A new report by the Office for Environmental Protection (OEP) identifies the crucial role inspections must play in environmental regulation in England and calls for greater transparency around these activities.
As part of a wider project looking at the inspection activities, the OEP has looked at approaches that are expected under a sample of English environmental laws, and considered what level of inspections are taking place in practice in selected regulatory regimes.
This report uses a number of case studies to identify key themes around current practices and makes eight recommendations..
Dame Glenys Stacey, Chair of the OEP, said: “Government is currently, understandably and rightly, interested in environmental regulation, with the findings of the Corry review published recently.
“We hope this report can be helpful as part of that focus, highlighting the vital role that inspections can and must play as part of many regulatory regimes.
“Inspection is key. It can identify non-compliant and errant behaviour and allow it to be dealt with. Without effective inspection taking place regulators, government and parliament cannot know if the law is working as intended to deliver the environmental outcomes expected.”
The OEP has reviewed 197 environmental laws to see how the issue of inspections is dealt with and selected 10 regulatory regimes as case studies. While the report makes clear that it is looking at a limited number of regulators and over a specific time period, it does identify a number of issues:
High levels of discretion for regulators
Most of the laws looked at did not contain inspection duties. This affords regulators a high degree of discretion about how they undertake inspections, which is reasonable as they should know best how to discharge their responsibilities.
But where there is such a high degree of discretion, transparency is important to ensure scrutiny, and so that regulated bodies understand what to expect.
Lack of transparency
Under the Regulators’ Code, regulators have to publish information on their approach to inspections. In practice what is published contains few details as to how inspections will be implemented.
Up-to-date information on what inspections have taken place is often not clear or accessible on public registers, which hinders effective scrutiny and risks reducing public confidence.
Oversight
Where regulators have high levels of discretion, oversight is important to drive effectiveness. Defra does not have a dedicated system for oversight of environmental inspections.
Resourcing
Clear information about how much money was raised to support inspections, and particularly how inspections were resourced, was difficult to obtain. This lack of clear data reduces transparency and oversight, and may make it difficult for regulators to make efficiencies and improvements.
Risk based regulation
Risk-based regulation can be highly effective, targeting those regulated entities posing the greatest risks. But regulators must also identify the level of resource to spend on low risks, which cumulatively could have a high impact over time.
It is difficult to assess whether risk is being applied correctly as details of actual practice for risk-based inspections are not made publicly available. Transparency here would be welcome due to possible perceptions that some current approaches are increasingly ‘resource-constrained’ inspections, rather than ‘risk-based’ inspections.
Recommendations in the report include:
- Defra (and other government departments which have environmental regulatory responsibilities), should review existing guidance and ensure that it is fully up to date
- Environmental regulators should ensure that details about inspections they have undertaken are regularly published
- Environmental regulators should improve how they publish the information on their approach to compliance checks required by the Regulators’ Code
- Defra, working with environmental regulators, should review whether risk-based regulation is still being implemented appropriately
- Defra should examine whether future Post-Implementation Reviews (PIRs) of environmental laws could include an improved evaluation of the inspections carried out under these laws.
This report has been laid before Parliament pursuant to section 29(5) of the Environment Act 2021. Government must formally respond to the report within three months.
The case studies included in the report are:
Statutory nuisance – Local authorities (LA)
Small waste incineration plants - LA
Genetically modified organisations – Health and Safety Executive (HSE)
Water abstraction licensing – Environment Agency (EA)
Paper and textiles - EA
T11 Waste exemptions – EA
Bathing water – EA
Aquaculture production businesses – Fish Health Inspectorate (FHI)
Marine Licences – Marine Management Organisation (MMO)
Invasive non-native species - Animal and Plant Health Agency (APHA)
