Environment Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[Baroness Parminter (LD)]

My Lords, I will be brief. After what was a fruitcake of amendments, we are now on a fairly simple Madeira cake—but it is no less welcome. I am grateful to be noble and learned Lord, Lord Hope of Craighead, for his forensic approach and for tabling this probing amendment. We need to be absolutely clear what is the purpose of this clause if we are to ensure that the Bill helps parliamentarians in future—including Select Committees, as the noble Baroness, Lady Neville-Rolfe, mentioned—properly to scrutinise the effects of proposed legislation to ensure that it is compatible with the Government’s environmental goals. So we welcome the approach of this probing amendment.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I, too, shall be quite brief. I am grateful to the noble and learned Lord, Lord Hope, for tabling this amendment. As he says, it is probing and, as ever, he set out very eloquently the reason why it is important. I have listened carefully to his analysis and very much agree with what he said.

As we discussed in the previous group, throughout consideration of the EU withdrawal Bill, we were reassured that environmental protection would be at least as good as that which we enjoyed in the EU. However, it is already clear that the wording in this Bill on environmental principles is a weakened version of what has gone before, particularly in the need to have only “due regard” to the policy statement. The academic experts giving evidence on the pre-legislative scrutiny of the previous version of the Bill concluded that

“the Bill does not maintain the legal status of environmental principles as they have come to apply through EU law.”

Now the noble and learned Lord, Lord Hope, is rightly raising the issue of making new environmental law, as set out in Clause 19. His amendment would require that the level of environmental protection under existing environmental law should be clearly spelled out before it is possible to say, in Clause 19(3), that any new legislation will not reduce the level of environmental protection under existing law. It would remove any ambiguity and provide a double lock on protections for future environmental legislation.

At the same time, we should acknowledge that regression often happens by stealth, and can occur at a number of levels, not just in primary legislation. For example, it could appear in secondary legislation or in the detailed policy proposals that precede it. Therefore, ideally, the scope of this provision should include secondary legislation as well. It would also make sense for a statement of this nature to be published at a much earlier stage, as part of any consultation or before a new Bill was introduced. As we have discussed in other contexts, we need accurate baseline evidence, including about the impact of existing legislation, before we can assess the effectiveness of any measures proposed in any new legislation.

So we share the concerns that the noble and learned Lord has raised in this amendment and very much hope that the Minister will feel able to take these issues on board and give a positive response.

[Lord Goldsmith of Richmond Park (Con)]

I thank the noble and learned Lord, Lord Hope of Craighead, for his Amendment 81A. It summarises in many respects the purpose behind Clause 19 very well. The clause is aimed at delivering accountability through transparency. It guarantees that effects on the level of environmental protection are considered before a Bill is introduced and will ensure that the environment will receive the close attention and appropriate consideration it deserves in the policy-making process.

I should like to provide some more detail how it will work in practice, in response also to questions raised by my noble friend Lady Neville-Rolfe. The statement under Clause 19 will take the form of a short, written statement in any new Bill that contains a provision that, if enacted, would be environmental law. The statement would confirm that the Minister was of the view that the Bill contains an environmental provision, and would set out that the Minister believed that the existing levels of environmental protection would not be reduced.

Bills are accompanied by a range of documentation to aid Parliament in its scrutiny of legislation, including the Explanatory Notes and Delegated Powers Memorandum. These are produced by convention, rather than being required by legislation. Clause 19 is designed to ensure that Parliament has the necessary information so that it can properly scrutinise legislation that affects the environment. The Government will consider what arrangements may be appropriate for specific Bills. I assure noble Lords that we will engage with the authorities in both Houses prior to implementation. As Clause 19 is straightforward in its purpose and current wording, I do not think it is necessary to reiterate it in the Bill.

I should also like to take this time to respond to colleagues in the devolved Administrations who have requested some reassurances on the implementation of this clause. Incidentally, the organisation that my noble friend Lady McIntosh referenced is called Environment Standards Scotland. The statement under Clause 19 will take into account the extensive discussions held with the devolved Administrations throughout the development of any new Bill that includes provisions with implications for them. Engagement with the devolved Administrations will be in accordance with the memorandum of understanding on devolution, or any arrangement that replaces it, and the practices outlined in the devolution guidance notes. My noble friend also asked about working with the devolved Administrations, and I hope I have addressed her concerns.

Once again, I thank the noble and learned Lord for his amendment and beg him to withdraw it.

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[Lord Oates (LD)]

My Lords, I am pleased to speak from these Benches in favour of the amendments in this group and to commend the noble Lord, Lord Cameron of Dillington, and the noble Baroness, Lady Boycott, for their excellent and powerful introduction of them. If I may paraphrase Oscar Wilde, I say to the Minister that for the Government to provoke the crossness of one Cross-Bencher is in itself careless, but to provoke the crossness of two is surely dangerous, particularly if those Cross-Benchers are as reasonable and thoughtful as the noble Lord and the noble Baroness. It is not just the Cross-Benchers who are cross; noble Lords have heard from across the House a rejection of the approach that the Government have taken.

One of the reasons for the crossness is that, as the noble Lord, Lord Krebs, and many others have said, we were promised a strong and independent office for environmental protection. The then Secretary for State for Defra, Michael Gove, said in a speech on 16 July 2019,

“we have to create … a new Office for Environmental Responsibility to hold government to account.”

He went on to say:

“There is obvious merit in their argument that any body which is designed to hold the Government to account is independent of ministerial interference.”


He promised:

“An Act that combines … comprehensive objectives with strong enforcement powers”,


but the OEP currently has no such independence. It has no strong enforcement powers; its members will be appointed, and its budget set, by the Government. It will be subject to the guidance from the Secretary of State on enforcement—the Secretary of State who should be subject to that enforcement—and its effectiveness will be undermined by the constraints placed on judicial enforcement.

As the noble Lord, Lord Cameron of Dillington, said at Second Reading, the office for environmental protection

“has not only to be independent but to be seen to be independent. As currently set up, it is neither”.—[Official Report, 7/6/21; col. 1206.]

That is why the amendments in his name and that of the noble Baronesses, Lady Boycott, Lady Jones of Whitchurch and Lady Young of Old Scone, are so important. As we have heard, Amendment 82 puts it beyond doubt that the OEP would be accountable to Parliament, rather than to the very Minister and Government who may be subject to its enforcement powers. It would do so by making it clear that the CEO is to be the commissioner of environmental protection.

Amendment 85, in the names of the noble Baronesses, Lady Jones and Lady Young of Old Scone, seeks to provide a greater degree of scrutiny and independent involvement in appointments to the OEP through the Defra committee and the Environmental Audit Committee. I may have misunderstood, but I did not see a conflict between the amendment of the noble Lord, Lord Cameron, and that of the noble Baroness, Lady Jones, because my understanding is that hers relates specifically to non-executive members, whereas the noble Lord’s first amendment relates to the chief executive in the role of commissioner of environmental protection.

Amendment 91 would provide a means of securing financial independence for the OEP through a role for the Public Accounts Committee. We have heard how important that is. The noble Lord, Lord Cameron, cited the experience of the Environment Agency and how significantly its budget has been cut; as a result, its enforcement powers in many regards have disappeared.

Together, these amendments seek to tackle many of the deficiencies in the Bill as it stands and which, at the moment, fatally undermine the independence of the OEP. I hope the Government will consider them carefully, but I fear that, at the moment, they simply do not understand the concept of independence. In Committee in the other place, Leo Docherty, who was then the assistant Government Whip speaking for the Government, had this to say:

“The operational independence of the OEP … should not impede the”


ability of the

“Secretary of State in exercising appropriate scrutiny and oversight of the OEP.”

But it is the OEP that should be exercising scrutiny and accountability over the Minister, so that in itself undermines the case. He went on to say:

“Requiring the Secretary of State to actively protect the OEP’s independence at all times would be incompatible with … ministerial accountability”.—[Official Report, Commons, Environment Bill Committee, 5/11/20; col. 316.]


I hope the Minister can explain those two rather extraordinary statements. If that is the Government’s position then it is quite clear that there is no independence for this office at all.

The noble Lord, Lord Cameron, impressed upon us the need for bold action rather than settling for politics as the art of the possible. To me, politics is the art of making possible what seems impossible. If this seems impossible in Committee, I hope that, by the time we get to Report, it will seem not only eminently possible but absolutely necessary.

I ask the Minister to put aside his ministerial brief and endorse independence of mind both for himself and for the OEP, possibly by backing these amendments, or another form of them if they need to be improved, but certainly by backing the principles behind them and by supporting the arguments that have been made by noble Lords with such cogency and passion.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have had an excellent debate. I feel as if I have had a master class from some very experienced practitioners on how government really works and what it is like to be on the inside of some of these decisions.

I shall speak to Amendment 85 in my name. I am grateful to the noble Lord, Lord Cameron, for setting out so comprehensively the case for enhancing the status and autonomy of the CEO of the OEP. As the noble Lord, Lord Oates, has said, those of us who know the noble Lord, Lord Cameron, know it is very unusual for him to be a cross Cross-Bencher, and it is a sign that we should sit up and take notice when he shows so much passion about the issue.

This is the beginning of a debate about the OEP’s lack of true independence which we will have in different forms over the next few groups of amendments. It has been hugely informative to have had insight from previous Ministers and chairs of NDPBs, who know how Ministers’ powers are really exercised behind the public face.

Our amendment is simple but important. It would amend Schedule 1, which sets out the detailed appointment arrangements for the OEP. I very much welcome the support for the amendment from the noble Lord, Lord Krebs, the noble and learned Lord, Lord Hope, and other noble Lords. It would require the chair and other non-executive members of the OEP to be appointed by the Secretary of State only with the consent of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee of the House of Commons. That would prevent in years to come the Secretary of State having complete control over non-executive appointments to the OEP. As Schedule 1 stands, there is a worrying cascade of power from the top. The Secretary of State appoints the chair, and then the Secretary of State and the chair appoint the remainder of the non-executives. So in a future scenario, the Secretary of State would only have to appoint a compliant chair to exert undue influence over all the other appointments to the board.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

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.

[Lord Goldsmith of Richmond Park (Con)]

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.