Schedule 3: The Office for Environmental Protection: Northern Ireland
1264 The Office for Environmental Protection’s (OEP’s) functions in Northern Ireland are essentially
the same as its functions in England. This is dealt with in the Act in two ways:
- Substantive Northern Ireland functions of the OEP are provided for in Part 1 of Schedule To a large extent, these provisions mirror those in Part 1 of the Act.
- Provision about the OEP itself and its general functions is contained in sections 22 to 43 of Part 1 of the Act. These apply to Northern Ireland, subject to the amendments made by Part 2 of Schedule 3.
1265 Throughout this Schedule, “the Department” means the Department of Agriculture, Environment and Rural Affairs (DAERA).
Part 1: The OEP’s Northern Ireland functions
Monitoring and reporting on the Department’s environmental improvement plans
1266 Paragraph 1 describes the monitoring and reporting functions of the OEP in relation to the environmental improvement plans prepared by the Department. Under this paragraph, the OEP will monitor and assess environmental statistics and reports on an ongoing basis to ensure that it has an effective knowledge base. This information will then be analysed alongside information published by the Department to assess progress made in improving the natural environment in accordance with the current environmental improvement plan.
1267 Sub-paragraph (1) provides that the OEP must monitor progress in improving the natural environment in accordance with the Department’s environmental improvement plan (the first of which is intended to be the ‘Environment Strategy for Northern Ireland’), as set out in Schedule 2. This is intended to hold the Department to account on its environmental commitments.
1268 Sub-paragraph (2) requires the OEP to produce a progress report for each annual reporting period. As set out in sub-paragraph (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. An annual reporting period is the period for which the Department must produce a report under paragraph 2 of
Schedule 2 (a “Schedule 2 report”), as set out in sub-paragraph (4).
1269 When making a progress report, sub-paragraph (5) requires the OEP to take into account the report made by the Department on progress against environmental objectives for that period, as set out in paragraph 2 of Schedule 2. The OEP will also consider the data for that period, as required by paragraph 5(1) of Schedule 2, as well as any other documents or information which the OEP believes is relevant.
1270 Sub-paragraph (6) specifies that a progress report may advise how the OEP believes progress could be improved. It may also consider the adequacy of data obtained under paragraph 5(1) of Schedule 2, enabling the OEP to independently determine whether the right information is being collected to evaluate progress in improving the natural environment.
1271 Sub-paragraphs (7) and (8) require that the OEP’s reports must be laid before the Northern Ireland Assembly and published. This is intended to provide the OEP with sufficient independence when carrying out its reporting functions. The OEP’s reports must be laid before
the Northern Ireland Assembly within six months of the relevant Schedule 2 report being laid. This gives the OEP sufficient time to carry out its scrutiny of the Schedule 2 report whilst tying it to a fixed reporting deadline.
1272 Sub-paragraph (9) requires the Department to respond to the OEP’s report, publishing its response and laying it before the Northern Ireland Assembly. Sub-paragraph (10) requires that the Department’s response must specifically address any recommendations made by the OEP as to how progress with the environmental improvement plan could be improved. Sub-paragraph
(11) specifies that the Department must lay its response within 12 months of the OEP’s report being laid; and may include this response in the Department’s subsequent report made under paragraph 2 of Schedule 2. This allows the Department to include the response to the OEP’s progress report as part of the following year’s annual report on the environmental improvement plan.
Monitoring and reporting on environmental law
1273 Paragraph 2 describes how the OEP is to monitor and report on the implementation of Northern Ireland environmental law. This term is defined in paragraph 18(2) of Schedule 3.
1274 Sub-paragraph (1) requires the OEP to monitor the implementation of Northern Ireland environmental law.
1275 Sub-paragraph (2) permits the OEP, as it deems appropriate, to produce a report on any matter concerned with the implementation of Northern Ireland environmental law.
1276 Sub-paragraph (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 already within the statutory remit of that Committee.
1277 Sub-paragraph (4) lists those matters. This provision ensures the OEP does not duplicate the role of the Committee on Climate Change and provides consistency across England and Northern Ireland should the Assembly choose to extend the OEP to devolved matters in Northern Ireland.
1278 Sub-paragraph (5) requires that any report the OEP produces in line with sub-paragraph (2) must be laid before the Northern Ireland Assembly and published. This ensures the reports are in the public domain and are subject to scrutiny by elected representatives.
1279 Sub-paragraph (6) requires the Department to produce a response to any report issued by the OEP under sub-paragraph (2). The Department must lay the response before the Northern Ireland Assembly and publish it.
1280 Sub-paragraph (7) requires the Department to lay its response before the Assembly within three
months of the OEP’s report being laid.
Advising on changes to Northern Ireland environmental law etc
1281 Paragraph 3 sets out the circumstances in which the OEP can give advice to a Northern Ireland department. It also makes provision for how this advice must be published and may be laid before the Northern Ireland Assembly.
1282 Sub-paragraphs (1) and (2) enable a Northern Ireland department to require the OEP to provide it with advice on any proposed change to Northern Ireland environmental law, or on any other matter relating to the natural environment. The department in question can, if it wishes, set out specific matters it requires the OEP to take into consideration when providing this advice. “Natural environment” is defined in this Act in section 44 and paragraph 19 of this Schedule.
1283 Sub-paragraph (3) enables the OEP, acting on its own initiative, to give advice to a Northern Ireland department concerning any changes to environmental law being proposed by the department in question.
1284 Sub-paragraph (4) requires any advice given by the OEP to a Northern Ireland department to be given in writing. This applies whether the advice has been requested by the department or
whether it has been provided at the OEP’s initiative.
1285 Sub-paragraph (5) requires the OEP to publish its advice. If it was asked to provide the advice by a Northern Ireland department under sub-paragraph (1), it must also publish details of the request and any matters it was required to take into account in line with sub-paragraph (2). The publication of this information ensures transparency in the relationship between the OEP and any Northern Ireland department asking it for advice.
1286 Sub-paragraph (6) permits (but does not require) the relevant Northern Ireland department to lay the advice it has received from the OEP before the Northern Ireland Assembly. It may also lay any response it has made to that advice.
Failure of relevant public authorities to comply with environmental law
1287 Paragraph 4 defines what is meant by a relevant public authority failing to comply with relevant environmental law.
1288 Sub-paragraph (1) sets out that paragraphs 6 to 15 provide for the functions of the OEP relating to failures by “relevant public authorities” to comply with “relevant environmental law”. Both of these terms are defined in paragraph 5.
1289 Sub-paragraph (2) defines what is meant by a relevant public authority failing to comply with relevant environmental law.
Meaning of relevant environmental law, relevant public authority etc
1290 Paragraph 5 defines certain terms referred to in this Part of this Schedule.
1291 Sub-paragraph (2) defines the term “relevant environmental law”. This definition is in two
parts:
- Sub-paragraph (2)(a) sets out that for Northern Ireland public authorities (defined in sub-paragraph (4)), “relevant environmental law” means “UK environmental law”, as defined in paragraph 19(1) – which references section 46 – or “Northern Ireland
environmental law”, as defined in paragraph 19(2).
- Sub-paragraph (2)(b) sets out that for any other relevant public authority (meaning those captured under sub-paragraph (3)(b)), “relevant environment law” means “Northern Ireland environmental law”.
1292 The definition is structured in this manner to enable the OEP to carry out enforcement action against Northern Ireland devolved public authorities who are believed to have breached either devolved or reserved environmental legislation, as well as against other public authorities who are believed to have breached devolved legislation when exercising any function in or as regards to Northern Ireland.
1293 Sub-paragraph (3) defines the term “relevant public authority”. This means a Northern Ireland public authority (as defined in sub-paragraph (4)), or any other legal or natural person carrying out a function of a public nature in or as regards Northern Ireland that is not a parliamentary function, or a function of a body listed under sub-paragraphs (3)(b)(i) to (3)(b)(iv).
1294 Sub-paragraph (4) defines the term ‟Northern Ireland public authority”. This means a legal or natural person carrying out a Northern Ireland devolved function (as defined in sub-paragraph
(5)) that is not a function connected with proceedings in the Northern Ireland Assembly, or a function of any of the bodies listed under sub-paragraphs (4)(b)(i) to (4)(b)(iii).
1295 Sub-paragraph (4) makes it clear that the definition of Northern Ireland public authority includes the implementation bodies as defined in section 55 of the Northern Ireland Act 1998 but only insofar as their functions relate to Northern Ireland.
1296 Sub-paragraph (5) defines the term ‟Northern Ireland devolved function”. This means a function that could be conferred by an Act made by the Northern Ireland Assembly under sections 6 to 8 of the Northern Ireland Act 1998.
Complaints about relevant public authorities
1297 Paragraph 6 allows complaints to be made to the OEP regarding alleged contraventions of relevant environmental law by relevant 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. Complaints that are not submitted in accordance with the procedures set out in this paragraph do not have to be considered by the OEP (see paragraph 8(2)(a)). The contraventions and relevant public authorities about which complaints may be considered by the OEP are set out in paragraphs 4 and 5 respectively. Paragraph 5 also defines relevant environmental law.
1298 Sub-paragraph (1) allows for any legal or natural person – other than a person described in sub- paragraph (4) – to make a complaint to the OEP if they believe that a relevant public authority has failed to comply with relevant environmental law.
1299 Sub-paragraph (2) requires the OEP to draw up and publish a complaints procedure and sub- paragraph (3) requires all complaints to the OEP to be submitted in accordance with the most recently published version of that procedure.
1300 Sub-paragraph (4) does not permit public authorities to make complaints to the OEP. This is to prevent one arm of the government or the public sector complaining about another.
1301 Sub-paragraph (5) requires a complainant to have exhausted any internal complaints procedures of the body it wishes to complain about before submitting a complaint to the OEP. This should allow matters to be resolved without formal action being taken where possible.
1302 Sub-paragraph (6) requires a complaint to be submitted to the OEP within a year of the alleged breach of relevant environmental law (sub-paragraph (6)(a)), or within three months of the conclusion of any internal complaints procedures (sub-paragraph (6)(b)), whichever is later.
However, sub-paragraph (7) allows the OEP to consider complaints submitted after the expiration of these time limits if it believes that there are exceptional grounds for doing so – for example, if the full impact of environmental harm allegedly caused by a relevant public authority has not become apparent for some time.
Investigations: relevant public authorities
1303 Paragraph 7 deals with the investigation of complaints about relevant public authorities as well as the investigation of potential breaches of relevant environmental law coming to the OEP’s attention by other means.
1304 Sub-paragraph (1) gives the OEP powers to undertake an investigation on the basis of a complaint received under paragraph 6 if it considers that the complaint indicates that a relevant public authority may have committed a serious failure to comply with relevant environmental law.
1305 Sub-paragraph (2) gives the OEP powers to undertake an investigation without having received a complaint if it has information obtained by other means, which in its view indicates a relevant public authority may have committed a serious failure to comply with relevant environmental law.
1306 Sub-paragraph (3) sets out the purpose of the investigation i.e. establishing whether a relevant public authority has failed to comply with relevant environmental law.
1307 Under sub-paragraph (4), at the start of an investigation the OEP is required to notify the relevant public authority that it is being investigated. Under sub-paragraph (10), if that public authority is not a Northern Ireland department, the OEP must also notify the “relevant department”. Sub-paragraph (11) defines the relevant department as the Northern Ireland department that the OEP considers the most appropriate, taking account of the nature of the public authority being investigated and the nature of the failure/alleged failure. In most cases this will mean that the OEP will notify the department responsible for the policy area in question.
1308 Similarly, when an investigation is concluded, sub-paragraph (5) requires the OEP to provide a report to the relevant public authority, copied to the relevant department if necessary under sub-paragraph (10). The OEP may publish the report in full or part under sub-paragraph (9).
1309 Sub-paragraph (6) allows the OEP the flexibility to delay the preparation of its report if it considers that it may take further enforcement action.
1310 Under sub-paragraph (7), if the OEP has made a review application under paragraph 12, or an application for judicial review under paragraph 13(1), in relation to the alleged failure to comply with relevant environmental law, it is not required to prepare a report.
1311 The required contents of the OEP’s report are set out in sub-paragraph (8). The report must include information on whether the OEP considers that a relevant public authority has failed to comply with relevant environmental law, the reasons the OEP came to these conclusions, and any recommendations the OEP may have for the relevant public authority in question and any other authorities.
Duty to keep complainants informed
1312 Paragraph 8 sets out the OEP’s duty to inform a complainant about whether an investigation will be carried out following their complaint and, if so, about the progress of the investigation. Under this paragraph:
- The OEP must inform the complainant if their complaint will not be considered for further investigation on the basis that it was not made in accordance with paragraph 6 – see sub-paragraph (2)(a).
- Where a complaint has been made in accordance with paragraph 6, the OEP must advise the complainant whether or not an investigation into that complaint will be carried out – see sub-paragraphs (2)(b) and (2)(c).
- When a report on an investigation under paragraph 7(5) has been provided to the relevant public authority, sub-paragraph (2)(d)(i) requires the OEP to inform the
complainant of this, although it is not obliged to disclose the report to the complainant.
- Where the OEP makes a review application in relation to the failure that was the subject of the complaint under paragraph 12, or an application for judicial review
under paragraph 13(1), sub-paragraph (2)(d)(ii) requires the OEP to inform the complainant of this.
- 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 sub-paragraph (2)(e).
Information notices
1313 Paragraph 9 enables the OEP to take enforcement action in the form of an “information notice”.
1314 Under sub-paragraph (1), the OEP may issue an information notice to a relevant public authority if it has reasonable grounds for suspecting that the authority has failed to comply with relevant environmental law, and it considers that the failure is serious.
1315 Sub-paragraph (2) requires an information notice to describe the alleged failure to comply with relevant environmental law and detail the information that the OEP requires from the relevant public authority in relation to the alleged failure. Sub-paragraph (2) also requires the OEP to explain in its information notice why the OEP considers that the alleged failure, if it occurred, would be serious.
1316 Sub-paragraph (3) requires the relevant public authority to respond in writing to an information notice, providing, as far as is reasonably practicable, the information requested.
1317 Sub-paragraph (4) specifies that the relevant public authority must respond within two months from the date on which the notice was given, or by any later date as specified by the OEP in the notice.
1318 Sub-paragraph (5) sets out the information that must be included in a response to the OEP including, if applicable, the steps the relevant public authority now intends to take.
1319 Under sub-paragraph (6), the OEP may withdraw an information notice or issue multiple information notices in relation to the same alleged compliance failure.
1320 Under sub-paragraph (7), where the OEP plans to issue an information notice in relation to an alleged failure to comply with relevant 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.
Decision notices
1321 Paragraph 10 enables the OEP to take further enforcement action in the form of a “decision notice”.
1322 The OEP may issue a decision notice under sub-paragraph (1) if it is satisfied, on the balance of probabilities, that the relevant public authority has failed to comply with relevant environmental law, and it considers that the failure is serious.
1323 Sub-paragraph (2) requires a decision notice to describe the failure to comply with relevant environmental law and the steps the relevant public authority should take in relation to the failure. Sub-paragraph (2) also requires the decision notice to explain why the OEP considers that the failure is serious.
1324 Under sub-paragraph (3) the relevant public authority is required to respond in writing to a decision notice within two months from the date the notice was given, or by any later date as specified by the OEP in the notice.
1325 Sub-paragraph (4) requires the written response from the relevant public authority to state whether the authority agrees that there has been a failure to comply with the law and, whether it will take the steps set out in the notice. The response must also specify what other steps (if any) the relevant public authority intends to take in relation to the failure described in the notice.
1326 Sub-paragraph (5) requires the OEP to have issued at least one information notice relating to the compliance failure before it can issue a decision notice (sub-paragraph (5)(a)). It also allows the OEP to withdraw a decision notice (sub-paragraph (5)(b)).
Linked notices
1327 Paragraph 11 deals with the possible 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 relevant environmental law.
1328 Sub-paragraph (1) gives the OEP the power to determine that information or decision notices that it has issued to more than one relevant public authority are “linked notices”.
1329 Sub-paragraph (2) allows the relevant department (i.e. the department responsible for the policy area in question) to ask the OEP to designate information or decision notices as linked notices and requires the OEP to have regard to such a request.
1330 Sub-paragraph (3) requires the OEP to provide the recipient of 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”.
1331 Sub-paragraph (4) requires the OEP to 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 notice. What constitutes “relevant” correspondence is defined in sub-paragraph (10).
1332 Sub-paragraph (5) requires the OEP to provide the recipient of a principal notice with a copy of any relevant correspondence between the OEP and the relevant department that relates to a linked notice. However, sub-paragraph (6) provides that sub-paragraph (5) does not apply where the recipient of either the principal notice or the linked notice is a Northern Ireland department. ”Relevant department” is defined in paragraph 7(11).
1333 Sub-paragraph (7) allows the OEP to designate information and decision notices as notices which are linked to UK information or decision notices issued in relation to identical or similar conduct. Sub-paragraph (8) sets out that in these circumstances, the OEP must provide the recipient of an information or decision notice with a copy of every UK information notice or UK decision notice which is linked to it, and a copy of relevant correspondence relating to those notices between the OEP and the recipient of that notice.
1334 Sub-paragraph (9) provides that the obligations set out under this paragraph do not apply where the OEP considers that to provide this information would not be in the public interest.
1335 Sub-paragraph (10) sets out what will be considered as “relevant” correspondence for the
purposes of this paragraph. Correspondence is considered relevant if:
- as required by sub-paragraph (10)(a), it is not connected with a review application (an application to the High Court for judicial review) or any other legal proceedings; and
- as required by sub-paragraph (10)(b), it is not sent to fulfil the requirements of paragraph 14(1)(a) or (b) (that is, information to be provided by the OEP to the relevant department).
1336 Sub-paragraph (11) defines a UK decision notice and a UK information notice for the purpose of this Part of this Schedule.
Review application
1337 Paragraph 12 enables the OEP to bring legal proceedings against a relevant public authority in specified circumstances.
1338 Sub-paragraph (1) gives the OEP powers to make a review application in relation to the conduct of a relevant public authority, as long as the conduct in question has been described in a decision notice previously issued to the authority in question as a failure to comply with relevant environmental law. This subsection also specifies that the OEP may only make a review application 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 notice. The OEP must remain satisfied, after considering any response to its decision notice, that the failure in question is serious. It cannot make a review application if the response leads it to conclude that there was in fact no serious failure.
1339 Sub-paragraph (2) defines a “review application” in this paragraph as an application for judicial review in respect of conduct of a relevant public authority, and confirms that any reference to a “review application” in this Part of this Schedule is to an application made by virtue of sub- paragraph (1). This means that the usual judicial review remedies are available to the court e.g. quashing orders and declarations. Sub-paragraph (9) sets out that a “review application” includes an application for permission of the High Court to apply for judicial review.
1340 Sub-paragraph (3) places restrictions on when the OEP can bring a review application. This must not be before either (i) the end of the period within which the relevant public authority is required to respond to a decision notice under paragraph 10, or (ii) the date on which the OEP receives the relevant public authority’s response, whichever is earlier. This means that there will be sufficient time for the relevant public authority to respond to a decision notice and for this response to be taken into consideration by the OEP before it makes a decision on whether to proceed with making a review application, while ensuring 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. Sub-paragraph (4) disapplies the usual time limit for bringing a judicial review application subject to the restrictions as set out in sub-paragraph (3).
1341 Sub-paragraph (5) provides that the High Court may grant a remedy on a review application under this Paragraph, but only if one of two conditions, described as Conditions A and B, are met.
1342 Sub-paragraph (6) defines Condition A. Condition A is that the court is satisfied that granting such aa remedy would not be likely to cause substantial hardship, or substantial prejudice to the rights of a third party, or be detrimental to good administration.
1343 Sub-paragraph (7) defines Condition B. Where Condition A is not met, the court may turn to Condition B. Condition B is that Condition A is not met, but the court is satisfied that it is necessary to grant a remedy in order to prevent or mitigate serious damage to the natural environment or human health, and there is an exceptional public interest reason to do so.
1344 This condition therefore provides the court discretion to undertake a weighted balancing exercise in the event that Condition A is not met. 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.
1345 Sub-paragraph (8) requires a relevant public authority which has been the subject of a review application to publish a statement upon conclusion of the review proceedings where the High Court makes a finding that the public authority has failed to comply with relevant environmental law – and this finding has not been overturned on appeal. This must set out the future action it plans to take.
1346 Sub-paragraph (9) requires a public authority to publish the statement as provided for in sub- paragraph (8) within two months of the day that proceedings, including any appeal, conclude.
Judicial review: powers to apply to prevent serious damage and to intervene
1347 Paragraph 13 makes provision for the OEP to make an application for a judicial review in specific circumstances and to intervene in third party judicial reviews where appropriate.
1348 Sub-paragraph (1) provides that the OEP may make an application for judicial review in relation to conduct of a relevant public authority if it considers that there has been a serious failure to comply with relevant environmental law, whether or not it has previously issued an information or decision notice in respect of that conduct, and if what is referred to as “the urgency condition” is met.
1349 Sub-paragraph (2) defines the urgency condition. The effect of this provision is that the OEP could only make an application for judicial review, without proceeding according to its normal enforcement processes – that is, without the need to issue an information notice and a decision notice – 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, serious environmental damage would have already happened by the time that its normal enforcement procedure had reached the litigation stage and consequently a more urgent court judgment was needed.
1350 Sub-paragraph (3) requires a relevant public authority that has been the subject of an application for judicial review under sub-paragraph (1) to publish a statement upon conclusion of the review proceedings where the High Court makes a finding that the public authority has failed to comply with relevant environmental law – and this finding has not been overturned on appeal. This must set out the future action it plans to take.
1351 Sub-paragraph (4) requires a public authority to publish the statement as provided for in sub- paragraph (3) within two months of the day that proceedings, including any appeal, conclude.
1352 Sub-paragraphs (5) and (6) permit the OEP to intervene in an application for a relevant judicial review brought by another person or body. They enable the OEP to apply to intervene in a third party judicial review (including appeal proceedings) against a relevant public authority concerning an alleged failure to comply with relevant environmental law, as long as the OEP considers that the alleged failure, if it occurred, would be serious.
1353 If that test is satisfied, it may apply to intervene whether or not it considers that the relevant authority has in fact failed to comply with relevant environmental law.
Duty of the OEP to involve the relevant department
1354 Paragraph 14 ensures that the relevant department, i.e. the Northern Ireland department with policy responsibility for the area in question (see definition in paragraph 7(11)), is made aware of a relevant information or decision notice or of a review application.
1355 Where the recipient of an information or decision notice is not a Northern Ireland department, sub-paragraph (1)(a) requires the OEP to provide a copy of the notice to the relevant department, as well as a copy of any correspondence between the OEP and the recipient of the notice that relates to the notice. Sub-paragraph (1)(b) requires the OEP to also provide the recipient of a notice with a copy of any correspondence it has with the relevant department regarding the notice.
1356 Sub-paragraph (2) provides that the OEP is not obliged to provide copies of notices or correspondence set out in sub-paragraph (1) if it considers that to do so would not be in the public interest.
1357 Where the OEP makes a review application under paragraph 12, or an application for judicial review under paragraph 13(1), against a relevant public authority which is not a Northern Ireland department, sub-paragraph (3) requires the OEP to provide the relevant department
with a copy of the application and a statement which sets out the OEP’s opinion on whether the
relevant department should participate in the review proceedings.
Public statements
1358 Paragraph 15 sets out the OEP’s duties with respect to public statements such as press releases.
1359 Sub-paragraph (1) requires the OEP to publish a public statement whenever it serves an information or decision notice, makes a review application under paragraph 12 or an application for judicial review under paragraph 13(1), or applies to intervene in a judicial review. This sub-paragraph also sets out the information that this statement must contain.
1360 Sub-paragraph (2) provides that the OEP is not required to publish a statement if it considers that it would not be in the public interest to do so.
Disclosures to the OEP
1361 Paragraph 16 deals with the circumstances in which a person must – and when they are not obliged – to provide information to the OEP.
1362 Sub-paragraph (1) of this paragraph sets out that no obligation of secrecy, whether set out in legislation or not, prevents someone from providing the OEP with information. This sub- paragraph applies if the information is in connection with an investigation (under the powers set out in paragraph 7), an information notice or decision notice or when complying with a request for information in response to an information notice (in accordance with paragraph 9(3)(b)).
1363 Sub-paragraph (2) qualifies sub-paragraph (1), by providing a public authority with an exemption from the requirement to provide information if it would be entitled or required to withhold that information in legal proceedings on the grounds of either legal professional privilege or public interest immunity.
1364 Sub-paragraph (3) provides that no obligation of secrecy, statutory or otherwise, restricts the Northern Ireland Public Services Ombudsman from providing information to the OEP, if this is done for purposes (a) connected with the exercise of the OEP’s functions under paragraph 7, or
(b) connected with the co-ordination of the OEP’s functions where they relate to investigations under paragraph 7 and the Ombudsman’s functions that relate to investigations by the Ombudsman.
1365 Sub-paragraph (4) confirms that nothing in this Part of the Schedule requires or authorises any disclosure of information which would contravene the data protection legislation, even if the disclosure would be in accordance with the provisions in this Part of the Schedule.
1366 Sub-paragraph (5) defines the meaning of the phrase “the data protection legislation” for the
purposes of this paragraph and is self-explanatory.
Confidentiality of proceedings
1367 Paragraph 17 deals with the circumstances in which the OEP and relevant public authorities must not disclose information obtained during enforcement proceedings by the OEP.
1368 Sub-paragraph (1)(a) sets out that the OEP cannot disclose information where it has been provided by a relevant public authority as a response to information requested by the OEP in an information notice (as provided for in paragraph 9(3)(b)). Sub-paragraph (1)(b) provides that the OEP also cannot disclose correspondence between the OEP and the relevant public authority in respect of information or decision notices. This includes the notices themselves.
1369 Circumstances where the prohibition on disclosure does not apply and the OEP is therefore able to disclose the information, are covered under sub-paragraph (2).
1370 Sub-paragraph (3) prohibits a relevant public authority that is in receipt of an information notice or decision notice from disclosing correspondence between it and the OEP in relation to the notice – including the notice itself. This prohibition also applies to correspondence between the OEP and any other relevant public authority in relation to the relevant notice.
1371 Sub-paragraph (4) sets out the circumstances where the prohibition in sub-paragraph (3) does not apply.
1372 Sub-paragraph (5) sets out that 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 Part of this Schedule or under Chapter 2 of Part 1 of this Act. Sub-paragraph (6) ensures that, if consent has been requested by a relevant 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 Part of this Schedule or Chapter 2 of Part 1 of this Act.
1373 Sub-paragraph (7) provides that any information which is non-disclosable under this paragraph and which is held by the OEP or relevant public authorities is to be regarded as “environmental information” in accordance with the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 and held, for the purposes of those regulations, in connection with confidential proceedings.
Meaning of UK environmental law and Northern Ireland environmental law
1374 Paragraph 18 defines “environmental law” for the purpose of determining the range of legislation which falls within the remit of the OEP and with respect to which the OEP can exercise its scrutiny, advice, complaints and enforcement functions in Northern Ireland.
1375 Sub-paragraph (1) defines “UK environmental law” for the purpose of this Part of this Schedule, as meaning anything which is environmental law for the purposes of Part 1 of this Act (see section 46), but not anything that is environmental law only for the purpose of section 20 (statements about Bills containing new environmental law).
1376 Sub-paragraph (2) defines “Northern Ireland environmental law” for the purpose of this Part of this Schedule as meaning any Northern Ireland legislative provision that meets the dual requirement of being mainly concerned with environmental protection (as described in paragraph 10 of Schedule 2) and not being explicitly excluded under sub-paragraph (3). It is important to note that the definition of Northern Ireland environmental law applies to legislative provisions on an individual basis (that is, specific sections or sub-sections of an Act or regulations) rather than entire legal instruments. This means that even if most of an Act or set of regulations does not meet these conditions, any specific provisions in the Act or regulations which do meet the conditions should be considered as Northern Ireland environmental law. For further guidance, see the Explanatory Notes on section 46.
1377 Sub-paragraph (3) sets out matters which are explicitly excluded from the definition of Northern Ireland environmental law:
- Disclosure of or access to These matters are excluded 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 2004.
- Taxation, spending or the allocation of resources within the
1378 Sub-paragraph (4) defines “Northern Ireland legislative provision” as any legislative provision contained in, or an instrument made under, Northern Ireland legislation, and any legislative provision not covered by sub-paragraph (4)(a) which would be within the legislative competence of the Northern Ireland Assembly, if contained in an Act of that Assembly made without the Secretary of State’s consent.
1379 Sub-paragraph (5) provides that the Department may make regulations specifying Northern Ireland legislative provisions which are, or are not, Northern Ireland environmental law.
Provision in this way may be necessary in the light of experience for instance to resolve an ambiguity about how the definition applies to particular legislation. Before making these regulations, the Department must carry out a consultation process which must include consulting the OEP (sub-paragraph (6)). Sub-paragraph (7) sets out that any regulations made under sub-paragraph (5) will be subject to the affirmative procedure in the Northern Ireland Assembly.
Interpretation of Part 1 of this schedule: general
1380 Paragraph 19 defines terms used in Part 1 of this Schedule and is self-explanatory.
Part 2: Amendments of the OEP’s general functions
1381 Part 1 of this Schedule sets out the Northern Ireland-specific provisions with respect to the OEP.
1382 Paragraph 20 clarifies that Part 2 of this Schedule (paragraphs 21 to 29) amends the general OEP provisions in Part 1 of the Act to reflect the extension of the OEP’s geographical coverage to Northern Ireland.
1383 Paragraph 21 amends section 23 of the Act, which sets out the principal objective of the OEP and other provisions about its functions. Specifically, sub-paragraphs (2) to (5) make the
changes necessary to reflect the application of the OEP’s statutory functions in Northern Ireland. For example, sub-paragraph (4) specifies that the OEP, when prioritising its enforcement cases, should consider whether a case raises a point of environmental law or Northern Ireland environmental law of general public importance.
1384 Paragraph 22 amends section 24 to require the laying of the OEP’s strategy before the Northern
Ireland Assembly as well as before Parliament.
1385 Paragraph 23 amends section 25 to ensure that any guidance issued by the Secretary of State under section 25 will not apply to the OEP’s devolved enforcement functions in Northern Ireland, as set out in Schedule 3.
1386 Paragraph 24 inserts a new section (section 25A) to provide that the Department may issue guidance to the OEP on its enforcement policy, specifically the matters listed under section 23(6) (OEP’s enforcement policy) so far as relating to the OEP’s devolved enforcement functions in Northern Ireland.
1387 Subsection (2) of this new section would require that the OEP have regard to this guidance in preparing its enforcement policy so far as relating to its Northern Ireland enforcement function and in exercising its devolved enforcement functions in Northern Ireland. As set out in subsection (5), the OEP’s devolved enforcement functions in Northern Ireland are its functions under paragraphs 6 to 15 of Schedule 3.
1388 Subsection (6) requires the Department, prior to issuing any guidance, to lay a draft before the Assembly where it must lie for 21 days.
1389 Subsection (7) requires the Department to respond to any resolution from the Assembly regarding that draft guidance passed within that 21 day period.
1390 Subsection (8) provides for the Department to lay its final guidance before the Assembly provided it has lain for 21 days and that the Department has responded under subsection (7) to any resolution from the Assembly.
1391 Subsection (9) provides that this guidance comes into effect upon the final guidance being laid before the Assembly.
1392 Subsection (10) requires the Department to publish the guidance once it comes into effect. 1393 Subsections (11) and (12) define the 21 day period and confirms that days withing the 21 day
period areas 21 “sitting days”, meaning days on which the Northern Ireland Assembly sits.
1394 Under subsection (13), the Department may revise the guidance at any time.
1395 Paragraph 25 extends the duty to co-operate with the OEP as set out in section 27 of the Act to Northern Ireland public authorities and other public authorities exercising Northern Ireland devolved functions. Specifically, the amendment made by sub-paragraph (2)(a) indicates that Northern Ireland departments are not exempt from the statutory duty on public authorities to co-operate with the OEP. The amendment made by sub-paragraph (2)(b) excludes any person whose only public functions are devolved functions in Northern Ireland from the exemption to co-operate with the OEP. The amendment made by sub-paragraph (4) makes explicit mention of the implementation bodies as defined in section 55 of the Northern Ireland Act 1998, clarifying that they are only required to co-operate in relation to their functions in Northern Ireland.
1396 Paragraph 26 amends section 37 of the Act to enable the OEP to designate notices issued to UK public authorities and relevant public authorities as “linked notices”.
1397 Paragraph 27 amends section 43 of the Act (confidentiality of proceedings) to include appropriate provision for Northern Ireland. Specifically, sub-paragraph (2)(b) extends the provision to facilitate the coordination of an investigation between the OEP and the Northern Ireland Public Services Ombudsman.
1398 Paragraph 28 sets out the amendments required to section 47 of the Act (interpretation of Part 1 of the Act) to ensure appropriate provision for Northern Ireland and redefines what is meant by “devolved” to no longer include Northern Ireland.
1399 Paragraph 29 makes various amendments to Schedule 1 (the Office for Environmental Protection) to provide for the inclusion of Northern Ireland in the OEP. This includes making provision for the Department to be jointly responsible for the appointment of the chair and to be consulted on the appointments of the non-executive members and the chief executive. The amendments provide for a non-executive “Northern Ireland Member” to be appointed to the board by the Department – setting out the experience that member must have – and provides for any resignations or removals from office of non-executive and Northern Ireland members.
Paragraph 28 also makes provisions in relation to funding of the OEP and reporting requirements.
1400 Paragraph 30 makes amendments to Schedule 2 (improving the natural environment: Northern
Ireland) to reflect the extension of the OEP’s geographical coverage to Northern Ireland.
