Environment Bill

Lord Oates Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

Finally, I realise that this is probably one of the most difficult aspects of Brexit because we are trying to legislate for a function that we cannot possibly replicate: to fine the British Government. When we were in the EU and subject to infraction and court proceedings, this was different. There was a sanction on the Government made externally from the UK Parliament. We might have complained about it and did not like all the decisions—even as a Minister, I did not. But that was not the issue, as the sanction had been made by an independent, outside body. We cannot possibly replicate that exact situation here and now, as no body which we can set up could have the power to fine the Government. But we can set up a body that works independently from government, to ensure that the parts of government and the private sector do what they should. It can be done without financial penalties being necessary—there are other ways of doing it—but that power is not in the Bill. That is the point; the power is not there, and unless it is the Bill will fail.

[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.