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.
5.30 pm
As a non-ministerial department, it was therefore part of government. I accepted that and had no problem with it. The coalition Government who came in during 2010 decided to have some machinery-of-government changes. Because the noble Lord, Lord Lansley, wanted to abolish us, the price of that was to remove certain issues from the FSA and take them back to health, so they are now dealt with behind closed doors and we have lost a few years in health.
The fact of the matter is that the OEP cannot be truly independent; think about the C&AG and the only Select Committee that I ever served on in 27 years in the other place, the Public Accounts Committee. I know the value of that and there is a degree of independence there, because of statutes that go back a long time. There was a massive cross-party willingness, including from St John-Stevas and Joel Barnett, as they were in those days, to get the legislation through when the NAO was set up and modernised out of what there was. That has worked incredibly well.
One noble Lord—it may have been the noble Lord, Lord Krebs—referred to Homes England. There is an issue there. We might look at what happened to Homes England, as it recently lost its CEO. Think about that.
I do not want to have a row with the noble Lord, Lord Cormack, but he cited two very poor examples: my noble friends Lady Amos and Lady Ashton. They both went to work for overseas bodies, one as an ambassador and the other as an ambassador within the EU. It is not the same as in this place. We have a Member of this House who has recently had a very high and important job inside the NHS but keeping the party whip and still voting on a daily basis.
The idea in Amendment 82 is to keep the OEP independent. Perception is pretty crucial and it would ensure that nobody in this place had a role. I am not saying that Amendment 82 is perfect but I can certainly live with it. Amendment 85 is excellent, of course.
I would prefer not to have any lectures from the Minister about the incumbents operating in the OEP. I have worked with those people in government. I know they are very good, so I need no lectures saying, “We have got so-and-so and therefore”, and so on. I know their quality, but that is for today and this year. As several people have said, we are legislating for the future so we have to make this legislation future-proof, and it is not at the moment.
I am sure there are some solutions. There are plenty of opportunities to have a discussion about how this could be seen as the perception of independence. We are otherwise going to end up with lots of court cases and have lots of lawyers—probably Members of this place—earning their corn by arguing that decisions have been made in a non-independent way. I can see it now, with court case after court case; why should we set ourselves up for that? There is an opportunity here, if we go back to first principles and think about what the job is. I could live with it going to the Climate Change Committee, by the way. That has been extremely successful and operated in a different way, because there was no such body previously. We have had enough warnings from the past.
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.