House of Lords criticises the independence of the OEP

The concern surrounding the perceived erosion of the OEP’s autonomy culminated in accusations last week that the House of Lords is ‘involved in a dialogue of the deaf’ with the Government. In the debate on 8th September, the House of Lords made it abundantly clear that it is not prepared to support any amendments to the Bill which undermines the purpose of the OEP.

Guidance by the Secretary of State

One of the main issues of contention is Clause 25 of the Bill which will allow the Secretary of State to issue guidance to the OEP. This provision has, understandably, been met with resistance by the House of Lords. That the Secretary of State should produce guidance for an ‘independent’ watchdog whose remit is to hold the government to account, is frankly baffling. Lord Goldsmith, Minister of State for DEFRA, indicated that Clause 25 is necessary because the OEP has an unprecedented remit and the ability to take enforcement action against all public authorities. From the Government’s perspective, the guidance power is ‘necessary to help ensure that the OEP continues to carry out its functions as intended.’ Yet put baldly, the Government’s proposal means that the watchdog, which is responsible for regulating its actions, is in turn, guided by it.

It is difficult to see how the objectivity of the OEP can be maintained in such circumstances. In the House of Lords on 8th September, Lord Goldsmith, attempted to assuage the concerns of the House by introducing amendments which he argued would ‘increase parliamentary scrutiny of any guidance that the Secretary of State wishes to issue under Clause 25.’

This concession, however, was roundly rejected by members of the House. Lord Krebs spoke in favour of removing clause 25 altogether, an amendment which, he reminded Lord Goldsmith, had received ‘strong support from across the House’ at the Committee stage. Lord Krebs insisted that ‘if we must get one thing right in this Bill, it is the office for environmental protection.’ Lord Goldsmith’s amendments, he indicated, do little to ensure that the OEP is ‘sufficiently independent’. In support of his position, Lord Krebs gave four reasons why the removal of clause 25 is necessary:

‘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.’

Lord Krebs argued that removing the power of the Secretary of State to produce guidance would address these issues and ensure that the OEP retains is fully independent.

High Stakes

Lord Krebs’ contribution received the support of the House and his amendment was passed by a majority of 180 votes to 151. During the course of the debate, it was evident that the House is opposed to any measure that would appear to undermine the OEP’s remit as an independent watchdog. As the Earl of Caithness stated ‘the OEP not only is—but has to be seen to be—totally independent.’ The appearance of autonomy, he suggested, was as important as the execution of independence. Lord Whitty, too, emphasised the importance of perception, arguing that should Clause 25 remain, the ‘credibility of the Bill…is at stake.’ Baroness Jones of Moulsecoomb insisted that the OEP could not function unless it was fully independent and able to ‘challenge Ministers and lobbyists in Whitehall’. The OEP, she stated, ‘should not be suggesting mitigation and greenwash, which is what could happen with such a toothless watchdog. This country needs an OEP that is a rottweiler and not a lapdog.’

The overall impression given by the House is that it does not trust the Secretary of State not to interfere in the operation of the OEP. That interference need not be overt; the Secretary of State’s control of the purse strings, for example, could prevent the OEP from taking robust action against the government for fear that their budget will be cut the next year. As Lord Krebs put it, the current “arrangement is rather like having a whistleblower who is told by the boss which areas he or she is not allowed to investigate.” If the OEP is to be an independent regulator, it must be free to set its own guidance and to manage its own budget.

Disappointment

Several members of the House expressed their frustration at the government’s refusal to listen to its concerns. Baroness McIntosh of Pickering said she was ‘very disappointed to see…that the Government are intending to keep Clause 25 relating to the guidance.’ Baroness Ritchie of Downpatrick said that the Government’s amendments ‘fail to grasp the seriousness of the matters we have been raising’, whilst Lord Duncan of Springbank asserted, ‘I am not a natural rebel but I stand in rebellion today. I am troubled by what I see before me.’

The refusal of the Government to meaningfully engage with the House’s concerns has not had the effect that it may have wished for. Instead of conceding, the House of Lords has not only pushed back, but shown that it is not prepared to compromise on Clause 25. Whether its stand is successful remains to be seen. The House of Commons could use its majority to overturn Lord Krebs’ amendment. Despite this, it is encouraging to see that there are those in Parliament who can see the Government’s encroachment into the OEP and are willing to strenuously oppose it.

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