I thank noble Lords for their contributions. I will begin by addressing the amendments tabled by the noble Baroness, Lady Jones of Whitchurch.
On Amendment 94, the Government are committed to ensuring the OEP’s operational independence. This is precisely why we have included in paragraph 17 of Schedule 1 the duty on the Secretary of State to have regard to the need to protect the OEP’s independence. The actions of the Secretary of State in exercising functions in relation to the OEP will be subject to parliamentary scrutiny in the usual way.
However, the OEP itself is not an elected body. It is the Secretary of State, as an elected representative of the Government, who is ultimately accountable to Parliament for the OEP’s use of public money. Ministerial accountability is one of the Government’s key principles of good corporate governance. Ensuring the OEP’s operational independence must therefore be balanced with allowing appropriate levels of scrutiny. The amendment suggested by the noble Baroness would prevent Defra, as the OEP’s parent department, exercising vital functions of public accountability, including carrying out accounting officer responsibilities.
8.30 pm
On Amendment 99, as I mentioned earlier, the OEP does not have to follow the guidance where it has clear reasons not to do so. It would therefore be an excessive and very unusual administrative burden to expect the OEP to publish its rationale for not following the guidance, as suggested by this amendment.
On Amendment 98, the Government are committed to establishing the OEP as a body that will contribute effectively to its statutory objective of environmental protection and the improvement of the natural environment. We would not issue guidance contrary to that principle.
I would like to give the rationale for Clause 24. The OEP will have a vast environmental remit, as many noble Lords have made clear. It will cover all domestic environmental law and all public authorities, from local councils to central government departments. Given this exceptionally broad remit, we have always been clear that the OEP should focus on the most serious, most strategic cases.
The guidance power is therefore designed to provide a safeguard for accountability, providing the Secretary of State with the tools to ensure that the OEP functions as has always been intended. Though the Government anticipate that the OEP will develop an effective and proportionate enforcement policy, as the Minister ultimately responsible to Parliament for the OEP, the Secretary of State may need to encourage the OEP to exercise its functions effectively to deliver the greatest benefit for the public and the environment. For example, if the OEP were failing to be strategic and not taking action in relation to serious, systemic issues, the Government could use this power to suggest ways in which the OEP could more effectively use its resources to benefit people and the environment.
I have heard the concerns of many noble Lords about this provision and understand the argument that many noble Lords have made—in particular the noble Baroness, Lady Parminter, and the noble Lord, Lord Randall—that the organisation needs not just to be independent but to be seen to be independent. The noble Lord, Lord Teverson, made the point very clearly, in the context of the ever-elusive but necessary concept of trust between people and power.
I want to be crystal clear that this clause does not provide the Secretary of State with any power to direct the OEP or to intervene in decision-making about specific or individual enforcement cases. The guidance can cover only matters listed under Clause 22(6) of the Bill. Although this includes the OEP’s approach to prioritising cases, this will be at a strategic level rather than in relation to specific decisions. Clearly, that is a key distinction.
Several safeguards are also in place to ensure that a Secretary of State could not use this power inappropriately. First, the power must be exercised consistently with the provision I mentioned earlier, which requires the Secretary of State to have regard to the need to protect the OEP’s independence. Furthermore, the OEP does not have to follow any guidance issued by the Government where it has clear reasons not to do so. The OEP must prepare its own enforcement policy. It will set out its own approach to determining what technically constitutes a “serious failure” and other aspects of its enforcement policy, having had regard to any guidance. Finally, any guidance must be published and laid before Parliament, meaning that the process will be transparent and that Parliament will be able to hold the Secretary of State to account for any improper guidance.
To conclude, this is a provision to ensure that the Secretary of State has the tools to ensure the OEP functions as has always been intended, without impinging on its operational independence—so Clause 24 should stand part of the Bill.
On Amendment 100, as already mentioned, Clause 24 does not provide the Secretary of State with any power to direct the OEP or to intervene in decision-making about specific or individual cases. The OEP itself has a statutory duty under Clause 22(2) to act objectively and impartially, which will ensure it operates independently. As such, the additional provision proposed is unnecessary.
Finally, regarding Amendments 117 and 118, the environment is almost entirely a devolved matter in Northern Ireland. It is important to ensure that, as far as practicable, the legislation relating to the environmental oversight body is consistent across both jurisdictions should the Assembly choose to extend the OEP. Paragraph 24 of Schedule 3 mirrors Clause 24; it gives a power to the Department of Agriculture, Environment and Rural Affairs—DAERA—to issue guidance to the OEP in relation to its devolved enforcement functions, including on how it intends to prioritise cases. For the benefit of the noble Baroness, Lady Ritchie, I add that, like Defra’s Secretary of State, this would be advisory and not binding.
This provision also respects the devolution settlement. Any guidance given by the Secretary of State following Clause 24 would not apply to the OEP’s devolved
enforcement functions under Schedule 3. Furthermore, the appointment of an effective Northern Ireland member of the OEP is clearly extremely important, as the noble Baroness emphasised. As befits that importance, a rigorous selection process, regulated by the Commissioner for Public Appointments for Northern Ireland, will be employed. The chair-designate of the OEP, Dame Glenys, is fully involved in the selection process, and we do not believe that adding a further layer of bureaucracy to the process is either helpful or necessary for the OEP.
I hope that this goes some way towards reassuring noble Lords, and I ask that the amendment be withdrawn.