This post was first published by Business Green.
It’s by now becoming a familiar refrain: we will consult on establishing a new, independent watchdog to hold the government to account. This commitment was first proposed by environment secretary Michael Gove in November, has been repeated many times since and was encapsulated in the Defra consultation document on environmental principles and governance published on 10 May.
Independence is vital but far from guaranteed
The consultation recognises that the watchdog will need to be, and be seen to be, independent of government and capable of holding it to account, and that ministers should not be able to set its programme of activity or improperly influence its decision making. This is welcome. But the consultation refers to the independence of the watchdog so liberally that it is easy to forget that this is far from guaranteed.
Various options to deliver independence appear to be in the mix but, while the consultation leans toward establishing an independent body that will be accountable to parliament, there is no firm proposal or detail on how independence will be achieved in practice.
This seems to be another area where the ‘two hands’ of government, referred to by Lord Deben during the recent House of Lords debate, have conspired to kick this important issue into the long grass. Instead of putting forward a firm proposal, the consultation claims that settling on a particular classification or model now would pre-empt discussion of the watchdog’s role and functions.
Three examples of where independence has fallen short
The 2015 Modern Slavery Act established the UK’s first ever independent anti-slavery commissioner to drive forward the law enforcement response and hold the government to account at all levels. During parliamentary debates, there was strong support for the commissioner to be independent of government. The bill was even amended to change the job title from the ‘anti-slavery commissioner’ to the ‘independent anti-slavery commissioner’. But the commissioner, Kevin Hyland, recently resigned. In his resignation letter, he said that “At times independence has felt somewhat discretionary from the Home Office, rather than legally bestowed.”
In January, consumer groups gave a cautious welcome to the Office for Product Safety and Standards. However, serious concerns have been raised as to whether this is a truly independent watchdog with real powers to take dangerous goods off the shelves and out of people’s homes.
In 2011, the government sought to reform the responsibilities and governance of the Equality and Human Rights Commission, the institution responsible for the protection and promotion of human rights in England, Scotland and Wales. The commission had significant governance problems, particularly surrounding its financial management. But some commentators felt the reforms would curtail the organisation’s operational independence and its ability to hold the government to account.
Five things we can learn from these examples
1. Just saying something is independent does not make it so. It creates an illusion of truth and distracts from the important job of developing legislative provisions that will ensure enduring independence.
2.Even words on paper are not enough; the independent anti-slavery commissioner’s concerns about independence being discretionary from his sponsoring department is a case in point.
3. Governments have an irresistible tendency to weaken and curtail the power of those seeking to hold them to account.
4. There is a tension between need to ensure accountability and engagement and the equally important need to maintain independence from the government.
5. There is no magic wand to deliver independence. It requires novel and robust legislation, developed and tested with the full involvement and scrutiny of both parliament and civil society.
What should happen next?
Not all parts of the government have bought into the prospect of a strong green watchdog with teeth, so independence needs to be assured from the start. It cannot be left to some unknown process at some point in the future.
Allowing such a mission critical issue to be dealt with “…at a later stage and depending on the response to this consultation” creates significant and unnecessary uncertainty.
Independence is likely to be a hotly debated topic when the Environmental Principles and Governance Bill reaches parliament. It is also likely to be a key test for parliamentarians seeking to satisfy themselves that the proposals will meet, in full, the stated aspiration of the prime minister: for a new, world-leading, independent, statutory body to hold government to account and give the environment a voice.
The new watchdog will be born into a very challenging environment, fraught with many opportunities for undue influence. Promoting a culture of independence from the outset will help it to navigate these challenges and is as important as its legislative roots.
One idea would be for the government to establish a stakeholder working group on independence, to inform the provisions in the draft bill. It could commission a review of existing models of independence in the UK and overseas. And it will be vital for the government to include provisions in the bill on the status and nature of the watchdog so they can be tested fully during pre-legislative scrutiny.