Environment Bill

Baroness Ritchie of Downpatrick Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

The noble Baroness, Lady Boycott, has withdrawn, so I call the noble Baroness, Lady Ritchie of Downpatrick.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Cameron of Dillington.

I support the amendments in this group. It is worthy of note that the Government have agreed that,

“to ensure its financial independence, the OEP will be provided with a five year indicative budget which is formally ring fenced by HM Treasury within any given Spending Review period.”

However, it needs to be much more concrete than that.

This is comparable with how some other bodies are given long-term financial certainty; for example, the Treasury has made a similar commitment for the OBR. In its letter to the OBR setting out a multiannual funding commitment, the Treasury noted that this approach

“supports the OBR’s independence and ability to manage its resources effectively in the medium term. This approach for independent fiscal institutions is consistent with international best practice, strengthening institutional independence through delegated budgetary autonomy.”

The Government have said that they will make this commitment on the OEP in Parliament; I would like to see the Minister make it to your Lordships’ House today in his response to this group of amendments.

It would also be helpful if the Minister could clarify that the Government’s position remains as set out in their response to the EFRA Committee’s pre-legislative scrutiny, which stated:

“In order to ensure its financial independence, the OEP will be provided with a five year indicative budget which is formally ring fenced by HM Treasury within any given Spending Review period.”


This was repeated in the Government’s Environmental Governance Factsheet, which was published in March 2020. However, since that time, the Government appear to have wavered on the commitment for the long-term budget to be for five years, leaving such matters to political rather than legislative commitments.

As per Amendment 93, I urge the Minister to confirm that the Government remain committed to providing the OEP with a five-year indicative budget. That must be enshrined in legislation. In such circumstances, I support Amendments 93 and 92, which would require the OEP to prepare a five-year indicative budget that would be subject to public consultation, and allow it to request in-budget increases.

If the OEP is to work strategically, it will require financial security enshrined in legislation. A binding commitment to provide a multi-annual budget would help to avoid the slow but significant funding decline that many of Defra’s arm’s-length bodies have suffered over recent years and provide certainty of ongoing funding levels.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

The noble Baroness, Lady Young of Old Scone, has withdrawn, so I call the noble Baroness, Lady Parminter.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, continuing the theme of great minds thinking alike, apparently the requests for a clause stand part debate landed at exactly the same moment and there was the equivalent of tossing a coin to see whose name would appear. I am delighted to support the clause stand part debate and to go a little further in my Amendment 100.

My question to my noble friend at the outset is this: does he not accept that, for the OEP to do all that I am sure he, the Government and all of us would wish it to do, it must be seen to be independent, not just of the Government but of other organisations, such as Natural England and, to a certain extent, the Environment Agency? I am still not entirely clear what the relationship of the OEP and the Environment Agency and these other bodies will be. The question I keep asking, to which I hope one day to get an answer, is this: to who would a farmer, whether a landowner, a tenant or an owner-occupier, go to seek advice? Would it be Natural England, the Environment Agency or the OEP? That is not entirely clear.

I could never be cross with my noble friend, so I would not like to be described as a cross Back-Bencher, but I find it inappropriate that Clause 24 appears in the terms that it does. It is discretionary. It simply states that:

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


It then goes on:

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


This reverts to the point I made earlier, when I set out my concern that it might be the case that a Secretary of State—or, heaven forfend, a junior Minister—might lean on members of the OEP to ensure that a particular enforcement does not go ahead. That would be utterly inappropriate. It then goes on to say that

“The Secretary of State may revise the guidance at any time”


but

“must lay before Parliament, and publish, the guidance (and any revised guidance).”

I am not quite sure which body would be scrutinising that in that situation. Later, it sets out the OEP’s enforcement functions.

At this point, I just say that I do not believe there is a place for Clause 24 in the Bill, and I look forward to some very strong justification or proposed changes that my noble friend might make when he sums up this little debate.

Just before I address my Amendment 100, I want to support the amendments in this group in the name of the noble Baroness, Lady Ritchie of Downpatrick. They also go to the heart of parliamentary scrutiny, which we discussed a little earlier. I endorse those amendments; they are entirely appropriate.

Amendment 100 would go a little further than just leaving out Clause 24 and would insert a new clause specifically stating that

“In performing its functions, the OEP is not subject to the direction or control of the Secretary of State or any member of Her Majesty’s Government.”


I cannot put it in any stronger terms than that it would be entirely inappropriate for that to happen. This debate is a good opportunity to cast beyond doubt the independence of the OEP, not just, as I said, from government but in its dealing with other bodies which have a role to play in the environment. We want to give it the greatest authority we possibly can. I would argue that we leave out Clause 24 but insert my wording in Amendment 100.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a delight to follow the noble Baroness, Lady McIntosh of Pickering. I support the amendments in this group and wish to speak in particular to the amendments in my name: Amendments 117 and 118, relating to Northern Ireland.

Schedule 3 makes provision for the functions of the office of environmental protection in its activities in Northern Ireland. Along with many organisations, including Greener UK, I support the inclusion of Northern Ireland within the remit of the office of environmental protection. These provisions are broadly parallel to those in Part 1 and Schedule 1 that relate to England. I raised this specific point during Second Reading, some three weeks ago.

Extensive regulatory dysfunction and unacceptable levels of disregard for environmental law have resulted in substantial degradation of the environment in Northern Ireland, with significant economic and social costs. The independence of the OEP in Northern Ireland is therefore vital. The lack of an independent environmental regulator, despite the fact that it was first recommended in 1992 by a House of Commons Environment Select Committee report—nothing has ever happened in that regard—has meant historically weak environmental governance, which means that the OEP must have a cast-iron constitution and culture of independence from the outset. The need for independent oversight is exemplified in the case of designated sites, such as protected sites. In some cases, it is quite dismal in our areas of special scientific interest and areas of outstanding natural beauty.

In this context I have a concern about a broad power for DAERA, the department in Northern Ireland, to issue guidance to the OEP that it must have regard to when preparing its enforcement policy or exercising its enforcement functions in Northern Ireland. This will affect the OEP’s ability to perform its role independently and does not take sufficient account of the particular political circumstances and context of Northern Ireland, including the mandatory power-sharing nature of the Northern Ireland Executive—hence Amendment 117.

There is concern about the timetable for appointing the Northern Ireland member of the OEP board. There must be no further delay in appointing that member, and the appointment process should be progressed as quickly as possible. I hope the Minister will pursue that with his equivalent colleague in the Northern Ireland Executive.

Those problems concerning the guidance power for DAERA should be removed from the Bill, and Amendment 117 would do that. There are three particular areas of concern. In line with the Ministerial Code, cross-cutting and controversial matters must be brought to the Northern Ireland Executive—and guidance from the DAERA Minister to the OEP on its enforcement policy and functions would qualify as both cross-cutting and controversial. Therefore, what is the procedure for bringing this guidance to the Executive before it is issued by DAERA? As a former Minister in the Northern Ireland Executive, about 13 years ago, I knew what that meant, but I just want to clarify that.

Secondly, ministerial appointments in Northern Ireland are managed through the d’Hondt system, under which the largest parties are allocated multiple departments. What mechanisms will be put in place to minimise the risk that a current or future DAERA Minister could use the guidance power to advise the OEP in relation to enforcement or potential non-compliance on environmental law relating to either a department of a similar affiliation or one allocated to an opposing party? Given its wide scope and the lack of transparency in how it will be prepared, the guidance could in theory be used for political benefit—a risk that does not appear to be considered by Defra or DAERA in designing this power.

As a public authority, the Northern Ireland Environment Agency will fall within the remit of the OEP. If DAERA exercised its power to issue guidance in relation to enforcement matters involving the Northern Ireland Environment Agency, that would further cloud Northern Ireland’s already difficult environmental governance and could result in blurred areas of accountability.

Amendment 118 would require the appointment of the Northern Ireland board to be made with the consent of the Committee for Agriculture, Environment and Rural Affairs of the Northern Ireland Assembly. To engender the greatest level of stakeholder trust and buy-in to the OEP, Northern Ireland must be—and must be perceived to be—embedded within it from the start. The appointment of a dedicated Northern Ireland board member will help ensure that Northern Ireland’s nuances, including geopolitical, biogeographic and societal, are properly accounted for in the OEP’s policies and activities. It will also establish trust and credibility.

In this context, can the Minister ask DAERA to clarify the timescale for the appointment process? I note that the first interim board meeting of the OEP is expected to be held this Thursday, 1 July.

[Baroness Neville-Rolfe (Con)]

My Lords, I am glad to follow the noble Baroness, Lady Ritchie of Downpatrick, and to hear from her about the situation in Northern Ireland, with its beauty and diversity of flora and fauna. These amendments relate to the issue of the independence of the office for environmental protection, which was much debated at Second Reading. I have listened to the noble Lord, Lord Krebs, and, like him, I hope the Minister can reassure us.