Environmental Regulator – Brexit

Commentary on provisions of Act Part 1: Environmental Governance Chapter 1: Improving the natural environment

Section 1: Environmental targets

Section 1 provides a power for the Secretary of State to set long-term targets by
Subsection (1) provides the Secretary of State with a power to set long-term targets in relation to the natural environment and people’s enjoyment of it. The natural environment is defined in section 44 (meaning of “natural environment”). This definition includes living and non-living elements of the environment, such as plants, wildlife, their habitats, air, water and land, natural systems and processes through which organisms interact with their surroundings. As such, the definition extends to the marine environment, as well as the terrestrial and water environments. Targets relating to people’s enjoyment of the natural environment may relate to its use, access to natural areas or a measure of public views about the environment. Among other initiatives, enjoyment may be increased through education and public awareness of the natural environment both past and present.
Subsection (2) requires the Secretary of State to set at least one long-term target in each of four priority Subsection (3) defines those priority areas as air quality, water, biodiversity, and resource efficiency and waste reduction. Section 4(9) requires that a draft statutory instrument (or instruments) satisfying the requirement in subsection (2) must be laid before Parliament by 31 October 2022.
Subsection (4) requires all long-term targets set under this section to specify an objectively measurable standard to be achieved and a date by which this standard must be achieved.
A specified standard might be the exposure of a certain area to damaging levels of ammonia in the atmosphere, for example. The method for objective measurement should be clear and repeatable, with results reproducible within reason. The process of setting targets will necessarily involve some choices as to how a target will be measured. Subsection (5) provides that regulations made under this section may make provision specifying how a target will be
Subsection (6) provides that long-term targets must have a minimum duration of 15
Subsection (7) clarifies that a target is initially set once the regulations setting it come into force. This is relevant to calculating the specified date (that is, the duration) of long-term targets under this section. Subsection (8) provides that, in Part 1, the terms “specified standard” and

“specified date” mean the standard and date specified in subsection (4).

By virtue of section 2(6) and section 3(5), subsections (4) to (9) also apply to the PM₅ air quality target set under section 2 and the species abundance target set under section 3.
This section, and sections 2 to 7, extend to England and Wales. Subsection (9) prevents the Secretary of State from making provision in regulations made under this section that could be made in an Act of Senedd The regulations made under this section can therefore make provision relating to the natural environment in England (including the English inshore area), as well as in the offshore area (to the extent that Her Majesty’s Government has functions).

Section 2: Environmental targets: particulate matter

Subsection (1) introduces a requirement for the Secretary of State to set a target for an annual mean concentration level of fine particulate matter (PM₅) in ambient air, in secondary legislation by regulations. These regulations will be made having obtained expert advice as to the date that the target can be achieved and having considered the full economic analysis in line with section 4(1).
Subsection (2) provides clarification that the fine particulate matter target is not required to be set for 15 years in the future, and therefore may not be a long-term target as defined in section This could be the case if the independent expert advice is that the target could be achieved more quickly.
Subsection (3) defines fine particulate matter (PM₅).
Subsection (4) specifies that regulations setting the target can also define “ambient air”.
Subsection (5) clarifies the duty to set a target for fine particulate matter in this section does not discharge the duty on the Secretary of State to set a further long-term target for air quality under section 1.
Subsection (6) clarifies the elements of the environmental targets framework set in section 1 that apply to the fine particulate matter target. These elements include the provisions that specify that the target will be set by secondary legislation that will specify the standard to be achieved and the date by which it will be achieved, as well as the details regarding how the target will be
Subsection (7) defines the “PM5 air quality target” as being the target set under subsection (1).

Section 3: Environmental targets: species abundance

Section 3 introduces a requirement for the Secretary of State to set a target relating to the abundance of species (“the species abundance target”) in secondary legislation by
Subsection (2) provides that the specified date for the species abundance target must be 31st December 2030.
Subsection (3) clarifies the duty to set a species abundance target in this section does not discharge the duty on the Secretary of State to set a further long-term target for biodiversity under section 1.
Subsection (4) provides that before setting or amending the species abundance target, the Secretary of State must be satisfied that meeting the target, or the amended target, would halt a decline in the abundance of species.
Subsection (5) clarifies the elements of the environmental targets framework set in section 1 that apply to the species abundance target.
Subsection (6) defines the “species abundance target” as being the target set under subsection

(1).

Section 4: Environmental targets: process

Section 4 sets out the process that must be followed by the Secretary of State before setting and amending any target.

Subsection (1) requires the Secretary of State to seek advice from independent experts before making any regulations under sections 1, 2 and 3. This could involve consulting expert individuals or bodies, with the purpose of advising the Secretary of State on setting appropriate
Subsection (2) specifies that, when setting or amending a target, the Secretary of State must be satisfied that the target, or the amended target, can be met.
Subsections (3) to (6) set out the process for amending a target so as to lower or revoke it. Lowering a target is defined in subsection (5) as a lowering of the standard to be achieved or an extension of the specified date for achieving the target. For example, where a target requires an increase in standard based on a numerical value, a reduction in that numerical value would constitute a lowering of the target.
Subsection (3) provides that a target may only be lowered or revoked where the Secretary of State is satisfied that meeting the target would have no significant benefit as compared to not meeting it or meeting a lower target, or that because of a change in circumstances, the costs of meeting the target would be disproportionate to the benefits. Those costs might be of an environmental, social, economic, or other nature.
Meeting a target may have no significant benefit – for example, if meeting it was anticipated to generate a health benefit, and new scientific evidence has now demonstrated that the same health benefit is achievable through meeting a revised or entirely new target.
A change in circumstances may, for example, occur as a result of an event, such as a significant wild fire or major flood, taking place after the target is set. The financial costs, for example, of meeting the target may, following this change of circumstance, then be disproportionate to the benefits gained by meeting the target.
Subsection (4) requires that, before lowering or revoking a target, the Secretary of State must publish and lay before Parliament a statement that explains why the Secretary of State is satisfied that one of the grounds in subsection (3) has been met.
Subsection (6) prevents the Secretary of State from using the processes set out in this section to revoke the PM₅ air quality target; however, the target may otherwise be amended in line with this section.
Subsection (7) provides that, for the purposes of Part 1, a target is met where the specified standard is met by the specified date.
Subsection (8) specifies that the regulations made under sections 1, 2 and 3 are subject to the affirmative procedure.
Subsection (9) requires that a draft statutory instrument (or instruments) containing regulations setting the long-term targets for the priority areas required under section 1(2), the PM₅ air quality target set under section 2 and the species abundance target set under section 3 must be laid before Parliament by 31 October 2022.

Section 5: Environmental targets: effect

Section 5 provides that the Secretary of State has a duty to ensure that the long-term targets set under section 1, the PM₅ air quality target set under section 2 and the species abundance target set under section 3 are met.
The environmental improvement plan (EIP) provisions under sections 9, 12 and 15 set requirements for consideration of the progress made towards meeting targets, and for consideration of the need to introduce new measures to meet targets, when reviewing and renewing EIPs.

Section 6: Environmental targets: reporting duties

Section 6 sets out the reporting duties that must be fulfilled when a long-term target set under section 1 the PM₅ air quality target set under section 2 or the species abundance target set under section 3 ends.
Subsection (1) requires that all regulations setting targets under sections 1, 2 and 3 contain a reporting This is the date used to determine the timescales for producing the statements under section 6.
Subsections (2) and (3) require the Secretary of State to prepare a statement confirming whether or not each target has been met. Alternatively, the statement may provide that the Secretary of State is currently unable to make that confirmation. The statement must be published, and laid before Parliament, by the relevant reporting date set under subsection (1).
Subsections (4) and (5) set out the process the Secretary of State must follow in the event that the statement made under subsection (2) confirms that the target has not been met. The Secretary of State must prepare a report explaining why the target has not been met and setting out the steps taken, or intended to be taken, to achieve the required standard as soon as reasonably practicable. That report must be published, and laid before Parliament, within twelve months of the statement being laid.
Subsection (3)(c) provides that, where the Secretary of State is unable to confirm whether or not a target has been met, the statement made under subsection (2) must explain why and set out the steps the Secretary of State intends to take in order to be able to make that In these cases, subsection (6) provides that the Secretary of State must prepare a further subsection

(2) statement within six months of the initial statement being laid. There may be cases when the data needed to assess whether a target has been met is not yet available, and the Secretary of State is therefore unable to confirm target achievement on the reporting date. Subsection (7) provides that, where further statements are needed pursuant to subsection (6), the requirements of subsections (3) to (6) apply equally to those statements.

Section 7: Environmental targets: review

Section 7 sets out the procedure for the Secretary of State to conduct a periodic review of all targets set under sections 1, 2 and 3.
Subsection (1) sets out the requirement for the Secretary of State to conduct the review. Subsection (2) clarifies that the purpose of the review is to consider whether the significant improvement test is met.
Subsection (3) explains that the significant improvement test is met where meeting the targets set under sections 1, 2 and 3, and any other environmental targets that the Secretary of State considers appropriate to consider, would bring about a significant improvement in the natural environment in England. Subsection (8) sets out certain requirements that those other environmental targets must meet to be capable of consideration.
Subsection (4) provides that, following the conclusion of the review, the Secretary of State must publish, and lay before Parliament, a report confirming whether the Secretary of State considers that the significant improvement test has been met. Where the Secretary of State considers that the test has not been met, the report must set out the steps the Secretary of State proposes to take, using the powers in section 1, 2 and 3, to ensure that it is met. In addition to identifying potential new targets, the report might also acknowledge, for example, the need for more research in a particular policy area in order to examine the possibility of developing a target in future.

Subsection (5) sets out that the Secretary of State must complete the first significant improvement test review by 31 January 2023.
Subsection (6) provides that, following the first review, future reviews must be conducted at intervals of no more than five years. Subsection (7) confirms that a review is completed when the Secretary of State publishes, and lays before Parliament, a report under subsection (4).
Subsection (8) sets out the conditions that a target set otherwise than under sections 1, 2 and 3 must meet in order to be capable of consideration by the Secretary of State under subsection (3)(b). In broad terms, those targets must meet the same standards as targets set under sections 1, 2 and 3. These conditions include the need for a target to have an objectively measurable standard to be achieved by a specific date.
The National Emission Ceilings Regulations 2018 targets are examples of those that may be taken into consideration under the conditions set out in subsection (8). These targets relate to reductions in total anthropogenic emissions of five key air pollutants in the UK by 2030.
Subsection (9) provides that “England”, for the purposes of section 7, includes the English inshore region and the English offshore region (each as defined in section 322 of the Marine and Coastal Access Act 2009).

Section 8: Environmental improvement plans

Section 8 introduces a duty on the Secretary of State to prepare a plan for significantly improving the natural environment (an “environmental improvement plan” (EIP)). It sets requirements for what an EIP must The 25 Year Environment Plan, as published on 11 January 2018, will become the first EIP.
Subsection (1) introduces the requirement for the Secretary of State to prepare an
Subsection (2) clarifies that an EIP is a plan for significantly improving the natural environment in the period it covers. The natural environment is defined in section 44 (meaning of “natural environment”). This definition includes living and non-living elements of the environment, such as plants, wildlife, their habitats, air, water and land, natural systems and processes through which organisms interact with their surroundings. As such, the definition extends to the marine environment, as well as the terrestrial and water environments.
Subsection (3) specifies that the period of each EIP must be at least 15 Long-term EIPs are needed because some aspects of the natural environment change slowly and require continuity in how they are managed. The current 25 Year Environment Plan covers a period of 25 years, but a future government may prefer to set an EIP for a different period. Section 8 requires the government to review and revise EIPs at least every five years. A period of 15 years allows for an EIP to be introduced, reviewed and revised twice before its end. This will allow its effectiveness to be assessed, and meaningful corrective action taken if necessary.
Subsection (4) specifies that the EIP must set out the steps the government will take to improve the natural environment during the lifetime of the EIP.
Subsection (5) allows EIPs to contain steps the government will take to improve people’s enjoyment of the natural environment. Steps relating to people’s enjoyment of the natural environment may relate to its use, access to natural areas or a measure of public views about the environment. Amongst other initiatives, enjoyment may be increased through education and public awareness of the natural environment both past and present, natural systems and processes through which organisms interact with their surroundings. For example, the current 25 Year Environment Plan makes major new commitments to connect people with the environment to improve health and wellbeing, such as through the cross-governmental green social prescribing project. This project is testing how to help connect more people to nature- based activities to improve their mental One of the ten goals of the 25 Year Environment Plan also commits to “Enhancing beauty, heritage and engagement with the natural environment”. It is anticipated that the current 25 Year Environment Plan, including the approach the government took on people’s enjoyment of the natural environment and heritage, will set the benchmark for future EIPs.
This section and sections 9 to 15, 16, and 28 extend to England and Subsection (6) provides that the Secretary of State’s functions in relation to EIPs are not exercisable in relation to the natural environment in Wales. The policy areas covered by EIPs therefore could cover the natural environment in England (including the English inshore area), as well as in the offshore area (to the extent that Her Majesty’s Government has functions) and to Her Majesty’s Government’s international policy (including to the Overseas Territories where Her Majesty’s Government has functions: Gibraltar and the British Virgin Islands, for example).

Subsection (7) confirms that the current 25 Year Environment Plan must be treated as an Furthermore, subsection (8) specifies that references to the first EIP are to that document, and that references to the current plan refer to the plan that is in effect at the time.

Section 9: Annual reports on environmental improvement plans

Section 9 establishes a duty on the Secretary of State to produce annual reports on the implementation of the environmental improvement plan (EIP) and on whether the natural environment is It explains when and how these reports should be published. Given section 8(6), this section applies only in relation to England.
Subsection (1) requires the Secretary of State prepare annual reports on the implementation of EIPs. These reports must be published (subsection (8)) and laid before Parliament (subsection (7)).
Subsection (2) requires that annual reports must describe what has been done to implement the EIP, and consider whether the natural environment (or particular aspects of it) has improved, during the period to which the report relates. Consideration of whether the environment has improved must have regard to information gathered under section 16.
Subsection (3) provides that, when considering whether the natural environment (or aspects of it) has improved, the Secretary of State must consider the progress that has been made towards achieving the targets (or any relevant targets) set under sections 1, 2 and 3, and the interim targets (or any relevant interim targets) set under sections 11 and 14.
Subsection (4) explains that the first annual report on the current EIP may cover any 12 month period that includes the day on which section 9 comes into The government has already committed to producing annual reports on the implementation of the 25 Year Environment Plan. The first report was published on 16 May 2019, and covers the period from the EIP being launched until March 2019. The intention of this subsection is to allow the timing of the first statutory report to be aligned with the preceding non-statutory reports.

Subsection (5) states that, following the replacement of the current EIP, the first annual report should relate to the first 12 months of that EIP.
Subsection (6) states that all other annual reports should relate to the 12 month period immediately following the previous reporting period. This ensures that there is a continuous timeline of annual reports relating to consecutive 12 month periods for the duration of each
Subsection (7) requires the Secretary of State to lay each annual report before Parliament within four months of the end of the 12 month period on which it reports. For example, an annual report assessing the period 1st April 2020 to 31st March 2021 must be laid before Parliament by 31 July 2021. Subsection (8) requires the Secretary of State to publish all annual reports laid before Parliament under this section.

Section 10: Reviewing and revising environmental improvement plans

Section 10 provides for the review and revision of It establishes a duty on the Secretary of State to review the EIP, and timeline in which to complete a review and, if appropriate, revise the plan. Given section 8(6), this section applies only in relation to England.
Subsection (1) establishes the duty on the Secretary of State to review the EIP and, if the Secretary of State is required to revise the plan under section 11, or considers it appropriate to revise the plan as a result of the review, to produce a revised plan. It is expected that revisions will be appropriate when each EIP is reviewed, but this section does allow the Secretary of State to decide that no revision is appropriate following a review of the EIP.
Subsection (2) specifies that a revised plan will cover the remaining time period of the existing plan. The current EIP runs until 2043; any revisions to this plan will also be required to cover the period up to 2043. Furthermore, when an EIP for a future time period is produced in line with section 13, the time period will be specified in that EIP and any revisions to it must retain the same end date.
Subsection (3) specifies that the first EIP (the 25 Year Environment Plan) must be reviewed by the end of January This is just over five years from its publication. This is considered to be sufficient time for some progress to be made against the EIP, for the monitoring of the environment to assess improvement established, and for early results to be obtained. This time also allows for weaknesses and gaps in the EIP and policy changes to be identified that may require a revision to the EIP.
Subsection (4) applies to future EIPs, and ensures that they too are first reviewed within five years of taking effect.
Subsection (5) provides that, following the first review of an EIP, further reviews must be undertaken within every five year period for the duration of the In accordance with this, the 25 Year Environment Plan must be reviewed for a second time before 31 January 2028.
Subsection (6) requires that when the Secretary of State has completed a review and determined it appropriate to revise the plan, then this revised plan must be laid before Parliament along with a statement explaining what revisions have been made and why. This statement may be part of the same document as the revised plan or a separate document.
Subsection (7) requires that, if the Secretary of State completes a review but does not consider it appropriate to revise the EIP, then the Secretary of State must lay before Parliament a statement to this effect and the reasons for this. Whilst the Secretary of State is required to complete a review within the five year timeline there is no duty to revise the EIP if a revision is notappropriate. (However, the Secretary of State must revise the EIP if so required under section 11.) This allows for a revision to the EIP to be delayed if the Secretary of State considers it appropriate, but such a decision must be justified to Parliament.

Subsection (8) requires the Secretary of State to publish any documents laid before Parliament following a review of an These will be the revised plan and reasoning as in subsection (6), or the statement as to why no revision is considered appropriate as in subsection (7).
Subsection (9) specifies that a review is to be considered completed when documents have both been laid before Parliament and published. This is the completion date for the purpose of meeting the requirement to complete a review within five years of an EIP being published or previous It also becomes the start date for the next five-year time period for completing the subsequent review.
Subsection (10) clarifies that, when the EIP is revised in accordance with this section, the references to an EIP in this Act refer to the now revised EIP.

Section 11: Reviewing and revising plans: interim targets

Section 11 provides for interim targets to be included in environmental improvement plans (EIPs), and sets out the requirements for those interim Given section 8(6), this section applies only in relation to England.
Subsection (1) requires the Secretary of State, during the first review of the first EIP, to revise the plan so as to include at least one interim target in relation to the targets set under sections 1, 2 and3 (for a “relevant matter”, see subsection (3)), and to ensure that from the date that the first review is completed (for the “relevant date”, see subsection (9)) there is an interim target for each such target for the next five years.
Subsection (2) contains an equivalent provision for subsequent reviews of the EIP. It requires the Secretary of State, during each review of the EIP, to make any revisions necessary to include at least one interim target in relation to any targets set under sections 1, 2 and 3 since the previous review, and to ensure that from the date that the relevant review is completed there is an interim target for each target for the next five years.
Subsections (1) and (2) give the Secretary of State the flexibility to set just one interim target for the five year period between EIP reviews, or multiple, shorter interim targets for this same
Subsection (3) provides that the term “relevant matter” means any matter where there is a

target under sections 1, 2 or 3.

Subsection (4) ensures that the requirement in subsection (2)(b) to maintain an interim target does not apply where the specified end date of the relevant target under sections 1, 2 or 3 falls within the relevant five-year period. For example, if a long-term target expires four months after the date on which an EIP review is completed, there is no requirement for the Secretary of State to set an interim target because the long-term target expires so quickly.
Subsection (5) clarifies that the Secretary of State may revise or replace interim targets during any EIP review, regardless of whether revisions are needed pursuant to subsections (1) and (2).
Subsection (6) provides that interim targets must consist of an objectively measurable standard to be achieved across a specified time Subsection (7) provides that this time period must be no longer than five years. For the first interim targets, that period starts on the date on which the relevant EIP review is completed. For subsequent interim targets, that period starts on that date or the date on which the previous interim target expired.

Subsection (8) provides that, when setting or revising any interim target, the Secretary of State must be satisfied that meeting it will make an appropriate contribution towards meeting the relevant target under sections 1, 2 or This will ensure that the Secretary of State takes account of the overall trajectory of environmental improvement required in order to meet those targets.
Subsection (9) provides that the term “relevant date” means the date on which a review is

completed.

Section 12: Reviewing and revising plans: other requirements

Section 12 sets out what the Secretary of State must consider when reviewing an environmental improvement plan (EIP). Given section 8(6), this section applies only in relation to England.
Subsection (1) sets out that the Secretary of State must take the following into consideration when reviewing an EIP:
what steps the government has taken to implement the EIP since it was published, or (if it has been reviewed before) sinc it was last reviewed;
whether the natural environment (or particular aspects of it) has improvedduring that period; and

whether the government should take further or different steps compared to those in the plan to improve the natural environment in the remaining period of the EIP.
When considering whether the natural environment has improved, the Secretary of State must have regard to data obtained under section 16 and reports made by the Office of Environmental Protection under section 28.
In addition, subsection (2) requires the Secretary of State, when considering whether the natural environment (or particular aspects of it) has improved, to consider the progress made towards meeting the targets (or any relevant targets) set under sections 1, 2 and 3, and the interim targets (or any relevant interim targets) set under section 11 or 14.
Subsection (3) requires the Secretary of State, when considering whether further or different steps should be taken to improve the natural environment, to consider whether further or different steps should be taken to meet those targets.

Section 13: Renewing environmental improvement plans

Section 13 provides for the Secretary of State to replace the environmental improvement plan (EIP) with a renewed version, and what the Secretary of State must consider as part of this process. Given section 8(6), this section applies only in relation to England.
Subsection (1) requires the Secretary of State to prepare a new EIP before the end date of the existing EIP.
Subsection (2) requires the new EIP to cover a period that starts no later than immediately after the end of an existing EIP, ensuring there is no gap between EIPs.
Subsection (3) requires the Secretary of State to publish and lay before Parliament the new EIP on or in advance of the end date of the existing EIP.
Subsection (4) specifies when the new EIP At its earliest, this will be when the EIP has been laid before Parliament and published, but it can be later if the period to which the EIP relates begins after this date.

The provisions in sections 13 to 15 allow for plans to be completely replaced (as distinct to sections 10 to 12, which allow for the amendment of existing plans). It is anticipated that future governments may choose to renew EIPs before they reach the end of their lifetime to enable them to include longer term actions.

Section 14: Renewing plans: interim targets

Section 14 provides for interim targets to be included in new environmental improvement plans (EIPs), and sets out the requirements for those interim targets. Given section 8(6), this section applies only in relation to England.
Subsection (1) requires that a new EIP include at least one interim target in relation to the targets set under sections 1, 2 and 3 (for a “relevant matter”, see subsection (2)), and to ensure that from the date that the new EIP commences for the “relevant date”, see subsection (7)) there is an interim target for each such target for the next five years.
Subsection (2) provides that the term “relevant matter” means any matter where there is a

target under sections 1, 2 or 3.

Subsection (3) ensures that the requirement in subsection (1) to maintain an interim target does not apply where the specified end date of the relevant target under sections 1, 2 or 3 falls within five years of the start of the new plan. For example, if a long-term target expires four months after the date on which a new EIP period commences, there is no requirement for the Secretary of State to set an interim target because the long-term target will expire so quickly.
Subsection (4) provides that interim targets must consist of an objectively measurable standard to be achieved across a specified time Subsection (5) provides that this time period must be no longer than five years. For the first interim targets, that period starts on the date on which the new EIP period commences. For subsequent interim targets, that period starts on the date the previous interim target expired.
Subsection (6) provides that, when setting any interim target, the Secretary of State must be satisfied that meeting it will make an appropriate contribution towards meeting the relevant target under sections 1, 2 or This will ensure that the Secretary of State takes account of the overall trajectory of environmental improvement required in order to meet those targets.
Subsection (7) provides that the term “relevant date” means the date on which the new EIP

period commences.

Subsection (8) clarifies that references to a “new plan” are to be read in accordance with the definitions in section 13(1).

Section 15: Renewing plans: other requirements

Section 15 sets out what the Secretary of State must consider when renewing an environmental improvement plan (EIP). Given section 8(6), this section applies only in relation to England.
Subsection (1) sets out that the Secretary of State must take the following into consideration when renewing an EIP:
what steps the government has taken to implement the old EIP during the period to which it related;

whether the natural environment has improved since the beginning of the period to which the old plan related; and
whether the government should take further or different steps (compared to those in the old plan) to improve the natural environment in the period to which the new EIP

When considering whether the natural environment has improved, the Secretary of State must have regard to data obtained under section 16 and reports made by the Office of Environmental Protection under section 28).
In addition, subsection (2) requires the Secretary of State, when considering whether the natural environment has improved, to consider the progress made towards meeting the targets set under sections 1, 2 and 3, and the interim targets set under sections 11 or 14.
Subsection (3) requires the Secretary of State, when considering whether further or different steps should be taken to improve the natural environment in the new EIP, to consider whether further or different steps should be taken to meet those targets.
Subsection (4) clarifies that references to “old plan” and “new plan” are to be read in

accordance with the definitions in section 13.

Section 16: Environmental monitoring

Section 16 establishes a duty on the Secretary of State to obtain and publish data for the purpose of monitoring environmental improvement. This data would be used to measure outcomes achieved through the implementation of the actions set out in the environmental improvement plan (EIP) and inform updates to it. The data will also allow the progress being made towards meeting targets to be monitored. Given section 8(6), this section applies only in relation to
A suite of indicators was first published by the government in May 2019, as Measuring environmental change: outcome indicator framework for the 25 Year Environment Plan. Outcome indicator framework data are updated annually on uk.

Subsection (1) requires the Secretary of State to obtain data about the natural environment appropriate for monitoring whether the natural environment (or particular aspects of it) is improving in accordance with the EIP, and for monitoring progress towards meeting any targets set under sections 1, 2 and 3 and any interim targets set under sections 11 and 14.
Subsection (2) requires the Secretary of State to specify in a statement what kinds of data will be obtained, and to lay this statement before Parliament and publish This statement will provide the details of how the environment is to be monitored to determine whether there has been an improvement in the environment in accordance with the EIP and progress towards meeting targets.
Subsection (3) specifies that the first statement on monitoring data must be laid before Parliament within four months of this section coming into force.
Subsection (4) allows for the Secretary of State to revise the statement on monitoring data at any time. This may be necessary if it becomes clear that additional data is needed, or that current measures do not adequately assess environmental improvement or target progress. Such a revised statement must also be laid before Parliament and published (subsection (2)).

Section 17: Policy statement on environmental principles

Section 17(1) requires the Secretary of State to prepare a policy statement on the environmental principles set out in subsection (5).
Subsection (2) provides specific information on what the environmental principles policy statement must include. The policy statement will explain how Ministers of the Crown should interpret and proportionately apply the environmental principles when developing policies. Proportionate application means ensuring that action taken on the basis of the principles balances the potential for environmental benefit against other benefits and costs associated with the action. This means that a policy where there is the potential for high environmental damage would require more stringent action than a policy where the potential environmental damage is low. This consideration of the principles policy statement throughout the policy-making process may be carried out by policy-makers on behalf of Ministers of the Crown, though Ministers will retain the responsibility to have due regard to the policy statement.
Subsection (3) sets out that the Secretary of State may explain in the statement how other considerations should be taken into account by Ministers of the Crown when they are interpreting and applying environmental principles. For example, it may be necessary to balance the application of a specific environmental principle against other considerations, such as economic and social benefits, whilst taking care to ensure that these do not supersede environmental benefit but are considered alongside.
Subsection (4) details two aims that the Secretary of State must be satisfied that the statement will contribute to. These are:
The improvement of environmental protection. This means being satisfied that the policy statement will be used to shape policies in a way that protects the It underpins the interpretation and application of the environmental principles. This

consideration is to be taken in line with other necessary considerations in these sections, such as in subsection (3).

Sustainable development. Sustainable development can be summarised as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It involves trying to achieve

environmental benefit alongside economic growth and social progress. Therefore, the Secretary of State must be satisfied that, when using the policy statement, Ministers of the Crown will consider the needs of future generations. This means that Ministers should consider the environmental impact of their policies together with the economic and social factors and, as much as possible, ensure policy achieves all three aims.

Subsection (5) sets out the list of environmental principles the policy statement will These principles are drawn from a number of sources, including, for example, the Rio Declaration on Environment and Development (1992).
There is no single agreed definition of the environmental principles. The policy statement will explain in more detail how these are to be interpreted, and provide information as to how they should be applied.
The meaning of the individual environmental principles is as follows:

The principle that environmental protection must be integrated into the making of policy: environmental protection must be embedded in the making of policies.
The principle of preventative action to avert environmental damage: preventive action should be taken to avert environmental damage.
The precautionary principle so far as relating to the environment: where there are threats of serious irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. This applies to issues regarding the natural environment and includes where human changes to the natural environment impacts upon human health, such as air quality.

The principle that environmental damage should as a priority be rectified at source: environmental damage should as a priority be rectified by targeting its original cause and taking preventive action at source.
The ‘polluter pays’ principle: the costs of pollution control and remediation should be borne by those who cause pollution rather than the community at large.

Further direction on these environmental principles will be set out in the policy These principles cannot be changed without primary legislation.

Section 18: Policy statement on environmental principles: process

Section 18 establishes the process by which the Secretary of State will develop and publish the environmental principles policy statement.
Subsection (1) sets out the duty for the Secretary of State to prepare a draft policy This will be an initial version of the statement before public and parliamentary scrutiny.
Subsection (2) requires the Secretary of State to conduct a public
Subsection (3) requires that a draft must be produced and laid before Parliament for its consideration. This must take place before the policy statement is finalised.
Subsection (4) includes provisions for cases where Parliament chooses to respond to the draft policy statement, either by passing a resolution in respect of the draft policy statement, or recommending changes to the statement, within the period of 21 sitting days after the draft statement has been The Secretary of State is required to lay a response to any resolution passed or recommendations made by Parliament.
Subsection (5) requires the final policy statement to be presented to Parliament before being published. The Secretary of State must not publish the final statement before laying a response if required under subsection (4) or, otherwise, before a period of 21 sitting days has passed since the draft statement is laid. This is intended to allow Parliament sufficient time to scrutinise the draft policy statement.
Subsection (6) provides that the final policy statement has effect when laid before Parliament, at which point the Secretary of State is required to publish it (subsection (7)).
Subsection (10) enables the requirements in subsections (1) and (2) as to preparation of the statement and consultation to be met prior to the coming into force of the relevant provisions of the Act.
Subsection (11) allows the Department to revise the policy statement at any time and requires the process set out in sub-paragraphs (1) to (9) to be followed each time that the policy statement is revised.

Section 19: Policy statement on environmental principles: effect

Section 19 sets out the legal duty on Ministers of the Crown in using the environmental principles policy It also details the relevant exemptions to the duty to have due regard to the policy statement.
Subsection (1) requires Ministers to have due regard to the environmental principles policy statement when making policies included in the scope of the duty (in other words, policy that is not excluded). This means that, when making policy, Ministers of the Crown must consider the environmental principles policy statement with substance, rigour and an open mind.
Subsection (2) sets out that the policy statement does not require Ministers to take, or refrain from taking, any action that would have no significant environmental benefit, or if the environmental benefit would be disproportionate when compared to other factors.
In this context:
“Significant” is to be understood as meaning ‘not negligible’. This means that the policy statement does not need to be used to change a policy direction, if the environmental impact would be negligible.
“Disproportionate” indicates situations in which action would not be reflective of the benefit or costs, environmental or otherwise. Action taken must reflect the potential for environmental benefit, as well as other costs and For example, there is no need for a Minister to change a policy in light of the principles policy statement if the cost of this change would be very high and the benefit to the environment would be very low. Equally, if the potential environmental benefit is high, then it is proportionate to take a more significant action based on the policy statement.

Subsection (3) sets out which policies are excluded from the duty to have due regard to the policy statement. The three areas covered are set out in paragraphs (a) to (c).
The exclusion in subsection (3)(a) refers to armed forces, defence and national security For example, policies that would be excluded include:
Armed Forces policies relating to the Royal Navy, the Royal Marines, the Army, and the Royal Air Force; and
national security policies, such as the National Security Strategy and Strategic Defence and Security Review.
In subsection (3)(b), “taxation” refers to taxes in a legal sense, and therefore does not include other regulatory schemes which involve fees and charges for purposes other than taxation, such as the plastic bag charge or the imposition of fees to cover the cost of a regulatory regime. “Spending or the allocation of resources within government” refers to decisions about how money and resources are allocated to or between government departments or agencies, including at fiscal events such as Budgets and Spending It does not refer to individual policies on which the government funds could be spent. For example, in decisions on which departments should receive funds and how much, the policy statement will not apply. However, it would apply to policies which relate to spending this allocated funding which are decided by a Minister of the Crown, such as when setting up a new innovation scheme.
Subsection (3)(c) sets out that the duty in subsection (1) does not apply to policy relating to or applying in Wales.

Subsection (4) provides that the duty in subsection (1) applies when making policy in Scotland only on reserved matters.
Subsection (5) clarifies that section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (asp 4) does not apply to Ministers of the Crown when making policy relating to reserved matters in Scotland.
Subsection (6) confirms that the term “reserved matters” has the same meaning as that set out in the Scotland Act 1998.

Section 20: Statements about Bills containing new environmental law

This section requires that, where a Bill introduced into either House of Parliament contains a provision that, if enacted, would be environmental law, the Minister in charge of the Bill must make a statement to that The statement must set out that the Minister is of the view that the Bill does not have the effect of reducing the level of protection provided by any existing environmental law, or that the Minister cannot make such a statement but wishes the House to proceed with the Bill. The requirement does not apply to the wider planning regime, other than explicit environmental legislation such as Environmental Impact Assessments and Strategic Environmental Assessments.
Subsection (1) sets out that the provisions apply where a Minister in charge of a relevant Bill is of the view that the Bill contains a provision that, if enacted, would be environmental law.
Subsection (2) outlines that the Minister must make a statement, before Second Reading of the Bill in the House, that in the Minister’s view the Bill contains a provision that, if enacted, would be environmental In addition, the Minister must make a statement under subsection (3) or (4).
Subsection (3) is applicable where a Minister is able to make a statement that in the Minister’s view the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental Subsection (4) is applicable where a Minister is unable to make that statement but wants to confirm that they still wish to proceed with the Bill – for example, where an existing UK environmental protection is no longer justified by new scientific evidence.
Subsection (5) sets out that, in making a statement under subsection (3), the Minister may in particular take into account that the same or greater levels of environmental protection might be provided by provisions that are different to those contained in existing environmental law – that is, to allow for different mechanisms for achieving the same or better environmental
Subsection (6)(a) provides that a Minister, in considering whether they can make a statement under subsection (3), must consider any protection provided for under powers conferred by the existing environmental law even if those powers have not been used. Subsection (6)(b) makes similar provision in enabling a Minister to take into account any new powers conferred by the Bill to provide for any environmental protection.
Subsection (7) requires all statements made under this section to be in writing and to be published in such manner as the Minister considers appropriate.
Subsection (8) provides for two definitions for the purpose of this section. Firstly,

“environmental protection” is defined as:

protection of the natural environment from the effects of human activity;

protection of people from the effects of human activity on the environment;
maintenance, restoration or enhancement of the natural environment; or
monitoring, assessing, considering or reporting on anything in relation to the previous bullets.
Secondly, “existing environmental law” is defined as environmental law existing at the time that the Bill to which the statement relates is introduced into the House, whether or not the environmental law is in force.
Section 46 provides the definition of environmental law for the purposes of this

Section 21: Reports on international environmental protection legislation

This section places an obligation on the Secretary of State to produce a report on significant developments in international environmental protection legislation.
The report will cover significant developments in the environmental protection legislation of particular countries or territories outside the UK or international organisations.
The scope and content of the report will be determined by the Secretary of State – see subsection

(5). However, in a given reporting period it could cover: significant developments in

the legislation of other countries that are mainly concerned with seeking to protect the natural environment from the effects of human activity or protecting people from the effects of human activity on the environment; legislation on the maintenance, restoration or enhancement of the natural environment; or legislative provisions around monitoring, assessing, considering and reporting and monitoring on these matters. The report will not extend to reviewing or considering the planning systems of other countries.

Subsections (3), (4) and (6) require a report to be prepared every two years and to be published and laid before both Houses of Parliament as soon as reasonably practicable after the end of the reporting period.

Chapter 2: The Office for Environmental Protection

Section 22: The Office for Environmental Protection

Section 22 provides for the establishment of a new body called the Office for Environmental Protection (OEP), and introduces Schedule 1 which makes further provision about this independent Non-Departmental Public Body.

Section 23: Principal objective of the OEP and exercise of its functions

Section 23 sets out the strategic framework for the OEP, making provision for how it will carry out its functions and establish its independence from the government and other bodies. The section requires the OEP to take an objective and impartial approach to the delivery of its functions, and requires it to set out how it will exercise its functions in a strategy that takes into account where extensive governance already exists, for example in the planning system.
Subsection (1) establishes that, when exercising its functions, the OEP’s principal objective is to contribute to two aims. These are:
Environmental
The improvement of the natural environment

The term “principal objective” is used to emphasise that it is a key objective for the OEP, but not the only one it has to consider when exercising its The principal objective should also guide the OEP when exercising its discretionary powers.
Subsection (2)(a) requires the OEP to act objectively and impartially, thereby ensuring it is capable of holding the government to account. Subsection (2)(b) provides that the OEP must have regard to the need to act proportionately and transparently, helping to ensure balance and accountability in the body’s exercise of its statutory functions. The term “have regard to” is used here because an absolute legal duty would not allow for the OEP to exercise its judgement in individual circumstances. For example, in the interest of transparency, the OEP would normally make information about its work publicly available; however, there may be certain situations where it is inappropriate for it to do so at an early stage, such as during the investigation of a The OEP will consider proportionality when balancing the need to improve and protect the natural environment against other considerations, such as the protection of the historic environment.
Under subsection (3), the OEP is required to prepare a strategy setting out its approach towards exercising its functions; the process for revising and reviewing this strategy is set out in section

Paragraphs (a) to (c) of subsection (4) require the OEP to set out in its strategy how it will further its principal objective, how it will act objectively and impartially, and how it will have regard to the need to act proportionately and in a transparent manner.

Subsection (5)(a) provides that the OEP must set out how it intends to avoid any overlap with the Committee on Climate Change in exercising its This is intended to ensure that the OEP does not seek to replicate the role of the Committee on Climate Change under section 57 of the Climate Change Act 2008, or the reporting role of the Committee under section 59 of the Act. In its strategy, the OEP may also seek to explain how it will resolve any potential for duplication of effort with other relevant bodies, such as Natural England and the Joint Nature Conservation Committee. This strategy could be supported by entering into memoranda of understanding with such bodies.
Subsection (5)(a) also places a requirement on the OEP to set out in its strategy how it intends to cooperate with devolved environmental governance bodies (as defined in section 47). This would facilitate cooperation between the OEP and equivalent bodies in the devolved administrations while respecting the devolution settlements.
Subsection (6) provides that the OEP’s strategy must contain an enforcement Paragraphs

(a) to (e) describe what this policy must set out.

Paragraph (a) requires the OEP to set out in its policy how it will reach decisions about whether a failure to comply with environmental law is “serious”, as required in sections 33(1)(b) and (2)(b), 35(1)(b), 36(1)(b), 38(1)(b), 39(1)(a) and 39(7).
Paragraph (b) also requires the OEP to set out in its policy how it intends to judge whether damage to the natural environment or to human health is “serious”, as required in sections 39(2) in order to make an application for judicial review.
Paragraph (c) provides that the policy must set out how the OEP intends to exercise its enforcement functions in a way that respects the integrity of other relevant statutory regimes (including appeals processes), meaning where a decision is itself subject to the possibility of intervention by, or appeal to, another body. Statutory regimes could include decision-making functions, complaints, investigation, enforcement or appeals functions, and legal challenges. For

example, some decisions made by the Environment Agency, or by a Planning Authority, may be subject to call-in by, or appeal to, the Secretary of State or the Planning Inspectorate. In normal circumstances, it is expected that the OEP would allow the usual regulatory processes to take their course, where they could affect a matter concerning a possible failure to comply with environmental law, before taking enforcement action. This provision therefore requires that the OEP’s strategy should set out how it intends to operate with a view to effective alignment, and avoidance of conflict or duplication, with such procedures.

Paragraph (d) requires the OEP to specify in its policy how it intends to avoid any overlap between its activities in relation to its complaints function and the work of a relevant ombudsman. Subsection (9) sets out that for the purposes of these provisions, the Commission for Local Administration in England (the official body that runs the Local Government and Social Care Ombudsman service) and the Parliamentary Commissioner for Administration (otherwise known as the Parliamentary and Health Service Ombudsman) shall each be considered a relevant ombudsman.
Paragraph (e) also requires that the OEP’s enforcement policy set out how it will prioritise cases. Further requirements on this point are set out in subsection (7).
Subsection (7) sets out certain types of case which the OEP should seek to prioritise when developing and reviewing its enforcement In particular, the OEP must have regard to the particular importance of prioritising cases that it considers have, or may have, national implications. This provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of narrow local concern; for example, some individual local planning or environmental permitting decision may not have implications beyond the local area.
Other types of cases which the OEP must have regard to the need to prioritise are set out under paragraphs (a) to (c):

those which concern persistent issues; that is, currently ongoing or recurring problems, or systemic failures;
those concerning decisions that the OEP considers have caused, or could cause, serious damage in terms of their environmental impacts or effects on human health; and
cases that deal with points of law of general public importance, such as addressing those that could otherwise set a potentially damaging precedent, or where there is potential for the OEP’s intervention to clarify a point of widespread uncertainty.
Subsection (8) defines the OEP’s enforcement functions as those provided for under sections 32 to 41.
Subsection (9) sets out what is meant by “a relevant ombudsman” for the purposes of

subsection (6)(d) above, and other provisions in this Part.

Section 24: The OEP’s strategy: process

Section 24 sets out the process for publishing and revising the OEP’s strategy, which it must prepare under section 23. The strategy sets out how the OEP will carry out its functions. A number of other public bodies, such as the Equality and Human Rights Commission, have a similar statutory duty to prepare a strategic plan.

Subsection (1) requires the strategy (and each subsequent revised strategy) to be laid before Parliament and published. This is intended to provide transparency and clarity to the government, Parliament, and other stakeholders on the operational framework and strategic direction of the OEP, which it itself determines.
Subsection (2) allows the OEP to revise its strategy at any time. For example, it may need to reprioritise its work programme based on the types of complaint received during a particular period, or to address a newly emerging substantive issue that falls within its remit.
Subsection (3) ensures that the strategy remains a live document, which is kept up to date and relevant to the OEP’s statutory remit, by requiring a review of the strategy at least once in every “review period”. Subsection (4) specifies the review period as three years for the first strategy and for each subsequent The three-year review period is designed to be an appropriate amount of time to ensure that the production of the plan is not overly burdensome, yet to also ensure that it stays up to date.
Subsection (5) provides that before producing, revising or reviewing the strategy, the OEP must consult relevant stakeholders as it considers appropriate. This could include the government, although Ministers or other parties will not have powers to veto any part of the strategy.

Section 25: Guidance on the OEP’s enforcement policy and functions

Subsection (1) of this section provides that the Secretary of State may issue guidance to the OEP on its enforcement policy, specifically the matters listed under section 23(6).
Subsection (2) requires that the OEP have regard to this guidance in preparing its enforcement policy and in exercising its enforcement functions. As set out in subsection (3), the OEP’s enforcement functions are those provided for under sections 32 to 41.
Subsection (4) requires that before issuing guidance to the OEP the Secretary of State must produce a draft of the guidance and lay the draft before Parliament.
Subsection (5) includes provisions for cases where either House of Parliament or a parliamentary committee chooses to respond to the draft guidance either by passing a resolution in respect of the draft guidance or recommending changes to the guidance, within the period of 21 sitting days after the draft guidance has been laid. The Secretary of State is required to lay a response to any resolution passed or recommendations made by
Subsection (6) requires that the Secretary of State may not prepare and lay the final guidance before, laying a response if required under subsection (5) or, otherwise, before a period of 21 sitting days has passed since the draft guidance was This is intended to allow Parliament sufficient time to scrutinise the draft guidance.
Subsection (7) provides that the final guidance comes into force when laid before Parliament, at which point the Secretary of State is required to publish it (subsection (8)).
Subsection (9) defines the “21 day period” for the purpose of subsection (5), and subsection (10) defines what is meant by “sitting day” for the purpose of subsection (9).
Under subsection (11), the Secretary of State may revise any guidance that has been issued at any time (and subsections (4) to (10) apply in relation to any revised guidance).

Section 26: Memorandum of understanding

Subsection (1) of this section requires that the OEP and the Committee on Climate Change (CCC) must prepare a memorandum of As specified by subsection (2), this memorandum must set out how the two bodies will cooperate and avoid overlaps in the exercise of their functions.

This section builds upon the provision at section 23(5), which requires the OEP to set out in its strategy how it will avoid overlap between the exercise of its functions and the exercise by the CCC of its functions. This provision will help to ensure a strong working relationship between the OEP and the CCC, whilst ensuring both bodies are able to effectively undertake their separate and important They each have a statutory duty to prepare the memorandum, but these provisions allow them the discretion to set the terms of their relationship, and to adapt the memorandum as needed in the future.

Section 27: Co-operation duties of public authorities and the OEP

This section establishes a duty on public authorities to co-operate with the OEP, and provide the OEP such reasonable assistance as it requests, in connection with the exercise of its statutory functions. This includes the provision of information in relation to investigations under section 33, information notices under section 35 and decision notices under section 36, as well as activities that form its scrutiny and advice functions under sections 28 to The intention of the duty to co-operate is to help the OEP and public authorities resolve issues constructively, and to share relevant information. It applies only to reasonable requests and would not replace the need for the OEP to commission work from public authorities, for which a fee might be payable: for example, if the OEP commissioned the Environment Agency (EA) to analyse data and that analysis was outside the EA’s planned work programme.
The obligation under subsection (1) is for any person whose functions include functions of a public nature to co-operate with the OEP, and to give the OEP such reasonable assistance (including the provision of information) as the OEP This reflects the definition of a “public authority” in section 31(3).
Subsection (2) sets out the persons to whom, and circumstances where, the duty to co-operate does not apply. The duty excludes courts and tribunals, Parliament, devolved legislatures, Scottish and Welsh Ministers and Northern Ireland departments, persons exercising parliamentary functions, and persons who exercise only devolved The duty does not apply to any person whose functions are wholly devolved; however, if only some of their functions are devolved, they need only comply with the duty in relation to their non-devolved functions, as set out in subsection (3).
Subsection (4) provides that the OEP should consult a devolved environmental governance body if the work it is undertaking would be of relevance to such a This could include the OEP consulting the relevant body during an investigation if it became aware of a transboundary environmental issue that may have involved a breach of devolved legislation outside of the OEP’s own remit, but would be within the remit of the devolved environmental governance body. “Devolved environmental governance body” is defined in section 47.

Section 28: Monitoring and reporting on environmental improvement plans and targets

Section 28 describes the monitoring and reporting functions of the OEP in relation to the environmental improvement plans and targets. Under this section, the OEP will monitor and assess environmental statistics and reports on an ongoing basis to ensure that it has an effective knowledge This information will then be analysed alongside information published by the government to provide an independent assessment of progress made in improving the natural environment in accordance with the current environmental improvement plan and targets.

Subsection (1) provides that the OEP must monitor progress:
- in improving the natural environment in accordance with the government’s current environmental improvement plan (the first such plan is known as the 25 Year Environment Plan), as set out in section 8;
- towards meeting any long-term targets as set under section 1, and the particulate matter target as set under section 2 and the species abundance target set under section 3 and;
- towards meeting any interim targets as set out in the environmental improvement
This monitoring and reporting function will hold the government to account on its environmental improvement commitments.
Subsection (2) requires the OEP to produce a progress report for each annual reporting As set out in subsection (3), the reports will inform on progress made related to improving the natural environment that has occurred within the annual reporting period. This will be measured against the current environmental improvement plan and targets. An annual reporting period is the period for which the Secretary of State must produce a report under section 9, as set out in subsection (4).
When making a progress report, subsection (5) requires the OEP to take into account the annual report made by the Secretary of State on progress against the implementation of the environmental improvement plan and targets for that period, as set out in section 10. The OEP will also consider the data published under section 16 for that period, as well as any other documents or information that the OEP believes are relevant. In reporting on progress made in an annual reporting period, the OEP will undertake any analysis and interpretation it believes is necessary.
Subsection (6) specifies that a progress report may advise how the OEP believes progress could be improved – for example, through comparison with other countries, including the devolved administrations. It may also consider the adequacy of data published under section 16, enabling the OEP to independently determine whether the right information is being collected to evaluate progress in improving the natural environment, and whether it is accurate and sufficiently comprehensive.
Subsections (7) and (8) require that the OEP’s reports must be laid before Parliament and

published. This is intended to provide the OEP with sufficient independence from the

government when carrying out its reporting functions. The OEP’s report must be laid before Parliament within six months of the relevant report under section 9 being laid. This gives the OEP sufficient time to carry out its scrutiny of the section 9 report whilst tying it to a fixed reporting deadline.

Subsection (9) requires the Secretary of State to respond to the OEP’s report, publishing their response and laying it before Parliament. Subsection (10) requires that the Secretary of State’s response must specifically address any recommendations made by the OEP as to how progress with the environmental improvement plan and targets could be improved. This requires the Secretary of State to evidence and justify any decisions whereby the OEP’s recommendations will not be taken forward. Subsection (11) specifies that the Secretary of State must lay their response within 12 months of the OEP’s report being laid, and may include this response in the

Secretary of State’s subsequent report made under section 9. This allows the Secretary of State to include the response to the OEP’s progress report as part of the following year’s annual report on the environmental improvement plan and targets.

Section 29: Monitoring and reporting on environmental law

Section 29 requires the OEP to monitor the implementation of environmental law and provides a power to issue reports on any matter to do with the implementation of environmental law.
Subsection (1) requires the OEP to monitor the implementation of environmental law. Environmental law is defined in section 46 of this An example of environmental law caught by this duty would be the Habitats Regulations.
Subsection (2) allows the OEP, as it deems appropriate, to produce a report on any matter concerned with the implementation of environmental law. This provision would, for example, allow the OEP to produce a report considering the operation of existing environmental legislation, highlighting particular strengths and For example, if the OEP identified a significant issue in the implementation of part of the Marine and Coastal Access Act 2009 relevant to its remit, it may choose to report on this.
Subsection (3) ensures that the OEP does not duplicate the work of the Committee on Climate Change by preventing the OEP monitoring or reporting on specific matters which are already within the statutory remit of that Committee. Subsection (4) lists those matters. These subsections do not prevent the OEP from monitoring and reporting on other climate change legislation that falls within its remit.
Subsection (5) requires the OEP’s reports to be laid before Parliament and This reflects the OEP’s independence from the government when carrying out its reporting functions.
Subsections (6) and (7) require the Secretary of State to lay before Parliament and publish a response to a report issued by the OEP under this section within three months of that report being laid.

Section 30: Advising on changes to environmental law etc.

Section 30 sets out the circumstances in which the OEP can give advice to Ministers of the Crown, and how this advice must be published and may be laid before Parliament.
Subsections (1), (2) and (4) enable a Minister to require the OEP to provide written advice on proposed changes to environmental law, or on any other matter relating to the natural environment. The OEP must take into consideration any specific matters the Minister outlined in their request when providing this advice, as per subsection (2). The natural environment is defined in this Act in section 44. For example, the OEP could be asked by the government to give recommendations on proposals to make amendments to the Natural Environment and Rural Communities Act 2006, or about a proposal to include additional goals in the environmental improvement Subsection (3) provides a power for the OEP to give written advice to a Minister concerning any proposed changes to environmental law.
Subsection (5) requires the OEP to publish its advice, along with details of the specific request and any matters it was required to take into account, if it was asked to provide advice by a Minister. The publication of this information ensures transparency in the relationship between the OEP and any Minister asking it for advice.

Subsection (6) provides that the relevant Minister may lay the OEP’s advice and any response to it before Parliament. This is a discretionary power to reduce burden on Parliament. For example, where advice has been sought by a Minister regarding a specific technical detail that is apolitical, the Minister can decide not to lay this advice before Parliament.

Section 31: Failure of public authorities to comply with environmental law

This section sets out definitions for certain terms that are referred to throughout Chapter 2, which concerns the functions of the OEP. Subsection (1) states that sections 32 to 41 provide for the functions of the OEP relating to failures by public authorities to comply with environmental law. (The term “environmental law” is defined in section 44.)
“Failing to comply with environmental law” is defined in subsection (2) as meaning where an authority is:
- Not taking proper lawful account of environmental law when exercising its For example, as set out in section 19, a Minister of the Crown must have due regard to the policy statement on environmental principles in making, developing and revising

policies. Failure to have due regard to the policy statement where required would therefore constitute a failure to take proper account of environmental law; or

Unlawfully exercising or failing to exercise functions it may have under environmental For example, various authorities are charged with establishing and implementing permitting or other types of regulatory control regimes for

different activities that can affect the environment. Failing to meet such requirements, or implementing them in a deficient way (for instance, by omitting certain prescribed activities or applying standards that are less rigorous than the law demands), would also constitute a failure to comply with environmental law. A failure to meet a statutory environmental quality standard for which a public authority was responsible for ensuring compliance would also be captured by this provision.

No restrictions regarding the date of a failing are included in the definition in subsection (2). This means that the OEP will still be able to take action against failings that occurred after the UK’s date of exit from the EU but before it was fully established.
In subsection (3), a “public authority” is defined as a person carrying out a function of a public nature, that is not a devolved function, a parliamentary function, or a function of one of the bodies specified in paragraphs (a) to (e). This follows a similar approach to section 6(3) of the Human Rights Act The term “public function” is not defined in the Act (or in the Human Rights Act 1998), so it will ultimately be for the courts to determine what constitutes a public function. The courts have previously recognised that a body can act in more than one capacity. As such, bodies that undertake some public and some private functions, such as statutory undertakers, will be within scope of the OEP only with regard to the exercise of their public functions. The term “person” means any legal or natural person. For example, a Minister of the Crown, a government department, non-departmental public body, or local authority would be considered a public authority.
Where a person is undertaking a devolved or parliamentary function, they will not fall within this This means that any public authorities implementing devolved functions under environmental law in Scotland, Wales and Northern Ireland will not be covered by the remit of the OEP in respect of devolved matters. Bodies exercising such functions would typically include devolved public bodies such as Scottish Natural Heritage, the Scottish Environment Protection Agency, Natural Resources Wales and the Northern Ireland Environment Agency. “Devolved function” is defined in section 47.

Paragraphs (a) to (e) of subsection (3) also set out certain bodies that are excluded from this definition, including, for the purposes of this Act, the OEP itself. This exclusion is to avoid the OEP having to consider whether to exercise its statutory complaint and enforcement powers in relation to a complaint made against it; the OEP could still consider complaints about its conduct outside of its statutory functions, or complaints could be made to the parliamentary ombudsman, as provided for in paragraph 21 of Schedule 1. Among the other excluded bodies are courts and tribunals and both Houses of Parliament. The devolved legislatures, and the Scottish and Welsh Ministers and Northern Ireland departments are also excluded. Any person carrying out a devolved function on behalf of the devolved Ministers, such as a devolved public body, is also excluded from the OEP’s remit.

Section 32: Complaints

This section provides that a person may make complaints to the OEP regarding alleged contraventions of environmental law by public authorities. It sets out who may make such complaints, what form they must take, and the time limits within which they should be made. The contraventions and public authorities about which complaints may be considered by the OEP are set out in section 31, while “environmental law” is defined in section 46. Figure 1 illustrates the process by which the OEP’s management of complaints is expected to operate, as set out in this section and in section 33 (investigations).
Subsection (1) allows for any legal or natural person to make a complaint to the OEP if they believe that a public authority has failed to comply with environmental law, subject to the exclusions set out in subsection (4).
Subsection (2) sets out that the OEP must prepare and publish a document that sets out the procedure by which complaints can be made, and subsection (3) provides that complaints must be submitted in accordance with the most recently published version of that procedure. This is to allow the OEP to specify the means by which it will accept The OEP may or may not allow, for example, complaints in writing, by telephone or through an online complaints portal. Complaints that are not submitted in accordance with the procedure do not have to be considered by the OEP.
Under subsection (4), public authorities themselves are excluded from complaining to the OEP, as this would amount to one arm of the government or the public sector complaining about
Subsection (5) requires that the complainant must have exhausted all internal complaints procedures of the allegedly offending body before they submit the complaint to the OEP. A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures that will apply to their functions, which are concerned with the implementation of environmental This provision is intended to give the public authority in question the opportunity to consider and seek to resolve the matter through its own procedures before it is considered by the OEP.
Subsection (6) makes provision regarding the timing of making a complaint to the OEP. The complaint must be submitted no later than one year after the last occurrence of the alleged breach of environmental law (paragraph (a)), or three months after the conclusion of any internal complaints procedures (paragraph (b)), whichever is later. This is intended to encourage complainants to bring their complaints in a timely manner, whilst also allowing a reasonable time period for people to bring An open-ended ability to complain long after the event in question could lead to uncertainty over certain decisions, particularly given that it could lead to enforcement action.

The provision in subsection (7) means that the OEP will not be entirely precluded from investigating serious matters on the basis of a complaint being late. Subsection (7) allows the OEP to waive the time limit in subsection (6) if there are exceptional reasons for doing so. This judgement will be a matter for the OEP’s discretion, and as such it could cover a number of circumstances, although it can be used only where there is an exceptional reason to disapply the normal time limit. It is possible that the OEP may wish to use this provision in a case where, for example, environmental harm resulting from a failure to comply with the law has taken some time to materialise and therefore for that failure to be identified, or where details of a decision only came to light long after it was taken.
The time limits specified in subsection (6) set out the periods after which complaints will not normally be accepted by the OEP, but do not affect its wider ability to investigate or take enforcement action (which may be prompted by triggers other than a complaint) under subsequent sections.
It should be noted that no provision is made to grant the OEP the power to impose charges in relation to its receipt and handling of As such, the complaints system will be free of charge to all complainants.
A summary of the procedure for handling complaints is provided in figure

Figure 1: Summary of complaints handling procedures

Section 33: Investigations

This section deals with the investigation of complaints, and potential breaches of environmental

law coming to the OEP’s attention by other means.

Subsection (1) provides that the OEP may undertake an investigation on the basis of a complaint received under section 32 if it considers that the complaint indicates that a public authority may be responsible for a serious failure to comply with environmental law.
Subsection (2) provides that the OEP may also undertake an investigation under this section without having received a complaint, if it has information obtained by other means that in its view indicates a public authority may have committed a serious failure to comply with environmental law.
The OEP’s enforcement policy will set out how the OEP intends to determine seriousness for the purpose of subsection (2)(b). The OEP is not obliged to investigate all complaints, and provisions in subsections (1) and (2) allow the OEP to exercise discretion regarding the potential breaches that it investigates. The OEP’s approach to prioritising cases will also be set out in its enforcement policy, in which it must have regard to the considerations set out in section 23(7). If the OEP chooses not to investigate a complaint, the complainant must be informed under the requirements of section 34.
Subsection (3) sets out the purpose of the investigation, which should focus on establishing whether a public authority has failed to comply with environmental law. Under subsection (4), at the start of an investigation the OEP is required to notify the public authority being investigated, although in practice it also has discretion to contact the public authority informally in advance of commencing an Subsection (10) also provides that, if the authority is not a Minister, the OEP must additionally notify the “relevant Minister”. Subsection

(11) provides that the relevant Minister should be the Minister of the Crown that the OEP considers appropriate, having regard to the nature of the public authority and the nature of the failure (that is, the Minister whose department is responsible for the policy area). For example, in the case of an investigation into a potential infringement relating to environmental permitting, a Minister from the Department for Environment, Food and Rural Affairs should likely be informed where the Environment Agency had issued the permit in question. If an investigation relates to environmental impact assessment, which is a policy area predominantly owned by the Ministry for Housing, Communities and Local Government, a Minister from this department should likely be informed, where a local authority was responsible for the alleged failure. The intention of these subsections is to ensure that central government departments remain informed of investigations related to their subject areas, and are therefore able to contribute, even if an alleged infringement does not involve a lack of compliance on the part of the department or Ministers themselves. This definition of the “relevant Minister” also applies to other sections in this Part.

Similarly, when an investigation is concluded, subsection (5) requires that the OEP provide a report to the relevant public authority, copied to the relevant Minister if necessary under subsection (10). The OEP may publish the report in full or part under subsection (9).
Subsection (6) allows the OEP the flexibility to delay the preparation of this report if it considers that it may take further enforcement action (for instance, the service of an information or decision notice, or application for environmental review under section 38) in relation to the alleged failure. This is intended to ensure that the OEP is not required to prepare and release reports concerning an investigation while it is still considering or intending to take further enforcement action. However, should the OEP publish a report and further information subsequently comes to light, it will not be precluded from taking further enforcement steps in relation to the failure as a result of having already published a report.

Under subsection (7), if the OEP has applied for an environmental review, judicial review, or statutory review it is not required to prepare a report.
The required contents of this report are set out in subsection (8). A report must state whether the OEP considers that a public authority has failed to comply with environmental law, the reasons the OEP came to these conclusions, and any recommendations the OEP may have for the relevant Minister, the public authority in question and any other authorities.
The OEP has discretion over whether to publish the report (in whole, in part or at all), in view of the possibility that some investigations may conclude that there is nothing of value to put in the public domain, while other investigations may involve matters of significant confidentiality or sensitivity. The OEP will exercise this discretion consistently with its duty to have regard to the need to act transparently (see section 23(2)(b)). Information that the OEP chooses not to proactively report and publish will still be open to requests for disclosure and will need to be considered under the applicable legislation dealing with such requests.

Section 34: Duty to keep complainants informed

This section deals with the procedure for the OEP to inform complainants about whether an investigation following a complaint will be carried out and the progress of the
The OEP must inform the complainant if the complaint will not be considered for further investigation on the basis that it is not a valid For example, the complaint may not be concerned with a valid matter (a breach of environmental law by a public authority), it may not have been submitted in accordance with the specified procedure, or it may have been submitted after the time limit without any exceptional basis for the OEP to reasonably accept it. This is covered in subsection (2)(a) of this section.
Where a complaint has been made in accordance with section 32, the OEP must inform the complainant about whether or not an investigation into that complaint will be carried out; this is covered in subsections (2)(b) and (c). This reflects the fact that the OEP has discretion in choosing which cases to investigate, prioritising cases in line with its enforcement policy.
When a report on an investigation under section 33(5) has been provided to the public authority in question, paragraph (d)(i) requires that the OEP must inform the complainant of this, although it is not obliged to disclose that report to the complainant at that stage unless it has been published under section 33(9).
Where the OEP applies for an environmental review, or for permission to apply for a judicial review, or statutory review in relation to the failure that was the subject of the complaint, paragraph (d)(ii) requires the OEP to inform the complainant.
Where the OEP publishes a report following the investigation of a complaint, it must provide the complainant with a copy of that report as published in full or in part, as required by paragraph (e). This could be done by electronic means, or by referring the complaint to a published report that is available online, rather than necessarily requiring a hard copy of the report to be provided in every case.

Figure 2: Summary of investigation and enforcement

Section 35: Information notices

This section provides that the OEP can take enforcement action in the form of “information notices” in cases where it reasonably suspects a public authority may be responsible for a serious breach of environmental This action may follow the investigation of a complaint, but the OEP can also take enforcement action if it has other grounds for suspecting there has been a serious breach (for example, based on information presented in a report on the implementation of a law, or arising from a parliamentary inquiry or other source), whether arising from an investigation under section 31 or not.
This section, and those that follow it, reflects the intended enforcement function and process of the Figure 2 illustrates the process that is expected to operate in the OEP’s management of enforcement activities under these sections.
Under subsection (1), the OEP may issue an information notice if it has reasonable grounds (whether or not this information arises from an investigation under section 33) for suspecting that a public authority has failed to comply with environmental law, and it considers that the failure is The seriousness of a failure will be determined by the OEP in accordance with its own, published enforcement policy (see section 23). The OEP therefore may not serve an information notice in relation to trivial matters, or serve a speculative information notice if it does not have any reasonable basis to believe an authority is failing to comply with environmental law.
Information notices are a means by which the OEP can formally request information from the public authority concerned in relation to a suspected failure. Subsection (2) states that an information notice is to describe the alleged failure, the reasons why the OEP considers that the

alleged failure, if it occurred, would be serious, and the information that the OEP requests in relation to it. Subsection (3) requires the relevant public authority to respond in writing to an information notice within a fixed time period as specified in subsection (4), and subsection (5) sets out what information should be included in such responses.

Subsection (4) specifies that responses must be provided within two months from the date on which the notice was issued, or such later date as specified by the OEP. This means that, although the OEP can specify a response date that gives a public authority longer than the standard period of two months to respond if it sees fit (for example, if it accepts that the matter is exceptionally complex, or if the ability of the public authority to respond is constrained by an election period), it must allow notice recipients at least this amount of time.
Under subsection (6), the OEP may withdraw an information notice or issue multiple information notices in relation to the same suspected infringement.
Under subsection (7), where the OEP plans to issue an information notice in relation to an alleged failure to comply with environmental law relating to greenhouse gas emissions, the OEP must first notify the Committee on Climate Change and provide it with appropriate information. “Emissions of greenhouse gases” is defined in the Climate Change Act 2008.

Figure 3: Summary of normal enforcement process

Section 36: Decision notices

This section provides for the OEP to take further enforcement action in the form of a “decision notice”.
The OEP may issue a decision notice under subsection (1) if it is satisfied, on the balance of probabilities, that the public authority has failed to comply with environmental law, and it considers that the failure is serious. As with an information notice, the question of seriousness will be one for the OEP to consider on the basis of its own published complaints and enforcement policy (see section 23). The “balance of probabilities” test means that the OEP must

consider it more likely than not that a public authority has failed to comply with environmental law. Note that this test relates to the question of when the OEP is permitted to serve a decision notice, and does not create a requirement to issue such a notice in any particular case where the test is satisfied.

As defined in subsection (2), decision notices are a means by which the OEP can take action against the public authority failing to comply with environmental law, by setting out the failure, its reasons for considering that the failure is serious, and the suggested steps for the public authority to take in relation to the failure. The potential actions that the OEP can request will be specific to each case. For instance, the OEP could recommend that the public authority prepare a new, or updated strategy, or undertake remedial action in the event that environmental harm has been done. Other possible steps could include asking an authority to cancel, amend or re- take a decision (for example, to designate a certain area as a protected site), or take steps to pursue a particular environmental quality standard or other environmental outcome as required. Subsection (2) does not constrain the types of steps that the OEP can specify, and provides expressly that they may include steps designed to remedy, mitigate or prevent reoccurrence of the failure.
The public authority that receives a decision notice is not under a legal duty to carry out the steps detailed in the Under subsection (3), the public authority is required to respond to a decision notice either two months after the notice was given, or by a date specified in the notice, whichever is later. The written response from the public authority must state whether the public authority agrees that there has been a failure to comply with the law, and whether the steps set out in the notice will be followed, as specified in subsection (4). This subsection also requires the public authority to specify any other alternative steps that will be taken in relation to the alleged failure described in the notice. This reflects the possibility that the public authority might accept that it had failed to comply with environmental law, but might wish to propose alternative or additional steps to remedy, mitigate or prevent reoccurrence of the failure, compared to those specified in the OEP’s decision notice.
Subsection (5) provides that the OEP may withdraw a decision notice after it has been issued (paragraph (b)), and also requires that the OEP must have previously issued at least one information notice relating to the alleged failure of the public authority to comply with environmental law before a decision notice is issued (paragraph (a)). The OEP may withdraw a decision notice if, for example, it has served such a notice where it considers there has been a failure to comply with the law but later considers that there had been no such failure. In this case, it would be desirable to withdraw the notice rather than require a public authority to respond to a notice that the OEP no longer considers is relevant or necessary.

Section 37: Linked notices

This section deals with the scenario in which the OEP considers that a notice should be issued to more than one public authority concerning the same or similar breaches of environmental law. In such a scenario, the OEP could issue information or decision notices in parallel to both (or all) parties, and determine that these are “linked” under subsection (1). Public authorities may make joint or separate responses to linked notices.
The OEP may wish to issue linked notices in various circumstances, including for example:
If a serious breach occurred for which a local authority was immediately responsible in the local area, but in relation to which a Secretary of State also had national duties, it might be appropriate for the OEP to commence enforcement proceedings (via

notices) against both the local authority in question and the Secretary of State.

If a cross-boundary incident occurred where two or more local authorities failed to properly carry out their obligations under environmental law, the OEP might wish to

issue linked notices to both or all of the authorities in question. For instance, if during the course of a major, cross-boundary development project it was found that two or more local authorities had neglected their responsibilities under Part IIA of the Environmental Protection Act 1990 to identify contaminated land and serve remediation notices where appropriate, leading to improper development of the site with potential implications for human health and the environment, it may be appropriate for the OEP to take action against both/all authorities in parallel using linked notices.

Subsection (2) provides that the relevant Minister may also request that the OEP designates information or decision notices as linked, and that the OEP must have regard to such a request. This does not mean that the OEP is obliged to comply with the Minister’s request, but it must be able to demonstrate it has appropriately considered it. The meaning of “the relevant Minister” is as defined in section 33(11).
Subsection (3) sets out that the OEP must provide the public authority receiving an information or decision notice (which is referred to as a “principal notice”) with a copy of every notice which is linked to it. It also sets out that such notices shall be referred to in this section as “linked notices”.
Subsection (4) provides that the OEP must provide the recipient of a principal notice with a copy of any relevant correspondence which relates to a linked notice between the OEP and the recipient of that What constitutes “relevant” correspondence is defined in subsection (8).
Subsection (5) provides that the OEP must also provide the recipient of a principal notice with a copy of any relevant correspondence between the OEP and the relevant Minister that relates to a linked notice. (The “relevant Minister” has the meaning given in section 33(11).) However, subsection (6) provides that subsection (5) does not apply where the recipient of either the principal notice or the linked notice is themselves a Minister of the Crown.
Subsection (7) provides that the obligations set out under this section to provide copies of notices or correspondence will not apply where the OEP considers that to do so would not be in the public interest. For instance, where correspondence regarding a notice contained information pertaining to matters of national security, it may not be in the public interest to share this with other parties.
Subsection (8) sets out what will be considered as “relevant” correspondence for the purposes

of this section. Correspondence is considered relevant if:

as required by paragraph (a), it is not connected with an environmental review or any other legal proceedings, which would include judicial or statutory review; and

as required by paragraph (b), it is not sent to fulfil the requirements of section 40(1)(a) or 40(1)(b).

Section 38: Environmental review

This section provides for the OEP to bring legal proceedings against a public authority regarding an alleged breach of environmental These proceedings are through a mechanism in the High Court called “environmental review”. This is a bespoke form of legal proceedings which applies solely to cases brought by the OEP, and it is based on the normal standards and principles of judicial review.

Subsection (1) sets out that the OEP may apply to the court for an environmental review regarding an alleged breach where it has given a decision notice to a public authority. The OEP therefore cannot bring such a review unless it has gone through this earlier notice stage, which in turn must be preceded by the service of an information notice (see section 35). This process is intended to ensure that cases dealt with through this bespoke process necessarily involve substantial pre-litigation stages, with a view to resolving cases without legal proceedings where possible. This subsection also specifies that the OEP may only apply for an environmental review if it is satisfied on the balance of probabilities that the public authority has failed to comply with environmental law, and it considers that the failure in question is serious. This is the same test that the OEP must apply in deciding whether or not it may issue a decision The OEP must remain satisfied, after considering any response to its decision notice, that the failure in question is serious. It cannot apply for an environmental review if the response leads it to conclude that there was in fact no serious failure.
Subsection (2) defines an environmental review as a review of the conduct described in a decision notice as a failure to comply with environmental law. It is not a review of whether the public authority has complied with any recommendations that may be included in a decision notice, or whether a public authority has acted unreasonably in failing to follow the views of the OEP, given that decision notices are not binding. The OEP does not have powers to make binding findings as whether there has been a breach of environmental law; that is the role of the Courts and the purpose of environmental review.
Subsection (3) sets restrictions for when an application for an environmental review may be made. Subsection (3)(a) sets out that the OEP may not make an application for environmental review before the earlier of: (i) the end of the period within which the public authority in question is required to respond to a decision notice under section 36(3); and (ii) the date on

which the OEP receives the authority’s response. This means that the OEP is not obliged to wait until the end of the period specified in its decision notice if the public authority responds sooner, whilst ensuring that the OEP is able to consider the authority’s response to the decision notice before deciding whether to proceed to applying for an environmental review.

Subsection (3)(b) provides that the OEP may not apply for an environmental review before the expiry of any time limit in which legal proceedings (judicial review or other similar legal proceedings) in relation to the same conduct could be initiated. This is to ensure that environmental review does not pre-empt other legal proceedings. The timescales for the OEP’s enforcement process mean that the period within which judicial review or similar legal proceedings can be brought will normally have passed before the OEP can apply for an environmental For example, where a decision is challenged through judicial review, the application for review must be made promptly and within six weeks for planning cases and three months in other cases. The applicable legislation provides a margin of discretion for the courts to accept judicial review applications outside these time limits in exceptional circumstances. However, the provision in subsection (3)(b) necessarily only captures any specific time limit expressed in law, rather than any time limits that have been extended by the discretion of the court in an individual case.
Subsection (4) provides that any restriction in other legislation on questioning the conduct of a public authority in legal proceedings does not apply to an environmental This provision is made to ensure that the OEP’s route of challenge can exist alongside other pre-existing routes of challenge. In some cases, the relevant legislation may provide that the courts can only entertain challenges against those decisions in the form of a judicial review – for example,

section 13 of the Planning Act 2008. Furthermore, some existing statutory routes of challenge specifically exclude any other route of challenge – for example, section 284(1)(b) of the Town and Country Planning Act 1990. However, the intention is that these restrictions should not preclude the OEP bringing a challenge.

Subsection (5) establishes what the court must determine in an environmental review, namely whether the public authority in question has failed to comply with environmental law. The subsection specifically provides that the court must determine whether there has been a failure applying judicial review principles. As such, this question is to be determined on standard public law grounds. This means that the court will consider whether the decision maker has made an error in law, whether the decision was reasonable, and whether the process was fair. This reflects the intention of this section that public authorities be afforded the normal margin of discretion to take reasonable decisions in accordance with their functions, as they would in a judicial review.
Subsection (6) provides that, if the court finds on an environmental review that a public authority has failed to comply with environmental law, it must make a statement confirming this, referred to as a “statement of non-compliance”.
Subsection (7) sets out that, whilst the statement of non-compliance confirms that the court has found that the public authority in question has failed to comply with environmental law, it does not in itself invalidate the decision of the public authority in question. For example, if the grant of a planning permission is challenged through environmental review and the court finds it to be unlawful and makes a statement of non-compliance, the planning permission granted would nevertheless remain valid. This is the case unless the court decides that it is appropriate to impose further remedies such as a quashing order, and the conditions for doing so were met.
Where the court issues a statement of non-compliance, this would not prevent or oblige the Secretary of State, or other relevant decision-maker, from using existing discretionary powers in relation to that decision (that is, to modify or revoke their original decision).
Subsection (8) provides that, if the court makes a statement of non-compliance, it will have the full suite of remedies, other than damages, available to it as on a judicial review, but only if one of two conditions is met. These are referred to as Conditions A and B.
These remedies include a declaration, quashing, prohibiting and mandatory orders, and injunctions. Damages are not available in environmental reviews because the OEP, as the only applicant, would have no cause to seek compensation for damages personally suffered where the claimant in a traditional judicial review might. As such, this remedy is unnecessary.
Subsection (9) defines Condition A. This condition is that the court is satisfied that granting such a remedy would have neither of the effects described in paragraphs (a) and (b) of this
The provision that the court may only grant a remedy under Condition A if it is satisfied that neither of the effects described in paragraphs (a) or (b) would occur as a result recognises the fact that the environmental review will take place after the expiry of judicial review time limits and that prejudice may result from quashing the decision at this later date. This provision allows third parties reliant on decisions involving the application of environmental law to have confidence that those decisions will not routinely be quashed or other judicial review relief granted outside the normal judicial review time limits, if substantial prejudice, substantial hardship or detriment to good administration would be likely to result. Together with the

provision in subsection (10) these conditions combine to mean that remedies which could have these effects could only be granted in exceptional circumstances. Paragraph (a) of subsection (9) requires the court to be satisfied that a remedy would not be likely to substantially prejudice or cause substantial hardship to a third party (a person other than the public authority defendant) before granting it. Expenditure already spent in reliance of the decision in question may be relevant to the question of substantial prejudice or hardship, along with potentially the recoverability of the sums and the financial means of the third party.

Paragraph (b) of subsection (9) requires that the court also be satisfied that a remedy it grants would not be detrimental to good This provision recognises the need to protect the orderly implementation of properly-reached decisions, and recognises that finality in decision-making is important for both public authorities and the public.
Subsection (10) sets out Condition This condition is that condition A is not met, but the court is satisfied that, under paragraph (a) it is necessary to grant the remedy in order to prevent or mitigate serious damage to the natural environment or human health, and under paragraph (b) that there is an exceptional public interest reason to do so.
This condition therefore provides the court discretion to undertake a weighted balancing exercise in the event that Condition A is not In doing so the court would need to weigh the public interest in preventing serious harm to the natural environment or human health against the public interest in preventing the occurrence of substantial hardship or prejudice to a third party, or detriment to good administration. In order to grant a remedy, the court would need to be satisfied that the public interest in preventing this serious harm substantially outweighed the interest in preventing hardship, thereby constituting an ‘exceptional public interest reason’ to grant the remedy.
Subsection (11) sets out that the court, subject to the conditions set out in subsection (8), must apply the usual principles applied in a judicial review when considering whether to grant a remedy in an environmental review. It also clarifies that section 31(2A) of the Senior Courts Act 1981 does not apply, a provision under which the court could not grant a remedy in circumstances where it appears highly likely that the outcome for the applicant would not have been substantially different if the breach under consideration had not The OEP will be the only possible applicant for an environmental review and will never be directly affected by the decisions it may be challenging. By making clear that this provision of the Senior Courts Act 1981 does not apply, subsection (11) therefore ensures the court is able to grant remedies subject to the provisions of subsection (8). If the court does decide to impose a remedy, should the public authority fail to comply with any resulting court order it could be subject to contempt of court proceedings brought by the OEP.
Subsection (12) requires a public authority that has been the subject of an environmental review in which a statement of non-compliance has been issued by the court (and not overturned on appeal) to publish a statement. This statement should describe any steps the authority intends to take based on the outcome of these proceedings. For example, if the court were to agree with the conclusions outlined by the OEP in its decision notice, and make an order granting a statement of non-compliance and specified remedies, the public authority’s statement could include details of how it intends to ensure the remedies are given effect, and/or details of how it will ensure future breaches are Where a statement of non-compliance is not issued, the public authority is not required to publish a statement, but would not be prevented from doing so if it so wished.

Subsection (13) sets out that a statement under subsection (12) must be published within two months of the conclusion of the review proceedings. This means that the statement should be published after the final disposal of proceedings, meaning after judgment has been delivered on the final issue in the case, including any subsequent appeal proceedings.
Subsection (14) defines several terms used in this

Section 39: Judicial review: powers to apply in urgent cases and to intervene

This section makes provision for the OEP to apply for judicial or statutory review in specific circumstances and to intervene in third party judicial reviews and statutory reviews where
Subsection (1) provides that the OEP may apply for judicial review, or a statutory review (a legal challenge procedure similar to judicial review, but under specific legislation – for instance, the Town and Country Planning Act 1990 procedure by which an applicant may challenge a decision of the Secretary of State), of a public authority’s conduct, whether or not it has issued an information or decision notice, if it considers that the public authority in question has committed a serious breach of environmental law, and if what is referred to as “the urgency

condition” is met.

Subsection (2) defines the urgency condition. The effect of these provisions is that the OEP could only make an application for judicial review (or statutory review), rather than proceeding according to its normal enforcement procedure (information notice; decision notice; environmental review), if it is “necessary” to do so in order to prevent or mitigate serious damage to the natural environment or human health. This could be the case if, for example, the serious damage would have already happened by the time that the normal enforcement procedure reached the court and a more urgent court judgment was needed. To give all parties certainty, the OEP will be required to set how it intends to determine whether damage is serious for the purpose of this section in its enforcement policy, as part of its strategy (see section 23(6)(b)). Subsection (3) disapplies section 31(2A), (3C) and (3D) of the Senior Courts Act 1981 in relation to judicial review applications under subsection (1) of this section in England and Wales, which limit the granting of permission for judicial review, or relief “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This is because it is highly likely that the outcome for the OEP itself would not have been different if the public authority had behaved differently.
Subsection (4) provides that a public authority which was the subject of a judicial review, or statutory review, commenced by the OEP under this section must publish a statement within two months of the conclusion of proceedings (including any appeal). This statement must set out any steps the public authority intends to take as a result of the proceedings.
Subsection (5) requires a public authority to publish the statement as provided for in subsection

(4) within two months of the day that proceedings, including any appeal, conclude.

Subsections (6) and (7) provide that the OEP may apply to participate in third party judicial review or statutory review proceedings (including appeal proceedings) against a public authority concerning an alleged failure to comply with environmental law, as defined under section 46, as long as the OEP considers that the alleged failure, if it occurred, would be This could include scenarios where the OEP agrees that the public authority has failed to comply with environmental law, but also where it may disagree that this is the case; the OEP may have useful expertise to contribute in each case.

Subsection (8)(a) provides that, other than in section 38, in Part 1 of the Act reference to “an application for judicial review” includes an application to the High Court, or the Court of Session in Scotland.
Subsection (8)(b) provides that in this section a “statutory review” means a claim for such a

review under the provisions set out in sub-paragraphs (i) to (iv).

Section 40: Duty of the OEP to involve the relevant Minister

This section deals with how the OEP should operate in situations where the subject of an information or decision notice under sections 35 and 36 respectively, or of an application for environmental review under section 38, is not a Minister of the Crown.
Where the recipient of an information or decision notice is not a Minister of the Crown, subsection (1)(a) requires the OEP to provide a copy of the notice to the relevant Minister, as well as a copy of any correspondence between the OEP and the public authority concerned that relates to the notice. This is to ensure that the government remains informed about the matter and is able to contribute if appropriate. Paragraph (b) of this subsection also requires that the OEP must provide the recipient of a notice with a copy of any correspondence it has with the relevant Minister regarding the notice. In each case, the OEP is not required to share correspondence which is sent as part of these requirements. (In other words, it would not be required to share copies of copies of notices, or of correspondence which relates to notices by virtue of this section.)
Subsection (2) provides that obligations to provide copies of notices or correspondence under subsection (1) will not apply where the OEP considers that to do so would not be in the public
Where the OEP makes an application for environmental review, judicial review, or statutory review against a public authority that is not a Minister of the Crown, subsection (3)(a) provides that the OEP must provide the relevant Minister with a copy of the application. Subsection (3)(b) additionally requires the OEP to provide the Minister with a statement which sets out whether the OEP considers the Minister should participate in the review proceedings, for example as an interested party. The OEP may consider such Ministerial involvement appropriate in particular cases, even where the Minister is not the defendant (that is, the party responsible for compliance with the environmental law in question), for various reasons. For instance, delivery bodies may adopt an approach to implementation influenced by factors or messaging emanating from central government. To this extent, it may be helpful for Ministers to provide input to the proceedings.
Ministerial involvement in proceedings where appropriate would have similarities to EU infraction cases, where the action is brought against the UK or other Member State government regardless of which particular public authority is at Subsection (3)(b) essentially therefore provides for the OEP to offer a formal statement of its view as to the desirability of the Minister’s participation, for the Minister’s consideration. The OEP cannot require the Minister’s participation under this section. Further details concerning the addition of parties to legal proceedings in environmental reviews brought by the OEP will be a matter for the Civil Procedure Rules.
Throughout this section, “the relevant Minister” has the meaning given in section 33(11).

Section 41: Public statements

This section deals with requirements on the OEP to publish statements when it takes certain enforcement actions.
Subsection (1) provides that the OEP must publish a statement, for example in the form of a press release, whenever it serves an information or decision notice, applies for environmental review, judicial review, or statutory review, or applies to intervene in judicial review. This subsection also sets out the information that this statement must contain.
Subsection (2) provides that the OEP does not need to publish a statement if it considers that it would not be in the public interest to do For example, the OEP might judge it to be not in the public interest to publish a statement about its enforcement activities that would prejudice the protection of personal or confidential data.
The provisions of this section are intended to provide an appropriate degree of transparency as regards the enforcement action that the OEP is taking and against whom. The European Commission also publishes press statements at key stages of the infraction process, although this is not a legal requirement on the European Commission as it will be for the OEP.

Section 42: Disclosures to the OEP

To assist the OEP in carrying out its investigatory functions, subsection (1) of this section enables persons whose functions include functions of a public nature to provide information to the OEP notwithstanding any obligation of secrecy, either statutory or otherwise, when that information is in connection with an investigation under section 33, an information notice or a decision notice.
Subsection (2) provides for particular circumstances in which a person is not required to provide the OEP with information.
This disapplication of obligations of secrecy is limited: it applies only to the provision of information to the OEP, and not to anyone else, and it applies only under the conditions set out in subsection (1).
Subsection (3) makes similar provision for a relevant The meaning of a “relevant ombudsman” is set out in section 23(9).
Subsection (4) excludes data protection legislation from the provisions in this Part of the Act. This includes any disclosure of information that takes place under section 43 and requires it to be compliant with data protection law.
Subsection (5) defines what is meant by “the data protection legislation”.

Section 43: Confidentiality of proceedings

This section deals with the circumstances in which the OEP and public authorities may or may not disclose information regarding an investigation whilst the OEP is carrying out enforcement proceedings. The provisions have been designed to provide adequate protection of confidential information during those enforcement proceedings, whilst ensuring compliance with the pillar of the Aarhus Convention that is concerned with access to environmental information, by the Environmental Information Regulations 2004 (EIR) and in Scotland by the Environmental Information (Scotland) Regulations 2004, which provide public access to environmental

Subsection (1)(a) sets out that the OEP must not disclose information which has been provided by a public authority as a response to a request for information from the OEP in an information notice (as provided for in section 35(3)(b)), or otherwise obtained by the OEP on the basis of the duty on public authorities to co-operate, provided for in section 27(1)). Under paragraph (b) of this subsection, the OEP cannot disclose any correspondence between the OEP and the recipients of information or decision notices that relates to those particular notices, including the information and decision notices Circumstances where provisions in subsection

(1) do not apply, and the OEP is able to disclose the information, are covered under subsection

(2). For example, the restriction in subsection (1) does not apply to a disclosure once the OEP has concluded a case has been closed and that it intends to take no further steps.

Under subsection (3), a public authority in receipt of an information or a decision notice may not disclose the notice or any correspondence between the OEP and that, or any other, public authority relating to that Subsection (4) sets out the circumstances where the restriction in subsection (3) does not apply to a disclosure. This relates to cases such as where consent has been obtained, where the disclosure is required for the purposes of an investigation under section 33, where disclosure is required to be able to respond to an information or decision notice, or where it is connected to an environmental review or judicial review proceedings.
Subsection (5) sets out that the OEP can only give its consent for disclosure of an information or a decision notice when it has concluded it intends to take no further steps under this Chapter.
Subsection (6) ensures that, if consent has been requested by a public authority, the OEP cannot withhold that consent for disclosure of correspondence if it has concluded it intends to take no further steps under this Chapter.
Subsection (7) provides that when information referred to in subsection (1) and held by the OEP, or subsection (3) and held by a public authority, is “environmental information” in accordance with the EIR it is held, for the purposes of these regulations, in connection with confidential proceedings. Whilst enforcement proceedings by the OEP are ongoing, the information referred to in subsection (1) and (3) will be capable of attracting an exception in the EIR that provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.
This section does not override the EIR which will still apply to the OEP and other public The OEP will be required to consider requests for disclosure of information made under the EIR on a case by case basis, including assessing whether any appropriate exception will apply.
This section will also not override or disapply other existing legislative provision on public access to information such as the Freedom of Information Act 2000 or Data Protection Act The OEP will therefore be subject to requirements set out in existing law which govern access to, and protection of, information. This will include the ability to rely on exemptions in existing legislation where appropriate and necessary.
This section should also not act as a barrier to the transfer of information, whether by the OEP or other bodies, to The National Archives under the Public Records Act 1958 in accordance with the existing statutory scheme. The OEP may seek to ensure the efficient transfer of information by preparing a joint working protocol with The National Archives.

Chapter 3: Interpretation of Part 1

There is no universal definition of “the environment”. Although a diverse array of definitions exists, each has been designed to describe the environment in a particular context, or from a specific perspective. A clear definition, therefore, is needed to determine the scope of the OEP. Sections 44 to 46 define the “natural environment”, “environmental protection” and “environmental law” for the primary purpose of determining the range of legislation that falls within the remit of the OEP, and with respect to which the OEP can exercise its scrutiny, advice, complaints and enforcement functions, and for the purposes of other provisions in Part 1 of the Act. The definitions in sections 44 to 46 are not intended to have any application beyond the interpretation of this Act.
These definition are also relevant to several other sections in Part 1 of the Act, for example the provisions concerning environmental improvement plans and targets.

Section 44: Meaning of “natural environment”

In setting out the matters that are each considered to be environmental protection, section 44 uses the term “natural environment”. The definition provided in the section includes living elements of the environment, namely plants, wild animals, other living organisms, and their habitats – both terrestrial and marine. However, it is not intended to include domesticated animals such as livestock and The definition also includes non-living elements, namely air, water and land. This includes both the marine and terrestrial environments. “Water” will include seawater, freshwater and other forms of water, while “air” will include the atmosphere (including, for example, the ozone layer) and “land” will include soil, geological strata and other features. In addition, “land”, as defined in the Interpretation Act 1978, includes “land

covered with water” and therefore will include the sea bed. Buildings and other structures are excluded from the meaning of “land”, however water and air are included regardless of whether they are outside or inside a building or other structure.

The section also sets out that systems, cycles and processes through which the elements listed above interact are also included within this definition of the natural This therefore includes ecosystems, and hydrological and geomorphological processes.

Section 45: Meaning of “environmental protection”

This section defines what is meant by “environmental protection”. This definition applies

throughout this Part.

Paragraphs (a) to (d) set out a list of matters which are each considered to be “environmental protection”. When reading this list, reference should be made to the definition of the “natural environment” in section 44.
Environmental protection is defined as any of the following: (a) protecting the natural environment from the effects of human activity; (b) protecting people from these effects; (c) maintaining, restoring or enhancing the environment; and (d) monitoring, assessing, considering, advising or reporting on the above points.

Section 46: Meaning of “environmental law”

This section deals specifically with the definition of “environmental law”, and therefore the scope of the OEP’s functions that depend upon this definition.
Subsection (1) defines “environmental law”, for the purposes of this Part, as any legislative provision to the extent that the provision is mainly concerned with environmental protection as defined in section 43 and is not explicitly excluded under subsection (2).

Subsection (1) uses the term “legislative provision”, which is a reference to UK legislation, and can cover specific sections or subsections of an Act, regulations or other forms of As such, the effect of this subsection is that the OEP will not have a statutory function to assess compliance with purely international environmental law. Rather, its remit will be limited to enforcing UK legislation that falls under the definition of environmental law, including legislation that implements international commitments.
The definition of environmental law applies at the level of legislative provisions (that is, the whole or any element of an Act or regulations). This means that, even if most of an Act or set of regulations does not meet these conditions, to the extent that any specific provisions in the Act or regulations do meet the conditions they should be considered as “environmental law”.
The only matters explicitly and expressly excluded from the definition of environmental law are those which are concerned with an excluded matter listed under subsection (2) and those excluded by subsection (3). Subsection (3) provides that, other than for the purposes of section 20, devolved legislative provisions as defined in subsection (4) are excluded from the definition of environmental law. Unless so expressly excluded, any other law can be considered to determine whether individual legislative provisions are “mainly concerned” with environmental protection. This does mean that within broadly environmental policy areas, whilst many provisions may meet these criteria, there may be certain provisions that will not be mainly concerned with environmental protection, and therefore not constitute environmental
For example, the Forestry Act 1967 contains examples of provisions that would be considered to be mainly concerned with environmental protection, and therefore constitute environmental law, as well as provisions which would not. Section 1(3A) of the Forestry Act 1967, for instance, places a duty on the appropriate authority to endeavour to achieve a balance between its

functions in relation to afforestation and timber supply and production, and “the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest”. As this places a duty on a public authority concerning the conservation of the natural environment, this provision would fall within scope. However, some other provisions within this Act would not, such as section 1(2), which charges the appropriate forestry authority “with the general duty of promoting the interests of forestry, the development of afforestation and the production and supply of timber and other forest products”. This provision is mainly concerned with the promotion of the forestry sector and the production and supply of timber, rather than an element of environmental protection as listed in section 45, and as such would not be considered to fall within the definition of environmental law.

Another example is planning legislation. Whilst provisions concerning environmental impact assessment and strategic environmental assessment are clearly concerned with environmental protection as set out in section 45, and therefore will fall within the definition of environmental law, most other areas of planning legislation are not mainly concerned with environmental protection, and therefore will not fall within the definition.
It will be for the OEP to assess whether or not it considers a legislative provision to fall under the definition on a case by case basis when determining whether or not it has legal powers to act in that area. In most cases, it is expected that the answer to this question will be clear, and agreed by all However, there may be cases of uncertainty or disagreement, and in these instances it may ultimately be for the courts to decide whether a specific provision falls within the definition or not.

Subsection (2) sets out matters that are explicitly excluded from the definition of environmental law:
Disclosure of or access to These matters are excluded under paragraph

(a) in order to avoid overlap between the remit of the OEP and that of the Information

Commissioner’s Office, which oversees and where necessary takes action to enforce public authorities’ compliance with the Environmental Information Regulations.

The armed forces or national security (paragraph (b)).
Legal provisions concerning taxation (paragraph (c)). The term “taxation” in this context refers to taxes in a legal sense, and therefore does not include other regulatory schemes that involve fees and charges for purposes other than taxation, such as the

plastic bag charge or the imposition of fees to cover the cost of a regulatory regime. Such schemes are not automatically excluded from the Act’s definition of “environmental law”.

Paragraph (c) also excludes provisions concerning spending or the allocation of resources within the government from the definition of “environmental law”. As such, all finance acts are excluded.
Subsection (4) defines what is meant by “devolved legislative provision” as any provision which is contained in or created by legislation of the three devolved Assemblies and Parliaments, or which otherwise falls within their legislative competence.
Subsection (5) provides that the Secretary of State may use secondary legislation to specify legislative provisions which do or do not fall within the definition of “environmental law” in subsection (1). Provision in this way could be used if necessary in the light of experience for instance to resolve an ambiguity about how the definition applies to particular legislation. Subsection (6) requires that the Secretary of State must consult the OEP, and any other persons the Secretary of State considers appropriate, before using this power to specify provisions.
Subsection (7) provides that any such provision made under subsection (5) would be made through a statutory instrument subject to the affirmative resolution This means it must be laid before and approved by a resolution of each House of Parliament.

Section 47: Interpretation of Part 1: general

This section defines various terms used throughout Part

Schedule 1: The Office for Environmental Protection

1158 This Schedule sets out further information on the composition of the OEP, established as a statutory corporation and due to be classified as a Non-Departmental Public Body (NDPB), and prescribes how it is to operate. The provisions in this schedule relate to ministerial oversight; the body’s operational independence from the government; and the need for transparency and accountability in the body’s exercise of its statutory powers and functions.

Membership

1159 Paragraph 1 covers the membership of the Board that governs the OEP. The provisions in this paragraph aim to ensure a balance between ministerial accountability and independence in making appointments to the body, and between non-executive and executive involvement in the governance of the body.

1160 Sub-paragraph (1) provides that the new body will consist of a non-executive Chair and between two and five other non-executive members, and a Chief Executive (who is to be the Accounting Officer of the body and therefore responsible for accounting for the body’s use of public funds) and between one and three other executive members. The make-up of the Board

will ensure a balance of non-executive and executive members. Setting the maximum size of the Board at ten members enables the body to have a strategic focus while ensuring that the required expertise can be fully represented across the Board.

1161 Sub-paragraph (3) requires the Secretary of State and the OEP to ensure, so far as practicable, that the number of non-executive members is at all times greater than the number of executive members, in order to ensure effective strategic oversight and ministerial accountability.

Appointment of non-executive members

1162 Paragraph 2 provides for the appointment process of the non-executive members of the board.

Provisions in this paragraph aim to ensure a balance between ministerial accountability and

having regard to the OEP’s independence in making appointments to the body.

1163 Sub-paragraph (1) provides for the non-executive members (including the Chair) to be appointed by the Secretary of State. This is usual practice for appointments to NDPBs, including other bodies which hold the government to account such as the Equality and Human Rights Commission .The appointments process will be in accordance with the Governance Code for Public Appointments. The Code will ensure that members are appointed through a fair and open process. The regulation of appointments against the requirements of this Code is carried out by the Commissioner for Public Appointments.

1164 Sub-paragraph (2) places a duty on the Secretary of State to consult the Chair before appointing the other non-executive members. This ensures that the Chair is involved in the decision. Sub- paragraph (3) places a duty on the Secretary of State to have regard to the desirability of specific expertise being met across all non-executive members of the OEP (including the Chair), when nominating and appointing the non-executive members. This is intended to ensure that the OEP’s non-executive members collectively have the expertise required for effective strategic oversight of its statutory functions. Non-executive directors will need to meet a range of essential criteria as part of the public appointments process.

1165 Sub-paragraph (4) clarifies that non-executive members may not also be employees of the OEP, by virtue of their non-executive status. This enables them to hold the executive members to account.

Appointment of executive members

1166	Paragraph 3 provides for the appointment of the executive members of the board.
1167	Sub-paragraph (1) sets out that the chief executive will be appointed by the non-executive members of the OEP, other than the first chief executive who will be appointed by the Chair. This provision is to ensure that the first CEO appointment can be made ahead of other non- executives being appointed, in order to assist with the set up activities of the OEP.
1168	Sub-paragraph (2) provides for the other executive members to be appointed by the OEP.
1169	Sub-paragraph (3) requires that the Secretary of State be consulted on the appointment of the Chief Executive, since the Chief Executive is to be the Accounting Officer of the OEP.
1170	Sub-paragraph (4) clarifies that executive members are employees of the OEP. The body will be expected to follow the guidance for good practice for corporate governance for public bodies.

Interim chief executive

1171 Paragraph 4 allows the Secretary of State to appoint a Chief Executive for an interim period prior to the first permanent Chief Executive being appointed by the Chair in accordance with paragraph 3(1). Before the board of the OEP has enough members to hold a meeting that is quorate in accordance with paragraph 11(2), the interim Chief Executive appointed by the Secretary of State may undertake matters on behalf of the OEP including incurring expenditure, subject to any directions given by the Secretary of State. Paragraph 4(4) specifies that the interim Chief Executive can be a current civil servant and is not required to be an employee of the OEP. This provision is intended to allow the interim Chief Executive to be recruited from the largest possible pool of candidates across the private and public sectors, ensuring that the right person is selected for the role.

Terms of membership

1172 Paragraph 5 sets out the basis on which members (both non-executive and executive) can be appointed to, and removed from, the OEP. Appointments will be made in accordance with the Governance Code for Public Appointments.

1173 Sub-paragraph (2) specifies that civil servants may not be appointed as members of the OEP, as a non-Crown entity.

1174 Sub-paragraph (3) requires that non-executive members be appointed for a fixed term of no more than five years.

1175 Sub-paragraph (4) requires the Secretary of State to have regard to the desirability of securing that the appointments of non-executive members expire at different times in order to ensure strategic continuity and to spread the administrative workload of appointing and inducting new board members.

1176 Sub-paragraph (5) provides that non-executive members may be re-appointed once they reach the end of their term of office.

1177 Sub-paragraph (6) explains the terms for termination of a non-executive member’s appointment. Sub-paragraph (6)(c) explains the conditions under which the Secretary of State may remove a non-executive member from office.

Remuneration of non-executive members

1178 Paragraph 6 places a duty on the OEP to pay its non-executive members any remuneration, allowances and compensation (for example, in the event of being removed from office) as determined by the Secretary of State in consultation with the Chair.

1179 This will be in accordance with the Corporate Governance Code for Central Departments 2017, which requires non-executive members of public bodies to comply with the guidance for approval of senior pay issued by HM Treasury. This reflects the fact that non-executive members are public appointments by the Secretary of State (paragraph 1(2)), and helps to maintain the relative independence of the non-executive members within the OEP, as the OEP does not make decisions on their remuneration arrangements.

Staffing and remuneration

1180 Paragraph 7 gives the OEP the power to appoint and make other arrangements for staff as it determines; and to pay its staff any remuneration and allowances as it determines. This will also be done in accordance with the public sector pay and terms guidance. This arrangement gives the OEP independence in how it recruits and pays its staff, without approval from Ministers. Sub-paragraph (2) provides for the Chair to determine the terms of the CEO when making the first appointment.

1181 Sub-paragraph (4) places a duty on the OEP to make pensions arrangements for its members and staff with the approval of the Secretary of State.

1182 Sub-paragraphs (5) and (6) ensure that the OEP is able to take part in the Civil Service Pension Scheme for its employees.

Powers

1183 Paragraph 8 gives the OEP the power to do anything it thinks appropriate for carrying out its functions without interference or approval from Ministers, except for accepting gifts of money, land or other property, or forming, participating in forming, or investing in, a company, partnership, joint venture or other similar form of organisation. This provides the OEP with sufficient independence from the government when carrying out its functions.

Committees

1184 Paragraph 9 gives the OEP the power to establish committees to, for example, provide advice or carry out an OEP function. These may include people who are neither board members nor employees. Such committee members may be paid but may not have a vote on the committee. This will allow the body to gain access to additional specialised expertise to support any of the functions or strategic direction of the body.

Delegation to members, committees and employees

1185 Paragraph 10 gives the OEP the power to delegate any of its functions other than the approval of key documents, reports and advice to Ministers, and key decisions related to the enforcement function. Functions other than these may be delegated to a member, employee or committee, in accordance with a delegation policy that it will determine. This provides the body with adequate independence to delegate functions without interference from Ministers and ensures that decisions can be taken at the most appropriate level.

Procedure

1186 Paragraph 11 gives the OEP the power to determine its own procedures, such as arrangements for decision making (other than the meeting quorum set out in sub-paragraph (2)), as part of ensuring its operational independence from the government. Sub-paragraph (3) provides that proceedings will not be made invalid by a vacancy in the membership or the incorrect appointment of any member for example due to conflicts of interest. This ensures that processes and decision-making are not disrupted by situations that may not be within the OEP’s control.

Funding

1187 Paragraph 12 places a duty on the Secretary of State to fund the OEP sufficiently to perform its functions, and gives the Secretary of State the power to provide further financial assistance to the body, for example by way of grants to be used for a specific purpose related to operational delivery or achievement of functions. Funding will be provided to the OEP in the form of grant in aid, which will be set out as a separate line in the overall estimate of the Department for Environment, Food and Rural Affairs to ensure adequate transparency.

Annual report

1188 Paragraph 13 places a duty on the OEP to prepare an annual report as soon as possible at the end of each financial year; to arrange for the report to be laid before Parliament; and to publish it. This provides transparency on the performance of the body against its key statutory functions and its strategic plan, helping to ensure accountability for the exercise of its powers and its use of public funds.

Annual accounts

1189 Paragraph 14 is intended to ensure independent oversight, transparency and ministerial accountability for use of public funds.

1190 Sub-paragraphs (1) to (3) place a duty on the OEP (and the Chief Executive as Accounting Officer) to keep proper accounting records and prepare an annual statement of accounts. The latter includes an assessment of whether the OEP received sufficient funds to carry out its statutory functions in the relevant financial year. This provision is intended to provide further transparency around the funding of the OEP and ensure it is funded sufficiently to carry out its functions.

1191 Sub-paragraph (4) places a duty on the body to send these accounts as soon as reasonably practicable after the end of the relevant financial year to the Secretary of State and the Comptroller and Auditor General. Sub-paragraph (5) requires The Comptroller and Auditor General to certify and report on the accounts, and send the certified statement and report to the Secretary of State and the OEP. Sub-paragraph (6) mandates that the OEP must then arrange to lay these documents before Parliament.

Meaning of “financial year”

1192 Paragraph 15 defines “financial year” as the year ending 31 March.

Status

1193 Paragraph 16 clarifies that the OEP is not part of the Crown, unlike government departments. This is customary for NDPBs, and is intended to ensure that the body can act independently of the government and is capable of properly enforcing against the government. The body will be staffed by public servants rather than civil servants.

Independence of the OEP

1194 Paragraph 17 places a duty on Ministers to have regard to the need to protect the OEP’s

independence when carrying out functions in relation to the OEP.

Disqualification from membership of legislatures

1195 Paragraph 18 subjects OEP members to the House of Commons Disqualification Act 1975, which restricts membership of the House of Commons to certain categories of people.

Consequently, people who are members of the OEP board will be disqualified from becoming members of the House of Commons until they cease to be members of the OEP. This is customary for members of certain bodies, including NDPBs. Paragraph 19 subjects OEP members to the equivalent legal obligation in Northern Ireland, the Northern Ireland Assembly Disqualification Act 1975.

Public records

1196 Paragraph 20 subjects the OEP to the Public Records Act 1958, which governs public records in the UK.

Freedom of information

1197 Paragraph 21 subjects the OEP to the Freedom of Information Act 2000, which governs the

public’s access to information held by public authorities.

Investigation by the Parliamentary Commissioner

1198 Paragraph 22 requires the OEP to comply with the Parliamentary Commissioner Act 1967, under which the Parliamentary Ombudsman can investigate public authorities’ administrative actions.

Public sector equality duty

1199 Paragraph 23 provides for the OEP to be subject to the Equality Act 2010. The OEP will be subject to the public sector equality duty, which requires public bodies and others carrying out public functions to have due regard to the need to eliminate discrimination, to advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not.

Share this article

Important Notice- See the Disclaimer Below Brexit Legal, McMahon Legal and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website

Contact McMahon Legal