My Lords, I shall speak to Amendment 100, in the name of the noble Baroness, Lady McIntosh; Amendment 117, in the name of the noble Baroness, Lady Ritchie of Downpatrick; and the stand part debate in the name of my noble friend Lord Krebs, which would restore the position as it was when the Bill entered the Commons, with Clause 24 not standing part.
The conflict of interest which I shall suggest is presented by Clause 24 arises in the specific context of the OEP’s enforcement functions in Clauses 31 to 40, on which I have a number of amendments and on which I will focus now. Each of those functions, from starting an investigation, to issuing information notices and decision notices, to applying to the courts for environmental or judicial review, depends on an assessment by the OEP that a failure to comply with environmental law is serious, and, in the case of an application for judicial review, that it must be necessary to prevent or mitigate serious damage to the natural environment or to human health.
While those assessments may be for the OEP, Clause 24, read with Clause 22(6), allows Defra to frame the processes by which the OEP assesses the seriousness of environmental damage, the seriousness of damage to human health and the seriousness of law breaking for which Defra and other public authorities are responsible. As if those instruments were not blunt enough, Defra is given a further power to guide the OEP on how it prioritises cases. This guidance will presumably be additional to and more prescriptive than the guidance that we are asked to endorse in Clause 22(7). To the response that ministerial guidance will not impinge on the independence of the OEP, I would say: what is the point of guidance, if not influence? Why should the OEP not be trusted to work out its own priorities? And why should Defra have influence over the preparation of enforcement policy and the “exercise of enforcement functions”, to quote the Bill, that are specifically designed to be used against it?
As a former independent reviewer, although in a small way and in a very different field, I have reflected quite a bit on the risk of regulatory capture. This is usually thought of as a subtle and insidious process. It does not require the express approval of the legislature: the fertile soil of insufficient institutional independence, on which your Lordships have heard so much already, may be all that is needed for regulatory capture to germinate and to take hold. That is why Clause 24 is so unusual in the context of a body charged with enforcement. It actually signals regulatory capture on the face of the Bill.
The compromise Amendments 98 and 99—sticking plasters, as my noble friend Lord Krebs described them—would reduce the strength of that signal but would still leave the guidance power in place against a background of less than total institutional independence. For that reason, and with respect to those who put them forward, my enthusiasm for these compromises is limited. The Government’s first thoughts were best: the Bill is better without Clause 24.
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