Environment Bill

Lord Whitty Excerpts

Committee stage
Monday 28th June 2021 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, when the office of environmental protection was mooted, I hoped it would be on the same basis as the Climate Change Committee, and be totally independent of government. When that was not the case, I hoped that the structure of the Bill would be that advocated by the noble Lord, Lord Teverson, and that that part of the Bill should be within the remit of the Climate Change Committee, which is sufficiently independent.

I remember when I was a Minister, and that was many blue moons ago now, being quite irritated at times by the interference of Brussels. We had perhaps some of the best civil servants in the whole of the EU then; my advice was excellent, and I thought that what we were doing was right. But on reflection, perhaps we were not that right. I remember I once lost a Division and went to the Leader, the late Lord Whitelaw, and said to him, “Willie, I’m terribly sorry, I lost that amendment”. He looked at me and said, “Malcolm, perhaps they were right”. Perhaps the Government are wrong on this occasion. As I see it, the problem is that Defra will remain judge and jury, and there is a route for disaster.

I shall give two examples. One example is the water authorities, which I helped to privatise in the mid-1980s. My friend, the late Lord Ridley of Liddesdale, made a revolutionary change in policy by taking control of pollution away from the water authorities and handing it to the National Rivers Authority. The water authorities were outraged, but it was right. What went wrong was that the NRA was amalgamated into the Environment Agency, and the money for the Environment Agency was reduced so that the controller of the polluting companies did not exercise the brake that was needed. We talked about that a couple of days ago.

The other government department that is a classic example of judge and jury is the Forestry Commission. I know that my noble friend on the Front Bench agrees that the Forestry Commission has been an utter disaster for this country. It has cost the taxpayer a huge amount of money and planted the wrong trees in the wrong places with the wrong policy. I hope that that is beginning to change. I have been banging on in this House on that for more than 50 years, but at long last I am being proved right.

I would really like the OEP to be seen to be independent. Not only does it have to be independent, which it is not under the Bill—as the noble and learned Lord, Lord Hope of Craighead, said, the schedule is not strong enough—it has to be seen to be independent. My noble friend Lord Cormack was right: this is better done by negotiation. The Government will get defeated on Report on this, but it would be far better if we got an amendment that we could all sign up to, because that would send a message to everybody who will be affected by the Bill—which is the whole of the country—that there is unanimity in Parliament that that is the right way forward. At the moment, as I said to my noble friend when he was kind enough to have a meeting with me, I am unhappy with the OEP. I am not quite certain what the right amendment is, but I know that there is one out there if we all make an effort to get it right.

[Lord Whitty (Lab) [V]]

My Lords, there has been near unanimity in condemnation of what is currently in the schedule to deliver a really independent body of the kind we want. As the noble Lord, Lord Cameron, said in a formidable opening address on the group, we want to create the same degree of fear, almost, in public bodies that the possibility of the European Commission intervening and fining this country provided before Brexit. What is envisaged in the Bill goes nowhere near that.

Frankly, we know that there are precedents for what happens to so-called independent bodies. I had expected to speak after my noble friend Lady Young and just before my noble friend Lord Rooker. It is instructive that one was the chief executive of the Environment Agency and the other the chair of the Food Standards Agency. When the Environment Agency was first set up in the 1990s, to which the noble Earl, Lord Caithness, just referred, there was a lot of talk about independence, but in fact it became part of the Defra family. Its independence was limited by successive Governments over the whole of that period. Under the coalition Government, it was restricted from briefing parliamentarians or engaging in anything that amounted to a campaign in the eyes of the then Government. Subsequently, of course, its funding has been seriously cut. The Environment Agency is doing an effective job on limited resources, but it is not independent of government.

The other example is the Food Standards Agency. The FSA is a non-departmental body, but as soon as it started straying into areas of interest to the Department of Health on diet, health advice and well-being, those functions were taken off it and ploughed back into the Department of Health. It was right to take it out of its origins in MAFF, but in practice it was never completely independent of government, much though the efforts of my noble friend Lord Rooker and others tried to make it so.

We want a truly independent body on the environment to face up to the immense challenge of climate change and biodiversity diminution. This is not it. I agreed with pretty much every word that the noble Lord, Lord Cameron, said. I do not entirely agree with his amendment—like others, I prefer the amendment in the name of my noble friend Lady Jones of Whitchurch—but, as recent speakers said, the Government really do need to take notice of the overwhelming view of the Committee that this will not do. To be truly independent, the OEP needs not just a formal position and designation as a non-departmental body; it needs powers, which are insufficient in the Bill; it needs provision for how its composition is established, which is not fully in this Bill; and it needs powers of enforcement, which we will consider later in Committee and which are, at the moment, clearly completely inadequate to the task.

This is the central part of the Bill. The Government have to think again. If they can come up with a better proposition then let us seriously consider it, but what is in the Bill at the moment is not adequate. None of us believes that it is, and I doubt whether the Government themselves—and the Minister in particular, if I may say so—really believe that it is. Let us think again and try to get something better before the Bill completes its course.

[Lord Rooker (Lab)]

My Lords, I agree on the importance of this part of the Bill. Indeed, it is the only part of the Bill that I dealt with at Second Reading, on governance issues. The noble Lord, Lord Cameron, introduced Amendment 82 very well. We might argue, but as the noble Lord, Lord Cormack, said, somewhere there is an alternative to what is in the Bill. We just have to find it, because the Minister and his advisers will appreciate that this will not get through the House.

I sat on the environment sub-committee of the Lords EU Committee for a few years. The early promises about the governance gap are not being filled with this Bill. I will not quote again the article that Michael Gove wrote in November 2017, when he was Defra Secretary of State, accepting the fact that there is a gap, but I will refer to what the noble Lord, Lord Cameron, referred to, which is the 30 out of 34 wins by the European Court of Justice on environmental issues. You have to ask yourself about this: it won on 30 out of 34 cases. That meant that the UK Government were refusing to do something that caused them to be taken to court. Both parties were involved, by the way. The UK Government did not want to do something—whether it was cleaning up the beaches, making water safer, it does not matter: they did not want to do it. But the European Court of Justice and the Commission took the case to the court, and the court decided, “Yes, you will”, in 30 cases out of 34. When I checked, the other four were undecided.

I know from my own experience inside the department that the threat of infraction meant that you got cracking, talked to the Treasury and said, “Look, we ought to do this. Can we have a few more quid or move some budgets around to satisfy this? Otherwise, we’ll be penalised with a bigger fine than what this will cost us.” That is what actually happened in some cases. I know from experience that this is the way that it works.

I also know, of course, that Defra loves control. In my first two years as a Minister, from 1997 to 1999, I was at MAFF. I was then at Defra from 2006 to 2008—the same department, basically. The point that I am making is that the culture was the same; it was about control. This probably would not happen, but it would be very interesting to have some interviews—exit interviews would be the wrong thing—with people who are no longer serving on some of the bodies, particularly Natural England and the Environment Agency, as to what happened. I know to my certain knowledge that Defra leant on Natural England.

When we were setting up the Food Standards Agency in 1998 and 1999—I might add that my noble friend Lord Whitty was wrong on this, as it is a non-ministerial department with a different structure from a non-departmental public body—I discovered, because of the capacity and willingness of Defra civil servants to adhere to the policy of the Government, that there was an attempt at the highest levels in Defra to convert that agency to an executive agency of MAFF. The department wanted to keep control, even with all the problems we had in setting up the agency. Despite the report from Philip James and the manifesto commitments, they still thought at the last minute that they could keep it as an executive agency. It would have been the ultimate control, if you like, of having an executive agency compared to a non-ministerial department.

--- Later in debate ---

[Viscount Trenchard (Con)]

My Lords, I thought I understood the intention of my noble friend Lady McIntosh in these amendments and I tried hard to understand her explanation, but I am not certain that I fully understood and I too look forward to hearing what my noble friend the Minister will have to say.

Some discretion should be given to the Secretary of State, even in the case of a person who may have been insolvent or convicted of a criminal offence possibly decades ago. As noble Lords are aware, many of those who have been convicted of a criminal offence and punished for it have often gone on to make a positive contribution to society years later. It would set a bad precedent to legislate that they should be for ever denied opportunities for which they might otherwise be considered.

Regarding Amendment 90, I cannot conceive of any circumstances in which the Secretary of State would not consult with the chairman of the OEP prior to removing a non-executive member from the board. If the Secretary of State does not have the kind of relationship with the chairman where they are in regular contact on the operations of the OEP and the composition of the board, it would surely follow that either the chairman or the Secretary of State was in the wrong job. I do not think that such prescriptive details as my noble friend proposes should be included in the Bill.

[Lord Whitty (Lab) [V]]

My Lords, mine is a very brief point which goes in the opposite direction to the noble Viscount’s. On the previous amendment, we discussed the method of appointment of non-executive directors and the role of parliamentary committees. Surely, at least in respect of the final version, if the Secretary of State considers a non-executive director to be unfit there should at least be a consultation with the chairs of the parliamentary and Commons committees who were party to his or her original selection.

It seems lopsided that we have more or less agreed in principle for parliamentary engagement in the appointment, but that the Secretary of State could on the face of it, taking sub-paragraph (6)(c) as it stands, make a decision against a member of the OEP because they thought they were not doing the job properly. When we have parliamentary scrutiny, that judgment should at least be shared by the chair of the appropriate committee. That is my sole point on this group of amendments.

[Lord Bruce of Bennachie (LD) [V]]

My Lords, I was very happy to support and sign this amendment, which has been explained by the noble Baroness, Lady McIntosh. It is a specific proposal and has been brought to our attention by the Law Society of Scotland as something it feels is consistent with similar circumstances in other public bodies, such as those she mentioned. Trying to define what makes a person unfit gives some clarity and specificity to such a situation, in contrast to a general catch-all that is left to some extent to the discretion of the Minister.

The noble Viscount, Lord Trenchard, said that he thought a conviction was not necessarily appropriate as a disqualification. This is stretching a point, but it seems to me that the Secretary of State still has discretion and what the amendment seeks to do is to say that in normal circumstances, and probably in most circumstances, a conviction, whether it happens while the member is in office—especially if it happens in office—or prior and has not been disclosed, would be a valid reason to remove someone. Similarly, becoming insolvent while being a member of the board is another reason that is clear and understood.

The purpose of the amendment is to add some clarity, without in any way preventing the Secretary of State from arguing other reasons as to why a member has become unfit. It is not suggesting these are the only two definitions, but they are generally accepted as significant ones that have been identified in other bodies—particularly in Scotland, which is why the Law Society of Scotland has recommended it.