I am pleased to open this group and speak to the amendments I have tabled, which respond to many of the concerns raised by noble Lords in Committee regarding the independence of the OEP. I also notify noble Lords that I outlined in a Written Ministerial Statement yesterday the full range of provisions already in place to ensure the OEP’s independence. I hope that it is a useful reference point for noble Lords and that it offers reassurance on the Government’s commitment to the independence of the OEP.
These amendments will increase parliamentary scrutiny of any guidance that the Secretary of State wishes to issue under Clause 25. They will afford Members in both Houses the opportunity to review and make recommendations regarding the draft guidance, to which the Secretary of State must respond before final guidance can be laid and have effect. This will provide additional parliamentary oversight, not only of any guidance issued by the Government but any issued by future Governments.
For parity, Northern Ireland Ministers have decided also to bring forward amendments to Schedule 3 to give the Northern Ireland Assembly the same opportunity to scrutinise any draft guidance issued relating to the OEP’s Northern Ireland enforcement functions.
As I have said before, the OEP has an unprecedented remit, with the ability to take enforcement action against all public authorities. It is for this reason that the Government feel that a guidance power is necessary to help ensure that the OEP continues to carry out its functions as intended. However, I understand the concern about the use of this power and hope that these amendments go some way to reassuring noble Lords that there will be an additional check on its use.
There is no question that the OEP must be impartial and independent but it should also be accountable to Ministers who are ultimately responsible for its use of public money. Any guidance issued must respect this important balance and I hope that this additional mechanism for parliamentary scrutiny will allay these concerns.
Finally, I thank the noble Baroness, Lady Taylor of Bolton, and the other members of the Constitution Committee for their recommendations on this matter. I beg to move.
In Committee, there was strong support from across the House for my amendment that would have removed the guidance clause from the Bill in order to ensure that the OEP was fully independent. In fact, I do not recall anyone making a coherent case for greater ministerial control over the OEP. I acknowledge and thank the Minister and the Secretary of State for their time in discussing this matter since Committee. I also thank the Secretary of State for his letter to my noble friend Lord Anderson of Ipswich and myself, dated
I also acknowledge that the Government have made concessions in their own amendment to Clause 25 and that, furthermore, the importance of the independence of the OEP was reiterated by Minister Pow yesterday in a Written Statement and also by the noble Lord the Minister with the same Written Statement.
So why am I still pressing ahead with my amendment to replace Clause 25? It is simply this: if we must get one thing right in this Bill, it is the office for environmental protection. The OEP is the body that will ensure that the Government’s warm words about the environment are translated into action. The Minister himself could not have been clearer on Monday. When I asked who will hold the Government to account on the target of halting species decline, he replied that it was the office for environmental protection. Even with the government amendment to Clause 25, the OEP is not, in my view, sufficiently independent of Ministers for us to be confident that it will be able to do what is has been set up to do.
Let us consider the following points. First, the Secretary of State can still use the guidance power on a wide range of matters, including what constitutes a serious case, on prioritisation and enforcement. Given that the Secretary of State has control over the budget and board appointments, it would be hard for the OEP to ignore any guidance. Secondly, in exercising its enforcement role in particular, the OEP might focus on government actions, and it is therefore unacceptable that the Secretary of State could issue guidance, even at a strategic level, on this. Other enforcement bodies, such as the Equality and Human Rights Commission, are not subject to ministerial guidance. Thirdly, the Secretary of State has committed to providing an indicative five-year budget for the OEP but retains the option of changing the level of funding. At the moment, the OEP has only one year of guaranteed funding. Fourthly, the Secretary of State retains control of appointments to the board and terminations of appointments, even though there are pre-appointment hearings with the relevant Select Committees. According to the Institute for Government, there is increasing evidence of and concern about ministerial interference in NDPB board appointments. In Committee, I gave an example from my own experience, in which a Secretary of State overturned appointments made by an independent appointments committee.
Amendment 24 would deal with these matters and ensure that the OEP is fully independent and therefore able to hold Ministers to account. It would remove the guidance power. It would require the Secretary of State to lay before Parliament a multi-annual budget and a response to any request from the OEP for additional funding. It would require all board appointments or terminations to be subject to agreement by the two relevant parliamentary Select Committees. This is what happens with the Office for Budget Responsibility.
What are the Government’s objections to Amendment 24? The Government consider that the guidance power in Clause 25 is necessary so that the OEP is accountable, especially given its wide-ranging remit. But this accountability would still be there if Amendment 24 were adopted, it is just that Parliament would play a stronger role. As for the wide-ranging remit, surely that is the whole point. The aim is to create a totally novel solution to fill the gap created by our departure from the European Union and to go further than before in protecting our environment.
The Secretary of State, in his letter to me, states that the OEP will have a five-year indicative budget and that appointments will be fully independent. If that is the case, I see no reason to object to the provisions of Amendment 24, which simply make these points clear in the Bill as well as ensuring proper parliamentary scrutiny. The Government’s own amendment requires the Secretary of State to lay a draft of any guidance before Parliament and to respond to any resolutions or recommendations made by either House or by parliamentary committees before producing final guidance. While this provides a welcome additional layer of parliamentary scrutiny, it does not mean that the Secretary of State has to change the guidance in the light of parliamentary comments. It does not assuage the widespread concern in this House about the independence of the OEP.
I might add also that the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place because he has to attend another meeting, told me that he has particular concern about the financial independence of the OEP and that any budgetary decisions should be made by Parliament rather than by the Secretary of State.
In closing, I repeat: if we are going to get one thing right in this Bill, it should be to ensure that the office for environmental protection is set up on a properly independent basis. Amendment 24 would achieve this; without it, we will not have sufficient safeguards to protect the OEP’s independence.
My Lords, I am grateful to the noble Lord, Lord Krebs, for introducing—or reintroducing—a similar amendment to one that a number of us supported in Committee. I also acknowledge that my noble friend Lord Goldsmith has indeed come forward with improvements in the form of Amendments 22 and 23. However, as my noble and learned friend Lord Mackay of Clashfern, through the good offices of the noble Lord, Lord Krebs, has indicated, a number of us have serious issues about the financing and resources available to the OEP, and I am not sure that those have been entirely addressed at this stage.
I am very disappointed to see, in the government amendments that have been tabled, that the Government are intending to keep Clause 25 relating to the guidance. It is extremely important that, if we are going to have a new body with the essential responsibilities such as we are allocating to the OEP, it must be seen to be independent of government because its remit is, among other things, to hold the Government’s feet to the fire to ensure that they are implementing those parts of this Bill, the Agriculture Act and other Acts that have implications here.
When my noble friend sums up this little debate on this group of amendments, I hope that he will address how his Amendments 22 and 23 address my concern that the Government are seeking to micromanage the OEP. I am particularly attracted to proposed new subsection (4) in Amendment 24:
As a former chairman of the Environment, Food and Rural Affairs Committee, I obviously believe that these committees have a special role to play—and they have played that role extremely well, if I may say so, over the years. They are independent by nature and have had, historically, the duty to approve such appointments for Natural England and a whole host of other bodies to which the Government make appointments.
In addition to the concerns about the financing, the resources and the general independence of the OEP, in the terms so eloquently expressed by the noble Lord, Lord Krebs, we are asking this body to undertake a role of the level of importance as that attributed to the European Commission in implementing environmental policy, the whole raft of which is before us in the other parts of the Bill. I hope that my noble friend will take this opportunity to address my concerns. It cannot be the case that not only is the Secretary of State appointing the chairman of the OEP and the members of the board but is micromanaging in the form of the guidance set out in the current Clause 25. I am minded to support the contents of Amendment 24 and subsequent amendments that we will come on to. I hope that my noble friend will address these very real concerns that I and others have.
My Lords, I rise to speak to my Amendment 30 in this group, which is similar in intent to Amendment 24 from the noble Lord, Lord Krebs. It is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering; I well recall her efforts on the EFRA Select Committee in the other place, as I was a member of it, in holding the Government to account on a wide range of environmental and agricultural matters.
My amendment also relates to the vital matter of the OEP’s independence. Its scope addresses how this needs to be strengthened in Northern Ireland where, subject to the approval of the Northern Ireland Assembly, we all hope that the body will operate and flourish. My cross-party amendment, also signed by the noble Baronesses, Lady Jones of Whitchurch and Lady Suttie, would provide the OEP with the necessary discretion to undertake its functions, including the enforcement function, in Northern Ireland. It would remove the power for DAERA Ministers to provide guidance to the OEP on its enforcement activity and strengthen the appointment process for the Northern Ireland member on the OEP’s board, requiring this appointment to be subject to the consent of the Committee for Agriculture, Environment and Rural Affairs of the Northern Ireland Assembly.
These amendments, as the noble Lord, Lord Krebs, set out very eloquently in speaking to Amendment 24, are necessary if the new environmental governance framework that this Bill will establish in England and Northern Ireland is to be robust and effective over the long term. I well recall explaining in Committee why the guidance power was inappropriate in principle, as this afternoon’s debate has powerfully reiterated. I also set out the different administrative and political context in Northern Ireland, which serves only to increase concern about such a widely cast power. To recap, my concerns related to the power-sharing nature of the Executive, how cross-cutting matters are dealt with and the potential for the power to be misused against specific parties or public authorities. I also explained my concern about the blurring of accountability that can result from the power, not least because front-line environmental regulation is currently carried out by the Northern Ireland Environment Agency, which resides within and is ultimately accountable to DAERA and its Minister.
In addressing the strong concerns raised by noble Lords across the House, the Government’s response has been to propose some extra procedure around the guidance power. I know the Minister has outlined those issues this evening through his various government amendments and in correspondence to us over the Recess, but those amendments fail to grasp the seriousness of the matters we have been raising. The amendments will not protect the OEP from directive guidance issued by an overly zealous Minister, nor do they require that any concerns that the Assembly might express be heeded. They are not an appropriate response to the depth and breadth of concern that many noble Lords outlined this afternoon and in Committee.
I carefully read the letter the Minister addressed to us, announcing the Government’s amendments, during the Recess. My understanding is that the Government’s noble objective of ensuring accountability for the proper use of public money and effective functioning of public bodies is driving the rationale for their approach to the OEP. As someone who has been involved in local and regional politics in Northern Ireland since 1985, I recognise and respect this. However, there are other and, I suggest, better ways to achieve the Government’s objective. It is about establishing the OEP as a non-departmental public body; the tailored review process which all such bodies undergo is a far more effective vehicle to discuss and address any issues regarding their operational effectiveness.
I turn to the appointment of the Northern Ireland member of the OEP board. To engender the greatest level of trust and buy-in to the OEP, Northern Ireland must be—and be perceived to be—embedded within it from the start. The appointment of a dedicated Northern Ireland member of the OEP is very welcome. It will help ensure that Northern Ireland is properly accounted for within the OEP’s policies and activity and establish a very necessary trust and credibility. Owing to the power-sharing nature of the Northern Ireland Executive, oversight for the AERA committee of this important appointment is essential and would allow for the necessary cross-party involvement.
A strengthened appointments process is not only necessary but entirely commensurate with arrangements for the appointing of similar roles. Precedent already exists for this. For example, the Northern Ireland Public Services Ombudsman, which performs a similar role to that envisaged for the OEP, is nominated by the Northern Ireland Assembly Commission, which is a committee composed of MLAs. The legislative under- pinning for this is set out in the Public Services Ombudsman Act of 2016. Similarly, the appointment of the independent Commissioner for Standards, which governs MLAs and Ministers with regard to their code of conduct, is made by the Assembly.
In conclusion, given the Assembly’s role in these appointment processes, I urge the Minister and the Government to reconsider this and support and endorse Amendment 24 from the noble Lord, Lord Krebs, and my cross-party Amendment 30. It is entirely appropriate for this Bill to provide for equivalent oversight of the appointment of the Northern Ireland member of the OEP board. No arguments have been advanced by either the UK Government or DAERA in Northern Ireland as to why the OEP should be subject to a weaker arrangement for appointments than that for existing comparable oversight bodies. Precedent exists for the nature of this appointment process in Northern Ireland.
My Lords, I will speak briefly. The noble Lord, Lord Krebs, said that he brought the amendment back because it was the most important one for this Bill and, quite honestly, I agree. There are lots of very important amendments but, if we are going to have one, this must be it. I absolutely take the points made by the noble Baroness, Lady Ritchie, on Northern Ireland, and support both amendments.
It is obvious to anybody looking in from outside that the office for environmental protection must do things such as hitting the share price of a water company whenever it dumps sewage into our rivers. We must have an independent OEP that commissions research into the impact of pesticides on our wildlife and insects and hands it over to MPs so that they can actually challenge Ministers and the lobbyists in Whitehall. We need an OEP that can say a straightforward no to damaging developments, whether it is infrastructure or development, urban or rural. It should not be suggesting mitigation and greenwash, which is what could happen with such a toothless watchdog. This country needs an OEP that is a rottweiler and not a lapdog.
“We stand before a harsh justice: biodiversity loss, environmental degradation and climate change are the inevitable consequences of our actions, since we have greedily consumed more of the earth’s resources than the planet can endure.”
For that reason, we cannot solve these complex problems through good intentions alone. Independent scrutiny is absolutely vital. Therefore, I support the maximum possible independence for the office for environmental protection. Action on climate change and biodiversity will be challenging politically for every Government over the next three decades. We will face many difficult decisions. It is essential to build in independent assessment and challenge for the medium and long term.
Over the last three years, I have had the privilege to be part of the board of the Government’s Centre for Data Ethics and Innovation—as it happens, alongside the new chair of the office for environmental protection, in whom I have every confidence in that major role. One of the major threads running through the Centre for Data Ethics and Innovation’s work—which, I believe, has been excellent—has been a strong ambiguity about its independence from government in terms of budgets and the appointment of its chair and board. The questions were present at every meeting, whether spoken or unspoken, and consumed a significant amount of energy. Reading the political runes at any given moment was, on balance, a distraction from the CDEI’s vital task.
As has been said, the OEP needs to command national and international confidence for the objectivity of its advice and recommendations. I join many other voices in urging the Government to build in greater independence along the lines of these amendments.
My Lords, I just want to intervene briefly to stress the importance of Amendment 24 and the associated amendment relating to Northern Ireland.
I recognise that the Minister himself and the Government’s own amendments in part reflect the concern about the independence of the OEP. I welcome in broad terms the letter I received from the Minister although I have to say that yesterday was probably not the best day to receive a letter whose first reassurance was that it was all going to be all right because it is in the Conservative Party manifesto.
However, these reassurances do not go anywhere near as far as the amendment of the noble Lord, Lord Krebs. If the Government do not accept these amendments, there is a much bigger story than one about appointments and guidance. In many ways, the Bill is a great Bill and I thoroughly support the bulk of it. However, if we do not accept the amendment from the noble Lord, Lord Krebs, or if the Minister does not agree to bring forward something very like it at Third Reading, then the credibility of the Bill—all its 145 clauses and 25 schedules—is at stake. Ultimately the effectiveness of all the good parts of the Bill depends on us having an office for environmental protection that is objective and independent and a system of environmental regulation and enforcement that is itself effective and independent.
As the noble Baroness, Lady McIntosh, said, post-Brexit we were promised a system of environmental regulation that would be at least as effective as the past EU regime when we had the Commission checking on the actions of member states and our public bodies. If the office for environmental protection—the body overseeing what is arguably the most important job of the Government: the long-term future of our environment —is not seen as independent, it will not be respected. It will be challenged and much of the good work that is behind this Bill stands to fail.
As I have said, the amendment from the noble Lord, Lord Krebs, is not just about procedural niceties in making appointments. It is about the credibility and effectiveness of everything we are working on in the Bill and in this House. I beg the House to support the amendments from the noble Lord, Lord Krebs, and my noble friend Lady Ritchie.
My Lords, I share the view around the House that the noble Lord, Lord Krebs, and the noble Baroness, Lady Ritchie, have made a compelling case for their amendments on a fundamental issue. It would be of enormous assistance if the Minister when he comes to reply would identify which part of Amendment 24 he objects to. Is it really the Government’s case that the OEP should not have
“complete discretion in the carrying out of its functions”?
Is that the Government’s case? I would be surprised and very disappointed if it were. If the Government accept that the OEP should have complete discretion, surely a matter of this importance should be in the Bill.
My Lords, no Minister likes an authority such as the OEP, because the Minister is undoubtedly convinced that his policy is absolutely right. However, when one stops being a Minister and looks back, one realises the importance of bodies such as the OEP.
I think my concern was summed up beautifully by the noble Lord, Lord Krebs, when he said that this is the one thing we have to get right. We were promised a totally independent body, equivalent to that which operated when we were in the EU. I accept that the Government should not be fined for not doing the right thing, but the OEP not only is—but has to be seen to be—totally independent. The Bill as drafted at the moment does not cover that. I hope that my noble friend will not be intransigent and stand out against this amendment but will go back for one more go with the other people in the department and the Secretary of State, understanding the enormous support there is in this House for the amendment of the noble Lord, Lord Krebs. It would be so much better if the Government solved this problem rather than having a Division. My noble friend was very good to me on my amendment on soil and has made a promise; I hope that he will be able to do the same thing again.
My Lords, I will not detain the House for long because the noble Lord, Lord Krebs, has made a compelling case for his amendment, to which I was very happy to add my name. I just want to add a reflection on the point which I think all of us feel very strongly about. There will sometimes be occasions when the OEP will have to take Ministers to task. There has to be not only a degree of separation between the OEP and the Government but also public confidence in that degree of separation.
I ask the Minister to reflect on the fact that the public will see what is happening in Scotland, where the body they are setting up has no such curtailment of its powers. Indeed, Environmental Standards Scotland has the powers to take the steps it considers appropriate to secure public authorities’ compliance with environmental law. The public need to see that there is independence between the Executive and this body. If they look to Scotland and see what is happening, that is another reason to support the case that the noble Lord, Lord Krebs, has made so compellingly. Therefore, I support him and the noble Baroness, Lady Ritchie. If they should be pushed to a vote, our Benches will support them.
My Lords, I am pleased to support Amendments 24 and 30, to which I have added my name. The noble Lord, Lord Krebs, as ever, has set out persuasively why we think Amendment 24 is so important. As he said, a strong, effective and trusted OEP is essential to underpin all the other measures in the Bill. As the OEP will be scrutinising the Government’s compliance with environmental law, it is vital that those points of separation, as well as interface, are set out clearly from the start. We cannot afford to fudge the relationship, which, I am sorry to say, the government amendments attempt to do.
Our amendment would take out Clause 25, which allows the Secretary of State to issue guidance to the OEP, and replace it with one that sets out that the OEP has “complete discretion” in its enforcement policy, exercising its enforcement functions and preparing a budget. It would also make it clear that the non-executive appointments must be approved by the relevant parliamentary committees.
The “complete discretion” in our amendment reflects the chorus of support in Committee for the OEP’s independence to be better assured, and it sits more consistently with the requirement in other parts of the Bill that the Secretary of State should have regard to the need to protect the OEP’s independence. As the noble Lord, Lord Pannick, said, what is it in the phrase “complete discretion” that the Government object to? The idea that a Secretary of State might issue guidance to try to head off any action against Ministers and the Government would completely undermine the authority of the OEP.
In Committee, his subsequent letter to us and indeed again today, the Minister made great play of the need for the OEP to be accountable to the Secretary of State and for the Secretary of State, in turn, to be accountable to Parliament for the OEP’s use of public money. Of course, we agree that the OEP needs to demonstrate good corporate governance and good use of public funds. This is what accountability should mean in this instance. What it should not have to do is to justify to the Secretary of State its enforcement policy and actions. It is also vital, as has been said, that there is a statutory basis for the specific appointments to the board with the direct involvement of Parliament, as already happens with several other oversight bodies where independence from ministerial manipulation is absolutely paramount.
I have also added my name to my noble friend Lady Ritchie’s amendment, which would give similar safeguards to the OEP in Northern Ireland as those proposed in the amendment in the name of the noble Lord, Lord Krebs.
This brings us to the Government’s amendments, which formalise the system for the Secretary of State to issue guidance to the OEP. Of course we understand the arguments as to why Parliament should have greater involvement in the process but, in reality, that is just a veneer. The Secretary of State is under no obligation to listen to the views expressed by Parliament, as has already been the case on several parliamentary committees, including the Lords committee whose advice to give the OEP greater independence has been ignored by the Government. But, more importantly, this just cements the system for issuing guidance to the OEP, which we believe is wrong in principle. The scope and intent of the guidance power would be unaffected by this amendment, as the Secretary of State would still have wide powers to interfere in the OEP’s enforcement function.
In his letter to all Peers, the Minister says that the guidance will be used only in specific circumstances, but these specific circumstances are not documented anywhere. Instead, the letter gives a couple of examples, such as the OEP not taking action on serious issues of national importance or there being a problem with overlap with other statutory regimes. But we would regard these issues as being part of the dialogue between the Minister, his officials and the OEP executive, not something that would be subject to a complex and lengthy process of reports being approved by Parliament. As the noble Baroness, Lady McIntosh, said, this all represents an attempt to micromanage the OEP through the process. I fear that these government amendments have been put together to suggest that Ministers have listened to your Lordships on this issue, when, sadly, that is not really the case.
Over the summer, the Minister and his officials have been in dialogue with several noble Lords on this issue, including the noble Lord, Lord Krebs, and I am really sorry that so little progress has been made as an outcome of this. As the noble Lord, Lord Krebs, made clear, if we get one thing right in this Bill, it has to be setting up the OEP on a properly independent basis.
I hope very much that noble Lords will support the amendment in the name of the noble Lord, Lord Krebs, and, if that is the case, that further dialogue will be forthcoming to find a genuine way through on this important issue. I look forward to the Minister’s response.
I thank all noble Lords for their contributions to this debate. I begin with Amendment 24 tabled by the noble Lord, Lord Krebs, and will take each of the issues raised by his amendment in turn.
Clause 25 does not provide the Secretary of State with any power to direct the OEP or to intervene in decision-making about specific cases. Indeed, the Bill states that the Secretary of State must have regard to the OEP’s independence. In fact, more than that, the OEP is required by the Bill to act objectively and impartially. So, it is not a matter of micromanaging the OEP; indeed, that is not possible within the context of the Bill we have here today. The Government have confidence that the OEP will develop an effective and proportionate enforcement policy. However, as the Secretary of State is ultimately responsible to Parliament for the OEP, this guidance power is an important safeguard for accountability and to help ensure that the OEP continues to carry out its functions as intended. We have always been clear that the OEP should focus on the most serious, strategic cases and that this guidance power will not change that.
The Government have committed to provide a five-year indicative budget for the OEP, ring-fenced within each spending review period, to give the OEP greater financial certainty. This is an administrative matter and is not appropriate for primary legislation, but other bodies with multiannual funding commitments, such as the Office for Budget Responsibility, do not have this set out in legislation.
Regarding appointments to the OEP’s board, the Secretary of State is accountable to Parliament for the department’s public appointments. Therefore, Parliament can call on the Secretary of State to justify appointments at any time. The appointment of the OEP chair-designate, as noble Lords know, has already been made following a pre-appointment scrutiny hearing conducted by the Environment, Food and Rural Affairs and Environmental Audit Select Committees. This process ensures fairness, accountability and independence, and I am happy to confirm our intention that future chair appointments will follow a similar process. All public appointees will ultimately remain accountable to Parliament.
Parliament may also choose to call a member of the OEP board to provide evidence of their suitability for the position after they have taken the post. However, as Ministers are accountable and responsible to Parliament for public appointments, it is appropriate that they retain the ability to make that final choice.
Amendment 30 was tabled by the noble Baroness, Lady Ritchie of Downpatrick. I hope she is at least partially reassured that the Northern Ireland department will be subject to the same constraints as the Secretary of State when exercising the guidance power. Northern Ireland Ministers have decided to bring forward the parallel amendments that I have presented today, and we will continue to work closely with them to ensure the best level of environmental protection across the devolved nations.
The Government carefully considered your Lordships’ comments in Committee, as we developed the amendments we have tabled. We are confident that our current position will set the OEP up to be genuinely independent and effective. I suspect we will have to test the opinion of the House but, nevertheless, I beg noble Lords to withdraw their amendments.
Amendment 22 agreed.
I am sorry; I would like to make a few comments about Amendment 24. I thought the agreement was to Amendments 22 and 23.