine its budget, with a limited role for Parliament.
The Government’s amendments would see ministers give themselves power to issue guidance to the OEP on how to enforce potential breaches of environmental law, including cases involving the Government; the OEP would then be required to consider this advice in preparing its enforcement policy and enforcing the law. The guidance could include how the OEP decides the meaning of ‘serious’ breaches and how it prioritises its cases. Guidance could be published as frequently as the Government feels is needed.
This would undoubtedly undermine the independence of a body created to hold the Government and public authorities to account. The Government has no comparable power in relation to existing enforcement bodies in other policy areas such as human rights and data protection.
The Government is, in effect, reserving itself the right to tell the OEP how to do its job if it doesn’t like the direction of travel on enforcement. This is a ‘get out of jail free’ card for it to direct the watchdog away from awkward or inconvenient cases, undermining claims that it will be independent and ignoring the promise to put environmental accountability at the heart of government.
The Government also wants to backtrack on its previous decision that OEP enforcement cases should be heard in the Upper Tribunal and, instead, wants these to revert back to being heard in the High Court. This would thwart its aspiration for greater use of environmental expertise. Upper Tribunal panels frequently combine legal and expert members. Although the High Court practice rules would allow for this in theory, the appointment of expert environmental advisers by High Court judges does not happen either routinely or regularly. The deliberative and holistic approach that we expect the OEP to take would have been better supported in the Upper Tribunal.
EU oversight has proved an important deterrent and enforcement mechanism on environmental issues such as air quality. Since 2016, the government has repeatedly promised to enhance environmental protections, and to provide ‘better accountability’ than the EU over whether the UK Government is upholding vital environmental laws. These amendments will worsen rather than improve accountability.
When the bill returns to Parliament it will be discussed by a small committee of MPs and the Government’s amendments are likely to be accepted, as it has a majority of MPs on the committee. But that is far from the end of the story, as the Bill is then debated on the floor of the House of Commons and in the House of Lords. It’s important, therefore, that parliamentarians hear from the public and environmental organisations on the importance of independent scrutiny and enforcement of environmental law.
With a reported sharp rise in serious breaches of environmental rules, this message could not be more timely.
This post was first published on Green World.