Environment Bill amendment will give Government a 'get out of jail free card'

An amendment to the Environment Bill, published yesterday (21 October), gives powers to Defra’s Secretary of State to issue and revise enforcement guidance to the Office for Environmental Protection (OEP), the purportedly independent regulator created by the Bill to defend environmental interests and legislation.

The Environment Bill was brought back into Parliament in January this year to transfer the Government the power to introduce environmental legislation to the UK when it leaves the EU.

The Bill passed its second reading in February, despite MPs’ concerns about the independence of the OEP, with Labour MP Anna McMorrin calling the body a ‘toothless regulator with fewer powers than the European Commission’.

The proposed amendment tabled by Environment Minister Rebecca Pow provides the Secretary of State with powers to overrule the OEP’s enforcement policy, including investigations into how a ‘public authority may have failed to comply with environmental law’.

If enacted, this will effectively put the UK Government in a position to override environmental protections when it is expedient to do so.

Previously, Defra has stated that the OEP would have teeth to hold the Government to account. In a blog post last year, Defra stated that the OEP ‘will scrutinise all government policy to ensure the environment is at the heart of decision making.

Crucially, it will have the power to run its own independent investigations and enforce environmental law, including taking government and other public bodies to court where necessary.

Although Pow’s amendment does not rule this out, it effectively means the OEP is only able to enforce a breach of environmental law by the UK Government or other public body if the Secretary of State does not object to this.

Commenting on Twitter, Ruth Chambers of Greener UK, a coalition of 13 leading environmental organisations, said: "These changes are only necessary if the government wants to control a body charged with holding it to account. They provide a 'get out of jail free' card for the government to direct the watchdog away from awkward or inconvenient cases, completely undermining claims that it will be independent.

“This is a clear and simple weakening of environmental protection. Our nature, air and water quality is being put at further risk. We urge ministers to reconsider"

Speaking to Resource, Peter Jones, Principal Consultant at Eunomia, said: “The concept of the OEP is a difficult one, in that its aim is to replace the independent role of the European Commission and “hold government to account” for its compliance with environmental standards and principles; but it has to do so as part of the UK Government. A public body that is not answerable to anyone would be profoundly undemocratic.”

He added: “The proposed amendment to allow the relevant minister to issue statutory guidance appears to be in tension with the promised “independence” of the OEP, and it is odd that the power to issue guidance is being added by the government at this relatively late stage; but it is arguable that it is perfectly normal for legislation to be backed up with guidance that explains how it should be interpreted.

“The Law Commission, for example, is an independent body, but it is required to have regard to a protocol that can be updated by the Lord Chancellor.

“Whether the prospect of guidance affects the independence of the OEP more than, say, the proposal that its board should be appointed by the Secretary of State, is debatable. It would largely depend on the content of the guidance, and whether this had the effect of limiting the OEP’s exercise of its powers or requiring it to take account of factors other than environmental considerations in any assessments it makes.

“So, while the guidance could in principle be used to subvert the OEP, we can’t assume that this is its purpose. However, this type of concern could perhaps have been avoided if the OEP had been established on a different basis – for example, as an independent parliamentary body, like the National Audit Office, which is accountable to Parliament rather than to the Government.”

The Bill is currently expected to return to the House of Commons on 3 November.