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Environment Bill - Office for Environmental Protection: A Rule of Law Analysis

Dr Ronan Cormacain

Executive Summary

This Report analyses the provisions of the Environment Bill establishing the Office for Environmental Protection (OEP) from a Rule of Law perspective.

The Rule of Law principle of legality requires there to be an effective mechanism for courts to provide a remedy when there has been a breach of the law.

The Bill establishes a new court procedure for righting breaches of environmental law by a public authority- the environmental review. The default outcome in an environmental review where there has been a breach is the "statement of non-compliance". Crucially this statement does not affect the validity of the unlawful conduct. This reverses the current position that unlawful acts are presumed to be void, but with judicial discretion to validate them. This new default undermines the principle of legality with a presumption that unlawful acts by a public authority are valid.

Further remedies are available under the Bill, but they suffer significant restrictions. A court in an environmental review is not permitted to quash an unlawful action by a public authority if doing so risks causing substantial hardship to, or would substantially prejudice, a third party. This means that a clear unlawful action must be allowed to continue if a third party stands to benefit from it, or would suffer a loss if it does not continue. This approach fails to take account of the other factors such as harm to nature and to people. It would have the net effect of introducing a new "polluter doesn't pay" principle into environmental law.

The Bill provides that damages cannot be granted following an environmental review. There is nothing wrong in principle with prohibiting a court from awarding damages to the OEP. However, in the absence of any ability for the OEP to issue fines for a breach, this restriction tends to further weaken the effective implementation of environmental law.

These provisions on the remedies available in an environmental review undermine the Rule of Law.

The default position should be restored so that unlawful acts are presumed void, with judicial discretion to declare them valid. The court should retain its usual discretion to grant the remedy it deems appropriate, without the unnecessary restrictions introduced by the Bill.

The establishment in the Bill of the new OEP is to be welcomed. It has the potential to realise the Government's objective of a strong office to hold the state to account on environmental law. This aligns with the Rule of Law requirement for effective implementation of the law. However, the lack of independence of the OEP runs the risk of undermining this objective.

The OEP is 'impartial' rather than properly 'independent'. The Secretary of State can issue guidance to the OEP on its enforcement policy and on its enforcement functions, and the OEP must have regard to this guidance. The Secretary of State is closely involved in appointing, paying and reappointing the members of the OEP. These all limit the extent of the OEP's independence. There is the real risk of the Secretary of State having a direct legal route to influencing enforcement action against the Secretary of State.

This lack of independence combined with the weakness of the remedies available following an environmental review compromises the ability of the OEP to pursue effective redress for breaches of environmental law.

This Report analyses the provisions of the Environment Bill establishing the Office for Environmental Protection (OEP) from a Rule of Law perspective.

The Rule of Law principle of legality requires there to be an effective mechanism for courts to provide a remedy when there has been a breach of the law.

The Bill establishes a new court procedure for righting breaches of environmental law by a public authority- the environmental review. The default outcome in an environmental review where there has been a breach is the "statement of non-compliance". Crucially this statement does not affect the validity of the unlawful conduct. This reverses the current position that unlawful acts are presumed to be void, but with judicial discretion to validate them. This new default undermines the principle of legality with a presumption that unlawful acts by a public authority are valid.

Further remedies are available under the Bill, but they suffer significant restrictions. A court in an environmental review is not permitted to quash an unlawful action by a public authority if doing so risks causing substantial hardship to, or would substantially prejudice, a third party. This means that a clear unlawful action must be allowed to continue if a third party stands to benefit from it, or would suffer a loss if it does not continue. This approach fails to take account of the other factors such as harm to nature and to people. It would have the net effect of introducing a new "polluter doesn't pay" principle into environmental law.

The Bill provides that damages cannot be granted following an environmental review. There is nothing wrong in principle with prohibiting a court from awarding damages to the OEP. However, in the absence of any ability for the OEP to issue fines for a breach, this restriction tends to further weaken the effective implementation of environmental law.

These provisions on the remedies available in an environmental review undermine the Rule of Law.

The default position should be restored so that unlawful acts are presumed void, with judicial discretion to declare them valid. The court should retain its usual discretion to grant the remedy it deems appropriate, without the unnecessary restrictions introduced by the Bill.

The establishment in the Bill of the new OEP is to be welcomed. It has the potential to realise the Government's objective of a strong office to hold the state to account on environmental law. This aligns with the Rule of Law requirement for effective implementation of the law. However, the lack of independence of the OEP runs the risk of undermining this objective.

The OEP is 'impartial' rather than properly 'independent'. The Secretary of State can issue guidance to the OEP on its enforcement policy and on its enforcement functions, and the OEP must have regard to this guidance. The Secretary of State is closely involved in appointing, paying and reappointing the members of the OEP. These all limit the extent of the OEP's independence. There is the real risk of the Secretary of State having a direct legal route to influencing enforcement action against the Secretary of State.

This lack of independence combined with the weakness of the remedies available following an environmental review compromises the ability of the OEP to pursue effective redress for breaches of environmental law.

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