Decision

Procedural Review of Group of NGOs complaint to the UK NCP about Drax Group PLC

Updated 4 March 2026

Decision and recommendation to the UK National Contact Point (UK NCP) Steering Board

Procedural review committee: Lorand Bartels (chair), Shelley Fuller, John Morrison

1. Background

On 21 October 2021, the UK NCP received a complaint from the complainants concerning Drax Group PLC. After examination, the NCP completed a Final Statement (the ‘Final Statement’), which it sent to the parties on 17 May 2024. On 3 June 2024, 10 working days after receiving the Final Statement, the complainants requested a procedural review. With the permission of the NCP, the complainants supplemented this request with grounds for review on 19 June 2024. A procedural review committee was constituted on 2 October 2024, but was unable to complete its work. This present procedural review committee was constituted on 19 November 2025.

Procedural reviews of NCP Final Statements are governed by the ‘Steering Board review of UK NCP procedures’ (‘Review Procedures’). A procedural review is conducted by a procedural review committee comprising 3 members of the NCP Steering Board (Review Procedures, para 2), operating according to its own rules of procedure (Review Procedures, para 3). The function of a procedural review committee is to make recommendations to the NCP Steering Board (by at least a majority).

The Steering Board adopts these recommendations unless there is an objection by at least 2 members of the Steering Board not including members of the procedural review committee (Review Procedures, para 4).^{[footnote 1]} An adopted recommendation will be published promptly on the NCP website unless the Steering Board considers there is a good reason to withhold or delay publication or to publish only a summary (Review Procedures, para 4.3.4).^{[footnote 2]}

In terms of timelines, the Review Procedures state that ‘[t]he Steering Board will aim to commence the process within 3 months from the time a procedural review request has been made to the NCP Secretariat. However, delays can arise in more complex cases or due to the availability of Steering Board members’ (Review Procedures, para 3.1.1). The Review Procedures do not give an expected deadline for completion. We note that this recommendation comes well over one year after the request for a procedural review. We consider this overly lengthy, and we consider it good practice to establish a timetable for such reviews in future.

2. Procedural review: scope and outcomes

A procedural review can consider 2 types of claim. One is that the NCP has failed to comply with the NCP Complaint Procedures^{[footnote 3]} (Review Procedures, para 2.6.1). The second is that the NCP has failed to treat a party to the complaint with appropriate fairness in the circumstances of the case (Review Procedures, para 2.6.2).^{[footnote 4]} This means that, as reinforced by the Review Procedures elsewhere, ‘[a] procedural review can only deal with procedural errors and will not examine the substance of the UK NCP decision’ (Review Procedures, para 1.5.1). The same limitation applies to the Steering Board, which ‘will not replace the NCP decision with its own appraisal’ (Review Procedures, 4.4.1).^{[footnote 5]}

A procedural review committee can adopt the following conclusions:

• a decision that the NCP has ‘followed its procedures’,^{[footnote 6]} along with an explanatory statement to the NCP Steering Board (Review Procedures, para 4.1.1 and 4.1.2)
• a decision that the NCP has ‘not followed its published procedures’.^{[footnote 7]} In this case, the procedural review committee must make a recommendation to the NCP Steering Board, including an identification and explanation of the failures to follow procedure. (Review Procedures, paras 4.1.1, 4.1.3, and 4.2.1)
• if the procedural review committee concludes that a failure to follow procedure had a material effect on the NCP’s decision, its recommendation would ordinarily be that the Steering Board remit the decision to the NCP for reconsideration, in accordance with the reasons for the procedural review committee’s decision, and/or any other concrete instructions made by the Steering Board (Review Procedures, para 4.4.1). By the same token, the procedural review committee may decide that a failure to follow procedure had no material effect on the NCP’s decision, in which case it would not recommend remitting the decision to the NCP for reconsideration
• a recommendation by the procedural review committee may include suggestions for action that the NCP should take in relation to the complaint, where these are not immediately apparent from the nature of the failure to follow procedure (Review Procedures, para 4.4.2)
• a recommendation or statement noting an opportunity for best practice and continuous improvement (Review Procedures, para 4.1.3), or noting that the NCP’s procedures are unclear (Review Procedures, para 4.2.3). In this event, the Steering Board may recommend to the NCP how its practice or procedures might be clarified (Review Procedures, para 4.2.3)

3. Review of Drax Final Statement

The complainants have requested a review of the NCP’s Final Statement on 8 distinct grounds. These are considered in order.

Ground 1 – That there has been a failure to apply the OECD Guidelines

The complainants argue that the NCP did not assess the respondent’s conduct by reference to the Organisation for Economic Co-operation and Development (OECD) Guidelines, and that instead it treated UK law and policy as the relevant standard, thereby in effect subordinating the Guidelines to UK law and policy. The complainants claim that this breaches the NCP’s procedures and fails to treat the parties with ‘appropriate fairness’.

The NCP Final Statement does not dispute the facts underpinning this claim. It states that ‘[t]he UK NCP considers that if the Respondent is in line with UK policy, it is meeting its responsibilities under the Guidelines.’^{[footnote 8]} In more detail, in its response to the request for a procedural review the NCP elaborates as follows:

The Submitter stated that while it is appropriate for the NCP to refer to relevant policy, it cannot override the requirements of the Guidelines. However, the OECD Guidelines state that ‘[t]he Guidelines are not a substitute for nor should they be considered to override domestic law and regulation. While the Guidelines extend beyond the law in many cases, they should not and are not intended to place an enterprise in situations where it faces conflicting requirements.’ (pg. 17, OECD Guidelines 2011, and similar language on pg. 12, OECD Guidelines 2023). The UK NCP has stated in the Final Statement that there is significant conflicting academic information regarding the sustainability of biomass (pg. 6). Therefore, in an attempt to not override any domestic policy, the UK NCP relied on UK policy which takes into consideration international regulations and academic research (pg. 9, 13, 31-34, 36 and 110, Biomass Strategy 2023 Annex C).^{[footnote 9]}

Assessment

The key function of the NCP, in considering a complaint under the OECD Guidelines, is to determine whether the conduct of the respondent breaches those Guidelines. This is clearly set out in paragraph 2.4 of the NCP Complaint Procedures, which states:

2.4: Complainants need to decide which chapters or paragraphs in the Guidelines they consider are being breached by the company sufficient to base a complaint to the NCP and specify these in making their complaint

The use of the word ‘breach’ makes it clear that the Guidelines are the relevant normative standard against which the respondent’s conduct is to be assessed.

It is certainly true that ‘the Guidelines extend beyond the law in many cases’.^{[footnote 10]} This means that enterprises are expected to ‘observe’ the Guidelines even where they ‘extend beyond the law’ governing their operations in any given jurisdiction – the reference to ‘the law’ here referring to domestic law.

However, sometimes enterprises may not be able to comply with the Guidelines without breaching domestic law. This presents an enterprise with a situation of conflict. In this situation, as the OECD Commentary states, the Guidelines ‘should not and are not intended to place an enterprise in situations where it faces conflicting requirements’.^{[footnote 11]} By saying this, the Guidelines themselves allow enterprises to follow domestic law when this prevents them from observing the Guidelines.

Put simply, in the absence of a conflict with domestic law, the presumption of the OECD Guidelines is that an enterprise ‘levels up’ to the OECD standard. If domestic law sets a higher standard, it is further presumed that an enterprise will comply with that standard, although that is not itself a matter for an NCP to assess. In contrast, the reverse situation does not apply. Enterprises may not ‘level down’ below international standards even if the relevant national standards are below, or non-existent. The one exception to this is where an enterprise is compelled by law to do so.

However, in this last scenario, where there is a conflict between domestic law and a higher OECD Guideline, there is a caveat: the Commentary continues by saying that ‘in countries where domestic laws and regulations conflict with the principles and standards of the Guidelines, enterprises should seek ways to honour such principles and standards to the fullest extent which does not place them in violation of domestic law.’^{[footnote 12]}

Concretely, this means that the NCP may reach a conclusion that domestic law requires an enterprise to act in a manner that would preclude it from observing the Guidelines, but it must also then determine whether the enterprise has sought ‘to honour such principles and standards to the fullest extent which does not place them in violation of domestic law’. In such a situation, the NCP may conclude that an enterprise’s failure to observe the Guidelines is justified by its domestic legal obligations.

In this case, the NCP admits that it ‘relied on UK policy’, and treated compliance with UK policy as compliance with the Guidelines. It explains that it did so in an ‘attempt to not override any domestic policy’. This shows a misunderstanding of the reference to domestic law and regulation in the Commentary to the Guidelines. That reference is only relevant when there is a conflict between the Guidelines and domestic law and regulation. That is not the case here (or at least it is not demonstrated to be the case), and in any event the conflict only applies to domestic law and regulation, not non-binding domestic policy.^{[footnote 13]}

What this means is that the NCP failed to apply the Guidelines as the relevant standard against which the respondent’s conduct was to be measured. This amounts to a breach of paragraph 2.4 of the NCP Complaint Procedures. For this reason we uphold the claim in Ground 1. Furthermore, we consider this to be a material breach. It would only be non-material to the outcome if the UK policy on which the NCP relied were identical to, or even exceeded, the OECD Guidelines at issue in the complaint. We cannot presume that this is the case, especially given the indications by the NCP that UK policy was relied upon precisely because it might not be consistent with the OECD Guidelines.

We conclude that by using UK policy as the relevant standard, the NCP failed to determine whether the respondent’s conduct was consistent with the OECD Guidelines, in breach of paragraph 2.4 of the NCP Complaint Procedures, and that this was a material breach. We recommend that the complaint be remitted to the NCP for reconsideration.

Ground 2 – That the NCP failed properly to apply the 2023 OECD Guidelines

The complainants’ second ground of complaint is that the NCP should have applied the 2023 Guidelines to the complaint, not the 2011 Guidelines. The complainants argue that the NCP should have recognised that the respondents’ conduct was ‘ongoing’ and that ‘proper procedure required the NCP to invite the parties to comment on whether any of the 4 statements being examined are ongoing, such as to make the 2023 Guidelines relevant to the NCP’s determination.’ The NCP’s response is to confirm, as said in the Final Statement, that it applied the 2011 Guidelines because ‘this complaint was received by the UK NCP in 2021’.

Assessment

The 2023 Guidelines came into effect on 8 June 2023. The 2011 Guidelines apply to conduct taking place before that date, and the 2023 Guidelines to conduct taking place on or after that date. There can also be ‘ongoing conduct’, which is to say conduct that commences before 8 June 2023 and continues after that date. In such cases, the 2011 Guidelines apply to the earlier part of that conduct and the 2023 Guidelines to the later part of that conduct.

None of this is affected by when a complaint is received by the NCP.

We also note, however, that whether conduct is ‘ongoing’ is a factual issue. As such, the burden is on the complainants to demonstrate that there is ongoing conduct in any given case. This they did not do, until the stage of procedural review, which is too late.

We find that the NCP did not make any error in not applying the 2023 Guidelines.

Ground 3 – That the NCP has been highly selective as to the domestic and international policy and guidance that it has taken into account

Ground 3 is based on the NCP’s treatment of claims under Chapters VI (environment) and VIII (consumer interests) of the 2011 Guidelines. The complainants say that they ‘made detailed submissions to the NCP regarding relevant codes and guidance’ and that these were inadequately, or not at all, referenced in the Drax Final Statement. In relation to the claims under Chapter VI, these relevant codes and guidance were certain IPCC Guidelines and UNFCCC Reporting Rules setting out methodologies for estimating emissions,^{[footnote 14]} and in relation to claims under Chapter VIII they were the ICC Marketing Code, the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and Competition and Markets Authority (CMA) Guidance.

The complainants consider this to constitute a failure to accord the complainants ‘appropriate fairness’. They say:

Overall, it is apparent that the NCP has relied very selectively on certain external policy, regulation and guidance, and has neglected to take into account other applicable codes and guidance. The NCP has provided no reasons for this. The impression created is that the NCP has only considered such external sources to the extent they are favourable to the Respondent and has ignored those which are not. The result is a lack of fairness to the parties and a failure to determine the Complaint on a proper and unbiased basis.

The NCP rejects this claim. It states that:

The UK NCP took into consideration all the information provided by both parties, as communicated to the parties in the letter from the Chair of the Steering Board. This includes information shared by the Complainants from the IPCC and other international standards. The UK NCP has cited the IPCC throughout the Final Statement. The UK NCP does rely primarily on UK policy due to contesting information available on biomass sustainability. Nevertheless, as previously stated, UK biomass policy does take into consideration international regulations and academic research, including reference to the IPCC.

It is also relevant to note the background to this response. The Final Statement explains its reasoning. This is that ‘the UK NCP considers that if the Respondent is providing accurate information based on its reporting requirements, the statements it has made are not misleading.’ In its response to the request for a procedural review, the NCP elaborates: ‘the UK NCP considers that if the statements are in line with their reporting, then they are not misleading and do not breach these guidance and standards. Therefore, the UK NCP has focused on reporting requirements and UK policy to determine whether the statements are in line with them.’

Assessment

It is evident from the last paragraph that what is really at issue in this claim is the standard to be applied to the respondent’s conduct. The NCP states that it applied national reporting requirements (which incorporate international standards) to the respondent’s conduct, and that it considered that if the respondent complied with these reporting requirements, it deemed the respondent’s conduct not to be misleading and hence ‘do not breach these guidance and standards’. The first question, then, is whether the NCP was right to apply national reporting requirements as the relevant standard.

The answer differs somewhat as between the claims under Chapter VI and Chapter VIII respectively. The introductory paragraph to Chapter VI states:

Enterprises should, within the framework of laws, regulations and administrative practices in the countries in which they operate, and in consideration of relevant international agreements, principles, objectives, and standards, take due account of the need to protect the environment, public health and safety, and generally to conduct their activities in a manner contributing to the wider goal of sustainable development.

It is evident from this paragraph that an enterprise’s conduct under Chapter VI must be assessed not only within the ‘framework’ of domestic law and practices but also ‘in consideration of relevant international agreements, principles, objectives, and standards’. That means that if there are ‘relevant international … standards’, the NCP must apply them. In the case at hand, we consider that IPCC Guidelines constitute a ‘relevant … international standard’.

This is because they are directly concerned with the emissions calculation methodologies, and this was a key issue in the complaint. It may of course be that UK reporting requirements are also consistent with these international standards, and, if so, the outcome will be the same. But the NCP cannot substitute domestic requirements for the standards referenced in the OECD Guidelines in the way that it did.

It is similar with Chapter VIII of the 2011 OECD Guidelines, which begins as follows:

When dealing with consumers, enterprises should act in accordance with fair business, marketing and advertising practices and should take all reasonable steps to ensure the quality and reliability of the goods and services that they provide.

In this case, the guideline itself requires an understanding of what is meant by ‘fair business, marketing and advertising practices’. There are several ways in which this might be understood, but it would appear relevant to referencing standards (but also legislation, if relevant) on this point. We agree with the complainants that the ICC Marketing Code, the CAP Code and CMA Guidance would seem, prima facie, to be relevant in determining what might be meant by ‘fair business, marketing and advertising practices’ in this context.

Of course, there might be other information that is equally relevant to determining what, in the context of green claims, amounts, among other things, to information that is accurate and not misleading. The NCP’s task is to identify such material, assisted by submissions from the parties, so that it can assess the respondent’s conduct against the correct standard.

As noted, the complainants framed their complaint about the NCP’s use of the standards that they submitted as indicative of bias and hence a failure to accord them ‘appropriate fairness’. We agree that the Final Statement should have explained why these standards were (or were not) relevant in applying the relevant paragraphs of Chapters VI and VIII of the 2011 OECD Guidelines. The failure to provide such an explanation leaves it unclear as to which standards were applied, and which were not, and hence – at a minimum – the procedure can be experienced as ‘unfair’. We do not here make a separate finding as to whether the NCP’s failure to do so, and its reliance instead on UK reporting requirements amounts to bias, or the appearance of bias. We address this claim later in the report, under the ‘additional ground’, along with other evidence in support of that claim.

Ground 4 – That the NCP has taken a partial and incomplete view of the evidence

The complainants claim that ‘[t]he NCP has failed to consider most of the Complainants’ factual evidence’ and that ‘[t]he NCP has accepted unquestioningly the contrary statements and evidence of the Respondent’. Hence, the complainants say, there is a failure to accord the complainants ‘appropriate fairness’ either because of a failure to follow due process and critically appraise the evidence or because of bias.

The complainants provided 3 bundles of documents extending to over 1,800 pages comprising legislation, guidelines and guidance – documents they said demonstrate the respondent’s misleading statements, and factual and scientific material in support of the complaint. We note that information concerned with the interpretation and application of the OECD Guidelines does not constitute ‘evidence’ in the same way as information about facts. Even accounting for this, the complainants clearly submitted a substantial amount of evidence in support of its claim.

Assessment

Paragraph 2.4 of the NCP Complaint Procedures states that ‘[t]he NCP’s determination of a complaint will be evidence based’. That implies that the Final Statement will include an assessment of the material evidence submitted by both parties in the complaint proceedings, and how this leads to the NCP’s conclusions in that Final Statement.

For their part, however, the parties to a complaint should take account of the limited resources of the UK NCP, and as a matter of good practice should facilitate the proceedings by minimising the evidence that they consider material to their complaint. The complainants concede in a later communication that ‘[i]n their grounds of review, the Complainants did not convey an expectation that the Final Statement should refer to all or even to most of its evidence.’ This indicates that not even the complainants thought that all of the evidence submitted was necessary to its case. This is not helpful to the process.

In short, the NCP should first distinguish between evidence that is material and non-material. But having done this, it must then actively assess evidence that is material, and must explain how it has assessed this evidence in its Final Statement. A failure to do this will leave the NCP open to a procedural review on the grounds that it has not complied with paragraph 2.4 of the NCP Complaint Procedures.

In this case, the complainants list several instances of evidence that, on its face, seems material to the issues, and which was not cited by the NCP. The NCP responds that it ‘reviewed all information provided by the parties’ and that it ‘referenced information where relevant to the issues and the NCP’s analysis and decision [and] conducted independent research into the issues and relied on additional documents that were relevant to the issues raised in the complaint.’ Based on this statement, we accept that the NCP has ‘reviewed all information provided by the parties’. But we do not agree that it has adequately referenced the information relevant to the issues. As said, the NCP must assess material evidence submitted by the parties in its Final Statement.

The complainants’ claim on this matter is specific: it is that, in not referring adequately to their evidence, and in relying solely on the respondent’s evidence, the NCP has shown bias, and has not treated the complainants with ‘appropriate fairness’. Such a finding would require us to determine both that the NCP has not taken into account the complainants’ evidence and that it has wrongly relied on the respondent’s evidence. We do not make a separate finding on the question of bias here, but consider it along with other evidence on this issue under the ‘additional ground’.

Ground 5 – Failure to provide a fair hearing to the complainants

The complainants claim that the NCP has failed to provide them with a fair hearing in breach both of the NCP Complaint Procedures and the rules of natural justice. This is on the basis of 3 distinct subgrounds, discussed in turn.

Subground 1

The complainants first claim that the NCP determined the complaint, which was lodged in 2021, on the basis of the respondent’s compliance with post-2021 national policies and reporting requirements, and this basis for its decision was not notified to the complainants.

Assessment

As we have already concluded that the NCP applied the wrong standard in this complaint, it is unnecessary to rule on this subground. We observe, however, that it is a basic principle that conduct can only be appraised in light of normative standards that are applicable at the time the conduct took place. But it is also unreasonable for parties to expect that the NCP will inform them of the standards that are applicable. The parties must be taken to know the correct standards to be applied, and to make representations as to how these standards are to be interpreted.

Subground 2

The complainants next claim that the NCP failed to provide transparency regarding its consultations with external bodies, namely government bodies Department for Energy Security and Net Zero (DESNZ), Ofgem, Advertising Standards Authority (ASA) and the CMA. In particular, the complainants consider that they should have received information about the ‘timing, purpose or content of any of these meetings or discussions’.

As to the fact that meetings took place, the NCP concedes that ‘it could have informed parties that it conducted meetings with these bodies.’ Concerning substantive information beyond the fact that meetings were held, however, the NCP makes 2 comments. The first is to draw a distinction between information provided to the NCP, and information which the NCP obtained by desk research. It states that ‘[t]he procedures do not state that the UK NCP is required to share publicly available information that it has sourced itself, nor which documents it is considering as part of its analysis.’

Second, as to the information provided to the NCP in meetings with government bodies, the NCP responds that this information was not shared because it was provided in confidence. It adds that ‘[t]he UK NCP further treated meetings with ASA, CMA and Ofgem as confidential as the handover from the previous complaint handler stated that these meeting minutes were for internal use only.’

Assessment

We note that paragraphs 4.6.4 to 4.6.6 set out the sources of information upon which the NCP is entitled to rely during the examination procedure. This includes information from ‘other relevant government departments’ and ‘other agencies’. Further, paragraph 4.6.7 states that ‘[u]nless a good case is made for information to be withheld, information and evidence received by the NCP will be shared with the parties.’

We see no reason to withhold information as to the fact that the NCP held meetings with government departments and agencies. We note that the NCP agrees. We consider that the NCP breached paragraph 4.6.7 by not informing the complainants that meetings with government departments and agencies had taken place.

As to the substantive information upon which the NCP relied, the NCP has 2 responses. First, it says that the information sharing principles in the NCP Complaint Procedures do not apply to information obtained by the NCP via ‘desk research’, which can include publicly available information. Second, it notes that some of the information at issue was confidential.

On the issue of ‘desk research’ we note, again, that paragraphs 4.6.4 to 4.6.6 set out the sources of information that the NCP is entitled to rely upon in an examination, and that this covers the information at issue, namely, information from ‘other relevant government departments’ and ‘other agencies’. Information obtained from ‘desk research’ is therefore not at issue. Concerning this, however, and in light of the NCP’s statement that it is ‘common practice’ to rely on such information, we observe first that it is not clear that this practice is permitted, as it is not expressly authorised by the NCP Complaint Procedures.

Second, however, if it is by implication permitted for the NCP to rely on information based on independent ‘desk research’, any such information must be subject to the information sharing principles set out in paragraph 4.6.7. The reason why ‘[t]he procedures do not state that the UK NCP is required to share publicly available information that it has sourced itself, nor which documents it is considering as part of its analysis’ – as noted by the NCP – is that the procedures do not expressly authorise such information to be used in the first place.

In short, the NCP must share all material information on which it proposes to rely in its Final Statement. The reason is straightforward: it is to give the parties the opportunity to comment on that information. Nor does it make any difference if that information is publicly available. We therefore find the NCP’s ‘desk research’ response both beside the point, and on its own terms misguided.

A more significant objection is that the information provided to the NCP by government departments and agencies was confidential. In this respect, we observe that the NCP Complaint Procedures draw a sharp distinction between ‘sensitive’ information and non-sensitive information, and that paragraph 4.6.7 and (more broadly paragraph 2.5.1) state that ‘[w]here information is sensitive, the preferred course is to agree appropriate conditions of confidentiality.’ Furthermore, paragraph 2.5.2, which applies to the examination procedure, states that ‘[i]nformation is shared with parties in this way on the understanding that it is not to be more widely shared or made public’. In other words, the NCP needs to make 2 decisions: whether information is sensitive, and, if it is, whether it is possible ‘to agree appropriate conditions of confidentiality’.

Our task is first to decide whether the NCP properly determined that the information at issue (information obtained during meetings with government departments and agencies) was sensitive. And, if it was, whether the NCP properly sought to obtain an appropriate confidentiality agreement. As to the first point, the NCP has stated that ‘meetings with and information shared by DESNZ were treated as confidential by explicit request of DESNZ as the information provided was intended for internal government use only and details of policy development information.’ The NCP also states that the meetings with the CMA and ASA concerned ‘the CMA guidance and ASA’s findings in their investigation of Drax’ and that ‘the information provided by CMA and ASA was sensitive as the meeting with these organisations discussed in depth the rationale behind ASA’s decision making in its investigation of Drax.’

Concerning DESNZ, we understand the NCP to be implying that information obtained from this government department during meetings was sensitive and, by implication, that a confidentiality agreement would not be forthcoming. We are not entirely certain why any information that DESNZ could have provided to the NCP could have been (a) material to the NCP and (b) confidential. It may be that in this instance this information concerned matters of UK government policy.

But as noted under Ground 1, it was wrong for the NCP to rely on UK government policy in the way that it did. As we have remitted the matter for reconsideration, we do not anticipate that the NCP will be relying on any such confidential information again, and hence we need not make a finding as to whether the NCP was right to assess this information as sensitive, and, if so, whether it should have sought a confidentiality agreement.

Concerning the CMA, we are also not clear as to why the information discussed in the CMA meetings was sensitive. A discussion about CMA guidance is not prima facie sensitive, nor is it clear why the CMA would have been in a privileged position to discuss the rationale behind a decision made by ASA, a different agency entirely. We therefore have doubts that this information can legitimately have been considered sensitive.

Again, however, we assume that on reconsideration the NCP will take a more disciplined approach to information that is material and information that is not, in light of the applicable standards. Concerning the ASA meeting, the complainants make the point that ‘[i]t is hard to see how the rationale for a decision that has been made and published can be sensitive’. We agree, but, due to our recommendation for reconsideration, at this stage we refrain from making a determination based on the information itself.

The NCP finally states that ‘[t]he UK NCP further treated meetings with ASA, CMA and Ofgem as confidential as the handover from the previous complaint handler stated that these meeting minutes were for internal use only.’ This shows that a decision was taken that they were sensitive. Again, we do not need at this stage to review this determination.

In short, we expect that on reconsideration of its decision, the NCP will consider first of all what information is material to its decision, applying the correct standard, and on this basis we doubt that sensitive matters of government policy will be material. To the extent that such information is still material, we expect the NCP to make a clear determination that this material is sensitive (and we stress that this is not the same as determining that material is confidential). If any such information is sensitive, the NCP must then seek to facilitate an appropriate confidentiality agreement. Finally, in any event, the NCP must take into account, in deciding what information to share with the parties, that the parties are under an independent and enforceable obligation to comply with paragraph 2.5.2, which states that ‘[i]nformation is shared with parties in this way on the understanding that it is not to be more widely shared or made public’.

In conclusion, we find that the NCP breached paragraph 4.6.7 of the NCP Complaint Procedures in not informing the parties that it had held meetings with DESNZ and other government agencies. Due to our recommendation to remit the matter to the NCP for reconsideration, in light of the proper standard, we have found it unnecessary to rule on whether the NCP further breached paragraph 4.6.7 by not sharing information obtained during those meetings.

Subground 3

The third subground is that the NCP failed to inform the complainants of whether its later submissions were taken into account in reaching its Decision. We consider this to be covered by our ruling on Ground 3 (to the extent these submissions concerned the applicable standard) and Ground 4 (to the extent these submissions concerned evidence).

Ground 6 – Significant delay: The NCP failed to adhere to the procedural timetable

The complaint was received by the NCP on 21 October 2021, and the Final Statement was transmitted to the parties on 17 May 2024. This is just under 2 years and 7 months. In addition, Annex 1 of the Final Statement states that the NCP informed the parties of the delay on 17 March 2023 and again on 11 August 2023, and shared a revised timetable with the parties on 1 December 2023.

The complainants claim that the NCP has failed to adhere to the procedural timetable. The complainants also complain about ‘poor communication from the NCP throughout the process.’ In particular, ‘[b]etween March and December 2023, the NCP provided no substantive update as to the ongoing delay and it was only in December 2023 that it provided a revised timetable to the Complainants’.

The NCP responds that it ‘informed the parties in March 2023 that it was struggling to meet the anticipated timeline due to resource constraints’. It also states that ‘[t]he UK NCP continued to engage with the parties between March and April 2023,’ this engagement consisting of communications with the respondent in March 2023, and receiving communications from the respondent in April 2023.

In addition, the complainants complain that the NCP did not provide it with detailed submissions received from the respondent on 28 April 2023 until 31 October 2023, despite repeated requests, and that this delay meant that it could only respond in December 2023, risking the possibility that this response was not able to be properly taken into account, and hence depriving the complainants of a fair hearing. The NCP acknowledges an error in not passing on this submission to the complainants.

Assessment

Paragraph 2.2.1 of the NCP Complaint Procedures states that ‘[t]he NCP has committed to complete each Specific Instance within a year of receiving the complaint.’ However, paragraph 2.2.1 is subject to paragraph 2.2.2, which states that ‘[s]ome degree of flexibility may be needed to the timetable – for example, because of circumstances outside the NCP’s control. In these circumstances the NCP will notify the parties, explain the reason and set out a revised timetable.’

It is clear that the completion of the process, taking almost 2 years and 7 months, manifestly exceeds the one-year timeline set out in paragraph 2.2.1. However, it is also clear that the delay is excused by circumstances outside the NCP’s control, these being resource constraints. On the basis of paragraph 2.2.2, we therefore find that the overall delay did not breach the NCP Complaint Procedures. However, paragraph 2.2.2 also requires the NCP, in cases of delay, to notify the parties, explain the reasons for the delay, and set out a revised timetable. The NCP did the first 2 in March and August, but very clearly not the third until December 2023. In so doing, it clearly breached its obligation in paragraph 2.2.2. This cannot be excused by resource constraints, either legally or indeed as a simple matter of fact.

As to the failure to pass on to the complainants the respondent’s submissions from April 2023 until October 2023, and noting the NCP’s admission that this was an error, we consider this a clear breach of the NCP’s obligations to share information with the parties under paragraphs 2.5.1 and 4.6.7. But we do not find that the complainants were thereby deprived of a fair hearing. As we noted under Ground 5, the NCP confirmed that it took the complainants’ submission of 6 December 2023 into account.

Ground 7 – The NCP has not adhered to its own transparency procedures

Ground 7 concerns the NCP’s conduct between its draft Final Statement (29 February 2024) and its Final Statement (17 May 2024). In addressing this ground, we take into account not only the complainants’ request for a review, and the NCP’s response to this request, but also a letter submitted by the complainants on 31 January 2025 which elaborates on its original request for a review in light of information obtained by means of a freedom of information request under the Environmental Information Regulations 2004.

The original complaint was that ‘the NCP, without informing the Complainants, has consulted DESNZ in-between the draft and final statements being produced, at a time when the examination stage was meant to have concluded and only factual corrections to the statement were to be made.’ The NCP’s response was that the NCP ‘engaged with DESNZ in April 2024 to ensure that it appropriately incorporated factual comments provided by the parties.’ The elaborated complaint added, based on information obtained by means of the freedom of information request, that the NCP had also improperly shared the draft Final Statement with DESNZ on 7 May 2024. We note that the NCP response did not disclose this fact.

The complainants also complain that one of the statements was altered between the draft Final Statement and the Final Statement. In the draft Final Statement, the complainants state, the respondent is quoted as having said that they ‘do not use’ certain types of biomass, whereas in the Final Statement this quotation was changed to ‘commit to not use’. This statement is a direct quotation from the respondent. The complainants complain that the change of wording in the Final Statement represents a materially different set of facts and that the NCP should have explained how it assessed these facts in light of the OECD Guidelines. The NCP did not respond to this point.

Assessment

Paragraph 5.2 of the NCP Complaint Procedures concerns the period between the draft Final Statement and the Final Statement. It states:

Once the NCP has drafted its Final Statement it will be sent to the parties for factual checking, with a deadline of 10 working days for comments. The NCP will, at its discretion, then incorporate any necessary factual changes before sending the finalised statement to the parties …

This makes it clear that the NCP is only permitted to share its draft Final Statement with the parties, and then only for the purpose of factual checking. It is clear that the NCP is not permitted to share the draft Final Statement with other parties, including government departments. Nor do we accept the NCP’s explanation that in communicating with DESNZ it was seeking to ensure that it had properly incorporated factual corrections made by the parties. As the complainants say, it is the NCP’s job to incorporate factual corrections. At this stage it is not permitted to consult with other government departments.

We further note the complainant’s objection that this improper consultation appears to have had a material effect on the Final Statement. Among other things, the complainants state, when compared to the draft Final Statement, the Final Statement contained ‘numerous supplementary references to DESNZ policy positions, including the 2023 Biomass Strategy, which were absent from the draft version.’

The NCP states that ‘it did not rely on additional information from the reports in its final version’. Even if that is so, the only difference between a draft and a Final Statement should be information included as a result of factual comments made by the parties, and minor typographical errors. If the draft Statement is to be amended in such a significant way, the NCP should treat the new text as a revised draft Statement.

We find therefore that in sharing the draft Final Statement with DESNZ the NCP has breached paragraph 5.2 of the NCP Complaint Procedures. We also find that the inclusion of substantive new information in the Final Statement that was not based on the parties’ factual comments meant that the NCP exceeded its power to issue a Final Statement under paragraph 5.2. Finally, we find that as a result the NCP failed to accord ‘appropriate fairness’ to the complainants.

The final point concerns the change of wording from ‘do not use’ in the draft Final Statement to ‘commit not to use’ in the Final Statement. These words purport to be direct quotations from the respondent submitted in evidence to the NCP. It is possible that the words were incorrectly transcribed in the draft Final Statement, in which case a corrected transcription in the Final Statement would be permissible.

Given our recommendation to remit the complaint for reconsideration by the NCP, we do not consider it necessary in this procedural review to make a finding on whether the NCP was merely (at the behest of the respondent) properly correcting the record of evidence submitted by the respondent or whether it was agreeing to change that submitted evidence. We merely note that such a change would be clearly impermissible without sharing this first with the complainants in accordance with the information sharing principles previously discussed, and that it is clearly too late to make such a change at the Final Statement stage.

Additional Ground – bias/apparent bias

In their original submissions supporting their request for a procedural review, the complainants claim that the NCP appears to have been biased. In their letter of 31 January 2025, following the previously mentioned information request, the complainants make additional claims of actual as well as apparent bias against the NCP. They state:

[t]he EIR disclosure indicates a lack of NCP impartiality due to a) what would appear as inappropriate influence from Government and b) improper breach of the confidentiality of the process with conflicted government officials. …

Put together, the complainants argue that the claims of bias and/or apparent bias rest, inter alia, on the following evidence:

1. An opinion piece from Claire Coutinho MP (in The Times) stating that officials at DESNZ pressured her to support Drax.

2. Email exchanges between the NCP and the same officials in DESNZ during the proceedings in August 2022 and January 2023, and further emails with DESNZ in April 2024 concerning i) information about DESNZ’s consultation concerning an extension to existing biomass subsidies, ii) the UK policy position on biomass and Bioenergy with Carbon Capture and Storage (BECCS), iii) insights related to woody biomass as potentially carbon-neutral, and even more strikingly, iv) the ongoing judicial review claim brought by one of the complainants, against the Government’s Biomass Strategy.

3. The fact that these further emails in April 2024 were exchanged between the draft Final Statement and the Final Statement.

4. The NCP’s improper sharing of the draft Final Statement with DESNZ in May 2024.

5. The failure of the NCP to admit to sharing the draft Final Statement in its response to the complainants’ original submissions supporting the request for a procedural review.

6. The failure of the NCP to disclose meetings with government departments, including DESNZ.

7. The failure of the Final Statement to accord due weight to evidence supplied by the complainants, and the contrasting importance given to evidence supplied by the respondent and government departments, including DESNZ.

Assessment

We have made findings relating to several of these matters in the report. In particular, we have found that, during the examination process, the NCP breached the NCP Complaint Procedures in numerous respects, including its sharing of the draft Final Statement with DESNZ, and its failure to disclose meetings with government departments and agencies, including DESNZ. We have also noted that the NCP did not properly reflect its consideration of the complainants’ evidence in the Final Statement.

All of this said, we accept the NCP’s assurances that it did consider the complainants’ evidence submitted, even if it did not explain how it assessed this evidence in its Final Statement. We are prepared to accept that the breaches of the NCP Complaint Procedures are the result of misinterpretations of these procedures (some serious) resulting in part from an unusual lack of resourcing at the relevant time. We are of the view that it is most likely that this situation led the NCP to rely improperly on other government departments in carrying out its functions.

We therefore are not prepared to decide that the NCP was biased against the complainant. However, we can also understand why the complainants feel that they have been treated unfairly. In our view, the NCP’s failings are sufficiently numerous, sufficiently serious, and so disproportionately to the detriment of the complainant, that in its handling of this complaint the NCP has created the appearance of bias. For this reason we recommend remitting the claim to the NCP for reconsideration.

4. Summary of findings

Ground 1 – Claim that the NCP failed to apply the OECD Guidelines

We find that by using UK policy as the relevant standard the NCP failed to determine whether the respondent’s conduct breached OECD Guidelines, contrary to paragraph 2.4 of the NCP Complaint Procedures. We consider this a material breach, and we recommend that the complaint be remitted to the NCP for reconsideration.

Ground 2 – Claim that the NCP failed properly to consider the 2023 OECD Guidelines

The 2023 OECD Guidelines are applicable to any conduct (including the latter part of ‘ongoing conduct’) occurring on or after 8 June 2023. However, the complainants did not demonstrate that the conduct at issue was ‘ongoing’. As a result, we find that there was no procedural failure concerning Ground 2.

Ground 3 – Claim that the NCP has been highly selective as to the domestic and international policy and guidance that it has taken into account

We find that, in relation to the claims under Chapter VI of the 2011 OECD Guidelines, the NCP Final Statement does not consider in sufficient detail whether the respondent’s reporting of biomass emissions is in line with relevant IPCC and UNFCCC reporting standards, as required by the opening paragraph of Chapter VI. We also find that, in relation to the claims under Chapter VIII of the 2011 OECD Guidelines, the Final Statement does not properly assess whether the respondent acted in accordance with ‘fair business, marketing and advertising practices’, as required by the opening paragraph of Chapter VIII. In both cases, the NCP did not properly apply the OECD Guidelines to the respondent’s conduct, nor did they properly explain the standards that they were applying. However, we do not consider that by so doing the NCP failed to accord the complainants ‘appropriate fairness’.

Ground 4 – Claim that the NCP has taken a partial and incomplete view of the evidence

Paragraph 2.4 of the NCP Complaint Procedures states that ‘[t]he NCP’s determination of a complaint will be evidence based’. That implies that the Final Statement will include an assessment of material evidence submitted by the parties, and indeed from other information obtained pursuant to paragraph 4 of the NCP Complaint Procedures. That was not done in this case. However, we accept the NCP’s assurance that it did base its decision on all information before it, including that supplied by the complainants. We do not therefore find that the NCP failed to accord ‘appropriate fairness’ to the complainants.

Ground 5 – Claim that the NCP failed to provide a fair hearing to the complainants

We make no ruling on the complainants’ claim that the NCP failed to notify the complainants that it would determine the complaint on the basis of the respondent’s compliance with post 2021 national policies and reporting requirements. This is because we have found that the NCP should have applied the 2011 Guidelines to the complaint.

Second, we find that the NCP violated paragraph 4.6.7 of the NCP Complaint Procedures by not notifying the complainants of the fact that meetings had been held with DESNZ, Ofgem, ASA and the CMA. Due to our recommendation to remit the matter to the NCP for reconsideration, in light of the proper standard, we find it unnecessary to rule on whether the NCP further breached paragraph 4.6.7 by not sharing information obtained during those meetings. We note that such a finding would depend on a finding as to the plausibility of the NCP’s determination that that information was sensitive and, second, a finding that the NCP had properly sought to facilitate an appropriate confidentiality agreement with the relevant parties.

Third, we do not find that the NCP’s failure to inform the complainants whether its later submissions were taken into account in reaching its decision amounted to a failure to afford it a fair hearing.

Ground 6 – Claim that the NCP failed to adhere to its procedural timetable

Even though the complaints process took just under 2 years and 7 months, well in excess of the commitment in paragraph 2.2.1 to complete the process in one year, we accept that this was due to severe resource constraints, and the delay is therefore excused on the basis of paragraph 2.2.2. However, by not setting out a revised timetable until December 2023 we find the NCP to have breached paragraph 2.2.2.

We also find that the NCP breached paragraphs 2.2.1 and 2.5.1 by not providing the complainants with detailed submissions received from the respondent on 28 April 2023 until 31 October 2023, but we do not find that this delay amounted to a failure to provide the complainants with a fair hearing.

Ground 7 – Claim that the NCP has not adhered to its own transparency procedures

We find that in sharing the draft Final Statement with DESNZ the NCP breached paragraph 5.2 of the NCP Complaint Procedures. We also find that by including substantive new information in the Final Statement that was not based on the parties’ factual comments meant that the NCP exceeded its power to issue a Final Statement under paragraph 5.2, and that as a result the NCP failed to accord ‘appropriate fairness’ to the complainants. We also express concern as to the NCP’s change, at the stage of the Final Statement, to its record of certain evidence submitted by the respondent. However, we consider it unnecessary to make a finding on this issue, given our recommendation to remit the complaint to the NCP for reconsideration.

Additional Ground – bias/apparent bias

We find that there has been no actual bias, and that the various failings identified in this procedural review have more innocent explanations. In particular, we note that the NCP was severely understaffed at the relevant time, and this is likely to have led to an overreliance on other government departments for assistance. However, we can also understand why the complainants feel that it has been treated unfairly. In our view, the NCP’s failings are sufficiently numerous, sufficiently serious, and so disproportionately to the detriment of the complainant, that in its handling of this complaint the NCP has created the appearance of bias. For this reason we recommend remitting the claim to the NCP for reconsideration.

1. If there is an objection, ‘the conclusion of the procedural review will be delayed until the next full Steering Board meeting at which it is practicable to consider the request’ (para 4.3.2). It is likely that this should be read as meaning that the Steering Board has the power to decide not to adopt the recommendations of the procedural review committee. ↩

2. Redactions of confidential information are also possible. ↩

3. UK National Contact Point Procedures for Dealing with Complaints Brought under the OECD Guidelines for Multinational Enterprises (‘NCP Complaint Procedures’). ↩

4. Paragraph 1.6.2 defines ‘appropriate fairness’ as covering ‘rules of natural justice’, and further defines these rules as comprising 2 elements: ‘judgement without bias: the decision is based on evidence’ and ‘fair hearing: there is an opportunity to prepare and present evidence, and to respond to arguments presented by the opposing side’. ↩

5. Paragraph 1.5.2 adds that ‘the Steering Board’s [sic: this should read ‘procedural review committee’s’] conclusions on their procedural review may relate to the substance of a complaint if the UK NCP has failed to follow its own procedures in coming to a decision.’ It gives the example of a situation in which ‘the UK NCP did not take into consideration evidence which may mean the conclusion itself was incorrect.’ This does not mean that a procedural review can decide that the NCP’s conclusion was incorrect. A procedural review can at most remit the matter to the NCP for a new decision if it considers that the conclusion may have been incorrect. ↩

6. This must be understood as referring to the 2 bases for a procedural review set out in paragraph 1.6. ↩

7. Notwithstanding the inclusion of the word ‘published’, this phrase must also be understood as including the 2 bases for a procedural review set out in paragraph 1.6. ↩

8. Drax Final Statement, para 9. ↩

9. This NCP response covers 2 distinct issues: the appropriate standard to be used (relevant to this ground of complaint) and way that facts are assessed (not relevant to this ground of complaint). ↩

10. 2011 OECD Guidelines, para 2. ↩

11. Ibid, para 2. ↩

12. Ibid, para 2. ↩

13. In addition, even where there is a conflict, the NCP could only determine that an enterprise is justified in its conduct, notwithstanding any failure to observe the Guidelines, after first determining that the enterprise has sought ‘ways to honour such principles and standards to the fullest extent which does not place them in violation of domestic law.’ ↩

14. The complainants also refer to uncited ‘IPCC reports’ without specifying which these are. In a subsequent letter, dated 31 January 2025, the complainants state, in the context of Ground 3, that ‘[r]eferences to the IPCC’s actual views on bioenergy, as expressed in its 5th and 6th assessment reports to which the Complainants referred (Annex 7 to the Complainants’ Review Request), are entirely absent’. This detail comes too late to be considered in this procedural review. We note, however, that in any event IPCC Assessment Reports do not qualify as international standards. ↩