Clause 32 - Information notices

Environment Bill – in a Public Bill Committee at 2:45 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) 2:45 pm, 5th November 2020

I beg to move amendment 6, in clause 32, page 18, line 40, leave out “may” and insert “must”.

Where the OEP has reasonable grounds for suspecting a serious break of environmental law, this amendment seeks to ensure that an information notice is given.

Earlier, I was going to stand up and say that we might have tabled an amendment that was a “must” too far, and that was because, in clause 32(1), we suggest that the OEP must, rather than may, give an information notice to a public authority. As I have pointed out previously, there are circumstances in which “may” is a perfectly appropriate term to put in a Bill, and it may well be thought at first sight that this is one such occasion.

However, we will come shortly to a debate—it probably will not be much of a debate, because we have covered the area before—about the fact that the Government are seeking to amend subsection (2)(a) by clarifying that an information notice

“explains why the OEP considers that the alleged failure, if it occurred, would be serious”.

In this clause, the inclusion of the word “serious” has elevated the import of whether the OEP gives an information notice to a public authority. If the Government are including a provision that says the failure to comply has to be serious in order for an information notice to be given, surely the word “must” ought to apply. That is what the Government have done with their amendment: they have put the seriousness of the public authority’s alleged failure, as judged by the OEP, into the “must” category rather than the “may” category. Under those circumstances, it would look pretty odd if the OEP did not give an information notice. It might be a good idea, therefore, in line with the amendment—not that I particularly agree with the amendment itself, assuming we make it—to place in the Bill the requirement for the OEP to give an information notice to a public authority under those circumstances.

Photo of Leo Docherty Leo Docherty Assistant Whip 3:00 pm, 5th November 2020

I understand the hon. Gentleman’s desire to ensure that all failures are addressed by the OEP. However, the amendment may in fact limit the OEP’s ability to resolve failures quickly and efficiently.

The OEP’s enforcement function has been designed as a framework. An escalating series of measures is available for it to use to resolve failures as quickly as possible in the interests of people and the environment. The investigation phase is an important part of that framework and we expect that, in many cases, that process will quickly resolve any issues without the need for enforcement action.

Where an issue has been resolved by a public authority at the investigation stage, there will be no need for an information notice, and a requirement to issue one would serve no purpose. It would also waste the OEP’s resources by prolonging cases that it would otherwise prefer to have closed following its initial investigation.

We consider it appropriate that the OEP, as an independent body, has the discretion to target and prioritise its enforcement activities in line with its own enforcement policy. We have provided for that in clause 22. The amendment would be inconsistent with those provisions.

Finally, it is important that the OEP does not duplicate the work of any existing bodies or regulators. By removing its discretion concerning when to issue an information notice, the amendment may mean that it is required to take enforcement action where another authority may be better placed to do so, which could lead to overlapping enforcement activity. Placing it under a duty to serve information notices in all cases is inconsistent with its requirement to respect the integrity of other statutory regimes in clause 22 and is clearly not in the interests of any party or the environment.

I hope that the hon. Gentleman is reassured that the OEP’s enforcement framework is designed to bring about compliance as quickly as possible, and that allowing it the discretion to target enforcement activities will be fundamental to its success. I therefore 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 wonder whether the Minister’s speaking note was written before the Government tabled the next amendment that we will debate, because his reply is one that I might well have given before that amendment was introduced. The Government amendment counters quite a lot of what he said, so I would like him to consider whether that is indeed the case, and whether he completely stands by what he said in the light of amendment 205.

We may want to discuss that when we get to amendment 205, and it might be a good idea, although I do not intend to pursue the other word of the day, “serious”, with regard to that amendment. The combination of the two issues—“must” and “may”, and “serious”—is interesting, and that is what we have in this clause. I do not wish to press amendment 6 to a Division, but I hope that the Minister reflects on that conjunction. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Leo Docherty Leo Docherty Assistant Whip

I beg to move amendment 205, in clause 32, page 19, line 2, at end insert—

“(aa) explains why the OEP considers that the alleged failure, if it occurred, would be serious, and”.

Under clause 32 the OEP may give a public authority an information notice if it has reasonable grounds to suspect that the authority has failed to comply with environmental law, and it considers that the failure, if it occurred, would be serious. This amendment requires the information notice to explain why the OEP considers that the alleged failure, if it occurred, would be serious.

Photo of George Howarth George Howarth Labour, Knowsley

With this it will be convenient to discuss Government amendment 206.

Photo of Leo Docherty Leo Docherty Assistant Whip

Amendment 205 is a technical amendment that serves to clarify that an information notice issued by the OEP must explain why the OEP considers that the alleged failure would be serious. Together with the corresponding change proposed in Government amendment 206 to clause 33, concerning decision notices, it will ensure that all the OEP’s notices are clear and transparent, and it will provide clarity for all parties in the process.

Given the requirement that the OEP may issue an information or decision notice only if it considers that the alleged failure would be, or is, serious, it is entirely right and in the interests of good administration that notices should explain the OEP’s reasons for considering that to be the case. The OEP’s enforcement framework is designed to ensure that the OEP prioritises action in the most serious cases, adopting a strategic approach to enforcement action, and these amendments reinforce that.

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)

Yet again, we may be defending the Bill from its detractors, who happen, on this occasion, to be in the Government. The traffic is not always one way. The substantial problem of the inclusion of the word “serious” continues in the two amendments. We do not want to go over the full discussion of the word “serious” and what it does and does not do, because we have already had quite a good go at it. The hon. Member for Gloucester is not in his place, so we might be able to skip over that reasonably rapidly.

The amendments continue the problem of defining what is serious, how the OEP works on that basis, and the extent to which someone from outside the OEP is required to tell it what is or is not serious. I ask the Minister to reflect on what the addition of the amendments would say, as far as the OEP is concerned. I was interested in his statement a little earlier that the OEP “must” decide whether something is serious in order to take action—in this instance, to give an information notice. If the OEP must decide whether something is serious, it must also be enjoined to provide an information notice when it has decided that something is serious.

Therefore, as we have said, the two go together. The Minister sort of underlined that case in his statement on what the OEP must do in respect of the Government amendments. Again, we do not intend to press the matter to a vote, but I underline what we have said about the question of seriousness and the conjoining of the two. It is a bit like putting two fireworks in a box, with all the consequences that that might entail. I hope the Minister will reflect on that, and on whether he has any thought of making drafting amendments to the Bill, perhaps on Report, to make its purpose a little clearer.

Amendment 205 agreed to.

Clause 32, as amended, ordered to stand part of the Bill.