My Lords, with the leave of the House, I will move Amendment 94 on behalf of the noble Baroness, Lady Jones of Whitchurch, who will speak later in the group. I will speak also to Amendments 98 and 99, in the names of the noble Baroness, Lady Jones of Whitchurch, and myself; Amendment 100, in the names of the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Teverson; and Clause 24 stand part, in my name and those of the noble Baronesses, Lady Jones of Whitchurch, Lady McIntosh of Pickering and Lady Parminter.
All these amendments concern the independence of the OEP, a topic we have already debated at some length, in particular in relation to the group beginning with Amendment 82 in the name of the noble Lord, Lord Cameron of Dillington, and the noble Baroness, Lady Boycott. Amendment 94 in this group would make the independence of the OEP an absolute requirement, rather than something that the Secretary of State merely has to “have regard to”. Amendment 98 would remove the requirement for the OEP to have regard to the Secretary of State’s guidance, and Amendment 99 would require the OEP to explain why it did not follow the guidance. Amendment 100 and the opposition to Clause 24 standing part both aim, in different ways, to ensure that the OEP is as fully independent as possible, exactly in the spirit of the group beginning with Amendment 82.
I will focus on the contention that Clause 24 should not stand part, which is at the heart of many of the concerns expressed in these amendments. In some ways, Amendments 94, 98 and 99 could be seen as important sticking plaster, but a more comprehensive way of dealing with the concerns expressed in these amendments would be to remove Clause 24 altogether. Clause 24 empowers the Secretary of State to issue guidance to the office for environmental protection on its enforcement policy, including how it should determine whether a failure to comply with the law is serious. However, the clause does not define what constitutes serious, nor the areas in which the Secretary of State should not give guidance to the OEP. It does not say whether the Secretary of State should issue guidance on a specific case, for instance the development of a new nuclear power station, or on general principles, such as the transparent use of evidence, and it does not say when and how often the Secretary of State may issue guidance. Therefore, it is hard to
judge how wide-ranging the guidance will be, how often it will be given and whether it will be used to constrain the independence of the OEP.
After Second Reading, the letter from the Minister attempted to reassure us that the guidance powers would not compromise the independence of the OEP, and I thought I heard him say earlier this afternoon—but I may be wrong—that there would be no need for the OEP to follow the guidance. In that case, how do the Government justify the inclusion of Clause 24 at all? Well, according to the Secretary of State in a recent radio interview, it is to avoid the OEP becoming an “unaccountable regulator” or “making it up as it goes along”. If this is the case, it suggests to me a lack of trust in the OEP chair and board, as well as a wish to control the way it operates.
The Government may well argue that this is a fairly standard clause, and although it is true that similar powers to issue guidance do exist for some public bodies, including Natural England and the Climate Change Committee, there is a crucial difference between these bodies and the office for environmental protection—because, as we have heard many times today, the OEP has responsibility for enforcing potential breaches of the law by public bodies, including Ministers, which most other non-departmental public bodies do not have.
A better comparison might be with the Information Commissioner's Office, which is not subject to similar guidance in its enforcement function. Another comparison is the Food Standards Agency, which, as the noble Lord, Lord Rooker, explained, is a non-ministerial government department accountable to Parliament through the Secretary of State for Health and Social Care. By coincidence, Section 24—the same number—of the Food Standards Act 1999 covers the situation in which the FSA is deemed to have gone off the rails. It allows the Secretary of State to intervene only if the Food Standards Agency has seriously failed to fulfil its duties or international obligations. The Secretary of State may then give direction for remedying the failure. Otherwise, the Food Standards Agency is not subject to ministerial guidance.
As noble Lords will be aware, I was the first chair of the Food Standards Agency, and in a later period the noble Lord, Lord Rooker, was also chair. During my five and a half years Health Ministers considered invoking Section 24 on one occasion: when the manufacturers of natural sausage casings made from sheep’s intestines claimed incorrectly that we had not given them the statutory notice period before introducing a ban on their use because of the potential risk that they might contain the infected agent that causes BSE. So, in five and a half years, there was one use of it, which was very rapidly resolved, and the Secretary of State did not need to issue any instruction.
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Between 2015 and 2019, I had the privilege of serving under the excellent chairmanship of the noble Lord, Lord Teverson, as a member of the EU Energy and Environment Sub-Committee. In our report of February 2017 we said:
“The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations. Such enforcement will need to be underpinned by effective judicial oversight”.
We also heard repeatedly from Ministers at the time that they did not think any new mechanism was necessary or appropriate. Minister Coffey told us that
“it is the role of Parliament to hold the Government to account”.
Minister Norman told us:
“What I think is a good guide is the flexibility with which British Governments over the years have created standards for themselves and been able to hold themselves to account”.
The Secretary of State, Andrea Leadsom, told the Environmental Audit Committee in another place that
“UK courts will be perfectly well able to deal with matters of enforcement … We won’t be needing to replace European courts.”
The fact is that the Government never wanted an OEP, nor did they think it was necessary. Ministers, as Jesse Norman told us, wanted to mark their own homework. The proposal to set up an OEP was rejected more than once during the debates on the EU withdrawal Bill in your Lordships’ House.
Noble Lords may think that I am suspicious or unduly paranoid, but I wonder whether Clause 24 is a continuing manifestation of the Government’s reluctance to create a truly independent office for environmental protection. I hope that I am incorrect in my suspicions and worries, and I look forward to the Minister’s explanation of why the clause is necessary. I beg to move.