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
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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
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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.
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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 is
transparent 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
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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
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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,
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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).
Environmental Tribunal
The working party has already commented above on environmental tribunals
and beyond this reserves its comments, as this is part of a much wider
debate on environmental governance. As noted above, there are problems in
relation to drawing the line between what is “environmental” and what is not
and the ability to ringfence environmental issues is much more difficult than
for example, in relation to employment and the Employment Tribunal. The
working party agrees that the need for an environmental tribunal should be
considered at a higher level, however this should not compromise the
considerable work required in order to create an independent EPA which the
working party considers is of a much higher priority at this time.
The fact that this report strays into issues such as environmental tribunals
raises concerns that the report is perhaps over ambitious in scope. The main
priority at this point is to develop and maintain momentum in creating a
functioning EPA. These broader and possibly more controversial issues should
not cloud the process of achieving the primary goal of developing an effective
EPA for Northern Ireland.
4th September 2007
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