My Lords, Amendment 24 in this group is in my name and those of the noble Baronesses, Lady Parminter and Lady Jones of Whitchurch, and the noble and learned Lord, Lord Mackay of Clashfern.
In Committee, there was strong support from across the House for my amendment that would have removed the guidance clause from the Bill in order to ensure that the OEP was fully independent. In fact, I do not recall anyone making a coherent case for greater ministerial control over the OEP. I acknowledge and thank the Minister and the Secretary of State for their time in discussing this matter since Committee. I also thank the Secretary of State for his letter to my noble friend Lord Anderson of Ipswich and myself, dated 28 August.
I also acknowledge that the Government have made concessions in their own amendment to Clause 25 and that, furthermore, the importance of the independence of the OEP was reiterated by Minister Pow yesterday in a Written Statement and also by the noble Lord the Minister with the same Written Statement.
So why am I still pressing ahead with my amendment to replace Clause 25? It is simply this: if we must get one thing right in this Bill, it is the office for environmental protection. The OEP is the body that will ensure that the Government’s warm words about the environment are translated into action. The Minister himself could not have been clearer on Monday. When I asked who will hold the Government to account on the target of halting species decline, he replied that it was the office for environmental protection. Even with the government amendment to Clause 25, the OEP is not, in my view, sufficiently independent of Ministers for us to be confident that it will be able to do what is has been set up to do.
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Let us consider the following points. First, the Secretary of State can still use the guidance power on a wide range of matters, including what constitutes a serious case, on prioritisation and enforcement. Given that the Secretary of State has control over the budget and board appointments, it would be hard for the OEP to ignore any guidance. Secondly, in exercising its enforcement role in particular, the OEP might focus
on government actions, and it is therefore unacceptable that the Secretary of State could issue guidance, even at a strategic level, on this. Other enforcement bodies, such as the Equality and Human Rights Commission, are not subject to ministerial guidance. Thirdly, the Secretary of State has committed to providing an indicative five-year budget for the OEP but retains the option of changing the level of funding. At the moment, the OEP has only one year of guaranteed funding. Fourthly, the Secretary of State retains control of appointments to the board and terminations of appointments, even though there are pre-appointment hearings with the relevant Select Committees. According to the Institute for Government, there is increasing evidence of and concern about ministerial interference in NDPB board appointments. In Committee, I gave an example from my own experience, in which a Secretary of State overturned appointments made by an independent appointments committee.
Amendment 24 would deal with these matters and ensure that the OEP is fully independent and therefore able to hold Ministers to account. It would remove the guidance power. It would require the Secretary of State to lay before Parliament a multi-annual budget and a response to any request from the OEP for additional funding. It would require all board appointments or terminations to be subject to agreement by the two relevant parliamentary Select Committees. This is what happens with the Office for Budget Responsibility.
What are the Government’s objections to Amendment 24? The Government consider that the guidance power in Clause 25 is necessary so that the OEP is accountable, especially given its wide-ranging remit. But this accountability would still be there if Amendment 24 were adopted, it is just that Parliament would play a stronger role. As for the wide-ranging remit, surely that is the whole point. The aim is to create a totally novel solution to fill the gap created by our departure from the European Union and to go further than before in protecting our environment.
The Secretary of State, in his letter to me, states that the OEP will have a five-year indicative budget and that appointments will be fully independent. If that is the case, I see no reason to object to the provisions of Amendment 24, which simply make these points clear in the Bill as well as ensuring proper parliamentary scrutiny. The Government’s own amendment requires the Secretary of State to lay a draft of any guidance before Parliament and to respond to any resolutions or recommendations made by either House or by parliamentary committees before producing final guidance. While this provides a welcome additional layer of parliamentary scrutiny, it does not mean that the Secretary of State has to change the guidance in the light of parliamentary comments. It does not assuage the widespread concern in this House about the independence of the OEP.
I might add also that the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place because he has to attend another meeting, told me that he has particular concern about the financial independence of the OEP and that any budgetary decisions should be made by Parliament rather than by the Secretary of State.
In closing, I repeat: if we are going to get one thing right in this Bill, it should be to ensure that the office for environmental protection is set up on a properly independent basis. Amendment 24 would achieve this; without it, we will not have sufficient safeguards to protect the OEP’s independence.