My Lords, I know this group of amendments is unlikely to find favour with Defra. While I normally contribute to our debates in this House in what I hope is a dispassionate, calm manner, I have to say that on this occasion, I feel quite passionate about this issue. I am what I would describe as “a very cross Bencher”.
In the early days of Brexit planning, we were promised that we would have as near a replication of the EU environmental oversight of our organisations as is possible. At the time, Michael Gove, the then Secretary of State, was reported as saying that he thought that putting Defra in charge of the OEP would not be suitable. As ever, he was right.
The OEP will be at the centre of our country’s new environmental future post Brexit. We all have great hopes and expectations for it—some, I suspect, possibly too high. But within all our ambitions to secure a cleaner, more sustainable and more biodiverse future, I cannot stress how important it is that we get the OEP right—and at the moment it looks as though it will be a mere tool of the very body it should be overseeing.
I know that the EU regime we are leaving could not possibly be the same as any domestic arrangement we might replace it with, but, as I say, in the early days we were promised “an equally effective regime”. So it is worth reiterating what various ex-Ministers have said: namely, that in the past, the mere threat of the EU Commission taking action against the Government had departmental Ministers and Secretaries of State quaking in their shoes. And you can understand why. As an example of the punishments doled out by the ECJ, at the behest of the Commission, in 2014 Italy was fined €40 million, with an additional fine of €42.8 million every six months that the issue of dumping illegal waste remained unresolved—as I believe it did for at least one six-month period. Again, in 2015, Italy was fined €20 million and a further €120,000 each and every day that the region of Campania failed to resolve its waste-management problems.
The interesting thing about that last case is that it was the Italian Government who were fined, not the regional council of Campania, which was at fault. I say this because when Professor Macrory—who I see has now joined the shadow OEP board—gave evidence to our Lords environment committee last year or the year before, he emphasised that the Commission infringement proceedings were always directed at Governments, even if the breach was by another public body. He argued that, if possible, this should be replicated post Brexit, with the OEP’s enforcement powers being directed solely against Secretaries of State. But of course, that would be impossible under the current proposed arrangements, because it would mean the Defra Secretary of State taking himself to court.
In this context, it is worth remembering that the EU Commission took the UK to court for infringement 34 times in total and won 30 times. There is no reason to suppose that the frequency of infringements by UK public bodies will not continue into the future. Why would that change? Our institutions remain as fallible and, dare I say it, as underfunded as ever. But now, the Secretary of State will stand between the OEP and the infringing body, rather than taking the hit, as he or she should.
I must repeat what I said at Second Reading: this has nothing at all to do with our trust in the present Ministers, in whom I recognise a total commitment to the environment, but we have to think what will happen if, in the future, we find ourselves with a disinterested, or maybe just incompetent, Secretary of State and an overcontrolling department. The decisions that we make in this Bill could still be affecting the governance of our environment in 40, 50 or even 60 years’ time. So I say again: the auditing and bringing to book for environmental rule-breaking by our relevant public bodies, the most important of whom are within the Defra family, is unlikely to happen when Defra gives the guidance to, and controls the budget of, the OEP.
Let me tell you a story. I had a friend who was a regional director of MAFF in the 1980s. He had a farming neighbour who had a grouch about some MAFF policy—I am afraid I cannot quite remember exactly what it was—and he asked my friend to help him write a letter to the Secretary of State. Of course,
in those days he was called not the Secretary of State but the Minister of Agriculture. Anyway, in due course the Minister, having received the letter—largely written by my friend—sent it down to my friend, the regional director, and asked him to draft a reply to him, refuting the farmer’s complaint. So my friend, no doubt employing his best departmental penmanship, wrote the reply for the Minister to send to the farmer. And then, of course, the farmer brought the Minister’s letter to my friend, asking him to help draft a further response for him to send back to the Minister. And so he did. Rather like someone playing chess against himself, he ended up having quite a long, rather enjoyable, correspondence with himself over several months, writing letters for both sides of the argument.
You can see where this is going, because that is precisely what will happen when, for instance, the OEP is threatening the Environment Agency with proceedings. The Secretary of State may not be actually writing the correspondence, but you can bet that he will be monitoring it and ensuring that, in whatever is said by either side, no blame could possibly fall on either him or his department. We know for sure that many of the current failings of the Environment Agency and Natural England are a direct result of them being starved of funds by Defra—and, also, incidentally, being subtly indirectly controlled by that department. So much for Professor Macrory’s wish that the buck should always stop with the Secretary of State.
Just last week, I was talking to an organisation about our rivers, and it was saying that it is lawlessness out there, because no one is monitoring, inspecting or enforcing the rules on our rivers, since the Environment Agency has been starved of funds in this respect. That is what it said, and when you read the evidence given to the Environmental Audit Committee last month, it is clear that it is right. The buck should stop with the Secretary of State, or at least his department, and he should definitely not be the one controlling the buck.
That brings me to the Minister’s claim, in his admirably full letter to us all last week—for which I thank him very much—that the OEP will be a non-departmental body. I am afraid that, in my view, the phrase “non-departmental body” is widely overused and wrongly applied in today’s political world. As an ex-chair of the Countryside Agency, I can say that it was not always thus—at least, it was not when I reported to the Department of the Environment, before we came under the control of Defra—but in the modern political climate of total control from the centre, free-speaking bodies within Government are no longer tolerated.
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There is no doubt in my mind that, like the Environment Agency and Natural England, the OEP in its present guise will be very much a departmental body. I should say that this is a phenomenon not unique to Defra: at DCMS, for instance, the Secretary of State went ahead and appointed a new chair of the Charity Commission in spite of the DCMS Select Committee voting unanimously against his choice. That could happen with the next OEP chair, although again I state that the current chair has universal support,
including mine, for her appointment. My main point is that the OEP must not only always be independent of Defra, but it must be seen to be independent of Defra, and at the moment it is neither. I find that very worrying.
Our amendments are based on both the National Audit Act 1983 and, as the explanation says, the more recent Budget Responsibility and National Audit Act 2011, and what they say about the National Audit Office and the Comptroller and Auditor-General. I must confess that, in spite of the consummate skill of the Public Bill Office—my particular thanks go to Theo Pembroke for his advice—in a few necessarily brief amendments in Committee it is not possible to replicate, with all the necessary and complicated detail, what should probably be a Bill in itself, or, at least, a full chapter in this Bill. It is a principle that we are trying to get across here, so please do not pick us up too much on any perceived gaps and omissions.
The main point is that the NAO can take any department or public body to task for its financial controls and performance. It reports to the Public Accounts Commission, which also sets its budget. The NAO is a well-established part of the checks and balances in our governmental system, dating back to the time of Gladstone. So you see how long these institutions last; that is why we have to get this right. Everybody knows and understands that businesses, public companies and, indeed, public bodies need their finances audited by an independent body—I stress that word “independent”. We are saying that, while the OEP’s budget should also be set and monitored by the Public Accounts Commission, it should report to the Environmental Audit Committee. We need those same checks and balances now in our environmental governance as well as our financial governance. We cannot afford to let Defra just mark its own homework.
With the focus on climate change and the environment in this year’s COP 15 and COP 26, the environment will predominate in the minds of the public. I believe our businesses will emerge from Covid riding on a wave of new environmental enthusiasm. The young are very supportive of the green agenda and are mostly happy to put their money and, sometimes, their careers, behind it, and they will never forgive us if we let them down. Meanwhile, businesses, both large and small, are beginning to investigate the need to have an independent environmental audit to report to their shareholders as well as their statutory financial audit—note again that word “independent”. Governments, especially, should also have an independent environmental audit. The future of our rivers, air, climate and the biodiversity of our flora and fauna all depend on it, but at the moment that is not what is planned.
I know that many noble Lords will think that these amendments are a step too far, and “Why don’t we just fiddle at the edges of what we have been presented with?” But I really do not think that that is good enough. I realise that the art of the possible is the byword of most politicians, but there comes a time when you have to stand up and try to move “the possible” in the right direction—in the direction of what we all know is the public interest—and not kowtow to a department trying to overcontrol its own agenda. I beg to move.