Amendment 94

Environment Bill - Committee (3rd Day) – in the House of Lords at 6:45 pm on 28th June 2021.

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Lord Krebs:

Moved by Lord Krebs

94: Schedule 1, page 134, line 3, leave out “have regard to the need to”Member’s explanatory statementThis amendment makes the independence of the OEP an absolute requirement.

Photo of Lord Krebs Lord Krebs Crossbench

My Lords, with the leave of the House, I will move Amendment 94 on behalf of the noble Baroness, Lady Jones of Whitchurch, who will speak later in the group. I will speak also to Amendments 98 and 99, in the names of the noble Baroness, Lady Jones of Whitchurch, and myself; Amendment 100, in the names of the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Teverson; and Clause 24 stand part, in my name and those of the noble Baronesses, Lady Jones of Whitchurch, Lady McIntosh of Pickering and Lady Parminter.

All these amendments concern the independence of the OEP, a topic we have already debated at some length, in particular in relation to the group beginning with Amendment 82 in the name of the noble Lord, Lord Cameron of Dillington, and the noble Baroness, Lady Boycott. Amendment 94 in this group would make the independence of the OEP an absolute requirement, rather than something that the Secretary of State merely has to “have regard to”. Amendment 98 would remove the requirement for the OEP to have regard to the Secretary of State’s guidance, and Amendment 99 would require the OEP to explain why it did not follow the guidance. Amendment 100 and the opposition to Clause 24 standing part both aim, in different ways, to ensure that the OEP is as fully independent as possible, exactly in the spirit of the group beginning with Amendment 82.

I will focus on the contention that Clause 24 should not stand part, which is at the heart of many of the concerns expressed in these amendments. In some ways, Amendments 94, 98 and 99 could be seen as important sticking plaster, but a more comprehensive way of dealing with the concerns expressed in these amendments would be to remove Clause 24 altogether. Clause 24 empowers the Secretary of State to issue guidance to the office for environmental protection on its enforcement policy, including how it should determine whether a failure to comply with the law is serious. However, the clause does not define what constitutes serious, nor the areas in which the Secretary of State should not give guidance to the OEP. It does not say whether the Secretary of State should issue guidance on a specific case, for instance the development of a new nuclear power station, or on general principles, such as the transparent use of evidence, and it does not say when and how often the Secretary of State may issue guidance. Therefore, it is hard to judge how wide-ranging the guidance will be, how often it will be given and whether it will be used to constrain the independence of the OEP.

After Second Reading, the letter from the Minister attempted to reassure us that the guidance powers would not compromise the independence of the OEP, and I thought I heard him say earlier this afternoon—but I may be wrong—that there would be no need for the OEP to follow the guidance. In that case, how do the Government justify the inclusion of Clause 24 at all? Well, according to the Secretary of State in a recent radio interview, it is to avoid the OEP becoming an “unaccountable regulator” or “making it up as it goes along”. If this is the case, it suggests to me a lack of trust in the OEP chair and board, as well as a wish to control the way it operates.

The Government may well argue that this is a fairly standard clause, and although it is true that similar powers to issue guidance do exist for some public bodies, including Natural England and the Climate Change Committee, there is a crucial difference between these bodies and the office for environmental protection—because, as we have heard many times today, the OEP has responsibility for enforcing potential breaches of the law by public bodies, including Ministers, which most other non-departmental public bodies do not have.

A better comparison might be with the Information Commissioner's Office, which is not subject to similar guidance in its enforcement function. Another comparison is the Food Standards Agency, which, as the noble Lord, Lord Rooker, explained, is a non-ministerial government department accountable to Parliament through the Secretary of State for Health and Social Care. By coincidence, Section 24—the same number—of the Food Standards Act 1999 covers the situation in which the FSA is deemed to have gone off the rails. It allows the Secretary of State to intervene only if the Food Standards Agency has seriously failed to fulfil its duties or international obligations. The Secretary of State may then give direction for remedying the failure. Otherwise, the Food Standards Agency is not subject to ministerial guidance.

As noble Lords will be aware, I was the first chair of the Food Standards Agency, and in a later period the noble Lord, Lord Rooker, was also chair. During my five and a half years Health Ministers considered invoking Section 24 on one occasion: when the manufacturers of natural sausage casings made from sheep’s intestines claimed incorrectly that we had not given them the statutory notice period before introducing a ban on their use because of the potential risk that they might contain the infected agent that causes BSE. So, in five and a half years, there was one use of it, which was very rapidly resolved, and the Secretary of State did not need to issue any instruction.

Between 2015 and 2019, I had the privilege of serving under the excellent chairmanship of the noble Lord, Lord Teverson, as a member of the EU Energy and Environment Sub-Committee. In our report of February 2017 we said:

“The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations. Such enforcement will need to be underpinned by effective judicial oversight”.

We also heard repeatedly from Ministers at the time that they did not think any new mechanism was necessary or appropriate. Minister Coffey told us that

“it is the role of Parliament to hold the Government to account”.

Minister Norman told us:

“What I think is a good guide is the flexibility with which British Governments over the years have created standards for themselves and been able to hold themselves to account”.

The Secretary of State, Andrea Leadsom, told the Environmental Audit Committee in another place that

“UK courts will be perfectly well able to deal with matters of enforcement … We won’t be needing to replace European courts.”

The fact is that the Government never wanted an OEP, nor did they think it was necessary. Ministers, as Jesse Norman told us, wanted to mark their own homework. The proposal to set up an OEP was rejected more than once during the debates on the EU withdrawal Bill in your Lordships’ House.

Noble Lords may think that I am suspicious or unduly paranoid, but I wonder whether Clause 24 is a continuing manifestation of the Government’s reluctance to create a truly independent office for environmental protection. I hope that I am incorrect in my suspicions and worries, and I look forward to the Minister’s explanation of why the clause is necessary. I beg to move.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 7:00 pm, 28th June 2021

My Lords, continuing the theme of great minds thinking alike, apparently the requests for a clause stand part debate landed at exactly the same moment and there was the equivalent of tossing a coin to see whose name would appear. I am delighted to support the clause stand part debate and to go a little further in my Amendment 100.

My question to my noble friend at the outset is this: does he not accept that, for the OEP to do all that I am sure he, the Government and all of us would wish it to do, it must be seen to be independent, not just of the Government but of other organisations, such as Natural England and, to a certain extent, the Environment Agency? I am still not entirely clear what the relationship of the OEP and the Environment Agency and these other bodies will be. The question I keep asking, to which I hope one day to get an answer, is this: to who would a farmer, whether a landowner, a tenant or an owner-occupier, go to seek advice? Would it be Natural England, the Environment Agency or the OEP? That is not entirely clear.

I could never be cross with my noble friend, so I would not like to be described as a cross Back-Bencher, but I find it inappropriate that Clause 24 appears in the terms that it does. It is discretionary. It simply states that:

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

It then goes on:

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

This reverts to the point I made earlier, when I set out my concern that it might be the case that a Secretary of State—or, heaven forfend, a junior Minister—might lean on members of the OEP to ensure that a particular enforcement does not go ahead. That would be utterly inappropriate. It then goes on to say that

The Secretary of State may revise the guidance at any time” but

“must lay before Parliament, and publish, the guidance (and any revised guidance).”

I am not quite sure which body would be scrutinising that in that situation. Later, it sets out the OEP’s enforcement functions.

At this point, I just say that I do not believe there is a place for Clause 24 in the Bill, and I look forward to some very strong justification or proposed changes that my noble friend might make when he sums up this little debate.

Just before I address my Amendment 100, I want to support the amendments in this group in the name of the noble Baroness, Lady Ritchie of Downpatrick. They also go to the heart of parliamentary scrutiny, which we discussed a little earlier. I endorse those amendments; they are entirely appropriate.

Amendment 100 would go a little further than just leaving out Clause 24 and would insert a new clause specifically stating that

“In performing its functions, the OEP is not subject to the direction or control of the Secretary of State or any member of Her Majesty’s Government.”

I cannot put it in any stronger terms than that it would be entirely inappropriate for that to happen. This debate is a good opportunity to cast beyond doubt the independence of the OEP, not just, as I said, from government but in its dealing with other bodies which have a role to play in the environment. We want to give it the greatest authority we possibly can. I would argue that we leave out Clause 24 but insert my wording in Amendment 100.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated

My Lords, it is a delight to follow the noble Baroness, Lady McIntosh of Pickering. I support the amendments in this group and wish to speak in particular to the amendments in my name: Amendments 117 and 118, relating to Northern Ireland.

Schedule 3 makes provision for the functions of the office of environmental protection in its activities in Northern Ireland. Along with many organisations, including Greener UK, I support the inclusion of Northern Ireland within the remit of the office of environmental protection. These provisions are broadly parallel to those in Part 1 and Schedule 1 that relate to England. I raised this specific point during Second Reading, some three weeks ago.

Extensive regulatory dysfunction and unacceptable levels of disregard for environmental law have resulted in substantial degradation of the environment in Northern Ireland, with significant economic and social costs. The independence of the OEP in Northern Ireland is therefore vital. The lack of an independent environmental regulator, despite the fact that it was first recommended in 1992 by a House of Commons Environment Select Committee report—nothing has ever happened in that regard—has meant historically weak environmental governance, which means that the OEP must have a cast-iron constitution and culture of independence from the outset. The need for independent oversight is exemplified in the case of designated sites, such as protected sites. In some cases, it is quite dismal in our areas of special scientific interest and areas of outstanding natural beauty.

In this context I have a concern about a broad power for DAERA, the department in Northern Ireland, to issue guidance to the OEP that it must have regard to when preparing its enforcement policy or exercising its enforcement functions in Northern Ireland. This will affect the OEP’s ability to perform its role independently and does not take sufficient account of the particular political circumstances and context of Northern Ireland, including the mandatory power-sharing nature of the Northern Ireland Executive—hence Amendment 117.

There is concern about the timetable for appointing the Northern Ireland member of the OEP board. There must be no further delay in appointing that member, and the appointment process should be progressed as quickly as possible. I hope the Minister will pursue that with his equivalent colleague in the Northern Ireland Executive.

Those problems concerning the guidance power for DAERA should be removed from the Bill, and Amendment 117 would do that. There are three particular areas of concern. In line with the Ministerial Code, cross-cutting and controversial matters must be brought to the Northern Ireland Executive—and guidance from the DAERA Minister to the OEP on its enforcement policy and functions would qualify as both cross-cutting and controversial. Therefore, what is the procedure for bringing this guidance to the Executive before it is issued by DAERA? As a former Minister in the Northern Ireland Executive, about 13 years ago, I knew what that meant, but I just want to clarify that.

Secondly, ministerial appointments in Northern Ireland are managed through the d’Hondt system, under which the largest parties are allocated multiple departments. What mechanisms will be put in place to minimise the risk that a current or future DAERA Minister could use the guidance power to advise the OEP in relation to enforcement or potential non-compliance on environmental law relating to either a department of a similar affiliation or one allocated to an opposing party? Given its wide scope and the lack of transparency in how it will be prepared, the guidance could in theory be used for political benefit—a risk that does not appear to be considered by Defra or DAERA in designing this power.

As a public authority, the Northern Ireland Environment Agency will fall within the remit of the OEP. If DAERA exercised its power to issue guidance in relation to enforcement matters involving the Northern Ireland Environment Agency, that would further cloud Northern Ireland’s already difficult environmental governance and could result in blurred areas of accountability.

Amendment 118 would require the appointment of the Northern Ireland board to be made with the consent of the Committee for Agriculture, Environment and Rural Affairs of the Northern Ireland Assembly. To engender the greatest level of stakeholder trust and buy-in to the OEP, Northern Ireland must be—and must be perceived to be—embedded within it from the start. The appointment of a dedicated Northern Ireland board member will help ensure that Northern Ireland’s nuances, including geopolitical, biogeographic and societal, are properly accounted for in the OEP’s policies and activities. It will also establish trust and credibility.

In this context, can the Minister ask DAERA to clarify the timescale for the appointment process? I note that the first interim board meeting of the OEP is expected to be held this Thursday, 1 July.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee

My Lords, I am glad to follow the noble Baroness, Lady Ritchie of Downpatrick, and to hear from her about the situation in Northern Ireland, with its beauty and diversity of flora and fauna. These amendments relate to the issue of the independence of the office for environmental protection, which was much debated at Second Reading. I have listened to the noble Lord, Lord Krebs, and, like him, I hope the Minister can reassure us.

I am with the Government on this, and I thank the Minister for the helpful and comprehensive letter that he sent us after Second Reading, which was something of a model of its kind. Having read that, I think the level of independence granted in the Bill is adequate. Public policy requires Ministers, whatever the party in power—the Opposition will be on our Benches again one day—to take decisions. Agencies can become unwieldy and undemocratic, particularly after the dynamism of the first round of the appointments phase. Parliament needs to be able to hold Ministers to account, and not be persuaded to give yet more power to an unelected agency.

I do not think the parallel with the National Audit Office—suggested, I think, by the noble Baroness, Lady Boycott, who is not in her place—quite works. The NAO judges departmental actions in retrospect and tells us what, in the words of the prayer book, was left undone or ought not to have been done. As such it fulfils a vital function, but it is not a proactive organisation; it does not in general tell us what to do or how to go about things. The analogy drawn by the noble Baroness is therefore, to my mind, invalid. We also have the Climate Change Committee, led by my noble friend Lord Deben, and the Environment Agency, both of which play an important part in this area. In the context of the independence issue, it would be good to hear from the Minister how the three will complement one another.

We can also take some reassurance from the fact that Dame Glenys Stacey, the newly-appointed chair of the office for environmental protection, is very independent-minded and that a multiannual budget has been promised. Indeed, my concern is that the new body will be so independent and keen on the environment from which its status derives that it will neglect other equally important aspects of life, notably the economic dimension, particularly as we emerge from the unprecedented crisis of Covid.

Photo of Baroness Parminter Baroness Parminter Chair, Environment and Climate Change Committee, Chair, Environment and Climate Change Committee 7:15 pm, 28th June 2021

My Lords, it is a pleasure to follow the noble Baroness, Lady Neville-Rolfe. We often agree but on this occasion I have to say that we do not. I shall speak briefly because the noble Lord, Lord Krebs, introduced so eloquently the amendment to which I put my name, concerning Clause 24 stand part. It would remove this clause, which would give the Secretary of State the right to give guidance to the OEP that it must have regard to in preparing its enforcement policy.

I do not want to repeat points that have already been made, so I shall merely congratulate the Select Committee on the Constitution, which is very ably chaired by the noble Baroness, Lady Taylor of Bolton, and refer to two points that it made. The committee said that:

“Guidance is a poor substitute for clear rules”, and it is correct in saying so. That goes very much to the point made by the noble Lord, Lord Krebs: when it is guidance, it is hard for us to judge how wide-ranging or how constricting it will be to the independence of the OEP, but it could be very wide-ranging and that is one of the reasons why I am concerned.

The Constitution Committee also said:

“The power to issue guidance on the OEP’s enforcement powers could call into question how independent it will be.”

For me, that is the nub of the issue: it is about the public perception of how independent this new watchdog will be. At a time when there is increasing concern about public confidence in public institutions and indeed in politicians, we need to ensure that this new body is seen to be not just as independent as we would wish it to be but as independent as it needs to be.

It is not acceptable for the Minister to say, “Oh, we’d only use this guidance as a last resort”. As the noble Baroness, Lady Neville-Rolfe, said, we have a very independent-minded interim chair of the OEP at the moment; however, that may not be the case in future. Irrespective of that, we need to be clear that it has to be set down in statute that this is an independent body with the power to set its own enforcement policy. I am afraid that any indication that the Government can somehow meddle by looking into matters in other bodies within the Defra family just does not cut the mustard. I therefore feel very strongly that Clause 24 needs to be removed.

Photo of Lord Rooker Lord Rooker Labour

My Lords, briefly, the Minister would be well advised to pay attention to what the noble Baroness, Lady Ritchie of Downpatrick, said. The Northern Ireland situation is not a coalition; it is a power-sharing Executive. The parties carve up the ministries. I had one year as a Minister when there was direct rule. I had planning and the environment among other responsibilities and duties. I discovered that most of the political parties there do not believe in planning. They would like a bungalow in every field. That is the situation: if you fly over Northern Ireland, have a look at it. Imagine a bungalow in every field, with the waste and everything else. “If you own land, you can do what you want with it”: that is what I was told. So it is a really sensitive issue to get the wrong person at the wrong time. It would be terrible to meet without someone representing Northern Ireland, but we should be aware of the way the d’Hondt system allows the parties to control the ministries.

Like the noble Lord, Lord Krebs, I heard the Minister say that there is no requirement to follow the guidance. I wrote it down at the time. That is interesting. I would love to be a fly on the wall the day the department’s lawyer goes to see the Minister and says, “Well, Minister, it only says you ‘must have regard’. You want to do this, that and the other and do your own thing, but it actually says you ‘must have regard’. Here’s all the reasons why you have to have regard to what the Secretary of State says.” Before you know it, there will be a threat of malfeasance on the office, because it has gone against having regard to a sufficient extent of what the Minister said.

How do you measure “have regard”? I realise that I will be followed by lawyers; I am not a lawyer, but I have been there when the lawyers have come in and said, “You can’t do this because you’ve got to take account of this, that and the other.” That is the pattern: it is the way advice to Ministers from the department’s lawyers works. I am not criticising or complaining about it; I am just saying that that is the way it works. So, if it is not clear in the legislation to start with, we are building up trouble. There are therefore good grounds for taking Clause 24 out of the Bill.

The noble Lord, Lord Krebs, reminded me that in February 2017 I too had the privilege of being on the EU sub-committee, chaired by the noble Lord, Lord Teverson, when we arrived at this. I remember doing fringe meetings at the Labour Party conference the year before when the sector was waking up to the fact of the governance gap. As I said at Second Reading—I will not read it all out—Michael Gove had woken up to it by 13 November 2017, when he said that there has to be mechanism to replace what we are losing because of Brexit. He went on to say we would have

“a new, world-leading body to … hold the powerful to account. It will be independent of government, able to speak its mind freely.”

That was not a speech; that was a published article, authored on GOV.UK.

My final point is this. I know that it is easy and people will say that we have unaccountable agencies and this, that and the other, but sometimes they are a comfort blanket to Ministers. Situations arise in society where the public do not believe what they are told by Ministers. Going back to the time before I entered government, that was the situation regarding food safety: a collapse in confidence in what people were told by Ministers. That is one of the reasons a semi-independent body was set up, so that Ministers do not have to go on telly and say, “The food’s safe—please eat it”. People did not believe them. The technical people, the scientists and those who are qualified to have a view go on when there is such a situation—the noble Lord, Lord Krebs, is aware of that, having set up the agency.

I was originally partly responsible for some of the legislation that set it up; I certainly never forecast that I would be the chair. However, the fact is that these bodies are useful in certain circumstances because the public have a trust in them. It is important that the public have that trust; I will not start to imagine what kind of environmental problems there would be where there is public uproar and where Ministers find it very useful to have an expert body that is able to speak to the public and engender their confidence. Believe you me, I am giving this away for free. It can be a bonus for Ministers, and they ought to wake up to that fact.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I shall speak to Amendment 100, in the name of the noble Baroness, Lady McIntosh; Amendment 117, in the name of the noble Baroness, Lady Ritchie of Downpatrick; and the stand part debate in the name of my noble friend Lord Krebs, which would restore the position as it was when the Bill entered the Commons, with Clause 24 not standing part.

The conflict of interest which I shall suggest is presented by Clause 24 arises in the specific context of the OEP’s enforcement functions in Clauses 31 to 40, on which I have a number of amendments and on which I will focus now. Each of those functions, from starting an investigation, to issuing information notices and decision notices, to applying to the courts for environmental or judicial review, depends on an assessment by the OEP that a failure to comply with environmental law is serious, and, in the case of an application for judicial review, that it must be necessary to prevent or mitigate serious damage to the natural environment or to human health.

While those assessments may be for the OEP, Clause 24, read with Clause 22(6), allows Defra to frame the processes by which the OEP assesses the seriousness of environmental damage, the seriousness of damage to human health and the seriousness of law breaking for which Defra and other public authorities are responsible. As if those instruments were not blunt enough, Defra is given a further power to guide the OEP on how it prioritises cases. This guidance will presumably be additional to and more prescriptive than the guidance that we are asked to endorse in Clause 22(7). To the response that ministerial guidance will not impinge on the independence of the OEP, I would say: what is the point of guidance, if not influence? Why should the OEP not be trusted to work out its own priorities? And why should Defra have influence over the preparation of enforcement policy and the “exercise of enforcement functions”, to quote the Bill, that are specifically designed to be used against it?

As a former independent reviewer, although in a small way and in a very different field, I have reflected quite a bit on the risk of regulatory capture. This is usually thought of as a subtle and insidious process. It does not require the express approval of the legislature: the fertile soil of insufficient institutional independence, on which your Lordships have heard so much already, may be all that is needed for regulatory capture to germinate and to take hold. That is why Clause 24 is so unusual in the context of a body charged with enforcement. It actually signals regulatory capture on the face of the Bill.

The compromise Amendments 98 and 99—sticking plasters, as my noble friend Lord Krebs described them—would reduce the strength of that signal but would still leave the guidance power in place against a background of less than total institutional independence. For that reason, and with respect to those who put them forward, my enthusiasm for these compromises is limited. The Government’s first thoughts were best: the Bill is better without Clause 24.

Sitting suspended.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench

My Lords, I strongly support the messages being delivered in this group of amendments. Above all, I support the stand part question opposing Clause 24, to which I would have added my name if there had been room. I strongly support the powerful speeches given on it by the noble Lord, Lord Krebs, the noble Baroness, Lady McIntosh, the noble Lord, Lord Anderson, and—as ever—the noble Lord, Lord Rooker, with his great experience on this matter.

My basic position is that I would support any amendment which reduced the influence of Defra and its Secretary of State on the workings of the OEP. I know that sounds harsh, and I repeat my point that this does not denote any mistrust of the current officials in Defra, and certainly not its Secretary of State or Ministers. However, we have to ensure that the workings of the OEP over decades to come, as stressed by many, are completely independent of the bodies on which it is supposed to keep a watchful eye. That definitely includes Defra and its wider family. It must be independent and be seen to be independent, so the idea that the Secretary of State of Defra should be giving guidance to the OEP on how it exercises its enforcement policies must be wrong. I have yet to meet anyone who, in their heart of hearts, does not agree with that statement, with the perhaps unique exception of the noble Baroness, Lady Neville-Rolfe, who gave the impression of not having listened very closely to the previous debates.

Our whole constitution is based on checks and balances, yet what we have here is the equivalent of the potential accused being able to influence the operation of the Crown Prosecution Service. This must be very wrong. It would be a travesty of proper governance if Clause 24 were to remain in the Bill.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

Thank you, Deputy Chairman. My Lords, I offer support for all these amendments, but particularly on whether Clause 24 should stand part. Opposing it is the obvious way forward here. I want to pick up on the points made by the noble Baroness, Lady Neville-Rolfe, who was not entirely consistent in suggesting that we should not worry about how the Bill was structured because there is a strong person as the first head of the OEP, Dame Glenys Stacey. However, then she said, “But we don’t want it too independent because then it might get too strong and dynamic, and take too much control”. That really highlighted the issue.

Many people are saying “Isn’t it great that we have that person as the first chair of the OEP?”, but structures should not depend on individuals. Those individuals change; they go to different places as roles change over time. Often when we talk about what is in the Bill the Government tell us, “Trust us, we don’t have any ill intentions”, but the point is not who the current Minister is or what the Government of the moment’s intentions are. We are setting up something new and important here, which is likely to continue for decades. We are talking here about the environmental review process and the OEP being able to state what the remedies for that are. There has been a lot of talk about carrots and sticks, and soft and hard powers. These things are really quite subtle and need to be used with great independence to have real force over long periods.

We have heard a lot of comparisons with other government bodies, such as the National Audit Office, the Electoral Commission and the Office for Budget Responsibility, all of which have stronger levels of independence. They have real independence from Ministers and departmental structures. It is quite telling that two of them are financial structures. When we talk about spending money, we have to have some independent oversight of that; but when we talk about the environment, somehow it is good enough to leave it with Ministers and the Government. It is a question of what we regard as important and what we really value and guard. That is what we are looking for.

I think it may have been the noble Lord, Lord Krebs, who quoted the Secretary of State as saying, “If we do not have these controls, there is a risk of making it up as it goes along.” Surely that is the point. The OEP needs to create new structures, not to be directed by the Minister in those structures.

The noble Lord, Lord Curry, speaking just before the break, asked a very important question: what is the point of having guidance if there is no impact? We are being told that the Minister can provide some advice, some offering, but if that is not going to have an impact, why does it need to be in the Bill and why does it need to be given? We think about spending government money very carefully with real independent oversight. When we are looking after our environment, our natural world, and tackling the climate emergency, we need that same kind of independent oversight.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I cannot help feeling that there is an air of unreality about this debate. Everyone on all sides agrees about the need to preserve the independence of the OEP. The Government’s position is set out quite clearly in paragraph 17 of Schedule 1, to which I referred earlier today. The phrase is “must have regard:

“the Secretary of State must have regard to the need to protect its independence.”

As my noble friend Lord Anderson of Ipswich said, there is much to be said for the view that it is no business of the Secretary of State to give guidance on these matters and that Clause 24 should not be there so that the OEP can make up its own mind about the policies it needs to follow. Much depends on the meaning and choice of words, so let us reflect for a moment on that.

Is it really being suggested, as I think someone mentioned earlier, that Clause 24 can live with paragraph 17 of Schedule 1 because there is no requirement to follow the guidance that has been talked about in Clause 24? Do the words of Clause 24 really have that meaning? Does the phrase “must have regard” change its meaning according to the context in which those words are found? As I have mentioned, paragraph 17 contains the same formula. Are we really to read it as imposing no requirement to have regard to protect the independence of the OEP? That would be an astonishing position to take and I am sure the Minister will not be taking it, but if it means what it appears to mean, the word “must” imposing an obligation that must be fulfilled, why not so in Clause 24?

I hope that the Minister was listening very carefully to what I said in the debate about Section 14(2) of the Scottish continuity Act. It is difficult for me, far away, looking through a lens, as I am, to observe closely what the Minister is doing to know whether he really was listening very carefully. I very much hope he was, and his closing words suggest that he was, and I am glad of that. He will have noticed that the reason why I was supporting him was because of the meaning that I gave to the phrase

Ministers of the Crown must … have due regard” in Section 14 of the Scottish Act to Scottish environmental policies. I made it clear in my remarks that it was because I read those words as giving a direction to UK Ministers, imposing an obligation on them, that I felt that Amendment 80 had to be supported because it was correcting a mistake in the Scottish legislation. If I had been told that there was no requirement on UK Ministers to follow these policies, the position would have been quite different. One cannot pick and choose. The words in each context are perfectly clear and they must have the same meaning.

The noble Lord, Lord Teverson, said that, as worded, Clause 24 “drives a coach and horses” through paragraph 17. I must confess that, taking the words according to their ordinary meaning, that seems to be absolutely right. So I agree with my noble friend Lord Anderson that the Bill would be much better without Clause 24, but, if it is to remain, its wording must surely be adjusted so as to preserve the independence of the OEP, which the Secretary of State is, I suggest, under an obligation—in terms of paragraph 17—to do.

Photo of Lord Randall of Uxbridge Lord Randall of Uxbridge Conservative

My Lords, I have not taken part directly in these important debates around the OEP, mainly because of the fear of repetition. There are many noble Lords far wiser and more eloquent than me to discuss this. However, I share many of the concerns that we have heard around the funding and, as we are now discussing, the independence of the OEP. I hope that my noble friend the Minister will take on board the serious concerns of many around the Committee, including myself. I hope that he and his officials will consult with noble Lords before coming back with the Bill on Report. If he does not, he may find himself in rather more difficulties than I would like. There are lingering doubts about this.

There have been some very wise words. The noble Baroness, Lady Parminter, said that it was important for the OEP to be seen to be independent. The problem is that there is distrust on both sides. The Government’s position will be that they are distrustful, fearing that a strongly independent OEP will run riot and cause many problems—although we would probably argue that, if that is what is necessary, that is what will have to happen. Others think that the Government’s intentions are to make sure that that does not happen and so are curtailing the power of the OEP.

As I have often discovered since I arrived in this House, I take on board the very wise words of the noble Lord, Lord Rooker. I say to the Government that it is just possible that having a strongly independent OEP could help, because the public will not necessarily believe a government Minister. If the OEP were not seen to be independent enough, when it made a decision that the public did not like and went against them, they would consider it a government stitch-up. However, if there were a strongly independent OEP, they would have to accept that it was an independent decision.

I hope that this can be resolved because this is a very important part of the Bill. If we are to have faith in how the legislation works, we need that strongly independent OEP.

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

My Lords, I start by quoting the noble Baroness, Lady Neville-Rolfe, who said that the OEP was “adequate”. Remembering that word, I will quote Michael Gove, who said in July 2019, when he was Environment Secretary and the Bill started its oh-so-slow process—procession, we should say—through Parliament:

“The measures in our Environment Bill will position the UK as a world leader, ensuring that after EU Exit environmental ambition and accountability are placed more clearly than ever before at the heart of government.”

Is that a description of “adequate”? I think not.

Today we have heard about the powers. The noble Lord, Lord Krebs, whom I have huge regard for, said that even as it is written, the Secretary of State’s powers are vague. They are not precise; they can be extended in any way. I particularly agree with and have put my name to Amendment 100 in the name of the noble Baroness, Lady McIntosh, because it states beyond doubt that the OEP must be independent.

I certainly agree with the abolition of Clause 24. As the noble and learned Lord, Lord Hope, said, this Bill has a contradiction right at the heart of its most important area. You cannot have a government Bill going all the way through Parliament that, at the end, reaches Royal Assent and disagrees with itself. How can you do that? As I understand it, Clause 24 was put in as a government amendment later in the Bill’s proceedings in the other place. I suggest to the Minister, just from that point of view, that we should leave it out.

I am particularly thankful to the noble Baroness, Lady Ritchie of Downpatrick, for reminding us that the OEP is not just an English organisation, but also potentially has a vital role in Northern Ireland where these issues are particularly sensitive. I liked the noble Lord, Lord Rooker, referring to buildings being built everywhere. We have a saying in Cornwall, particularly north Cornwall, that the rotation is sheep, maize, barley, bungalows. That is how it used to work when planning permissions did not work quite so well in some of the district authorities we used to have.

I was particularly struck by the noble Lord, Lord Anderson—I am sure he is noble and learned; he shakes his head, but I am sure he is really learned— when he said that guidance is influence. Those who are legally qualified may say I am slightly wrong in saying that this is a quasi-judicial body, if only an intermediate one in that it passes other things to the courts. Surely there needs to be a separation of those responsibilities, just as there is a separation of the Government and the judiciary—or the pre-judiciary in this case.

The core of this Bill to a large degree is that this is not short term. I am sure the Minister will agree. It is to set up an institution that is to last for decades and to build up its reputation, strength and its equivalent of casework. It is responsible to the public directly to make sure that our environment is truly and properly protected for an even longer term.

We might say that the intentions of current Ministers and Secretaries of State are good—I hope we would—but that is not necessarily the case for future Administrations. There is a huge need and a responsibility for Parliament and government to make sure that this body is strong, lasting, and authoritative in the long term, not just for the period of this government. That is why the easy thing is to take Clause 24 out of this Bill. I would prefer the independence to be even more clear, but maybe the earlier part of the Bill does that.

If I may mention just one other thing, although it may not be that popular, environmental protection and the judicial side of that—the replacement for the Commission—is a role that is mentioned in the treaty between the EU and the UK; it has an important role in determining level playing fields and so on in the EU-UK trade and co-operation agreement. So, again, I would think that the Commission, the European Court of Justice or whatever would look at this clause and say, “Come off it, this doesn’t do what we were promised during the negotiations.” As it stands, it is nowhere near having an equal standing.

I have two last points to make. I had the great privilege of being a non-executive director of the Marine Management Organisation for over six years, which is something I really enjoyed. It was a really important organisation that worked hard. It had its budget cut hugely over that period, but its lords and masters at Defra determined that it would be part of the Defra family; that is how it was described. As I have said on the Floor of this House before, Defra is far more jealous of the loyalty of its organisations and executive non-departmental public bodies than any other department that I have come across. To me, that in reality is not just to do with Ministers but with a Civil Service culture, and this body will not survive in the way that it needs to with this clause being there.

I do not know Dame Glenys Stacey that well—I have spoken to her on a couple of occasions—but, whoever the chair of the OEP is in the future, I am sure that if the Government were to intervene, they would find that the chair would resign almost straightaway. That would be a huge embarrassment to the Government of the time. Let us avoid that and make sure that this body is independent, strong and what Michael Gove said it should be: a world beacon for government accountability on the environment.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs) 8:15 pm, 28th June 2021

My Lords, I am grateful to the noble Lord, Lord Krebs, for introducing this suite of amendments—including Amendments 94, 98 and 99 in my name—and the question on Clause 24 stand part, to which I have added my name.

Continuing the theme from the earlier grouping, all of these amendments focus on the need for the OEP to have guaranteed independence and not to be under the direction of the Secretary of State in how it carries out its enforcement policy. I was really disappointed in the Minister’s response to the earlier debate. It did not feel to me as though he had listened to the strength and weight of the arguments or, indeed, answered many of the points put to him. I hope that he will engage more in the arguments that have been put forward in the debate today, if not now then certainly before Report.

I am very grateful to everyone who has added to the chorus of concern about the wording of Clause 24, which is really what we are talking about today. Of course, this clause has history. It was added only as an afterthought to the Bill at the Commons Committee Stage; it is almost as if the Government got cold feet. We got a flavour of why that might be—indeed, the noble Lord, Lord Krebs, quoted the Secretary of State on the Today programme last year when he said that the Government did not want “unaccountable regulators” who

“make it up as they go along”,

“change their remit” or “change their approach entirely”. So, a huge suspicion hangs over this body. As the noble Lord said, it is as if Clause 24 is a continuing manifestation of the Government’s reluctance to create the OEP in the first place.

This, of course, was before Dame Glenys and her team were appointed. I hope that the Government have relaxed a little since then but, given their obvious competence, why do we still need Clause 24? The Minister will claim that there are other precedents for the Secretary of State to issue guidance to public bodies, and it is true that there are examples where this is the case. However, it is not the case with, for example, the Committee on Climate Change; the Climate Change Act specifically says that the Secretary of State cannot

“direct the Committee as to the content of any advice or report”.

The critical issue with the OEP is that it has enforcement powers against public bodies, including government, who are potentially breaching the law, and with the power to take government to court. A better comparison would be with the Equality and Human Rights Commission, which enforces breaches of the law on human rights and equality—and cannot be directed by Ministers.

We can swap different examples of precedents, but it is more important that we do the right thing for what is a new and relatively unique organisation. Of course, one reason that it has special status is that it is taking over powers of enforcement previously carried out by the European Commission, which certainly would not have tolerated direction from the Government and did a huge amount to maintain environmental standards across the EU. As noble Lords have said, we were promised during the lengthy debates on the EU withdrawal Bill that we would have a UK body with equivalent powers to the Commission. To allow Clause 24 to remain would be a serious breach of those promises. We believe that it represents a fundamental undermining of the independence of the OEP.

Like the noble Baroness, Lady Neville-Rolfe, I welcomed the Minister’s letter, but unlike her, I did not find it quite so enlightening. In his letter of 10 June, the Minister said:

“Although the Secretary of State may issue guidance to the OEP on its enforcement policy, they will need to exercise this power consistently with their duty to have regard to the need to protect the OEP’s independence.”

As the noble Lord, Lord Teverson, said, it seems that these two requirements represent a contradiction at the heart of the Bill. This was echoed by the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope. You cannot have it both ways: being able to give direction while respecting its independence. One might say it would be a lawyer’s dream to try to sort it out. My noble friend Lord Rooker said he would like to hear the legal argument about the meaning of “having regard to” the Minister’s guidance and sit in as a fly on the wall. How do you measure “have regard to”? As the noble Lord, Lord Anderson, quite rightly said, what is the point of having guidance if not to exert influence?

We believe that it would send a strong signal to Parliament and stakeholders if the Government agreed to remove this clause. It is ultimately a matter of trust; it would demonstrate the Government’s confidence in the new leadership of the OEP, and I therefore hope the Minister will agree to reconsider this wording and remove this clause.

My Amendment 94 would have the effect of making the independence of the OEP an absolute requirement, rather than one that Ministers are merely required to have regard to. Amendments 98 and 99 would make any guidance from the Secretary of State discretionary. But to return to the main point: we do not believe the guidance should be there in the first place. The helpful Amendment 100 from the noble Baroness, Lady McIntosh, approaches the need for OEP independence in a separate but equally valid way, continuing to underline the main point at issue.

Finally, I welcome the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. Her Amendment 117 mirrors our concern to ensure OEP independence. It would remove the wide-ranging power for the Department of Agriculture, Environment and Rural Affairs in Northern Ireland to issue guidance to the OEP. Amendment 118 revisits the question that she has posed before about how and when the appointment of the dedicated Northern Ireland board member will be made. I hope the Minister can answer this point today. Quite rightly, her amendment requires it to be made with the consent of the Committee for Agriculture, Environment and Rural Affairs of the Northern Ireland Assembly. This is a similar point to our Amendment 85, which we debated in an earlier group.

I hope that the Minister has carefully listened to this debate. There are important principles in these amendments, and they will not go away, as noble Lords have stressed on a number of occasions. I hope that he will feel able to take these issues away and give some assurance that we will not be back repeating these debates on Report, as he can probably predict what the outcome of that would be.

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 noble Lords for their contributions. I will begin by addressing the amendments tabled by the noble Baroness, Lady Jones of Whitchurch.

On Amendment 94, the Government are committed to ensuring the OEP’s operational independence. This is precisely why we have included in paragraph 17 of Schedule 1 the duty on the Secretary of State to have regard to the need to protect the OEP’s independence. The actions of the Secretary of State in exercising functions in relation to the OEP will be subject to parliamentary scrutiny in the usual way.

However, the OEP itself is not an elected body. It is the Secretary of State, as an elected representative of the Government, who is ultimately accountable to Parliament for the OEP’s use of public money. Ministerial accountability is one of the Government’s key principles of good corporate governance. Ensuring the OEP’s operational independence must therefore be balanced with allowing appropriate levels of scrutiny. The amendment suggested by the noble Baroness would prevent Defra, as the OEP’s parent department, exercising vital functions of public accountability, including carrying out accounting officer responsibilities.

On Amendment 99, as I mentioned earlier, the OEP does not have to follow the guidance where it has clear reasons not to do so. It would therefore be an excessive and very unusual administrative burden to expect the OEP to publish its rationale for not following the guidance, as suggested by this amendment.

On Amendment 98, the Government are committed to establishing the OEP as a body that will contribute effectively to its statutory objective of environmental protection and the improvement of the natural environment. We would not issue guidance contrary to that principle.

I would like to give the rationale for Clause 24. The OEP will have a vast environmental remit, as many noble Lords have made clear. It will cover all domestic environmental law and all public authorities, from local councils to central government departments. Given this exceptionally broad remit, we have always been clear that the OEP should focus on the most serious, most strategic cases.

The guidance power is therefore designed to provide a safeguard for accountability, providing the Secretary of State with the tools to ensure that the OEP functions as has always been intended. Though the Government anticipate that the OEP will develop an effective and proportionate enforcement policy, as the Minister ultimately responsible to Parliament for the OEP, the Secretary of State may need to encourage the OEP to exercise its functions effectively to deliver the greatest benefit for the public and the environment. For example, if the OEP were failing to be strategic and not taking action in relation to serious, systemic issues, the Government could use this power to suggest ways in which the OEP could more effectively use its resources to benefit people and the environment.

I have heard the concerns of many noble Lords about this provision and understand the argument that many noble Lords have made—in particular the noble Baroness, Lady Parminter, and the noble Lord, Lord Randall—that the organisation needs not just to be independent but to be seen to be independent. The noble Lord, Lord Teverson, made the point very clearly, in the context of the ever-elusive but necessary concept of trust between people and power.

I want to be crystal clear that this clause does not provide the Secretary of State with any power to direct the OEP or to intervene in decision-making about specific or individual enforcement cases. The guidance can cover only matters listed under Clause 22(6) of the Bill. Although this includes the OEP’s approach to prioritising cases, this will be at a strategic level rather than in relation to specific decisions. Clearly, that is a key distinction.

Several safeguards are also in place to ensure that a Secretary of State could not use this power inappropriately. First, the power must be exercised consistently with the provision I mentioned earlier, which requires the Secretary of State to have regard to the need to protect the OEP’s independence. Furthermore, the OEP does not have to follow any guidance issued by the Government where it has clear reasons not to do so. The OEP must prepare its own enforcement policy. It will set out its own approach to determining what technically constitutes a “serious failure” and other aspects of its enforcement policy, having had regard to any guidance. Finally, any guidance must be published and laid before Parliament, meaning that the process will be transparent and that Parliament will be able to hold the Secretary of State to account for any improper guidance.

To conclude, this is a provision to ensure that the Secretary of State has the tools to ensure the OEP functions as has always been intended, without impinging on its operational independence—so Clause 24 should stand part of the Bill.

On Amendment 100, as already mentioned, Clause 24 does not provide the Secretary of State with any power to direct the OEP or to intervene in decision-making about specific or individual cases. The OEP itself has a statutory duty under Clause 22(2) to act objectively and impartially, which will ensure it operates independently. As such, the additional provision proposed is unnecessary.

Finally, regarding Amendments 117 and 118, the environment is almost entirely a devolved matter in Northern Ireland. It is important to ensure that, as far as practicable, the legislation relating to the environmental oversight body is consistent across both jurisdictions should the Assembly choose to extend the OEP. Paragraph 24 of Schedule 3 mirrors Clause 24; it gives a power to the Department of Agriculture, Environment and Rural AffairsDAERA—to issue guidance to the OEP in relation to its devolved enforcement functions, including on how it intends to prioritise cases. For the benefit of the noble Baroness, Lady Ritchie, I add that, like Defra’s Secretary of State, this would be advisory and not binding.

This provision also respects the devolution settlement. Any guidance given by the Secretary of State following Clause 24 would not apply to the OEP’s devolved enforcement functions under Schedule 3. Furthermore, the appointment of an effective Northern Ireland member of the OEP is clearly extremely important, as the noble Baroness emphasised. As befits that importance, a rigorous selection process, regulated by the Commissioner for Public Appointments for Northern Ireland, will be employed. The chair-designate of the OEP, Dame Glenys, is fully involved in the selection process, and we do not believe that adding a further layer of bureaucracy to the process is either helpful or necessary for the OEP.

I hope that this goes some way towards reassuring noble Lords, and I ask that the amendment be withdrawn.

Photo of Lord Krebs Lord Krebs Crossbench 8:30 pm, 28th June 2021

My Lords, I thank all noble Lords for their excellent contributions to this debate; it is the second major debate we have had today about the independence of the OEP. I emphasise again to the Minister the strength of feeling around the Committee, not just among the cross Cross-Benchers, in which I join my noble friends Lord Cameron of Dillington and Lady Boycott, but from all groups.

The Minister did a valiant job in trying to defend the position of leaving Clause 24 in the Bill and in rejecting the other amendments, but it felt rather less than convincing and I do not think that we have yet fully dealt with some of the key points that were raised by contributions. For example, my noble and learned friend Lord Hope of Craighead and my noble friend Lord Anderson of Ipswich made important points. My noble and learned friend Lord Hope talked about the fundamental contradiction in the Bill and how the words are really important, and my noble friend Lord Anderson asked what the point of guidance is if not to influence. So I really do not think that we are out of the mire yet on this issue.

I will not go through all the contributions, because there were so many important points made in the excellent summing up by the noble Lord, Lord Teverson, and the noble Baroness, Lady Jones of Whitchurch. But I want to reflect on something that the noble Lord, Lord Rooker, said, which was sort of, “Be careful what you wish for”—if you are a Minister and you want to have influence and control over a supposedly independent body, it may come back to bite you. I will give a personal anecdote. When I started to set up the Food Standards Agency, the then Secretary of State for Health said to me, “John, I am in a nightmare situation. I have no control over you, but I have to take responsibility for you in accounting to Parliament”, to which I said, “No, you have the dream scenario: if things go well, you take the credit; if things go badly, you blame me”. So it is not all downsides to give the OEP greater independence, although the Minister seemed to feel that it would be.

Without delaying your Lordships further, because the hour is late, I again thank all those who have contributed, and the Minister for his response. I am sure that we have not resolved this and that we will come back to the matter of OEP independence when we come to consider the Bill at the next stage. But, as in earlier debates, a number of noble Lords, including the noble Lord, Lord Cormack, emphasised that we ought to be able to find a compromise. I hope that, between now and Report, we can have further conversations and find out whether there is a way of avoiding confrontation at a later stage. Having said that, I beg leave to withdraw my amendment.

Amendment 94 withdrawn.

Schedule 1 agreed.

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector), Deputy Chairman of Committees

We now come to the group beginning with Amendment 95. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.

Clause 22: Principal objective of the OEP and exercise of its functions