MPs scrutinise progress made in establishing OEP

The Environmental Audit Committee (EAC) and the Environment, Food and Rural Affairs Committee held a hearing yesterday (7 July) to scrutinise the progress made so far in establishing the Office for Environmental Protection (OEP).

Dame Glenys Stacey, Chair-designate of the OEP, appeared as a witness, alongside Natalie Prosser, Chief Executive-designate of the body.

The UK Houses of ParliamentThe cross-party group of MPs, who in December 2020 approved the election of Dame Glenys as Chair-designate, used the hearing to scrutinise the progress made so far in establishing the organisation.

Much of the hearing focused on the OEP’s ability to effectively hold the Government to account over environmental policy implementation in England and deal with complaints from members of the public about breaches of environmental law in England.

Last week, the OEP was launched on an interim, non-statutory basis, with the body expected to be established formally in the autumn, once the Environment Bill has received Royal Assent.

The body is designed to provide independent oversight of the Government’s environmental progress, as outlined in the 25-year Environment Bill.

The Interim OEP will be able to carry out a number of functions, including producing and publishing an independent assessment of progress in relation to the Government’s implementation of its 25-year Environment Bill; developing an independent enforcement policy; and receiving complaints from members of the public about failures of public authorities to comply with environmental law.

The OEP will act ‘without fear or favour’, says Dame Glenys

The two committees reiterated their concerns about the independence of the OEP, yet both Dame Glenys Stacey and Natalie Prosser emphasised their confidence in the newly established body’s abilities.

Stacey said that she ‘deeply respects’ the debate about the OEP’s independence, but has ‘no doubt’ that the body will act independently ‘without fear or favour’.

The Environment Bill states that the Government must seek ‘expert advice’ on environmental legislation, with Dame Glenys expecting the OEP to be approached as a result. She stated that although it was the responsibility of Parliament and Government to outline the OEP’s constitutional arrangements, she expected to be consulted on the issue.

The OEP, according to Dame Glenys, wishes to see alignment between the Government’s 25 Year Environment Plan, the Environment Bill, and its environmental principles and its targets, adding that the body is keen to press for a level of ambition upon meeting the Secretary of State.

The witnesses were additionally pressed on the recruitment of non-executive directors to the board.

Dame Glenys said that she was consulted thoroughly on the recruitment process, emphasising that although the Secretary of State had the final say, she made her position clear.

She added that she had ‘absolute confidence’ that the board is the best that could have been selected, praising its diversity of experience.

Natalie Prosser said that the OEP would be ‘completely independent’ from the Government, both in front and back office.

Some limited services, she said, will be bought from Defra, but the body will be ‘functionally independent’ for ‘everything that matters’.

Effectiveness in enforcement

It was revealed in the hearing that the OEP had already received 19 complaints, over half being related to nature conservation.

Dame Glenys, however, said that she expects the nature of complaints to change greatly once the body is formally vested, envisioning that complaints will become more detailed in structure.

She added that the current complaints are not sufficient in number to be representative, with Prosser also pointing out that only three complaints actually fell under the OEP’s remit.

The two committees pressed the witnesses on the issue of enforcement, referencing the recent performance of the Environment Agency (EA), which they said has ‘fallen off a cliff’ in prosecuting environmental law violations.

When asked whether the OEP would be ‘different’, Stacey said the issue of EA enforcement was a good example of how the newly established body must ‘think intelligently’ about its approach. She emphasised her desire to take a ‘thematic’ investigative approach, asking ‘why’ situations arise and considering the issue from a broader perspective.

According to Dame Glenys, the OEP would like to know more about how the EA is funding and prioritising its activities, and to understand the central issues it’s grappling with.

She emphasised the OEP’s enforcement powers as laid out in the Environment Bill, which the body ‘may well’ use against the EA.

Prosser added that enforcement is a ‘core part’ of her role as Chief Executive-designate of the OEP, outlining the body’s intentions to use its enforcement powers ‘as quickly as it can put the mechanisms in place to do so’, drawing on her experience as an enforcement specialist.

OEP ‘not afraid to speak out’

The witnesses were asked what the OEP’s recourse would be in the event government ministers don’t follow advice, with Dame Glenys emphasising her experience in influencing ministers in response.

She added that the OEP has certain statutory powers, including the ability to point out issues in reports, and to issue proceedings against the Government in clear breaches of environmental law.

The OEP, Dame Glenys said, is ‘not afraid to speak out’, and is, in fact, more afraid ‘not to speak out’.

The witnesses were pressed on whether the OEP would speak out on environmental issues not addressed by government targets, with Dame Glenys stating that the body would not wait for targets (expected to be published in September 2022) to be established before speaking.

She emphasised that she had already spoken publicly in interviews and events, and had spoken to the Government. Once formally vested, she said, the OEP would have ‘plenty of opportunities’ to hold the Government to account using the body’s statutory powers.

Pointing to the OEP’s plans for an independent communications team and press office, she told the committees that the body would be ‘in charge’ of its own voice, with the board agreeing over the coming months ‘how this voice will sound’.

Natalie Prosser added that the OEP is currently making choices on when and how the body will speak and intervene on environmental issues.

Independent body or ‘toothless regulator’?

Proposals for the establishment of the OEP were outlined in 2019, described at the time by former Environment Secretary Michael Gove as a ‘sub-optimal’ solution to fill the environmental governance gap created by a no-deal Brexit.

Gove emphasised that the OEP would be able to ‘exercise full independence as a non-departmental public body', yet the organisation’s setup has been a subject of doubt for many.

In October of 2019, the EAC called the OEP’s independence into question.

The body’s Chair and Members were proposed to be chosen by the Secretary of State, a subject of particular concern for the EAC in light of the UK’s withdrawal from the EU, with the OEP set to replace the oversight and enforcement powers of the European Commission.

Concerns were again voiced in February 2020, with Anna McMorrin, Labour MP for Cardiff North, questioning: “Where is its independence in holding governments to account and what consequences will there be when the government fails to meet targets? It will be a toothless regulator with fewer powers than the European Commission.”

Luke Pollard, Shadow Secretary of State for Environment, Food and Rural Affairs and MP for Plymouth Sutton and Devonport, said: “The new regulator does not have true independence from the government.

“It has no legal powers to hold the government to account in the way it needs to. Approving its chair via a government-led select committee, on which the government has a majority, is not sufficient.”

In October of 2020, an amendment to the Environment Bill was announced, giving powers to Defra’s Secretary of State to overrule the OEP’s enforcement policy, including investigations into how a ‘public authority may have failed to comply with environmental law’.

The amendment provoked further pushback from critics, with Ruth Chambers of Greener UK, a coalition of 13 leading environmental organisations, commenting: “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.”

In December, it was announced that the OEP would be chaired by Dame Glenys Stacey, a decision supported by the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee.

The two Committees, however, continued to reiterate concerns over the OEP’s independence, calling on Dame Glenys to publicly raise any concerns with the Select Committees about governmental interference with the OEP.

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