Part 1: Environmental Governance Chapter 2: The Office for Environmental Protection Section 31: Failure of public authorities to comply with environmental law
This section sets out definitions for certain terms that are referred to throughout Chapter 2, which concerns the functions of the OEP. Subsection (1) states that sections 32 to 41 provide for the functions of the OEP relating to failures by public authorities to comply with environmental law. (The term "environmental law" is defined in section 44.)
	"Failing to comply with environmental law" is defined in subsection (2) as meaning where an authority is:
Not taking proper lawful account of environmental law when exercising its functions. For example, as set out in section 19, a Minister of the Crown must have due regard to the policy statement on environmental principles in making, developing and revising policies. Failure to have due regard to the policy statement where required would therefore constitute a failure to take proper account of environmental law; or
Unlawfully exercising or failing to exercise functions it may have under environmental law. For example, various authorities are charged with establishing and implementing permitting or other types of regulatory control regimes for different activities that can affect the environment. Failing to meet such requirements, or implementing them in a deficient way (for instance, by omitting certain prescribed activities or applying standards that are less rigorous than the law demands), would also constitute a failure to comply with environmental law. A failure to meet a statutory environmental quality standard for which a public authority was responsible for ensuring compliance would also be captured by this provision.
	No restrictions regarding the date of a failing are included in the definition in subsection (2). This means that the OEP will still be able to take action against failings that occurred after the UK’s date of exit from the EU but before it was fully established.
	In subsection (3), a "public authority" is defined as a person carrying out a function of a public nature, that is not a devolved function, a parliamentary function, or a function of one of the bodies specified in paragraphs (a) to (e). This follows a similar approach to section 6(3) of the Human Rights Act 1998. The term "public function" is not defined in the Act (or in the Human Rights Act 1998), so it will ultimately be for the courts to determine what constitutes a public function. The courts have previously recognised that a body can act in more than one capacity. As such, bodies that undertake some public and some private functions, such as statutory undertakers, will be within scope of the OEP only with regard to the exercise of their public functions. The term "person" means any legal or natural person. For example, a Minister of the Crown, a government department, non-departmental public body, or local authority would be considered a public authority.
	Where a person is undertaking a devolved or parliamentary function, they will not fall within this definition. This means that any public authorities implementing devolved functions under environmental law in Scotland, Wales and Northern Ireland will not be covered by the remit of the OEP in respect of devolved matters. Bodies exercising such functions would typically include devolved public bodies such as Scottish Natural Heritage, the Scottish Environment Protection Agency, Natural Resources Wales and the Northern Ireland Environment Agency. "Devolved function" is defined in section 47.
	Paragraphs (a) to (e) of subsection (3) also set out certain bodies that are excluded from this definition, including, for the purposes of this Act, the OEP itself. This exclusion is to avoid the OEP having to consider whether to exercise its statutory complaint and enforcement powers in relation to a complaint made against it; the OEP could still consider complaints about its conduct outside of its statutory functions, or complaints could be made to the parliamentary ombudsman, as provided for in paragraph 21 of Schedule 1. Among the other excluded bodies are courts and tribunals and both Houses of Parliament. The devolved legislatures, and the Scottish and Welsh Ministers and Northern Ireland departments are also excluded. Any person carrying out a devolved function on behalf of the devolved Ministers, such as a devolved public body, is also excluded from the OEP’s remit.