Lords raise concerns over Government’s proposed ‘green watchdog’

Within the EU, the European Commission and the Court of Justice of the European Union play a vital role in ensuring adherence with environmental legislation, with the potential for instigating legal proceedings and issuing fines to Member States for non-compliance. The Committee first highlighted the gap that leaving the EU would create in this regard in 2017, when it called for the establishment of an independent domestic enforcement mechanism to replace the role of these EU institutions.

The Government has now published its proposal to address this gap - the creation of the OEP - as part of its draft Environment (Principles and Governance) Bill. A roundtable of environment experts convened by the Committee earlier this month, however, highlighted a number of concerns about the new body and the Committee has now written to the Secretary of State with a series of recommendations.

1. Independence. The Committee raises concerns that the OEP’s members and budget will be determined by the Secretary of State when one of the main functions of the OEP is to hold the Secretary of State to account. The Committee is calling for Parliament to be given a greater role, and suggests the governance model adopted for the National Audit Office offers a template of how a much greater level of independence can be achieved.
2. Remit. The Committee calls for climate change to be included in the OEP’s remit (it is currently explicitly excluded) and asks questions about how the Secretary of State is working with the devolved administrations to ensure environmental protection is upheld in all four nations of the UK.
3. Powers. After hearing concerns from witnesses that the OEP’s powers would not mirror those of EU institutions, the Committee emphasise the need for enforcement powers to be at least as strong after Brexit as beforehand.
4. Timing. With the possibility of a ‘no deal’ Brexit in a few weeks’ time, the OEP may not be in place when the UK leaves the EU. The Committee, therefore, calls for interim measures to be put in place to maintain at least some level of environmental protection.

Lord Teverson, Chair of the Committee said:

“Two years ago, our Committee published a report which highlighted the gap that leaving the EU would create in upholding environmental law. Given the lukewarm response from the Minister at the time, we are pleased that the Government has now accepted the need for a domestic enforcement mechanism.

“We share the concerns raised by environmental lawyers, academics and NGOs, however, that the proposals do not go far enough. The new Office of Environmental Protection must be, and be seen to be, independent of Government and this will not be achieved if its membership and funding is determined by the Secretary of State. The body’s remit and powers should be at least as comprehensive as the EU institutions it is replacing. And to avoid any gap in protection, the Government should put interim measures in place to cover the period between the UK leaving the EU and the OEP being fully operational.”

The full letter from the Committee to the Secretary of State can be read here.

Notes to Editors

1. The Committee’s 2017 Brexit: environment and climate change report included a recommendation that an independent domestic enforcement mechanism should be established in order to replace the powers of the European Commission and CJEU to enforce environmental obligations. That report can be read here.