How to sharpen the teeth of the future environmental watchdog

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The subject of the Office for Environmental Protection (OEP) dominates more than half of EFRA’s report, including detailed assessment and recommendations on the functions of the watchdog (appointments, funding, complaints processes, fines, territorial extent etc.). EFRA concedes that the UK cannot replicate EU’s governance framework, but emphasizes that the Government should take this opportunity to deliver the “world leading watchdog” promised by the Secretary of State.

The independence of the OEP appears again as a key matter of the future body. EFRA argues it must not be seen as “just another arm’s length public body attached to Defra”, especially since the OEP must hold the Government accountable for breaches of environmental protection. The status of a “non-departmental public body” is not considered sufficient, instead EFRA asks for a constitutionally innovative model (despite a lack of a precedent). This status is also not financially adequate, as it does not ensure budgetary independence. EFRA advises the Government to provide additional financial protections, through a multi-annual budgetary framework negotiated directly with the Treasury and then voted on by Parliament. The appointment procedure is also crucial for ensuring the OEP’s independence, thus EFRA finds it inappropriate for solely the Secretary of State to select a Chair and other non-executive members of the board.

On procedural aspects, EFRA finds it important for the OEP to be able to launch investigations into environmental law breaches even in the absence of a complaint. Fines are not seen as an adequate mechanism for enforcement, instead proposals are given to provide greater personal accountability. The distinction between the OEP’s two functions (advisory and scrutiny) must also be clarified, putting a focus on its duty to hold the Government accountable. The watchdog must not be overwhelmed with advisory matters, and this function should be kept at a high-level to avoid adopting functions currently undertaken by other UK specialist statutory bodies (e.g. the Environment Agency).

Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill (April 2019), Environment, Food and Rural Affairs Committee (EFRA) House of Commons

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