A “cup of tea discussion” with the head of the nascent Office for Environmental Protection (OEP) sounds pleasant enough, but any environmental miscreants invited to take tea with Dame Glenys Stacey should beware of the “big stick” lurking in the cupboard. Explaining her approach to enforcement, Stacey says the new watchdog “must be willing and able” to enforce. The idea is that the genuine threat of enforcement action – the big stick – should be sufficient to persuade public bodies to toe the line.
The OEP] is one of the most important organisations of our time... dealing with one of the most pressing issues of our time.
Stacey explains that in one of her previous roles, as chief regulator of exams body Ofqual, exam boards were “not infrequently” called in for a “cup of tea discussion”. “Sometimes they are fined, but often as not, issues are readily addressed without that big stick getting out of the cupboard,” she says. “And this is a similar model”.
Stacey has arguably the most important environmental job in the UK right now – responsible for holding the government to account on its environmental obligations as the inaugural chair of the OEP. She describes the oversight body as “one of the most important organisations of our time... dealing with one of the most pressing issues of our time”.
But Stacey, for whom the role of OEP chair is the latest in a series of senior regulatory positions, has choppy waters to navigate. Within only weeks of the confirmation of her appointment in December, the government announced that the passage of its flagship Environment Bill – the crucial piece of legislation that will establish the OEP – would be delayed. As a consequence, the timetable for the OEP’s launch as a permanent body has slipped – it is now expected to open for business in the autumn, and not July, as previously intended.
And her appointment was confirmed in the aftermath of controversial government amendments to the bill, which saw ministers accused of undermining the watchdog’s independence before it was even up and running.
‘Hard and soft powers’
This means that putting in place the processes required to get the new regulator off the ground, while at the same time ensuring that the body is seen as credible and is able to make a difference, will require every bit of Stacey’s experience. Her vision for the new watchdog is certainly ambitious. “I want the OEP to be the best it can be,” she says. “That will be an agile, intelligent, listening organisation, really a wise organisation over time.” Stacey adds that she intends for the organisation to use “the full breadth, the full gamut of its hard and soft powers to make the most difference for the environment that we can”.
Efforts to establish the regulator are proceeding at pace in order for it to hit the ground running, Stacey explains. Its premises will be in “Worcester, not Westminster”, and an interim chief executive, Natalie Prosser, has already been appointed. Work, meanwhile, is under way to establish the systems and arrangements for the watchdog’s support services, such as HR, finance, IT and communications, Stacey adds.
Furthermore, a “good amount of work” has been done to consider the design of the organisation. “Design matters,” she says. “The design needs to provide for sufficient flexibility,” she adds, explaining that she intends for the OEP to be a “porous” organisation. “By that I mean we will welcome people in for periods of time,” she says. “For example, an able lawyer at the bar may welcome the chance to spend 12 months with us, but not to desert the bar entirely.”
Stacey is currently overseeing the work of an “interim environmental governance secretariat” within DEFRA, which is responsible for helping maintain environmental protections following the UK’s exit from the EU and for supporting the launch of the OEP. But a key milestone is expected in July, when an interim OEP is due to launch, ahead of the permanent body later in the year. Stacey says this will be an important step, as crucially, “with a fair wind, we will have a board”. This, she says, “is much of the organisation’s intellectual heft”. Having the interim body in place will also help it to recruit staff “on a much firmer footing”, Stacey adds. The first “waves of recruitment” are being readied, she says.
Definition of ‘serious’
With a core part of the watchdog’s remit being to receive and investigate complaints on alleged “serious” breaches of environmental law by public authorities, an important early consideration for the board will be to agree on the OEP’s definition of “serious”, according to Stacey. She says that a “sensible definition” of the word is “bound to, at its simplest, to relate to damage to the natural environment or human health”. It must also capture “low level but repeat instances which are leading to serious damage or harm immediately or over time”, she continues. However, the precise meaning “is a discussion for me to have with the board”, Stacey says.
But the OEP’s powers will not be limited to taking enforcement action against public bodies. Its responsibilities will also include monitoring progress on environmental improvement plans and targets, advising on changes to environmental law and monitoring implementation. Given this wide remit, how does Stacey intend to balance the inevitable calls for the green watchdog to bare its teeth with putting in place its important advice and scrutiny responsibilities?
Stacey says it will be crucial for the OEP to “act intelligently”. “Being thoughtful about how to make a difference will be so important,” she adds. That said, “there will be an inevitable tendency of some to judge us on enforcement”, Stacey continues. “And we must be willing and able to enforce to be credible enforcers.” But the OEP is likely to be more of a strategic litigator than a serial nitpicker, Stacey agrees. “So not litigating, or being combative just for the sake of it, but at the same time we certainly need to be confident at recognising those areas where positive change is best achieved by enforcement.”
If all goes to plan, then, the big stick should remain mostly in the cupboard. But who is most likely to feel the pointy end of the stick when issues cannot be resolved over a cup of tea? Stacey says that, while it is “rather difficult to know where the pointy end might point”, there are some bodies, “the Environment Agency, Natural England, for example – who are bound to be within our gaze, because their remits are so central to what we as a country are trying to achieve”. But Stacey adds that she does not discount the work done by “local authorities, or water companies, or others too”. “We need a wide beam,” she says.
So what would OEP enforcement action actually look like? Early in March, the Court of Justice of the EU (CJEU) ruled that the UK had “systematically and persistently” breached air quality rules over more than a decade. If the UK was still part of the EU, it could then have been subject to tens of millions of euros in fines per year if it continued to break the law. How would the OEP deal with a similar situation?
Stacey says that when there is seemingly a serious breach, the important questions to ask are “why, why and why?”. “Because ‘why’ might be a policy issue, it might be a prioritisation issue or deprioritisation issue, it might be a funding issue, for example,” she explains. “So you really need to ask those questions to know what you’re really dealing with.” Then, she says, the OEP would look across its range of hard and soft powers “to find the best tools in the toolkit to make a difference”.
Stacey says she hopes that the OEP will be able to take speedier enforcement action than is seen under the EU’s infringements process. “There are many good things that come out of Europe, but things often take an awful long time,” she says, pointing out that the CJEU’s recent ruling came six years after the European Commission began legal proceedings against the UK. “So I’m hoping that it will be demonstrably more responsive and nimble than that.”
And Stacey is hopeful that potential complainants will choose to pursue their environmental grievances via the OEP, rather than through the traditional judicial review process, which some critics contend is faster and more flexible than the environmental review process proposed for the new watchdog. “I’m sure people will want to test our commitment, and we will want to demonstrate it,” she says. Stacey argues that a significant difference compared to the judicial review process is that the OEP would, via its environmental review procedure, be able to state what should be done by way of remedy. “Traditional review, for all its strengths, isn’t able to do that,” she says. “So there’s a greater prospective, I would suggest, that the solution is provided, rather than just the bare statement of non-compliance.”
‘All in the doing’
There is broad consensus that, for it to be able to do its job properly, the OEP must be fully independent of government. Yet the drafting of the Environment Bill has prompted concerns that the watchdog will not be sufficiently independent.
The government has rejected MPs’ and green groups’ calls for the body to report to parliament – instead the watchdog will be a non-departmental public body, with its non-executive members appointed by the secretary of state. And in November, campaigners reacted with dismay to government amendments to the Environment Bill that they fear would further weaken the OEP’s independence. In particular, they say a new power for the secretary of state to issue guidance to the OEP on matters concerning its enforcement policy seems at odds with aspirations for the watchdog to act objectively and independently.
For Stacey, independence “is all in the doing”. She says she has a “very strong reputation of independence. I don’t think anyone would question it... And why would I change my spots now?” Her reading of the controversial amendment to the Environment Bill is that it is a “backstop” measure, intended only to be brought out and relied upon should the OEP “go rogue”.
Creating the OEP and giving it the enforcement and scrutiny powers that it has, she argues, is not the act of an administration seeking to shirk its environmental responsibilities. “This is a sign of a confident government, committed to its environmental agenda, and ready to be held to account,” she says. “To my mind, it would rather go against the grain then, for the OEP to be fettered before it has the chance to develop its thinking and show its colours.”
Stacey, meanwhile, is confident the body will have sufficient funding to succeed. “I wouldn’t be sitting here as interim chair if I hadn’t had the necessary commitments from the secretary of state about our initial funding,” she says. “This organisation really must succeed, and it will need fuel in order to do that. And I am satisfied that we can get this organisation up and running with the right people at the right level.”
In any case, she says, there are provisions in the draft legislation that could be useful should funding be an issue – such as a requirement to report to parliament annually whether or not the OEP has had sufficient resources to carry out its work. “If there are difficulties with our resource, we won’t hesitate to raise it in the right places,” Stacey says. But she adds: “In this case, we are certainly fueled enough to start, and there are provisions that provide some safeguards for us. So it’s not keeping me awake at night.”
Stacey says she sees the OEP’s central role as holding government and public bodies to account “without fear of favour”. The extent to which the government affords Stacey the independence to get on with this vital task will be a crucial test of its environmental ambitions as the UK forges its own green path after Brexit.
‘Busting a gut to do a good job’: 5 more things we learned from Stacey
1 The interim environmental governance secretariat has already received complaints
Dame Glenys Stacey tells ENDS that the interim environmental governance secretariat has already received a small number of complaints. It will soon publish details of these as part of its fledgling approach to transparency, she says. “We have been receiving and validating complaints,” says Stacey. “Not a large number, but it has given us the opportunity to test our procedures.”
2 The interim OEP will ‘bust a gut’ to report on the government’s 25-year plan progress
Stacey says she plans to publish a report before the end of the year on the government’s progress on its 25- Year Environment Plan. “It will mean there’s something on the record there,” she says. “We will be busting a gut to do as good a job as we can as an interim body on that first report.”
3 The process of appointing OEP board members has begun
Stacey has already started interviewing for board members for the new oversight body. She tells ENDS she is pleased by the calibre of candidates that the OEP has been able to attract. Stacey wants the board in place by 1 July, when the interim OEP is due to launch.
4 The watchdog’s board will consider what ‘unusual’ transparency looks like
Stacey told MPs before Christmas the OEP would need to be “unusually” transparent to maintain credibility. She tells ENDS that “we want to start as we mean to go on, and it will be a first discussion with our board as to what we mean by transparency”. Nevertheless, she adds that the OEP’s website will be a “really important vehicle” for being as transparent as possible.
5 Chair to seek ‘common ground’ with devolved governance bodies
Stacey says the OEP will want “absolutely constructive relationships” with post-Brexit green governance bodies in Scotland and Wales. “My experience in criminal justice with the other criminal justice chief inspectors is that if you are of one mind, it’s a powerful position to be in, so I would wish to find common ground where possible,” she says. Subject to the Northern Ireland Assembly’s approval, the OEP’s remit will extend to the province. Stacey is keen for this to happen. “I think we can be part of making a difference there, we can be part of a solution there.”
CV: Dame Glenys Stacey
Confirmed as chair of the Office for Environmental Protection
August to year end 2020
Acting chief regulator, Ofqual
March to December 2018
Chair, Independent Review of Farm Inspection and Regulation
2016 to 2019
Her Majesty’s Chief Inspector of Probation
2011 to 2016
Chief regulator and chief executive, Ofqual
2008 to 2011
Chief executive, Standards for England
2004 to 2008
Chief executive, Animal Health
2000 to 2004
Justices’ chief executive, Greater Manchester Magistrates’ Courts Committee
1997 to 2000
Founding chief executive, Criminal Cases Review Commission