United Kingdom Environmental Law Association, Northern Ireland Working Party.
Comments on the Review of Environmental Governance Final Report
1.General Comments
The working party is broadly supportive of the aims and intention of the Review and in particular the concept of an independent Environmental Protection Agency (“EPA”). The working party agrees that the formation of an independent EPA is a cornerstone to improving environmental governance within Northern Ireland.
It should be noted that the comments set out below make the assumption that an independent EPA will be formed and works from this basic premise. The fundamental case for an independent EPA is clearly and powerfully set out within the Report and the working party strongly supports this proposition.
The Report provides a timely opportunity to move forwards with the formation of an independent EPA for Northern Ireland. Rejection of this basic premise may well set back any opportunity for significant change and improvement for many years, both in relation to protecting the environment but also in providing better regulation for business.
The working party notes however that the process of creating an independent EPA will be a long, complex and drawn out procedure, as was the case with the formation of the Environment Agency in England and Wales in 1996. The working party considers that many lessons could and should be learned from the process that led to the creation of the Environment Agency (and SEPA in Scotland). In particular, consideration should be given to the fact that the Environment Agency took several years post-creation to manage the process of establishing itself internally as a single entity from the various government departments and organisations from which it was formed. Issues that arose included problems managing both logistical and cultural changes. Whilst the scale of an independent EPA in Northern Ireland would be considerably smaller than the Environment Agency, there remain significant opportunities to manage the transition process up-front prior to the establishment of EPA to avoid some of the problems that arose when the Environment Agency was formed.
Notwithstanding the above, it is vital that the key issues that will arise from the transition such as maintaining enforcement/regulatory standards are not lost in the detail. One possible suggestion for managing the transition would be to set up an EPA in a “shadow” form in order that systems and structures can be established in parallel to the current DOE structure. This could assist significantly in facilitating enable a smoother transition. The working party also considers that the EPA will require, from the very beginning of its conception, a strong and inspirational Chairperson or Chief Executive in order to drive the process forward.
2.Chapter 4: Improved Environmental Policy
Building Political Leadership on the Environment
Paragraphs 4.7 and 4.8: the working party agrees strongly that the political parties in Northern Ireland should invest in programmes of professional development to build capacity and knowledge on environmental issues. A significant part of this expertise should consist of environmental legal advice as in this area policy is intertwined with law. Furthermore, the working party also agrees that there should be put in place a special advisor (with similar legal expertise) to the Department of the Environment and the Minister. The working party notes that paragraph 4.8 refers to the appointment of an advisor to support “the party”. The working party assumes that this should in fact be a reference to the Department and the Minister.
White Paper on the Environment
The working party considers that the production and publishing of a White Paper on the environment is critical as a first step in the formation of an independent EPA. However this must be commenced at the earliest opportunity in order to avoid substantial delays in driving the process forward.
Re-alignment of environmental responsibilities in central government
The working party agrees that there should be realignment of spatial planning to the DOE for those elements currently residing in DRD. On a longer term basis the realignment of responsibilities both within DRD and DARD and other government departments relating to “environmental” functions should be merged within the DOE. However, the working party does not consider that the formation of an EPA is wholly dependant upon these realignments. We see no reason why an EPA could not be created followed by the phasing in of elements from other departments into the DOE. As the functions of the EPA are intended to be independent of government Departments, there is no reason why, in the shorter term, the EPA cannot draw its policy from separate Departments, or indeed provide input into the formulation of policy in various Departments. The working party’s main concern is that attempts to realign policy responsibility within Government could lead to significant delays in the creation of an EPA.
An environmental policy community that is fit for purpose
The working party strongly supports the recommendation that the DOE should formally recognise policy development as a specialism and take steps to support the career paths and promotion of officials who wish to specialise in policies. This is absolutely critical in providing clear consistent policy and transparency within the department. However, the working party also notes that economies of scale may dictate that policy specalisms may not always be workable. The Department should therefore consider either the outsourcing of particular work strands or the development of secondments into the Department. Such outsourcing and secondments could include the Environment Agencies in the other jurisdictions of Great Britain and Ireland and also the private sector.
3.Chapter 5: A New EPA for Northern Ireland
Creation of an independent Environmental Protection Agency
As noted above, the working party agrees fully with the concept of an independent EPA. Whilst by no means perfect, the successes of the Environment Agency in England and Wales and SEPA in Scotland are testament to the benefits of independent environmental regulators.
In any event, and as noted in the Review, there are fundamental flaws in the current regulatory structure for the environment in Northern Ireland and these can only be rectified by a significant culture change. The working party considers that this can only be achieved by the creation of an independent EPA. A simple review of structures within the DOE would be wholly insufficient in addressing the needs of environmental regulation in Northern Ireland, both from the perspective of environmental protection and the requirements of industry.
The working party agrees that the inclusion of Built Heritage within the EPA would be a sensible and practical approach given the scale of Northern Ireland. It is recognised that there are concerns (voiced by the built heritage lobby) that built heritage could become the poor relation within the new Agency if it concentrated on its responsibilities for environmental regulation. But that concern can be addressed by ensuring that the built heritage division of the new Agency is adequately resourced and staffed. In particular, it would be important that the head of the built heritage team be a member of senior management of the new Agency to underscore the importance of this wing of the new Agency’s work. With measures of this kind the importance of built heritage can be guaranteed. At the same time the inclusion of built heritage is an approach which should help rather than hinder Northern Ireland’s approach to sustainable development. Overall, this is the key factor which should drive commitment to the creation of the new Agency.
The scale and nature of the proposed reorganisation of Government Departments and functions into an EPA will inevitably raise concerns amongst civil servants who will be moved into the new structures. Particular concerns can arise, for example, in relation to perceived marginalisation of functions both on a departmental and individual level. These are issues that must be considered and managed upfront in any proposed transition. The success of the Equality Commission in Northern Ireland exemplifies the fact that such transitions can be effectively managed, as it appears that concerns at the time in relation to marginalisation of functions within the Commission have not been borne out.
With regard to the proposed structure of the EPA, as noted above, staff transition must be managed effectively but it must also be acknowledged that the transition will inevitably be difficult. This, however, should not be allowed to compromise the overall goals of the EPA.
Operational characteristics of the EPA
Paragraph 5.37: the report recommends that the EPA should have independent powers of prosecution and sufficient dedicated legal staff to discharge its duties. The working party agrees with this in principle but does not consider that the EPA is required to employ all prosecution staff in house. The provision of legal services both at policy and operational levels needs, we suggest, to be given detailed attention, as these will be critical to the success of the EPA. Accordingly, we feel it is worthwhile setting out in some detail our suggestions as to how legal services should be provided to the EPA as this is not addressed in any detail in the report.
The EPA will require an in-house senior legal advisor who reports directly to the Board. We suggest that it is essential that this senior lawyer is a full member of the senior management team. He or she will be responsible for the legal governance of the EPA. He or she will also be responsible for ensuring that legal issues are at the heart of the EPA’s policy making.
Subject to that there is no reason why the EPA cannot outsource certain of its legal functions.
Of course, many legal functions such as the legal aspects of the EPA’s property and human resource management do not require environmental lawyers, and should not be carried out by environmental lawyers.
There will be other areas of environmental law expertise where the EPA may not have sufficient volume of work to justify the employment of a specific environmental lawyer with that particular specialism.
So the EPA should consider a mix in the provision of its legal services: in part to be provided in-house by the employment of its own staff of lawyers and in part by outsourcing appropriate areas of legal work (whether environmental or other categories of work).
Such outsourcing can be either (by way of service level agreements) with other legal departments in the public service so long as the arrangement istransparent and does not in any way compromise the independence of the EPA. Services can also be provided by way of open tender with lawyers in private practice. In each case quality of service, capacity, capability and cost effectiveness must be the key factors for the senior legal advisor of the EPA to consider in making any appointment in the best interests of the EPA.
In the case of prosecution work in particular, we would be concerned if the EPA considered that an environmental lawyer, no matter how competent, would necessarily be adequate to the specialist work of public prosecutions. It would be very damaging to the EPA if at its initial stages key prosecutions were lost because the defendants had more adept legal teams than that available to the EPA. At the same time it will be essential that whoever provides legal services to the EPA must demonstrate understanding and commitment to the specific legal and policy issues of environmental law.
So out-sourced legal service providers (whether in the public or private sectors) must demonstrate to the satisfaction of the EPA’s senior legal advisor such continuing commitment, capacity and capability.
It is not uncommon in Northern Ireland for Government to put certain of their legal functions (including prosecution work) out to tender and significant economies of scale can be achieved in doing this along with capitalising on existing legal expertise within the private sector or other parts of the public sector.
4.Chapter 6: Terrestrial and Marine Planning
Powers for the proposed EPA to challenge planning decisions
The report recommends that the EPA should be given statutory powers to challenge acts or omissions by local Government in relation to the discharge of their planning powers and such challenges should be taken in the public interest. The working party considers that this could extend the remit of an EPA excessively. This proposition goes far beyond the model in England, Wales or Scotland for the EA or SEPA. The working party would question whether it should be the function of an EPA to cut across political issues and challenge Government decisions in this manner. There is a considerable risk that such powers would be seen as politicising an EPA, which would could conflict with its role as an “independent” regulator.
Whilst the working party is supportive of the promotion of access to “environmental justice”, this must be achieved through a wider scale reforms that improve access to justice rather than a “quick fix” which could act to compromise the functions of an EPA.
An environmental tribunal for NI
The report also recommends an independent environmental tribunal for Northern Ireland. To the extent that such proposal focuses on the existing work of the Planning Appeals Commission we consider it worthwhile, as the work of that Commission now encompasses statutory appeals (in areas such as waste management) going well beyond its original planning remit. So a renaming and reordering of the PAC to encompass its full range of environmental as well as planning functions should be supported.
But at this stage the working party would question whether the formation of an environmental tribunal in Northern Ireland with wider functions than those of the PAC could be justified. The working party considers that there is a fundamental difficulty in ringfencing the functions of an environmental tribunal, in particular in relation to civil law. For example, there would be inevitable difficulties in drawing a line between environmental law cases and cases that in many respects are pure tort cases. The working party considers that similar benefits could be achieved by bolstering expertise within the PAC, WAC and judiciary rather than adding the increased complexity of forming a dedicated environmental tribunal. This is not to say that the working party is rejecting the concept of an environmental tribunal outright, but in the medium to longer term similar results could be achieved without the potential complications of forming a separate tribunal.
Proposed EPA as a statutory consultee of the Planning process
The working party agrees that the proposed EPA should be a statutory consultee to the planning authorities. The working party also agrees with the findings of the report in relation to the planning enforcement, such that the enforcement function should be retained within central Government as and/when transfer of development control is made to local Government.
5.Chapter 7: Strengthening Accountability
Assembly Environmental Audit Committee
The working party sees no reason why an environmental audit committee based on a body similar to that at Westminster would not work in the Northern Ireland context. However the working party considers that there is a general perception that the current Northern Ireland Audit Committee is working effectively and should not be compromised by another body. The formation of an EAC or otherwise needs to be viewed within the current political context.
6.Chapter 8: Cross-cutting elements of Environmental Governance
Advisory Councils
The working party agrees that the current Advisory Councils should be reduced in number to some extent. It should be noted however that council members on many of the current advisory councils are unsalaried whereas any new body is likely to have salaried members.
An all-island approach
The working party is broadly supportive of the need to enhance an all-island approach to environmental governance and in particular the need for close cross–border co-operation in relation to enforcement. However there may be significant obstacles to developing a common approach between the two jurisdictions for example in relation to licensing. Such an approach would require radical legislative regulatory and administrative change in both jurisdictions which is unlikely to be practicable or the upheavals involved may not generally be justified in terms of environmental gain. Any all-island policies or initiatives should be kept primarily at a strategic level. That said, there may be specific areas where a common approach may be beneficial, for example in relation to the definition of waste or where waste ceases to be waste.
7.Chapter 9: Environmental Justice
New Statutory Impact Assessment for Environmental Justice
The working party would question the value in adding environmental justice criteria to statutory impact assessments required for the development of new policies in Northern Ireland. The principal problem with this approach is in defining precisely what is “environmental justice” in such an assessment, and how this would extend beyond established safeguards such as the need for appeals processes within regulatory legislation. The working party would question whether such an approach would add any real value in the assessment of new policies and whether there is a special case for this approach within Northern Ireland (in contrast for example to equality and rural proofing where the parameters of such assessments are more easily defined).