Chair of the Office for Environmental Protection appointed

The OEP will also have the power to investigate complaints from the public where it is alleged that a council, the government or any other public authority has broken environmental laws. The announcement comes after a series of committee debates on the Environment Bill in early November where the independence of the OEP was scrutinised, an issue we addressed in a blog post dated 18th November.

Amongst those issues raised was the ability of the Secretary of State to appointment of the Chair of the OEP, a method of appointment which Dr Whitehead, Labour MP for Southampton warned could “create a cascading lack of independence.” Given that a Chair has now been appointed, some of the concerns addressed in the course of the debates can be looked at anew.

Method of appointment

In response to criticism that the appointment of the Chair by the Environment Secretary was vulnerable to abuse, the government asserted that as part of the appointment process, the Environment, Food and Rural Affairs Committee (EFRA) and the Environmental Audit Committee (EAC) would jointly carry out a pre-appointment hearing with the Secretary of State’s preferred candidate for the OEP chair. It was, however, noted by some present at the debate that this process was not enshrined in the law and subsequently there was nothing requiring the Secretary of State to carry out any such consultation before appointing a Chair. Following the announcement of Dame Glenys Stacey’s appointment, the government has confirmed that it delivered on its promise that a pre-appointment hearing was carried out by EFRA and EAC on 15th December. A copy of the pre-appointment hearing report was published by the government on 18th December.

Independence of the Chair

During the debates in November, the perceived erosion of the OEP’s independence was a recurring theme. Concerns were raised over the proposed funding arrangements, Defra’s appointment of an Interim Environmental Governance Secretariat in the period between the 1st January and the establishment of the OEP, and the possibility that a Chair appointed by the Secretary of State, may lack the impetus to hold the government to account where necessary. In short, there were concerns that the OEP was being held too closely to the government and consequently its position as an independent regulator would be compromised. Dame Glenys, however, has made it clear in order to fulfil its mandate, the OEP must be unequivocally independent. In the ‘Candidate Questionnaire’, Dame Glenys stated that one of her main priorities if awarded the role would be “establishing the organisation and its ways of working, including embedding our duty to act objectively and impartially in all we do”. Furthermore, in relation to the Interim Environmental Governance Secretariat established by Defra, Dame Glenys acknowledged that whilst it had done “good work” in bridging the gap, “the sooner OEP can recruit its own board and staff and cut the umbilical cord, the better.” Those forming part of the OEP, she asserted, “must develop its ways of working and its strategy and policy, rather than those within Defra who have dutifully nurtured the concept of OEP.” The new Chair’s recognition of these issues is encouraging and goes some way to allaying concerns that the OEP is a creature of the government it is supposed to regulate.

Dame Glenys Stacey’s suitability as Chair

The joint pre-appointment hearing report published by EFRA and EAC noted that Dame Glenys Stacey had been candid about her lack of “a deep environmental understanding”. Ordinarily, this would be a cause for concern as one presumes that in order to be effective, the Chair of a regulatory body must have a firm grounding in the issues subject to that body’s regulation. A comprehensive understanding of the environment and the legal framework which protects it is undoubtedly important and the report makes it clear that the Chair is expected to “focus on and grow” her understanding to “ensure that the Office for Environmental Protection’s staff...have that deep knowledge and experience of environmental issues, policy and law”.

However, equally important is experience of establishing and developing an organisation from scratch, and more specifically, experience of developing an organisation with a regulatory function which must work alongside government whilst remaining independent of it. Dame Glenys has a wealth of relevant experience in this area, having led the start-up or development of a number of public-sector organisations responsible for legal or regulatory services. She is currently acting Chief Regulator at Ofqual and as previously served as Her Majesty’s Chief Inspector of Probation and as Chief Executive at Animal Health.

Additionally, Dame Glenys does have some knowledge of environmental law and matters within the remit of the OEP acquired during her time as CEO of Animal Health and in her work chairing the review of farm regulation. Whilst it is her intention to broaden her knowledge, there is arguably an advantage to the OEP having a Chair who is not coming to the role with vast experience of environmental matters. It provides a valuable opportunity for the Chair to look at things with a fresh eye free from any pre-conceived ideas or bias.

Continued scrutiny of the OEP

The pre-appointment hearing report noted that the predecessor EAC and EFRA committees had raised various concerns “about the need for the Office for Environmental Protection and its Chair to have its independence from Government enhanced”. Recommendations proposed by the committees which sought to introduce statutory measures which would enshrine the OEP’s independence in law were rejected by the government. Due to these concerns, as well as those raised by stakeholders, the pre-appointment hearing committee focused a number of questions to Dame Glenys on the subject of the OEP’s independence. In its report, the committee stated that it was “encouraged by Dame Glenys Stacey’s recognition that the OEP’s effectiveness as a regulator will rely on its ability to act independently from Government”. Furthermore, the Select Committees have stated that it is their intention to “continue to monitor the ability of the OEP to maintain its independence from Government’ in the absence of any ‘statutory safeguards on independence”. They have urged Dame Glenys to raise any concerns with them with regards to concerns about the body’s independence. The ongoing oversight of the OEP by the EAC and EFRA provides a measure of reassurance that any omissions caused by legislative gaps will not be exploited in a way which impacts the ability of the OEP to carry out its mandate, free from government interference.

OEP complaints system

It was announced by Defra on the 4th January that the system for registering complaints to the OEP against public bodies is now live. The Interim Environmental Governance Secretariat within Defra will conduct initial assessments of any complaints under the guidance and leadership of Dame Glenys Stacey and the other Board members once they have been appointed. It is expected that the OEP will have started implementing its functions by around July 2021, although this is dependent on the Bill receiving Royal Assent in Spring 2021 as hoped. Complaints can be submitted through the Interim Environmental Governance Secretariat website at iegs.org.uk

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