My Lords, I am pleased to support Amendments 24 and 30, to which I have added my name. The noble Lord, Lord Krebs, as ever, has set out persuasively why we think Amendment 24 is so important. As he said, a strong, effective and trusted OEP is essential to underpin all the other measures in the Bill. As the OEP will be scrutinising the Government’s compliance with environmental law, it is vital that those points of separation, as well as interface, are set out clearly from the start. We cannot afford to fudge the relationship, which, I am sorry to say, the government amendments attempt to do.
Our amendment would take out Clause 25, which allows the Secretary of State to issue guidance to the OEP, and replace it with one that sets out that the OEP has “complete discretion” in its enforcement policy, exercising its enforcement functions and preparing a budget. It would also make it clear that the non-executive appointments must be approved by the relevant parliamentary committees.
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The “complete discretion” in our amendment reflects the chorus of support in Committee for the OEP’s independence to be better assured, and it sits more consistently with the requirement in other parts of the Bill that the Secretary of State should have regard to the need to protect the OEP’s independence. As the noble Lord, Lord Pannick, said, what is it in the phrase “complete discretion” that the Government
object to? The idea that a Secretary of State might issue guidance to try to head off any action against Ministers and the Government would completely undermine the authority of the OEP.
In Committee, his subsequent letter to us and indeed again today, the Minister made great play of the need for the OEP to be accountable to the Secretary of State and for the Secretary of State, in turn, to be accountable to Parliament for the OEP’s use of public money. Of course, we agree that the OEP needs to demonstrate good corporate governance and good use of public funds. This is what accountability should mean in this instance. What it should not have to do is to justify to the Secretary of State its enforcement policy and actions. It is also vital, as has been said, that there is a statutory basis for the specific appointments to the board with the direct involvement of Parliament, as already happens with several other oversight bodies where independence from ministerial manipulation is absolutely paramount.
I have also added my name to my noble friend Lady Ritchie’s amendment, which would give similar safeguards to the OEP in Northern Ireland as those proposed in the amendment in the name of the noble Lord, Lord Krebs.
This brings us to the Government’s amendments, which formalise the system for the Secretary of State to issue guidance to the OEP. Of course we understand the arguments as to why Parliament should have greater involvement in the process but, in reality, that is just a veneer. The Secretary of State is under no obligation to listen to the views expressed by Parliament, as has already been the case on several parliamentary committees, including the Lords committee whose advice to give the OEP greater independence has been ignored by the Government. But, more importantly, this just cements the system for issuing guidance to the OEP, which we believe is wrong in principle. The scope and intent of the guidance power would be unaffected by this amendment, as the Secretary of State would still have wide powers to interfere in the OEP’s enforcement function.
In his letter to all Peers, the Minister says that the guidance will be used only in specific circumstances, but these specific circumstances are not documented anywhere. Instead, the letter gives a couple of examples, such as the OEP not taking action on serious issues of national importance or there being a problem with overlap with other statutory regimes. But we would regard these issues as being part of the dialogue between the Minister, his officials and the OEP executive, not something that would be subject to a complex and lengthy process of reports being approved by Parliament. As the noble Baroness, Lady McIntosh, said, this all represents an attempt to micromanage the OEP through the process. I fear that these government amendments have been put together to suggest that Ministers have listened to your Lordships on this issue, when, sadly, that is not really the case.
Over the summer, the Minister and his officials have been in dialogue with several noble Lords on this issue, including the noble Lord, Lord Krebs, and I am really sorry that so little progress has been made as an outcome of this. As the noble Lord, Lord Krebs, made clear, if we get one thing right in this Bill, it has to be setting up the OEP on a properly independent basis.
I hope very much that noble Lords will support the amendment in the name of the noble Lord, Lord Krebs, and, if that is the case, that further dialogue will be forthcoming to find a genuine way through on this important issue. I look forward to the Minister’s response.