Memorandum by the Environment Agency
What are the legal bases for regulators?
What are the nature of their powers and how do they exercise them?
How could their powers be revoked? From where do they obtain their
financial and administrative support?
1.1 The Environment Agency is a Non Departmental
Public Body established by Parliament in 1996 under the Environment
Act 1995. Creation of the Agency involved the merger of in excess
of 80 separate undertakings and over 9,000 staff. It was given
the task of integrating the broadest range of functions of any
environmental body in Europe. It was also given immediate challenges
in terms of environmental objectives, the developing agenda of
sustainability, and the changing nature of regulation, as well
as the long-term challenge to deliver environmental outcomes.
1.2 The Agency is the leading public body
protecting and improving the environment in England and Wales.
The Agency's work includes flood risk management, reducing industry's
impacts on the environment in the air, on land and water, the
regulation of waste management and radioactive substances, cleaning
up rivers, coastal waters and contaminated land, managing water
resources, dealing with flooding and pollution incidents and protecting
and improving wildlife habitats and fisheries. The Agency also
has recreation and navigation responsibilities. All its work contributes
to the quality of life for people and the natural environment.
1.3 The Agency's powers and duties stem
from primary and secondary legislation. Much of the secondary
legislation derives from EC Directives on environment matters.
Through this legislation the Agency regulates a broad range of
activities to minimise their impact on the environment, including
the use of permits/licences. The Agency considers the grant of
permits or licences which involves the submission of an application;
advertising the application and a period of public consultation;
consideration of consultation responses; in some cases a period
of further consultation informed by a draft licence and production
of a decision in the form of a licence with a reasoned decision
document in some cases.
1.4 The terms and conditions of licences
are regularly reviewed. Decisions are taken on a scientific basis
and the results of monitoring of the environment, to ensure that
Agency requirements are proportional to risk and impact and take
due account of the costs and benefits to society. The Agency has
powers of entry and to carry out works and compulsory purchase
powers. The Agency seeks to undertake its regulatory duties as
efficiently and effectively as possible, enabling business to
achieve agreed outcomes in a cost-effective way.
1.5 Revocation of the Agency's powers would
be achieved by the necessary changes to primary or secondary legislation.
The Agency is funded by a combination of income from fees and
charges under the polluter pays principle and through Grant in
Aid from Central Government and Welsh Assembly Government. The
Agency is also generating additional income through partnership
activities with external organisations and providing technical
By whom and how is the continuing need for
regulators measured? How is their role changed or ended?
2.1 Ministers can decide to amend or revoke
the role of the Environment Agency at any time subject to the
will of Parliament.
2.2 The Agency is subject to five-yearly
Financial, Management, Performance and Resources reviews carried
out by Government which include extensive consideration of the
role and responsibilities of the Agency and whether there is a
continuing need for the Agency to exist. Following extensive consultation
by the Government of stakeholders in the Agency the second such
review was completed in 2002. The Review stated that the Agency
had scored some considerable successes, that there were areas
where further development could be secured and further improvements
made and concluded that "Both Government and every one of
174 consultees support the continuation of the Environment Agency".
2.3 Importantly, the Agency must be judged
by the real environmental outcomes achieved over time on the ground.
2.4 The Agency's role would be changed by
primary or, to some extent, by secondary legislation and ended
by primary legislation.
Who are the members of regulatory bodies?
How are they appointed? Are they adequately representative? Do
Nolan principles operate?
3.1 The Environment Agency has not more
than 15 members appointed to the Board of the Agency. The Secretary
of State for the Department of Food, Environment and Rural Affairs
appoints most members and the Welsh Assembly Government appoints
one member. Members come from a broad range of backgrounds including
Industry, Business and Farming, Science and Academia, Local Government
and Trade Unions. The Agency is working closely with Defra to
actively encourage applications and appointments from ethnic minorities
and disadvantaged groups. All appointments are made in accordance
with Nolan principles.
3.2 In accordance with statute, the Agency
has eight Regional Environment Advisory Committees and eight Fisheries,
Recreation and Conservation Committees for which the Agency itself
appoints members in accordance with a membership scheme approved
by the Secretary of State. There are also eight Regional Flood
Defence Committees with some members appointed by the Agency and
some by Local Government. All these appointments are made in accordance
the Nolan principles. Taken together, the Agency currently maintains
a ratio of around one external person, who has a relationship
with the Agency as a consultee or representative of some organisation
concerned with one or more functions of the Agency, to every six
members of staff.
What are regulators set up to achieve? To
what extent do regulators achieve their purposes without adverse
consequences? How is their effectiveness assessed?
4.1 The Environment Act 1995 places extensive
duties on the Agency in relation to its functions, for example,
a duty to "maintain, improve and develop salmon fisheries,
trout fisheries, freshwater fisheries and eel fisheries"
and a requirement to exercise "the Agency's pollution control
powers for the purpose of preventing or minimising, or remedying
or mitigating the effects of, pollution of the environment".
4.2 The Act also provides a principal aim
for the Agency in discharging its functions so as to protect or
enhance the environment taken as a whole to make a contribution
towards the achieving of sustainable development which Ministers
consider it appropriate for the Agency to make. Following public
consultation and laying before both Houses of Parliament, the
Secretary of State for Defra provides extensive published guidance
to the Agency in respect of carrying out its functions in England
and Welsh Assembly Government provides equivalent separate guidance
to the Agency in respect of Wales.
4.3 The Agency has two roles in contributing
to the achievement of sustainable development. These are first,
to protect and enhance the environment in a way which takes account
(subject to and accordance with the 1995 Act and any other enactment)
of economic and social considerations) and, secondly, to be an
independent advisor on environmental matters affecting policy-making,
both within Government and more widely.
4.4 The Agency is also required to take
into account any likely costs in achieving the principal aim,
and to take account of the likely costs and benefits in exercising
its powers. This includes both costs to people and organisations,
and costs to the environment.
4.5 After extensive public consultation,
the Agency issued a long term Environmental Vision for
England and Wales which identified nine environmental themes followed
by further extensive consultation of the public, industry and
Government on the detail of what the Agency is going to do over
the next five years in its Corporate Strategy (Making it Happen).
For each theme the Agency has identified a set of specific targets
and measures, which will enable progress to be tracked against
the strategic objectives. Specific trends and changes in the environment
will be measured and this information put into the public domain.
4.6 The Agency issues State of the Environment
Reports on the general state of pollution of the environment in
England and Wales and provides yearly monitoring information to
the European Commission pursuant to particular Directives. The
Agency makes its State of the Environment reports publicly available
on its web-site, along with emissions release information, its
Annual Reports and Corporate Scorecard Information produced for
the Board of the Agency (www.environment¸agency.gov.uk).
To what extent are regulators both prosecutors
and juries on an issue? What rights of appeal are there against
decisions made by regulators?
5.1 The Environment Agency is not a prosecutor
and jury on issues. It is the task of the Agency, as required
by Parliament, to take decisions taking all the advantages and
disadvantages into account including both costs to people and
organisations and costs to the environment. It is an expert body
which is best placed to weigh all the factors in taking these,
often complicated, judgements. As part of this process the Agency
consults widely with statutory and non-statutory bodies and the
public, taking account of their views as part of its decision
5.2 In the case of such decisions there
is usually an express right of appeal by the person regulated
to the Secretary of State or, sometimes, a magistrates court.
Third Parties and, sometimes, operators, can seek a judicial review
of the Agency's decision by the High Court.
5.3 So far as formal enforcement decisions
are concerned, the Agency acts in accordance with its published
Enforcement and Prosecution Policy (www.environment¸agency.gov.uk/commondata/105385/enfpolicy.pdf)
that contains detailed guidelines and in accordance with the Code
for Crown Prosecutors approved by the Attorney General. Enforcement
decisions are subject to appeal to the Secretary of State and
prosecution decisions are a matter for the criminal courts to
How are regulators held to account by Parliament?
What other accountability do regulators have to auditors, Government
departments or other public bodies?
6.1 The Agency is accountable to Ministers
and through them to Parliament. It is also accountable to the
Welsh Assembly and subject to investigations and reports and inquiries
by many other Committees of both Houses and the Assembly. For
example, in 1999, the Environment Sub-Committee of the Environment,
Transport and Regions Select Committee carried out an inquiry
specifically into the Environment Agency. Other recent examples
where the work of the Environment Agency, alongside others, has
been scrutinised by a Select Committee, include the Public Accounts
Committee inquiries into flooding (2002) and waste management
(2003). The Environment Agency also voluntarily contributes written,
and where requested, oral evidence to a range of inquiries carried
out by Select Committees (including for example, the ODPM, EAC,
EFRA and the present Constitution Committee). In 2002 the Environment
Agency voluntarily submitted written evidence to at least 10 separate
Select Committee inquiries.
6.2 The financial duties of the Agency are
determined by Ministers with the approval of the Treasury. An
auditor appointed by the Secretary of State audits the accounts
for the Agency each year. A copy of the annual accounts and the
report by the auditor are laid before each House of Parliament
each year. Similarly, a report on its activities is prepared each
year by the Agency, submitted to Ministers and laid by them before
each House of Parliament and published. A separate report on the
Agency's activities in Wales is prepared and submitted to Welsh
6.3 The Comptroller and Auditor General
is entitled to inspect all accounts and section 6 of the National
Audit Act 1983 (examination of economy, efficiency and effectiveness)
applies to the Agency. The National Audit Office conducts regular
investigations into aspects of the Environment Agency's activities
followed by appearances before the Public Accounts Committee.
There are equivalent provisions of audit by the Auditor General
for Wales and investigation by Welsh Assembly Government in relation
to the Agency's activities in Wales.
6.4 Ministers have extensive powers to give
directions to the Environment Agency of a general or specific
character with respect to the carrying out of any of its functions.
The Agency is subject to investigation by the Parliamentary Commissioner
in relation to all its functions other than its flood defence
function. In relation to its flood defence functions it is subject
to investigation by the Local Commissioner. There are equivalent
provisions in relation to the carrying of the Agency's functions
in relation to Wales.
How are regulators accountable to those whom
they regulate? What is the impact of regulation on the economy?
How transparent are their methods of working?
7.1 The Environment Agency is accountable
to those whom it regulates via appeals and action in the Courts.
It is subject to accountability to Ministers and through them
to Parliament and, in relation to Wales, to Welsh Assembly Government,
as explained above.
7.2 The Agency is required to develop, in
accordance with the principles outlined in the Government's guidance
to the Agency under section 4 of the 1995 Act, and to agree with
the Secretary of State and, in relation to Wales, with Welsh Assembly
Government, both a corporate strategy and a corporate plan. The
strategy is to describe how the Agency will work to deliver the
objectives set out in the guidance and the plan translates the
objectives into specific targets.
7.3 The Agency's management statement further
sets out its accountability, and the administrative arrangements
that have been put in place between the Government, Welsh Assembly
Government and the Agency to support this. The Financial Memorandum
sets out the framework of financial controls.
7.4 Pollution of the environment can cause
significant and lasting damage to people and the environment to
the detriment of successive generations. Such damage has a short
and long-term impact on the economy in terms of remedial costs,
if remediation is possible. For example, the costs associated
with remediation of contamination left on sites from former uses
vary enormously. But costs of £0.5 million to £1 million
per site are common and likely to become more so. The total size
of this market in the UK has been estimated at £770 million
for 2002-03 (from MBD, UK Contaminated Land Treatment Market
Development, October 1999) with similar costs for future years.
There may also be other costs, for example, where third party
abstraction boreholes must be closed and alternative supply arranged.
7.5 The Environment Agency prides itself
on being an open and transparent public body. All of the Agency
Board meetings and statutory committees are open to the public.
Board agendas and papers are available on the Agency's web-site
in advance of meetings. It carries out extensive public consultation
on its proposed policies and in relation to individual decisions.
The Agency works extensively with trade bodies, non-governmental
organisations, the general public and local, regional, Welsh Assembly
and Central Government.
7.6 The Agency makes information on the
environment and on its activities widely available. Many documents
are available for public inspection on the Agency's public registers
and it provides information in accordance with, and, where resources
permit, beyond, the requirements of the Environmental Information
How are regulators accountable to the public
other than through Parliament? What opportunities do the public
have to express particular concerns to regulators? How do regulatory
bodies relate to their associated consumer watch-dogs?
8.1 The Environment Agency is accountable
to the public through its statutory committees which are all open
to the public, extensive public consultation on policies and particular
decisions, sometimes involving public meetings and through action
in the Courts, and by complaint to Ministers in Central and Welsh
Assembly Government and to the Parliamentary and Local Commissioners.
8.2 There is no associated consumer watch-dog
as such for the Environment Agency but the Agency is required
to consult its statutory Regional Environment Protection Committees
and the Regional Fisheries, Recreational and Conservation Committees
about the carrying out of its functions in the relevant regions.
How effective is public consultation by regulators?
What opportunities do the public have to contribute? To what extent
do the public make use of those opportunities?
9.1 The public has good opportunities to
contribute their representations in relation to consultations
on individual applications for licences and, where appropriate,
in respect of consultations on Agency policies. Where policy consultations
are in respect of technical areas they may be confined to the
particular industry concerned.
9.2 The consultation periods for licensing
are set out in the legislation; normally not less than 28 days.
The Agency follows Cabinet Office Guidelines on periods of consultation
on Agency policy; normally a minimum of 12 weeks.
9.3 Consultation documents on applications
are placed on public registers and where widespread interest is
anticipated they are made available in public libraries and on
the Agency's web-site. Although the Agency has no specific funding
to do so, in cases of particular controversy the Agency additionally
consults the public by holding public surgeries and public meetings.
Where the public are concerned over particular applications or
issues the Agency's experience has been that they engage extensively
with the Agency directly through correspondence and attendance
at public meetings and via local authorities and MPs, Members
of the Welsh Assembly and MEPs.
To what extent do the needs or concerns of
the public guide the work of regulators? Are regulators instruments
of Government or representatives of the public?
10.1 The Environment Agency has consulted
widely on its Vision for the Environment and Making
it Happen, its detailed plans for the next five years towards
the Vision. Each part of the Agency has formulated its Local
Contribution to apply the plans in Making it Happen
in its Area, which will involve local participation. As described
above, the Agency consults widely on policies and individual applications.
It has a wide-ranging role that is more than regulatory. Through
responses to consultations, advice received from its statutory
committees and contacts with the public the Agency is attuned
to the needs and concerns of the public and it recognises the
importance of establishing a good reputation with the public for
taking soundly based decisions and explaining them. In this sense
the needs and concerns of the public do guide the work of the
10.2 As to whether regulators are instruments
of Government or representatives of the public, the position is
more complex than a simple characterisation. The Agency carries
out regulation for sound reasons to protect human health and the
environment but in a way that is the most efficient for the economy
and business. It is in the interests of good Government, business
and the wider public to determine policy and decisions on a rational
sound scientific basis, recognising public concerns about impacts
on their health and the wider environment.
How independent are regulators of Government?
What factors do or might compromise their independence?
11.1 The Environment Agency was established
with an independent Board and needs to be independent of Government
in order to gain public confidence. The Government retains formal
powers to "call in" some decisions for the Government
itself to take and the power to issue directions to the Agency
in relation to the carrying out of any of its functions, however,
the exercise of these powers is very rare. It also has the power
to issue guidance to the Agency about the carrying out of its
functions to which the Agency must, of course, pay attention.
So far, the guidance from successive Governments and Welsh Assembly
Government has been measured and developed in consultation with
11.2 Factors which might compromise the
independence of the Agency would be, over-prescriptive legislative
requirements or guidance or inappropriate directions or policies
from Central or Welsh Assembly Government which prevented the
Agency taking a sound holistic view to achieve real environmental
outcomes. Other significant factors which might compromise independence
would be a significant failure to devote sufficient public funds
or to allow the Agency to recover sufficient costs for the Agency
to be able to properly carry out its functions. So far, none of
these factors have occurred to the extent that the Agency does
not consider itself to be properly independent of Central or Welsh