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Office for Environmental Protection - Question

– in the House of Lords at 2:52 pm on 20th January 2020.

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Photo of Lord Teverson Lord Teverson Chair, EU Energy and Environment Sub-Committee 2:52 pm, 20th January 2020

To ask Her Majesty’s Government when the Office for Environmental Protection will become (1) operational, and (2) take on its full statutory powers and responsibilities.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, we plan for the OEP to be operational from 1 January 2021, at which point it will begin to perform its full statutory powers and responsibilities. It will therefore be operational from the day that the UK leaves the oversight of the EU institutions, at the end of the implementation period. The OEP will be ready to receive complaints from day one.

Photo of Lord Teverson Lord Teverson Chair, EU Energy and Environment Sub-Committee

My Lords, I thank the Minister, and welcome that announcement and that reassurance. The Minister will also be aware that Defra, where this body probably will lie, keeps very close to its executive agencies and its non-departmental public bodies. In fact, it calls them “the Defra family.” How will he ensure that, if it is part of that family, the office will remain entirely independent and fearless in carrying out its statutory duties?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

The noble Lord is right: independence is key. The environment Bill will state that the OEP will be operational independent of Defra. Ministers will not be able to set its programme of activity or influence its decision-making. It will be accountable to Parliament through a sponsoring Minister. We intend the chair to be subject to a pre-appointment scrutiny hearing. Ministerial appointments will be regulated by the Commissioner for Public Appointments. It is important that the OEP is independent. It will be.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, will the situation be one of legal limbo until 31 December this year? Currently, the European Court of Justice has the right to take legal action against any company that infringes environmental law. What will the legal position be until 1 January 2021?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, until the end of the implementation period, we will clearly be subject to the oversight of the EU institutions. The point is that there will be no governance gap and the OEP will be ready to act from 1 January 2021.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, what powers will the new organisation have to combat climate change where feasible and to improve adaptation where it can? How many staff will it have to do that?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, at this stage we think that between 60 and 120 people will run the OEP. What the noble Baroness says is important. Clearly, we have the Committee on Climate Change. We expect the OEP and the CCC to build on statutory requirements to develop a strong working relationship, which will be formalised through a memorandum of understanding once the OEP is operational. We expect the majority of legislation concerning climate change mitigation to fall within the OEP’s remit.

Photo of Lord Randall of Uxbridge Lord Randall of Uxbridge Conservative

My Lords, can my noble friend the Minister confirm that decisions made by the Office for Environmental Protection will capture all public bodies?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Yes. The intention is very much for this to go beyond what we had with the EU’s oversight. This will be with our domestic legal arrangements. This will concern public authorities, be they arm’s-length bodies or local authorities. The important point about our domestic system is that we will be able to locate and rectify and that, through its enforcement options, it will be able to rectify what needs to be rectified.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, on that issue, does the Minister agree with the Natural Capital Committee’s recent report, which went one step further? It recommended that Office for Environmental Protection’s remit should also cover the private sector and private landowners. Does the Minister have any views on that?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, I must say that the OEP is predicated on the responsibility of public authorities. Clearly, if, for instance, a water company or a private individual contravened a law, it would be for one of those public bodies to take action, be it the Environment Agency or whatever. The key point about this legislation is that it concerns the oversight of the Environment Agency or government or a local authority. There are already mechanisms in law where someone transgressing environmental law can be taken to task; this is about enshrining that local authorities can also be.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, it is good if the OEP is independent—that is a crucial factor—but what about it having teeth? Will it have real strength when it decides against a public body?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

The intention of the enforcement options is clear: to get the transgression rectified. The OEP will have the ability to issue an information notice; if that is not resolved, it can issue a decision notice. If failure is still unresolved, the OEP may seek a legal challenge through an environmental review in the Upper Tribunal. There are all sorts of mechanisms by which the OEP’s intention and remit is to rectify whatever is contrary to environmental law.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, in an earlier answer, the Minister said—if I heard him right—that the OEP staff would be somewhere between 60 and 120 people. That is a very large margin. Since capacity will be critical to the OEP’s ability to fulfil its duties—indeed, to it having the teeth referred to by the noble Baroness, Lady Jones of Moulsecoomb—can he say how the numbers are to be determined and why that margin is quite so wide?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Yes, I asked rather the same question of officials, if I may say so. The OEP must lay its annual statement of accounts before Parliament, including an assessment of whether it has been provided with sufficient funds to carry out its functions. Clearly, we want to get the OEP set up and we need to establish a board and a chair before it becomes operational. We will have to see. As I say, I used the figure of 60 to 120 people. It may be 100. We are not setting a distinct figure. What we want is for the job to be done properly.

Photo of Lord Teverson Lord Teverson Chair, EU Energy and Environment Sub-Committee

My Lords, it is well known to the Minister that perhaps one of the greatest reasons for the Government taking notice of the Commission and its powers and beyond is that the Commission is able to fine Governments who do not comply as an ultimate sanction. Will the OEP have that power over the United Kingdom Government?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, the distinction is that under the EU arrangements the Commission may bring legal proceedings against a member state Government only. Under our domestic legal arrangements, we believe that fines would simply move money around the domestic public finance system. Indeed, fines may also shift resources away from their intended use in implementing measures to protect the environment. The key point is that if a public authority failed to comply with a court order, the OEP would be able to bring contempt of court proceedings, which could lead in turn to fines being imposed.