Environment Bill

Baroness Garden of Frognal Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

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

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The noble Lord, Lord Inglewood, has withdrawn, so I call the noble Lord, Lord Krebs.

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[Lord Hope of Craighead (CB) [V]]

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

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


It is true that paragraph 17 of Schedule 1 states:

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


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

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

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

“preparing its enforcement policy, and … exercising its enforcement functions”

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

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

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

[Lord Cormack (Con)]

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

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

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

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

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

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

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

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

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[Lord Goldsmith of Richmond Park (Con)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

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

[Lord Teverson (LD)]

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

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


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

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


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

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