Amendment 82

Environment Bill - Committee (3rd Day) – in the House of Lords at 4:30 pm on 28th June 2021.

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Lord Cameron of Dillington:

Moved by Lord Cameron of Dillington

82: Before Clause 21, insert the following new Clause—“Office of Commissioner for Environmental Protection (1) The office of Commissioner for Environmental Protection is established.(2) It is for Her Majesty by Letters Patent to appoint a person to be Commissioner for Environmental Protection.(3) Her Majesty’s power is exercisable on an address of the House of Commons. (4) It is for the Prime Minister to move the motion for the address.(5) To do so the Prime Minister must have the agreement of the person who chairs the Environment Audit Committee.(6) The person appointed holds office for 10 years, and may not be appointed again.(7) The Commissioner for Environmental Protection is by that name to be a corporation sole.(8) The Commissioner for Environmental Protection is to be an officer of the House of Commons.(9) But section 4(4) of the House of Commons (Administration) Act 1978 (which provides for the application of provisions of that Act to staff employed in or for the purposes of the House of Commons) does not apply in relation to the office of Commissioner for Environmental Protection.(10) The person who is Commissioner for Environmental Protection may not be a member of the House of Lords.(11) The Commissioner for Environmental Protection is not to be regarded—(a) as the servant or agent of the Crown, or(b) as enjoying any status, immunity or privilege of the Crown.(12) The person who is Commissioner for Environmental Protection may not hold any other office or position to which a person may be appointed, or recommended for appointment, by or on behalf of the Crown.(13) Before a person is appointed as Commissioner for Environmental Protection, remuneration arrangements are to be made in relation to the person jointly by the Prime Minister and the person who chairs the Committee of Public Accounts.(14) The Commissioner for Environmental Protection may resign from office by giving written notice to the Prime Minister.(15) Her Majesty may remove the Commissioner for Environmental Protection from office on an address of both Houses of Parliament.”Member’s explanatory statementThis amendment is to help secure the independence of the OEP by making its chief executive a separate office holder appointed by the House of Commons. It is modelled on provision made for the Comptroller and Auditor General under the Budget Responsibility and National Audit Act 2011.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench

My Lords, I know this group of amendments is unlikely to find favour with Defra. While I normally contribute to our debates in this House in what I hope is a dispassionate, calm manner, I have to say that on this occasion, I feel quite passionate about this issue. I am what I would describe as “a very cross Bencher”.

In the early days of Brexit planning, we were promised that we would have as near a replication of the EU environmental oversight of our organisations as is possible. At the time, Michael Gove, the then Secretary of State, was reported as saying that he thought that putting Defra in charge of the OEP would not be suitable. As ever, he was right.

The OEP will be at the centre of our country’s new environmental future post Brexit. We all have great hopes and expectations for it—some, I suspect, possibly too high. But within all our ambitions to secure a cleaner, more sustainable and more biodiverse future, I cannot stress how important it is that we get the OEP right—and at the moment it looks as though it will be a mere tool of the very body it should be overseeing.

I know that the EU regime we are leaving could not possibly be the same as any domestic arrangement we might replace it with, but, as I say, in the early days we were promised “an equally effective regime”. So it is worth reiterating what various ex-Ministers have said: namely, that in the past, the mere threat of the EU Commission taking action against the Government had departmental Ministers and Secretaries of State quaking in their shoes. And you can understand why. As an example of the punishments doled out by the ECJ, at the behest of the Commission, in 2014 Italy was fined €40 million, with an additional fine of €42.8 million every six months that the issue of dumping illegal waste remained unresolved—as I believe it did for at least one six-month period. Again, in 2015, Italy was fined €20 million and a further €120,000 each and every day that the region of Campania failed to resolve its waste-management problems.

The interesting thing about that last case is that it was the Italian Government who were fined, not the regional council of Campania, which was at fault. I say this because when Professor Macrory—who I see has now joined the shadow OEP board—gave evidence to our Lords environment committee last year or the year before, he emphasised that the Commission infringement proceedings were always directed at Governments, even if the breach was by another public body. He argued that, if possible, this should be replicated post Brexit, with the OEP’s enforcement powers being directed solely against Secretaries of State. But of course, that would be impossible under the current proposed arrangements, because it would mean the Defra Secretary of State taking himself to court.

In this context, it is worth remembering that the EU Commission took the UK to court for infringement 34 times in total and won 30 times. There is no reason to suppose that the frequency of infringements by UK public bodies will not continue into the future. Why would that change? Our institutions remain as fallible and, dare I say it, as underfunded as ever. But now, the Secretary of State will stand between the OEP and the infringing body, rather than taking the hit, as he or she should.

I must repeat what I said at Second Reading: this has nothing at all to do with our trust in the present Ministers, in whom I recognise a total commitment to the environment, but we have to think what will happen if, in the future, we find ourselves with a disinterested, or maybe just incompetent, Secretary of State and an overcontrolling department. The decisions that we make in this Bill could still be affecting the governance of our environment in 40, 50 or even 60 years’ time. So I say again: the auditing and bringing to book for environmental rule-breaking by our relevant public bodies, the most important of whom are within the Defra family, is unlikely to happen when Defra gives the guidance to, and controls the budget of, the OEP.

Let me tell you a story. I had a friend who was a regional director of MAFF in the 1980s. He had a farming neighbour who had a grouch about some MAFF policy—I am afraid I cannot quite remember exactly what it was—and he asked my friend to help him write a letter to the Secretary of State. Of course, in those days he was called not the Secretary of State but the Minister of Agriculture. Anyway, in due course the Minister, having received the letter—largely written by my friend—sent it down to my friend, the regional director, and asked him to draft a reply to him, refuting the farmer’s complaint. So my friend, no doubt employing his best departmental penmanship, wrote the reply for the Minister to send to the farmer. And then, of course, the farmer brought the Minister’s letter to my friend, asking him to help draft a further response for him to send back to the Minister. And so he did. Rather like someone playing chess against himself, he ended up having quite a long, rather enjoyable, correspondence with himself over several months, writing letters for both sides of the argument.

You can see where this is going, because that is precisely what will happen when, for instance, the OEP is threatening the Environment Agency with proceedings. The Secretary of State may not be actually writing the correspondence, but you can bet that he will be monitoring it and ensuring that, in whatever is said by either side, no blame could possibly fall on either him or his department. We know for sure that many of the current failings of the Environment Agency and Natural England are a direct result of them being starved of funds by Defra—and, also, incidentally, being subtly indirectly controlled by that department. So much for Professor Macrory’s wish that the buck should always stop with the Secretary of State.

Just last week, I was talking to an organisation about our rivers, and it was saying that it is lawlessness out there, because no one is monitoring, inspecting or enforcing the rules on our rivers, since the Environment Agency has been starved of funds in this respect. That is what it said, and when you read the evidence given to the Environmental Audit Committee last month, it is clear that it is right. The buck should stop with the Secretary of State, or at least his department, and he should definitely not be the one controlling the buck.

That brings me to the Minister’s claim, in his admirably full letter to us all last week—for which I thank him very much—that the OEP will be a non-departmental body. I am afraid that, in my view, the phrase “non-departmental body” is widely overused and wrongly applied in today’s political world. As an ex-chair of the Countryside Agency, I can say that it was not always thus—at least, it was not when I reported to the Department of the Environment, before we came under the control of Defra—but in the modern political climate of total control from the centre, free-speaking bodies within Government are no longer tolerated.

There is no doubt in my mind that, like the Environment Agency and Natural England, the OEP in its present guise will be very much a departmental body. I should say that this is a phenomenon not unique to Defra: at DCMS, for instance, the Secretary of State went ahead and appointed a new chair of the Charity Commission in spite of the DCMS Select Committee voting unanimously against his choice. That could happen with the next OEP chair, although again I state that the current chair has universal support, including mine, for her appointment. My main point is that the OEP must not only always be independent of Defra, but it must be seen to be independent of Defra, and at the moment it is neither. I find that very worrying.

Our amendments are based on both the National Audit Act 1983 and, as the explanation says, the more recent Budget Responsibility and National Audit Act 2011, and what they say about the National Audit Office and the Comptroller and Auditor-General. I must confess that, in spite of the consummate skill of the Public Bill Office—my particular thanks go to Theo Pembroke for his advice—in a few necessarily brief amendments in Committee it is not possible to replicate, with all the necessary and complicated detail, what should probably be a Bill in itself, or, at least, a full chapter in this Bill. It is a principle that we are trying to get across here, so please do not pick us up too much on any perceived gaps and omissions.

The main point is that the NAO can take any department or public body to task for its financial controls and performance. It reports to the Public Accounts Commission, which also sets its budget. The NAO is a well-established part of the checks and balances in our governmental system, dating back to the time of Gladstone. So you see how long these institutions last; that is why we have to get this right. Everybody knows and understands that businesses, public companies and, indeed, public bodies need their finances audited by an independent body—I stress that word “independent”. We are saying that, while the OEP’s budget should also be set and monitored by the Public Accounts Commission, it should report to the Environmental Audit Committee. We need those same checks and balances now in our environmental governance as well as our financial governance. We cannot afford to let Defra just mark its own homework.

With the focus on climate change and the environment in this year’s COP 15 and COP 26, the environment will predominate in the minds of the public. I believe our businesses will emerge from Covid riding on a wave of new environmental enthusiasm. The young are very supportive of the green agenda and are mostly happy to put their money and, sometimes, their careers, behind it, and they will never forgive us if we let them down. Meanwhile, businesses, both large and small, are beginning to investigate the need to have an independent environmental audit to report to their shareholders as well as their statutory financial audit—note again that word “independent”. Governments, especially, should also have an independent environmental audit. The future of our rivers, air, climate and the biodiversity of our flora and fauna all depend on it, but at the moment that is not what is planned.

I know that many noble Lords will think that these amendments are a step too far, and “Why don’t we just fiddle at the edges of what we have been presented with?” But I really do not think that that is good enough. I realise that the art of the possible is the byword of most politicians, but there comes a time when you have to stand up and try to move “the possible” in the right direction—in the direction of what we all know is the public interest—and not kowtow to a department trying to overcontrol its own agenda. I beg to move.

Photo of Baroness Boycott Baroness Boycott Crossbench 4:45 pm, 28th June 2021

It is a great pleasure to follow my noble friend Lord Cameron. Like him, I am very much a “cross”-Bencher in this case. I have been looking through the Second Reading document and would say that there are many cross Lords, all across this Chamber and wherever they are beaming in from, who also completely agree with what he says about the necessary independence of the OEP.

It is extremely chilling to read Defra’s power under Clause 24 to issue guidance on how the OEP should behave and what it should do. At the end of the day, it is the department for the environment but also agriculture and food. Those two areas make up such a massive part of the climate change agenda, how we use our land and how we will reclaim our biodiversity for the future of this whole country. The thought that advice on the levels of control should be given in that department seems quite absurd but also very sinister. Either this is really cowardly or it is an agenda that wants to conceal.

My noble friend Lord Cameron pointed out various cases in which big fines have been able to be issued. Will the Government really be able to fine themselves for transgressions relating to chemicals, the use of neonicotinoids and all the things the EU can cope with at the moment?

Earlier this afternoon I spoke about the grubbing up of trees at the barracks near Grantham. When the Minister answered us, he said that neither he nor his colleagues wanted to see any of these grubbed up. I have used the intervening time to look up the remit of Homes England. This is what its website says—it is such a good quote:

“We’re the government’s housing accelerator. We have the appetite, influence, expertise and resources to drive positive market change.”

If you scroll down to look at what it is responsible for and its priorities, there is not one mention of the word “environment”, climate change or care and attention to how we live. I wonder how this will work out if a case is brought by those children—by Callum McLelland, the 15 year-old who planted a tree when he was seven. If he decides to bring a case, will Defra say, “We don’t want this case”?

I also point out that, like my noble friend Lord Cameron, I do not doubt for a second the authenticity and sincerity of the current holders of the office, both in this Chamber and in the other place. I know they mean what they say and do their best, but this is statute that has to stand for ever. It will probably stand when we are all dead.

For instance, I would like to bring to noble Lords’ attention the situation with the recent Australian trade deal. As I understand it, Defra did not approve of it, but it was overridden by the department for trade. We will accept animals into this country such as sheep that have been subjected to the practice of mulesing. If any noble Lords do not know what that is, it is the process of ripping the skin off a lamb’s backside so that it forms scar tissue and then is not vulnerable to flies. The department for trade won.

Government is complicated and messy. There are lobbyists, and a lot of money is being thrown around. The Tory council of Horsham, where Knepp is threatened by 3,500 houses—this was in the Sunday Times eight days ago—has received £600,000 from these developers. There is much going on like this. We need an agency that can stand up to it, act quickly and with independence and that does not have to run to the Minister and say, “Is it okay if I do it?” Please support my noble friend Lord Cameron’s excellent amendment.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

I am delighted to support and speak to the amendments in this group. As we are considering in detail a number of amendments relating to both the independence of the OEP and its budget, resources and staffing, I will keep my comments on this group limited to parliamentary oversight and scrutiny.

The noble Lord, Lord Cameron, and I served together on the EU Environment Sub-Committee, and I think he is the sole survivor of that committee to now be on the Environment and Climate Change Committee. He carries the candle for us all in that regard. I am grateful to him for tabling these amendments and agree entirely that we were promised oversight as near as possible equivalent to and as effective as that which pertained through our membership of the European Union, and that my right honourable friend Michael Gove, in the other place, said that it would be inappropriate for Defra to be in charge in the way that, it has now become apparent, it will be.

On balance, I prefer the amendment in the name of the noble Baroness, Lady Jones of Whitchurch, supported by the noble Baroness, Lady Young of Old Scone, which would ensure that appointments would not be made without the consent of the Environment, Food and Rural Affairs Committee and the Environmental Audit Committee. On a number of occasions during my tenure as chair of the EFRA Committee, we conducted pre-appointment hearings. I do not know whether there was a pre-appointment hearing in this case, but we know that Dame Glenys Stacey is now in place. My first question to my noble friend is: was there such a pre-appointment hearing? Was it carried out by one, the other or both of those committees? I think I am right in saying that Amendment 85 breaks new ground in suggesting that the other non-executive members of the OEP would also face a pre-appointment hearing. I do not know whether that has ever happened before.

The reason why the amendments are so welcome, particularly Amendment 85, is that it gives us the opportunity to ask my noble friend to set out precisely what the parliamentary oversight of the OEP will be. I argue very forcefully not just for a pre-appointment hearing by the two committees in the other place but for opportunities to have the chair of the OEP, Dame Glenys Stacey, in annually for a full review of its work.

It is important to ask my noble friend one last question. When we were preparing the report to which I referred earlier, Beyond Brexit: Food, Environment, Energy and Health, the Secretary of State told the EU sub-committee—he is quoted at paragraph 162 of the report—the following:

“It is important to note that the chair of the OEP, Dame Glenys Stacey, has already been appointed and is in post … It is already able to receive complaints. Until it has its full legal powers, there is a limit to what it can do to act on those complaints. If the European Union wanted to have dialogue with the OEP for the purposes of that part of the agreement, which really is only about cooperating and sharing, there would be nothing to prevent that from happening in this early stage.”

I would go further and press my noble friend to ensure that there is an obligation, particularly in the early stages while the OEP is being set up and finding its feet, to have regular contacts with the European Commission to find out its exact approach. It may take a different view, but it would be helpful to have at least some background in this regard. It is my certain understanding that Environmental Standards Scotland has already had such contact. It would be highly regressive and retrograde if the OEP, representing England, did not replicate that.

I am also concerned—I hope my noble friend will put my mind at rest—that it should not be in any shape or form admissible or possible for the Secretary of State for Environment, Food and Rural Affairs to lean on the independent chair of the OEP and suggest that she not take up a complaint, were she minded to do so. According to my current understanding of the OEP’s composition and independence, the situation in that regard is by no means certain. I commend these amendments, and in particular I have great sympathy with Amendment 85.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, the noble Lord, Lord Cameron of Dillington, introduced his amendments extremely well. There is not much I can add except to say that it is widely recognised across the House that the office for environmental protection is not currently fit for purpose—it is too weak and easily ignored. It is therefore pretty much a done deal that your Lordships’ House will amend this Bill to strengthen the OEP. I hope that when we do, we can come up with the strongest possible options.

The OEP needs status as well, which the noble Lord, Lord Cameron, pointed out. The amendments would give it that status and, more importantly, they would help to ensure the independence of the office, establishing the commissioner by letters patent from the head of state, which would prevent the Government meddling. That is the sort of level of ambition that we should be setting for our environmental watchdog. Parliament is also the proper place for the OEP to be accountable to. The point made by the noble Baroness, Lady McIntosh, about exactly how that will happen was quite useful.

Getting the appointments process right is a key step towards ensuring the strength of the OEP. Its members cannot be hobbled by the Government, cherry-picked by Ministers, or be friendly with the Government. I therefore look forward to discussions over the coming weeks to get this right, and I hope that the Minister will work co-operatively with noble Lords from across the House. Anything less would be to consign future generations to a poorer, dirtier, sadder life, and none of us wants that.

Photo of Lord Krebs Lord Krebs Crossbench

My Lords, before I turn to the amendments in this grouping, I refer to a comment that the noble Earl, Lord Caithness, made in relation to the grouping including Amendment 73 when he pointed out that the Minister had not actually answered my question. In his reply the Minister said he had answered it, but I will just repeat the question which he did not answer—I do not expect him to answer it right now but I hope he will at some point. I said: “Can the Minister explain why he considers the introduction of proportionality necessary, when the precautionary principle, according to the High Court, already includes proportionality?” I then went on to quote in detail the judgment of 28 May 2021 from the High Court. I therefore hope that at some point the Minister will respond to that question.

I support all the amendments in the group including Amendment 82 and I am especially grateful to my noble friends Lord Cameron of Dillington and Lady Boycott for leading us into what is perhaps the core debate of the Bill: the role and nature of the office for environmental protection. As has already been said, this is the first of a series of amendment groupings that we will discuss in the coming hours which deal with the independence and enforcement role of the OEP.

The Government promised us a strong and independent OEP and, as we have already heard, many of us feel that we have been short-changed. I remind your Lordships of a score line: 25-0. This is not the forecast for the England-Germany game tomorrow but the number of speakers at Second Reading who expressed concerns about the OEP not having enough independence or teeth—25—versus those who thought it had too much of both: zero. There is no doubt about the strength of feeling across the House on this matter. As others have already spoken with great force and clarity on the issues, I wish to add only one personal anecdote, relating to ministerial involvement in appointments. This is particularly relevant to Amendment 85 in the names of the noble Baroness, Lady Jones of Whitchurch, and the noble Baroness, Lady Young of Old Scone.

A few years ago, when I was chair of the Adaptation Committee of the Climate Change Committee, I went through the standard appointments procedure to select two new committee members. The selection panel was chaired by a Defra senior civil servant and included the requisite independent member. The panel unanimously agreed on the two best candidates. The then Secretary of State rejected both candidates because she did not think they had the right profile to serve on the committee.

If we are to have confidence in the genuine independence of the office for environmental protection, there has to be some transparency and independence about the recruitment, not just of the chair but of board members, as proposed in Amendment 85. I therefore hope that the Minister will take that amendment and the other amendments in this grouping seriously and that he will respond appropriately.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, while I do not support every detail of Amendment 82 and tend to prefer Amendment 85, the amendment in the name of my noble friend Lord Cameron of Dillington makes a very important point of principle, which I support. The independence of the office for environmental protection is crucial if it is to have public confidence. As the Constitution Committee, of which I am a member, said in its report on the Bill:

“It is essential that such an important public body be independent of the government.”

It is true that paragraph 17 of Schedule 1 states:

“In exercising functions in respect of the OEP, the Secretary of State must have regard to the need to protect its independence.”

The question is whether the provision in Schedule 1 is sufficient and appropriate to ensure that independence. I very much doubt that it is sufficient, which is why I said what I said at the beginning of this intervention.

The amendment, which provides for the appointment of a commissioner who is to be the chief executive of the OEP, would be well worth considering as an additional safeguard for the composition of this very important body, as indeed the alternative suggestion in Amendment 85 would be.

The provisions of Clause 24 about guidance by the Secretary of State to which the OEP must have regard in

“preparing its enforcement policy, and … exercising its enforcement functions” are worth bearing in mind, because they show how important it is that it should be seen to be independent when, as will so often happen, a government proposal raises environmental concerns. The words “have regard to” are not the same as “must follow”. They leave room for independent thought and judgment. It is that aspect of independence which is so important, and why the amendment in the name of my noble friend Lord Cameron is so well worth considering carefully in this debate.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the noble Baroness, Lady Young of Old Scone has withdrawn, as she is listed twice on this list and will not be speaking in either place, so I call the noble Lord, Lord Cormack.

Photo of Lord Cormack Lord Cormack Conservative

A few moments ago the noble Lord, Lord Krebs, referred to this as the core amendment of the Bill. In many ways it is, because the success of the Bill depends upon having a totally independent, vigorous, courageous person who can stand up to any Minister and who has the authority to call the Government properly to account for infringements of an environmental nature. One thinks of the debate we had last week about the pollution of rivers and the ability to fine—the noble Lord, Lord Cameron, in his admirable introduction to his amendment talked about the swingeing fines that have been imposed upon Italy, among other countries.

If the Bill is truly to become a landmark Act of Parliament—again I use those words, which have been used so often—it has to stand the test of time. We are not legislating for the next five years or even for the next 25 years—a figure that has cropped up before. We are legislating to lay the foundations for an environmental system that our grandchildren—in the case of some of us, our great-grandchildren—will depend upon. We cannot be fobbed off with the answer that this is more or less another function of the Secretary of State. The noble Lord, Lord Cameron of Dillington, has spelled out many things—I do not agree with all of them—which are of great importance to us all.

I have some doubts about appointing a person for 10 years; I would prefer the electoral cycle of five years, although emphatically not to coincide with a general election. I would be entirely happy with an appointment for five years, to be renewed for another five years, but not longer. So I agree with the noble Lord, Lord Cameron of Dillington, on the overall length, but we have to be a little cautious about appointing any individual for a 10-year period. Things can go wrong, and it can be very difficult to get rid of people who are not fulfilling their function.

This is a minor point, but I also think we should not rule out Members of your Lordships’ House. We have a number of people who are highly accomplished and who could fulfil such a role. Of course it would be necessary to stand down from active membership of the House, as the noble Lord, Lord Smith of Finsbury, did, but we have provision for that. It is possible to take leave of absence, and if anybody is appointed to a very important position, as the noble Baronesses, Lady Ashton and Lady Amos, were, they do not function as a Member of the House during that period. To rule out somebody by virtue of his or her membership of the House is wrong and unnecessary.

The noble Lord, Lord Cameron, hit on many other important points. There has to be a degree of independence. He talked about the Comptroller and Auditor-General as an example on which he has drawn. There has to be independence and vigour and strength—it is crucial.

The noble Baroness, Lady Jones, in her inimitable way, talked about Report. I say to my noble friend, not in any spirit of threat, that there must be meetings with Members of your Lordships’ House between now and Report, otherwise the Government will get a lot of egg on their face and the possibility of a 1 November deadline will vanish. I do not say that in a threatening spirit and, in particular, I say it in no spirit of animosity towards any of the Ministers concerned, either my noble friend or those in the other place. A number of people, including the noble Lords, Lord Cameron and Lord Krebs, have made that point this afternoon. We are not expressing doubt in their sincerity or wisdom, but we are saying that if they are creating something for generations to come, they have to bear certain things in mind. We do not need recent examples to remind us that Ministers do not always end in a blaze of glory.

This is a core amendment. It is something that I, and I am sure others, would like to sit down and discuss with my noble friend before Report. If we can reach agreement by compromise or discussion, it is always better than dividing the House, because if any Bill deserves—needs—the support of Members in all parts of your Lordships’ House, it is this one. The environment we are talking about is ours and, far more important than that, we are legislating for the environment of our children, grandchildren, great-grandchildren and beyond, otherwise there is that fear of extinction, about which we talked the other day.

I support the spirit of all these amendments and very much hope that we will be able to come to a collective decision that will enhance the Bill and make it a Bill that has real teeth, with a body created by it that has real teeth and can deal with real problems in a vigorous way.

Photo of Lord Framlingham Lord Framlingham Conservative 5:15 pm, 28th June 2021

My Lords, I am very happy to support Amendment 82. I thank the noble Lord, Lord Cameron, for dealing with it so comprehensively that I feel there is little more for me to say.

I speak to support the view that the office of environmental protection must not only have teeth but must be totally independent from all strands of government. There are many good reasons for this. Independence is, in a way, self-explanatory and a good thing in itself, but it is even more important to spell out that it must be independent of government when the judgments it will have to make may well be on cases in which a government department is involved. Additionally, I suspect there may be environmental transgressions, such as on effluent disposal, where much tougher punishments are required, and in some cases present legislation may be adequate but it is simply not being enforced correctly. The culprits may well have links to the Government, or the Government may, for various reasons, not be prepared to take as strong a line as they should.

In summary, it has been described as a core part of the Bill. I am not too sure what significant difference to the protection of our environment the creation of this office will have. I suspect much will depend on the approach and, more importantly, the resolve of the person appointed to the task. By giving it true independence, we can at least give it the best possible start.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, when the office of environmental protection was mooted, I hoped it would be on the same basis as the Climate Change Committee, and be totally independent of government. When that was not the case, I hoped that the structure of the Bill would be that advocated by the noble Lord, Lord Teverson, and that that part of the Bill should be within the remit of the Climate Change Committee, which is sufficiently independent.

I remember when I was a Minister, and that was many blue moons ago now, being quite irritated at times by the interference of Brussels. We had perhaps some of the best civil servants in the whole of the EU then; my advice was excellent, and I thought that what we were doing was right. But on reflection, perhaps we were not that right. I remember I once lost a Division and went to the Leader, the late Lord Whitelaw, and said to him, “Willie, I’m terribly sorry, I lost that amendment”. He looked at me and said, “Malcolm, perhaps they were right”. Perhaps the Government are wrong on this occasion. As I see it, the problem is that Defra will remain judge and jury, and there is a route for disaster.

I shall give two examples. One example is the water authorities, which I helped to privatise in the mid-1980s. My friend, the late Lord Ridley of Liddesdale, made a revolutionary change in policy by taking control of pollution away from the water authorities and handing it to the National Rivers Authority. The water authorities were outraged, but it was right. What went wrong was that the NRA was amalgamated into the Environment Agency, and the money for the Environment Agency was reduced so that the controller of the polluting companies did not exercise the brake that was needed. We talked about that a couple of days ago.

The other government department that is a classic example of judge and jury is the Forestry Commission. I know that my noble friend on the Front Bench agrees that the Forestry Commission has been an utter disaster for this country. It has cost the taxpayer a huge amount of money and planted the wrong trees in the wrong places with the wrong policy. I hope that that is beginning to change. I have been banging on in this House on that for more than 50 years, but at long last I am being proved right.

I would really like the OEP to be seen to be independent. Not only does it have to be independent, which it is not under the Bill—as the noble and learned Lord, Lord Hope of Craighead, said, the schedule is not strong enough—it has to be seen to be independent. My noble friend Lord Cormack was right: this is better done by negotiation. The Government will get defeated on Report on this, but it would be far better if we got an amendment that we could all sign up to, because that would send a message to everybody who will be affected by the Bill—which is the whole of the country—that there is unanimity in Parliament that that is the right way forward. At the moment, as I said to my noble friend when he was kind enough to have a meeting with me, I am unhappy with the OEP. I am not quite certain what the right amendment is, but I know that there is one out there if we all make an effort to get it right.

Photo of Lord Whitty Lord Whitty Labour

My Lords, there has been near unanimity in condemnation of what is currently in the schedule to deliver a really independent body of the kind we want. As the noble Lord, Lord Cameron, said in a formidable opening address on the group, we want to create the same degree of fear, almost, in public bodies that the possibility of the European Commission intervening and fining this country provided before Brexit. What is envisaged in the Bill goes nowhere near that.

Frankly, we know that there are precedents for what happens to so-called independent bodies. I had expected to speak after my noble friend Lady Young and just before my noble friend Lord Rooker. It is instructive that one was the chief executive of the Environment Agency and the other the chair of the Food Standards Agency. When the Environment Agency was first set up in the 1990s, to which the noble Earl, Lord Caithness, just referred, there was a lot of talk about independence, but in fact it became part of the Defra family. Its independence was limited by successive Governments over the whole of that period. Under the coalition Government, it was restricted from briefing parliamentarians or engaging in anything that amounted to a campaign in the eyes of the then Government. Subsequently, of course, its funding has been seriously cut. The Environment Agency is doing an effective job on limited resources, but it is not independent of government.

The other example is the Food Standards Agency. The FSA is a non-departmental body, but as soon as it started straying into areas of interest to the Department of Health on diet, health advice and well-being, those functions were taken off it and ploughed back into the Department of Health. It was right to take it out of its origins in MAFF, but in practice it was never completely independent of government, much though the efforts of my noble friend Lord Rooker and others tried to make it so.

We want a truly independent body on the environment to face up to the immense challenge of climate change and biodiversity diminution. This is not it. I agreed with pretty much every word that the noble Lord, Lord Cameron, said. I do not entirely agree with his amendment—like others, I prefer the amendment in the name of my noble friend Lady Jones of Whitchurch—but, as recent speakers said, the Government really do need to take notice of the overwhelming view of the Committee that this will not do. To be truly independent, the OEP needs not just a formal position and designation as a non-departmental body; it needs powers, which are insufficient in the Bill; it needs provision for how its composition is established, which is not fully in this Bill; and it needs powers of enforcement, which we will consider later in Committee and which are, at the moment, clearly completely inadequate to the task.

This is the central part of the Bill. The Government have to think again. If they can come up with a better proposition then let us seriously consider it, but what is in the Bill at the moment is not adequate. None of us believes that it is, and I doubt whether the Government themselves—and the Minister in particular, if I may say so—really believe that it is. Let us think again and try to get something better before the Bill completes its course.

Photo of Lord Rooker Lord Rooker Labour

My Lords, I agree on the importance of this part of the Bill. Indeed, it is the only part of the Bill that I dealt with at Second Reading, on governance issues. The noble Lord, Lord Cameron, introduced Amendment 82 very well. We might argue, but as the noble Lord, Lord Cormack, said, somewhere there is an alternative to what is in the Bill. We just have to find it, because the Minister and his advisers will appreciate that this will not get through the House.

I sat on the environment sub-committee of the Lords EU Committee for a few years. The early promises about the governance gap are not being filled with this Bill. I will not quote again the article that Michael Gove wrote in November 2017, when he was Defra Secretary of State, accepting the fact that there is a gap, but I will refer to what the noble Lord, Lord Cameron, referred to, which is the 30 out of 34 wins by the European Court of Justice on environmental issues. You have to ask yourself about this: it won on 30 out of 34 cases. That meant that the UK Government were refusing to do something that caused them to be taken to court. Both parties were involved, by the way. The UK Government did not want to do something—whether it was cleaning up the beaches, making water safer, it does not matter: they did not want to do it. But the European Court of Justice and the Commission took the case to the court, and the court decided, “Yes, you will”, in 30 cases out of 34. When I checked, the other four were undecided.

I know from my own experience inside the department that the threat of infraction meant that you got cracking, talked to the Treasury and said, “Look, we ought to do this. Can we have a few more quid or move some budgets around to satisfy this? Otherwise, we’ll be penalised with a bigger fine than what this will cost us.” That is what actually happened in some cases. I know from experience that this is the way that it works.

I also know, of course, that Defra loves control. In my first two years as a Minister, from 1997 to 1999, I was at MAFF. I was then at Defra from 2006 to 2008—the same department, basically. The point that I am making is that the culture was the same; it was about control. This probably would not happen, but it would be very interesting to have some interviews—exit interviews would be the wrong thing—with people who are no longer serving on some of the bodies, particularly Natural England and the Environment Agency, as to what happened. I know to my certain knowledge that Defra leant on Natural England.

When we were setting up the Food Standards Agency in 1998 and 1999—I might add that my noble friend Lord Whitty was wrong on this, as it is a non-ministerial department with a different structure from a non-departmental public body—I discovered, because of the capacity and willingness of Defra civil servants to adhere to the policy of the Government, that there was an attempt at the highest levels in Defra to convert that agency to an executive agency of MAFF. The department wanted to keep control, even with all the problems we had in setting up the agency. Despite the report from Philip James and the manifesto commitments, they still thought at the last minute that they could keep it as an executive agency. It would have been the ultimate control, if you like, of having an executive agency compared to a non-ministerial department.

As a non-ministerial department, it was therefore part of government. I accepted that and had no problem with it. The coalition Government who came in during 2010 decided to have some machinery-of-government changes. Because the noble Lord, Lord Lansley, wanted to abolish us, the price of that was to remove certain issues from the FSA and take them back to health, so they are now dealt with behind closed doors and we have lost a few years in health.

The fact of the matter is that the OEP cannot be truly independent; think about the C&AG and the only Select Committee that I ever served on in 27 years in the other place, the Public Accounts Committee. I know the value of that and there is a degree of independence there, because of statutes that go back a long time. There was a massive cross-party willingness, including from St John-Stevas and Joel Barnett, as they were in those days, to get the legislation through when the NAO was set up and modernised out of what there was. That has worked incredibly well.

One noble Lord—it may have been the noble Lord, Lord Krebs—referred to Homes England. There is an issue there. We might look at what happened to Homes England, as it recently lost its CEO. Think about that.

I do not want to have a row with the noble Lord, Lord Cormack, but he cited two very poor examples: my noble friends Lady Amos and Lady Ashton. They both went to work for overseas bodies, one as an ambassador and the other as an ambassador within the EU. It is not the same as in this place. We have a Member of this House who has recently had a very high and important job inside the NHS but keeping the party whip and still voting on a daily basis.

The idea in Amendment 82 is to keep the OEP independent. Perception is pretty crucial and it would ensure that nobody in this place had a role. I am not saying that Amendment 82 is perfect but I can certainly live with it. Amendment 85 is excellent, of course.

I would prefer not to have any lectures from the Minister about the incumbents operating in the OEP. I have worked with those people in government. I know they are very good, so I need no lectures saying, “We have got so-and-so and therefore”, and so on. I know their quality, but that is for today and this year. As several people have said, we are legislating for the future so we have to make this legislation future-proof, and it is not at the moment.

I am sure there are some solutions. There are plenty of opportunities to have a discussion about how this could be seen as the perception of independence. We are otherwise going to end up with lots of court cases and have lots of lawyers—probably Members of this place—earning their corn by arguing that decisions have been made in a non-independent way. I can see it now, with court case after court case; why should we set ourselves up for that? There is an opportunity here, if we go back to first principles and think about what the job is. I could live with it going to the Climate Change Committee, by the way. That has been extremely successful and operated in a different way, because there was no such body previously. We have had enough warnings from the past.

Finally, I realise that this is probably one of the most difficult aspects of Brexit because we are trying to legislate for a function that we cannot possibly replicate: to fine the British Government. When we were in the EU and subject to infraction and court proceedings, this was different. There was a sanction on the Government made externally from the UK Parliament. We might have complained about it and did not like all the decisions—even as a Minister, I did not. But that was not the issue, as the sanction had been made by an independent, outside body. We cannot possibly replicate that exact situation here and now, as no body which we can set up could have the power to fine the Government. But we can set up a body that works independently from government, to ensure that the parts of government and the private sector do what they should. It can be done without financial penalties being necessary—there are other ways of doing it—but that power is not in the Bill. That is the point; the power is not there, and unless it is the Bill will fail.

Photo of Lord Oates Lord Oates Liberal Democrat Lords Spokesperson (Energy and Climate Change) 5:30 pm, 28th June 2021

My Lords, I am pleased to speak from these Benches in favour of the amendments in this group and to commend the noble Lord, Lord Cameron of Dillington, and the noble Baroness, Lady Boycott, for their excellent and powerful introduction of them. If I may paraphrase Oscar Wilde, I say to the Minister that for the Government to provoke the crossness of one Cross-Bencher is in itself careless, but to provoke the crossness of two is surely dangerous, particularly if those Cross-Benchers are as reasonable and thoughtful as the noble Lord and the noble Baroness. It is not just the Cross-Benchers who are cross; noble Lords have heard from across the House a rejection of the approach that the Government have taken.

One of the reasons for the crossness is that, as the noble Lord, Lord Krebs, and many others have said, we were promised a strong and independent office for environmental protection. The then Secretary for State for Defra, Michael Gove, said in a speech on 16 July 2019,

“we have to create … a new Office for Environmental Responsibility to hold government to account.”

He went on to say:

“There is obvious merit in their argument that any body which is designed to hold the Government to account is independent of ministerial interference.”

He promised:

“An Act that combines … comprehensive objectives with strong enforcement powers”, but the OEP currently has no such independence. It has no strong enforcement powers; its members will be appointed, and its budget set, by the Government. It will be subject to the guidance from the Secretary of State on enforcement—the Secretary of State who should be subject to that enforcement—and its effectiveness will be undermined by the constraints placed on judicial enforcement.

As the noble Lord, Lord Cameron of Dillington, said at Second Reading, the office for environmental protection

“has not only to be independent but to be seen to be independent. As currently set up, it is neither”.—[Official Report, 7/6/21; col. 1206.]

That is why the amendments in his name and that of the noble Baronesses, Lady Boycott, Lady Jones of Whitchurch and Lady Young of Old Scone, are so important. As we have heard, Amendment 82 puts it beyond doubt that the OEP would be accountable to Parliament, rather than to the very Minister and Government who may be subject to its enforcement powers. It would do so by making it clear that the CEO is to be the commissioner of environmental protection.

Amendment 85, in the names of the noble Baronesses, Lady Jones and Lady Young of Old Scone, seeks to provide a greater degree of scrutiny and independent involvement in appointments to the OEP through the Defra committee and the Environmental Audit Committee. I may have misunderstood, but I did not see a conflict between the amendment of the noble Lord, Lord Cameron, and that of the noble Baroness, Lady Jones, because my understanding is that hers relates specifically to non-executive members, whereas the noble Lord’s first amendment relates to the chief executive in the role of commissioner of environmental protection.

Amendment 91 would provide a means of securing financial independence for the OEP through a role for the Public Accounts Committee. We have heard how important that is. The noble Lord, Lord Cameron, cited the experience of the Environment Agency and how significantly its budget has been cut; as a result, its enforcement powers in many regards have disappeared.

Together, these amendments seek to tackle many of the deficiencies in the Bill as it stands and which, at the moment, fatally undermine the independence of the OEP. I hope the Government will consider them carefully, but I fear that, at the moment, they simply do not understand the concept of independence. In Committee in the other place, Leo Docherty, who was then the assistant Government Whip speaking for the Government, had this to say:

“The operational independence of the OEP … should not impede the” ability of the

“Secretary of State in exercising appropriate scrutiny and oversight of the OEP.”

But it is the OEP that should be exercising scrutiny and accountability over the Minister, so that in itself undermines the case. He went on to say:

“Requiring the Secretary of State to actively protect the OEP’s independence at all times would be incompatible with … ministerial accountability”.—[Official Report, Commons, Environment Bill Committee, 5/11/20; col. 316.]

I hope the Minister can explain those two rather extraordinary statements. If that is the Government’s position then it is quite clear that there is no independence for this office at all.

The noble Lord, Lord Cameron, impressed upon us the need for bold action rather than settling for politics as the art of the possible. To me, politics is the art of making possible what seems impossible. If this seems impossible in Committee, I hope that, by the time we get to Report, it will seem not only eminently possible but absolutely necessary.

I ask the Minister to put aside his ministerial brief and endorse independence of mind both for himself and for the OEP, possibly by backing these amendments, or another form of them if they need to be improved, but certainly by backing the principles behind them and by supporting the arguments that have been made by noble Lords with such cogency and passion.

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

My Lords, we have had an excellent debate. I feel as if I have had a master class from some very experienced practitioners on how government really works and what it is like to be on the inside of some of these decisions.

I shall speak to Amendment 85 in my name. I am grateful to the noble Lord, Lord Cameron, for setting out so comprehensively the case for enhancing the status and autonomy of the CEO of the OEP. As the noble Lord, Lord Oates, has said, those of us who know the noble Lord, Lord Cameron, know it is very unusual for him to be a cross Cross-Bencher, and it is a sign that we should sit up and take notice when he shows so much passion about the issue.

This is the beginning of a debate about the OEP’s lack of true independence which we will have in different forms over the next few groups of amendments. It has been hugely informative to have had insight from previous Ministers and chairs of NDPBs, who know how Ministers’ powers are really exercised behind the public face.

Our amendment is simple but important. It would amend Schedule 1, which sets out the detailed appointment arrangements for the OEP. I very much welcome the support for the amendment from the noble Lord, Lord Krebs, the noble and learned Lord, Lord Hope, and other noble Lords. It would require the chair and other non-executive members of the OEP to be appointed by the Secretary of State only with the consent of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee of the House of Commons. That would prevent in years to come the Secretary of State having complete control over non-executive appointments to the OEP. As Schedule 1 stands, there is a worrying cascade of power from the top. The Secretary of State appoints the chair, and then the Secretary of State and the chair appoint the remainder of the non-executives. So in a future scenario, the Secretary of State would only have to appoint a compliant chair to exert undue influence over all the other appointments to the board.

Meanwhile, noble Lords will know that it is a regular occurrence for Select Committees to scrutinise and discuss appointments to other major arm’s-length bodies. Indeed, in response to the noble Baroness, Lady McIntosh, our amendment reflects the practices that I understood took place in the appointment of Dame Glenys Stacey, where the EFRA Committee and the Environmental Audit Committee carried out pre-appointment scrutiny of the preferred candidate. Sadly, that good practice, and that for other such appointments, has not been carried over into Schedule 1 of the Bill.

I am sure the Minister will say that our fears are unwarranted. He will of course point to the current appointments of Dame Glenys and her team as evidence that the Government can be trusted, and that therefore this measure does not need to be in the Bill. Of course we welcome those appointees, and have absolute faith that they will carry out a good job, but their appointments were made under a huge spotlight, when there was a clear necessity to send the right signals about the OEP’s independence of mind. Future appointments by a future Government may not be so publicly scrutinised, and the opportunity for an easier life may be all too tempting for a future Minister. I hope noble Lords will take our amendment seriously, and I hope the Minister will see the sense of it.

Meanwhile, the proposals from the noble Lord, Lord Cameron, go one step further. They would create a powerful commissioner with the powerful independent authority that the role demands, and we believe they would be an excellent solution. He beautifully illustrated what can go wrong when the Secretary of State has too much control over the OEP. As he and other noble Lords have said, we are legislating not for the present but for 50 or 60 years’ time. Both he and the noble Baroness, Lady Boycott, illustrated the potential farce of Defra fining itself; as the noble Earl, Lord Caithness, said, you cannot be judge and jury. Without guaranteed independence, the threat of political interference will always hang over the CEO and the organisation.

As noble Lords have said, it is not just about being independent but about being seen to be independent. That is the only way in which the OEP’s decisions will be trusted and respected, however controversial they might seem at the time. If it is going to do its job properly, there will always be times when it incurs the displeasure, frustration and even anger of Ministers and the Government. Defending the environment, our natural landscapes and our biodiversity is always going to be a huge responsibility that will, on occasion, require courage to make the right decisions. As the noble Lord, Lord Cormack, says, we require a vigorous, courageous person to stand up to the Government in those circumstances.

The OEP needs to be protected from the consequences of strong leadership and strong actions, otherwise it will be all too easy for the organisation to be sidelined, ignored, starved of funds or even shut down. I am sure the Minister will seek to reassure us that that would not happen on his watch, but, as we have said, we are making legislation for the long term, when future Governments might have different priorities. We have only to look at what happened to the Electoral Commission, which had the temerity to fine Vote Leave for overspending in the Brexit referendum and is now threatened with curbs on its power to take court action, to see how easy it is for an established and respected watchdog to be neutered. Other noble Lords have shared experiences of how Ministers have sought to undermine the organisations that they are part of.

The amendment of the noble Lord, Lord Cameron, would provide a firewall from political interference, by having a commissioner for environmental protection appointed by the Queen through Letters Patent. We believe that this is an excellent proposal. It is the ultimate solution to the concerns about independence that we will be debating today, and I am pleased to hear noble Lords giving full support to these amendments. I hope the Minister is listening to the strength of feeling today. This issue will not go away and, in order to avoid a messy battle, I hope he will feel able to embrace these proposals and come back with some government amendments to satisfy the House before Report. I look forward to hearing that he is indeed prepared to do so.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office) 5:45 pm, 28th June 2021

I thank noble Lords for this important debate. Before I get into the points raised, I thank the noble Baroness, Lady Taylor of Bolton, and all members of the Constitution Committee for their recent report on the Bill’s measures. My officials and I will review their recommendations and will issue an official government response in due course.

In the coming days, we will debate the OEP in detail in numerous groupings, including those on guidance—an issue raised by the noble Baroness, Lady Boycott, and the noble and learned Lord, Lord Hope—and on fines, which were raised by the noble Baroness, Lady Jones, and the noble Lords, Lord Cameron and Lord Whitty. We will also debate it in the group on finance and the group on enforcement, led by Amendment 104. All these issues will be covered in detail.

I will make one or two points on comparisons with the EU. The OEP will be able to liaise directly with the public body in question to investigate and resolve alleged breaches of environmental law. The EU cannot liaise directly with public bodies; only member state Governments can. It can take years for cases to reach resolution through the EU infractions system; our framework will resolve issues more quickly. The OEP can apply for a range of judicial review remedies, such as mandatory and quashing orders, subject to the safeguards we have already discussed. The Court of Justice of the European Union cannot issue these remedies to member states; the only mechanism available to it to ensure compliance with its judgments is the threat of fines several years later. We have the vastly stronger mechanism of mandatory court judgments.

The OEP is being established with a dedicated purpose to monitor the implementation of, and enforce compliance with, environmental law, holding public authorities to account. It is designed specifically for our domestic context, as a non-departmental public body, following the constitutional framework of other public bodies with a watchdog function over government, such as the Committee on Climate Change, which I think most noble Lords who have discussed it would agree has been enormously effective and actually lacks the kind of teeth that the OEP is being given.

Therefore, I reiterate our commitment to delivering an independent body to hold government and other bodies to account. As announced on 7 June, the first non-executive board members have been appointed by the Secretary of State after consultation with the chair designate, Dame Glenys Stacey, and they will soon be available to be involved in activities to support the OEP and any interim arrangements. Notwithstanding the warning that I received from the noble Lord, Lord Rooker, I thoroughly recommend looking at this list of appointees because noble Lords will see the depth of expertise that is already forming within the OEP. This demonstrates a commitment to ensuring that it will be a formidable independent organisation, with environmental protection at its heart.

Turning to the point made by the noble Baroness, Lady Boycott, the Bill grants the Secretary of State no power to interfere in the OEP’s decision-making on specific or individual cases. The Secretary of State cannot tell the OEP what to do in a way that undermines its discretion and obligation to reach its own decisions. There is of course plenty of room for legitimate debate around the measures that may or not be required to improve the OEP in various ways, but I think that even its sharpest critics would balk at the idea that it is merely another function of the Secretary of State, as one noble Lord put it. This is far removed from the reality, and I encourage noble Lords to really go through the detail of the Bill relating to the OEP. Nor can it reasonably be said that, as currently proposed and structured, it will be anything like judge and jury—a point made by my noble friend Lord Caithness said. Again, I encourage noble Lords to actually examine the Bill in relation to the formation of the OEP.

Turning to specific amendments, I begin with Amendment 85 tabled by the noble Baroness, Lady Jones of Whitchurch. I reassure her that there is already a proper role for Parliament in the public appointments process for significant posts, which is to scrutinise the actions of Ministers in making appointments. She will know—as does my noble friend Lady McIntosh—that the Environment, Food and Rural Affairs Committee and the Environmental Audit Committee jointly carried out a pre-appointment hearing with the Secretary of State’s preferred candidate for the OEP chair and confirmed her suitability for the role. We would of course similarly expect the Secretary of State to duly consider any recommendations made by the committees in relation to the appointment of future chairs.

The Government do not believe it necessary to prescribe a particular role for Parliament in scrutinising the appointments of other non-executive members. The OEP chair has been and will in future be consulted on this, as required by paragraph 2 of Schedule 1 to the Bill. Ultimately, Ministers are accountable and responsible to Parliament for public appointments and they should retain the ability to make the final choice. The amendment would reverse this and is unnecessary, given the important role that Parliament already plays.

I turn to the amendments of noble Lord, Lord Cameron of Dillington. I assure him that the Government are committed to establishing the OEP as an independent body, and the provisions in the Bill allow us to do this. The OEP will be established as a non-departmental public body, and we believe that this is the best model to achieve a balance of independence, value for money and accountability. For example, the Climate Change Committee is also a non-departmental public body, as is the Equality and Human Rights Commission, but, in the case of the former, I do not believe that there is any requirement on the Secretary of State to have due regard for its independence.

The OEP will be governed by non-executive members, who will appoint the chief executive as per long-established practice. These members will go through the appropriate appointments process, which is regulated by Her Majesty’s Commissioner for Public Appointments.

My concern is that the amendments of the noble Lord, Lord Cameron of Dillington, could create significant confusion regarding what is a well-established model, leading to a significant delay in getting the OEP up and running. For instance, the chief executive, if there were one, would be subject to a completely different appointment process from the rest of the board and, crucially, the chair, blurring accountability structures both within and outside the organisation.

I assure the noble Lord, Lord Cameron, on his Amendment 91, that several provisions in the Bill already ensure that the funding of the OEP is safeguarded. First, paragraph 12 of Schedule 1 states that the Secretary of State must provide such funding as is considered “reasonably sufficient”. This is a novel provision, intended to work in conjunction with the duty on the OEP to provide to Parliament an assessment of whether it received sufficient funding. Ministers will be held to account if it is deemed that the funding is not sufficient. The OEP may also submit to a Select Committee any evidence that it believes makes a case for additional funding.

The Government have committed to a ring-fenced multiannual funding envelope within the remits of the spending review, which will be regularly reviewed. For added transparency and to enable further parliamentary scrutiny, the OEP’s budget will be set out as a separate line in Defra’s supply estimate.

I hope that this is not outside protocol, but I will answer the question of the noble Lord, Lord Krebs, that I did not answer in the previous debate. He is right that proportionality is an element of the precautionary principle; nevertheless, it is important that proportionality be also applied across all of the five other wider principles in the Bill, not just the precautionary principle. I apologise for not having made that clearer earlier.

I hope that this extensive package reassures the noble Lord, and that he withdraws his amendment.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

I have received a request to speak after the Minister from the noble Lord, Lord Teverson.

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

My Lords, I get the impression from that short reply that the Minister does not understand the gravity of what was said around the Chamber. I understand that we are coming back to this issue and Clause 24 on another occasion, but in his description of the OEP’s relationship to the Secretary of State he asked Members to “examine the Bill”. I am looking at Clause 24, which says:

The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6) (OEP’s enforcement policy).”

If that were not bad enough, the next sentence is:

“The OEP must have regard to the guidance in … preparing its enforcement policy, and ... exercising its enforcement functions.”

That drives a coach and horses through what he has said.

I come back to his point about the Climate Change Committee. Whatever the arguments are about it—and we all believe it is a hugely fantastic organisation for this country—it does not have an enforcement role in terms of the Government; the OEP does, and that is the big difference. Perhaps he could give those items more attention.

Photo of Lord Goldsmith of Richmond Park Lord Goldsmith of Richmond Park The Minister of State, Department for Environment, Food and Rural Affairs, Minister of State (Foreign, Commonwealth and Development Office)

I thank the noble Lord for this question, which relates to ministerial interference in the OEP. Ministers cannot set its programme of activity or in any way improperly influence its decision-making. The Bill does not provide Ministers with powers of direction over the OEP; it requires the OEP to act objectively and impartially and to have regard to the need to act transparently. If it does not, it is breaking the law. The OEP will be free to consider and highlight any instances where is a suspicion of any kind of improper ministerial interference in its decisions.

I know that we will be coming to the issue of ministerial guidance—although I forget which group of amendments it is in—but I will say that the OEP is under no duty to follow guidance if it feels that the guidance is in any sense improper. Indeed, it would be illegal for a Minister to suggest guidance that undermines the independence of the OEP. As I say, we will be coming to this later on and I hope that I will able to address some of the noble Lord’s concerns more completely then.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench 6:00 pm, 28th June 2021

My Lords, I thank all noble Lords who have taken part in this debate—this core debate as the noble Lord, Lord Krebs, described it. Noble Lords from all sides of the Committee seem to support the principle of what our amendment proposes. It was not quite 25-0 as the noble Lord, Lord Krebs, put it, but I think it was 13-0. This is clearly a matter of passion for a lot of people. I am sorry that we could hear the passion of the noble Baroness, Lady Young of Old Scone, because I know that she has had to go to the dentist, which is why she has excused herself. I am sure that we all wish her a very comfortable evening.

I am also quite glad that some noble Lords—the noble Lords, Lord Cormack and Lord Whitty, to be specific—spoke about the details contained in my amendments, and quite right too. As I explained, the words come directly from the Budget Responsibility and National Audit Act 2011. With the Bill Office, we decided not to change any of the words. I wish that we could have been discussing the technical detail of my amendment in the form of further amendments to my amendment—that would have been nice. If we did that, we would have got past the first hurdle of getting the principle of these amendments and gone on to, as it were, the Government’s playing field.

As the noble Lord, Lord Rooker, said in what I thought was a very powerful speech, we cannot replicate what we had in the EU. Maybe my amendments are not precisely what we need, but we do need a body that can hold the Government to account, as the noble Lord, Lord Oates, said and, in particular, hold the family of Defra to account. I note the Minister’s point about the speed of rectification under the OEP compared with the EU, but that is not what we are discussing; it is the OEP’s perceived and actual independence that is the crucial factor.

In answer to the Minister, we have examined the Bill and we have found it wanting in that respect. He spoke very fast and I have to say that I did not catch every point that he made. I will examine what he said in detail later, but there was nothing that, on the surface, I found very convincing. I still think that leaving the OEP within the control of Defra—the ultimate control, as the noble Lord, Lord Rooker, described it—is the equivalent of a batsman being in charge of their own LBW decision. There will be times when the decision is so obvious that, if they were not to walk, there would be riots in the stands. But there would be many more times when the batsman would stand obdurately at the crease because it suits the interests of their own team. I still believe that the OEP, like cricket umpires, should be independent. In the meantime, I beg leave to withdraw my amendment.

Amendment 82 withdrawn.

Clause 21 agreed.

Schedule 1: The Office for Environmental Protection

Amendments 83 to 88 not moved.

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

My Lords, we come now to the group beginning with Amendment 89. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.