Environment Bill

Lord Krebs Excerpts

Consideration of Commons amendments
Tuesday 26th October 2021 Lords Chamber

On that basis, I am grateful for what the Minister has offered—a letter of reassurance. I hope that he can see that, again, I am trying to be consensual. If those words are in there, I will be temporarily reassured, but please be mindful: this is not an issue that will go away.

[Lord Krebs (CB)]

My Lords, I rise to speak to Motion F1, which would amend the government Motion F. I also support Motion G1, which we will come to shortly. The issue at stake with my amendment is simply this: does the Bill give the office for environmental protection sufficient independence to allow it to fulfil its function of holding public authorities, including Ministers, to account in relation to breaches of environmental law?

Clause 24 gives the Secretary of State wide-ranging powers to issue guidance to the OEP on the matters listed in Clause 23(6). These include whether a failure to comply with the law is “serious”, how the OEP determines

“whether damage to the … environment or to human health is serious”,

how the OEP exercises its enforcement functions

“in a way that respects the integrity of other statutory regimes”,

how the OEP intends to “avoid … overlap” with relevant ombudsmen and

“how the OEP intends to prioritise cases.”

The Bill also gives the Secretary of State powers to determine the budget of the OEP and to hire and fire the board, including the chair. Many of us feel that this does not add up to creating a truly independent watchdog.

Therefore, on Report, I moved an amendment, with support from across the House, to rewrite Clause 24 in order to ensure that it gave independence to the OEP in its enforcement role and budget. It also gave parliamentary oversight of both the budget and the hiring and firing of board members. This amendment was passed by a majority of 29. The Government proposed an alternative amendment that would have involved more consultation with Parliament but did not remove the guidance powers or change the substance of Clause 24. This amendment is essentially the same as Amendments 31A and 31B that we have in front of us today.

In the other place, on 20 October, my amendment was rejected, in spite of the fact that, according to my reading of Hansard, the speeches that referred to it strongly supported it. In her response, Minister Pow made three points. First, she said that paragraph 17 of Schedule 1 requires the Secretary of State to “have regard to” to the OEP’s independence. But we all know that “have regard to” is a weak requirement.

Secondly, she said that the Secretary of State cannot intervene on “specific … cases”. But by intervening on a category of cases—say, new nuclear power stations—the Secretary of State could, in theory, preclude the OEP from investigating a whole raft of individual cases within that category; for example, if it was advised that it is not a priority.

Thirdly, Minister Pow said:

“The OEP does not have to follow the guidance where it has clear reasons not to do so.”—[Official Report, Commons, 20/10/21; col. 823.]


It is a bit paradoxical to justify the existence of the guidance power by saying that the OEP does not have to take any notice of it. Furthermore, you could argue it would be a brave OEP that ignored the guidance from the individual who has the power to determine its budget and hire and fire the board, including the chair.

I am still not satisfied that the Bill will protect the independence of the OEP without further amendment. This new amendment—my Amendment 31C—is a genuine attempt at compromise, and I hope the Government will recognise this and therefore accept it. Let me briefly summarise. Subsection (1) sets out that the OEP has complete discretion in relation to its enforcement policy and functions and in preparing its budget. This would make it comparable to the Office for Budget Responsibility and the National Audit Office. Subsection (2), importantly, retains the guidance power for the Secretary of State but narrows its focus to certain strategic issues concerned with enforcement, as described in Clause 22(6)(c). Subsection (3) requires the OEP to have due regard to the guidance but allows for circumstances in which it may choose to disregard it. Subsections (4) and (5) refer to consultation and parliamentary scrutiny of the guidance, and subsection (6) involves the relevant parliamentary committees in the hiring and firing of board members.

The long-term success or failure of this Bill will in large part be measured by the effectiveness of the office for environmental protection. All the good intentions of the other parts of the Bill could come to naught without a fully independent watchman. We all had high confidence in and high regard for Dame Glenys Stacey, and for her board. We also have high regard for and confidence in the good intentions of current Defra Ministers. But I believe we have to prepare for the long term and that this amendment is fundamental to protecting the OEP’s independence in the long term.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I will be brief, as this issue has been debated thoroughly at previous stages of the Environment Bill. I rise to move my Amendment 75C, under Motion N1, which would replace government Amendments 75A and 75B. This mirrors Amendment 31C, proposed by the noble Lord, Lord Krebs, and would achieve the same outcomes for the OEP’s independence in Northern Ireland as his would for the OEP in England.

My amendment would safeguard the OEP’s independence in the long term by amending the power of DAERA to guide how the OEP will hold Ministers to account on any environmental wrongdoings, to make it more targeted. It would also provide the OEP with complete discretion to undertake its activities in Northern Ireland and establish a role for the Assembly’s AERA Committee in overseeing the appointment of the Northern Ireland member on the OEP’s board. As the noble Lord, Lord Pannick, said on Report:

“If the Government accept that the OEP should have complete discretion, surely a matter of this importance should be in the Bill.”—[Official Report, 18/9/21; col. 886.]


The recent DAERA consultation in Northern Ireland on environmental plans, principles and governance indicated strong support for the establishment of the OEP in Northern Ireland. I am in no doubt that that will be a huge boon for our environmental governance, but unless its independence is enshrined for the long term in this Bill, we will have missed a serious opportunity to ensure that this important new body is protected from future political whims. I say that with great reluctance, but we have to consider the political dynamics that exist in the Northern Ireland Executive and the Northern Ireland Assembly. As the EFRA Committee chair Neil Parish MP said in the other place last week,

“we need to ensure that those offices are independent for all time.”—[Official Report, Commons, 20/10/21; col. 804.]

In summary, I disagree with the Government’s amendments in respect of the OEP in Northern Ireland and the need for it to be independent, and I hope the Minister will change his mind on this issue.

--- Later in debate ---

Moved by

[Lord Krebs]

Leave out from “31” to end and insert “, do disagree with the Commons in their Amendments 31A and 31B, and do propose Amendment 31C in lieu—

31C: Leave out Clause 24 and insert the following new Clause—
“OEP independence
(1) The OEP has complete discretion in the carrying out of its functions, including in—
(a) preparing its enforcement policy,
(b) exercising its enforcement functions, and
(c) preparing and publishing its budget.
(2) The Secretary of State may issue guidance to the OEP on the matters listed in section 22(6)(c).
(3) The OEP must have regard to the guidance in preparing its enforcement policy, unless there are material considerations that indicate otherwise.
(4) Before issuing the guidance, the Secretary of State must—
(a) prepare and consult on a draft,
(b) lay the draft before Parliament, and
(c) publish a response to the consultation.
(5) The Secretary of State must publish the guidance when it comes into effect.
(6) In making or terminating appointments under paragraph 1 and paragraph 5 of Schedule 1, the Secretary of State must obtain the consent of the Environment, Food and Rural Affairs and Environmental Audit Committees of the House of Commons.””