Clause 27 - Advising on changes to environmental law etc

Environment Bill – in a Public Bill Committee at 2:15 pm on 5th November 2020.

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Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy) 2:15 pm, 5th November 2020

I beg to move amendment 4, in clause 27, page 16, line 16, leave out

“may, if the Minister sees fit,” and insert “must”.

At first sight, this amendment looks as if it is just another “may” and “must” amendment. I say “just”, but I think Members have got the message that this is something we are concerned about throughout the Bill. The Bill is written in such a way that Ministers may do all sorts of things, but there are very few things that they must do. It would strengthen the Bill immensely if the “mays” were converted to “musts”. The hon. Member for Falmouth and—

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

Sorry, Gloucester—it is in the west country, so that is okay. I hope our listeners in the west country will not be offended by that comment. As the hon. Member for Gloucester said earlier, there are a considerable number of circumstances where replacing “may” with “must” could do a very good job.

This is a particularly egregious version of that “may” or “must” dilemma. Clause 27(6) states:

“The Minister concerned may…lay before Parliament—

(a) the advice, and

(b) any response the Minister may make to the advice”— that is, the advice on changes to environmental law and so on. I have deliberately left out a little bit of that subsection. Over and above “may”, it says,

“if the Minister thinks fit”.

The preceding subsection gives the OEP a responsibility to publish advice on changes to environmental law, stating:

“The OEP must publish—

(a) its advice, and

(b) if the advice is given under subsection (1), a statement of the matter on which it was required to give advice and any matters specified under subsection (2).”

The OEP has a duty to do that—it must publish the advice.

When that advice gets to the Minister’s desk, the Minister may not feel like responding at all, and the Minister may justify the fact that he or she has not responded at all by simply saying, “Well, I didn’t think fit to do it.” That phrase is capable of any interpretation whatever. All the Minister has to do is say, “I didn’t bother to publish the advice or any response to it because I didn’t think fit to do so.” There is no objective test of that; the Minister can just decide that they do not want to do it, and that is the end of it. That is a really bad piece of drafting, and it ought to be removed. At the least, we want to see the word “may” replaced by “must”, but we also think that the additional anti-belt-and-braces device—“if the Minister thinks fit”—should be removed from the clause.

Photo of Leo Docherty Leo Docherty Assistant Whip

The Bill provides the OEP with statutory functions that enable it to provide advice on any proposed changes to environmental law. It can also provide advice, at the request of a Minister, on any other matter relating to the natural environment. The clause provides the Minister with a discretionary power to lay the OEP’s advice and any response they wish to make to it before Parliament. In this situation, it is entirely appropriate to provide the Minister with that flexibility.

The provision of advice from the OEP to Government may not simply be a single event but could be an iterative process. Given that the OEP will become an expert body, Ministers may regularly ask it for advice, which may include specific technical questions on relatively minor matters. Requiring the OEP’s advice to always be laid before Parliament may impede the interaction between the OEP and Government. The Government should be able to seek advice from and respond to their public bodies with ease. This approach is not new; the advice provided by the Committee on Climate Change under sections 33 to 35 of the Climate Change Act 2008 is not laid before Parliament. Flexible, case-by-case provision is needed here, and it would be inappropriate to convert this power into an inflexible duty. The Committee should be assured that, if the OEP’s advice is significant enough for Parliament to debate it, the Minister will lay it before Parliament so that it can be discussed.

Photo of Daniel Zeichner Daniel Zeichner Shadow Minister (Environment, Food and Rural Affairs)

Some of us Opposition Members do not have experience of government, so we have to trust the way others work, but I find this slightly extraordinary. It seems to me that if this is in legislation, it is not a question of just picking up the phone and having a casual chat with people; it is about seeking advice. If the Minister is seeking advice, why on earth should that not be available to Parliament? Parliament ought to be able to see what the Government are doing. That does not preclude the odd informal phone conversation.

Photo of Leo Docherty Leo Docherty Assistant Whip

I take the hon. Gentleman’s point, but the key word here is “flexibility”. It is important that flexibility be retained in the relationship so that the Government can interact with the OEP and other public bodies with ease. That is the important principle at stake here.

The OEP is required to act transparently, and any advice that it provides, either on its own initiative or at the request of a Minister, must be published. Parliamentarians will be able to use the OEP’s published advice to question the Government on action they have taken in response to the OEP’s advice. I hope that has eased some of the concerns of the hon. Member for Southampton, Test, and I courteously ask him to withdraw the amendment.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

I am a bit bemused by the passage that the Minister has just read out. The process here is that the Minister is laying something before Parliament. That is all the Minister is doing, or might be required to do. I really cannot think why that affects the moving nature of the relationship or the question of iterative changes, which the Minister alluded to. It seems to me that that answer has actually dug the hole a bit deeper, in terms of what concerns us about the clause.

The clause relates to advising on changes to environmental law, which it should absolutely be the province of Parliament to have a good look at. If the clause is simply about the relationship between the OEP and a Minister, and the Minister can, at his or her pleasure, decide whether something goes before Parliament, although it is true that Parliament can, in theory, quiz the OEP separately about what it is doing, that requires all sorts of other devices to be put in place. The laying before Parliament of the advice and, most crucially, any response the Minister may make to that advice, would mean that Parliament had a reasonably automatic route to deciding what it wanted to do about those things.

Indeed, taking the clause at face value, we know that under some of the procedures in this place, it would be very difficult for MPs to find out what had gone on, particularly in terms of the Minister’s response to advice that the OEP provided. That response may be in the form of an internal communication, which could be revealed to Parliament only by quite assiduous work to try to get it on the public record. This seems to me a completely unsatisfactory formulation for that reason alone.

Photo of Ruth Jones Ruth Jones Shadow Minister (Environment, Food and Rural Affairs)

The shadow Minister is making an important point. The wording in the clause is

“if the Minister thinks fit”.

Again, the power is now vested in one person, and we are back in a situation in which, if it is a good Tuesday, the Minister may do it; if it is a bad Tuesday, he may not. This is where we need to take the subjectivity out. The objective advice that must be given by the OEP and published should then make its way naturally to Parliament, to ensure that it can be acted on.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

My hon. Friend is absolutely right. She emphasises that the proper relationship is between the OEP, the Minister and Parliament, not the OEP, the Minister and maybe Parliament. That is what this issue is about.

This is not quite the same as other issues that this Committee has considered, which were about the extent to which the Government may be trying to withdraw or reduce the powers of the OEP. Nor, indeed, is it a question of a simple “may” or “must”, because it goes to the heart of the need for that three-part relationship when it comes to changes to environmental law.

I am getting a little weary of pointing out these lacunae and various other things in the Bill. On this occasion, we do not want to divide the Committee, but I hope that the Minister has heard what we say about the relationship between the Committee, Ministers and Parliament, which it would be in the Government’s own interest to clarify, because opaque processes can become the cause of quite unnecessary tussles, misunderstandings and opposition. Simply making things open, transparent and clear will prevent those difficulties in most instances. If those difficulties can be compounded depending on whether the Minister has a good or a bad Tuesday, as my hon. Friend the Member for Newport West said, the chances of something happening that may not be to the advantage of the Government are also then compounded.

As I say, I am not seeking to divide the Committee, but I hope that the Minister will consider whether an amendment to the Bill at a future date might be appropriate to make matters clear. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.