Tom Burke’s political commentary: This killer bill will weaken environmental regulation

Published in ENDS Report 430, p. 70, November 2010.

The alarming Public Bodies Bill gives ministers sweeping powers to abolish or change regulatory and advisory bodies set up by act of Parliament.

Fraudsters and conjurers are both skilled in the art of misdirection. They are masters at deceiving you into thinking that what you are seeing is something other than it actually is. Great thieves, like great conjurors, become very adept at doing the apparently impossible in plain view.

What has prompted these musings is the publication by the Cabinet Office of the Public Bodies Bill. In nearly 40 years of closely observing government I have never seen such an artful attempt to misdirect the public. Nor have I ever seen an effort to steal power from Parliament and the public on such a colossal scale.

In common with most people, I found it difficult to imagine the scale of greed, mendacity and incompetence that led the bankers to bring the global financial system to the brink of collapse. I am finding it equally difficult to take in the magnitude of the power grab the government now wants to make.

This is nothing less than to be able to circumvent at whim the will of Parliament and to destroy the ability of any public body to offer independent opinions. Of course, it does not put it quite like this. But that will be the effect of the legislation now making its way through the Lords should the bill pass in anything resembling its current form.

This brazen approach is deliberate, the political equivalent of ‘shock and awe’ tactics designed to so disorient those affected that by the time they realise what is happening, it is too late to do anything to prevent it. It is certainly in the government’s interest to keep the public and Parliament believing that it cannot really have meant to take such draconian powers.

In a statement of Orwellian double speak, the bill is proposed as “part of the government’s commitment to radically increase the transparency and accountability of public services”. If enacted, it will actually have exactly the opposite effect.

The central power the bill will grant the government is the power to abolish, merge, modify or transfer the function of any public body at will. All that it will need to do is publish an order in council and, without any necessity for further debate or amendment, whip its supporters in both Houses of Parliament into agreeing and it is done.

Never mind that the public body has been established by an act of Parliament after three full stages of debate in both houses. If the government does not like it, it will be able to wish it away by reading out an order to abolish it.

It is easy to imagine the cooling effect this is likely to have on the board of any public body considering whether to do or say something the government might not like.

This is all justified on the grounds that the government believes “responsibility for difficult and important decisions should be with ministers, not unelected quango officials”.

But hang on. The reason many of these bodies were created was precisely to prevent ministers in the privacy of their departments, putting their political interests before the interests of the public.

Those elected governments appointed all these unelected quango officials precisely because elected ministers were not trusted. And that was before the expenses scandal. Furthermore, all ministerial decisions take place in private, whereas for years now many public bodies take all their main decisions at meetings open to the public.

The explanatory material published with the bill is littered with bureaucratic conjuring. Take the apparently reassuring statement that “ministers can only propose a particular change to a body if it is specifically listed in the appropriate schedule”.

Ah, that’s all right then, they can only do things to those bodies they have told us they want to abolish, merge or change.

Don’t be naive. Clause 11 of the bill gives the government power to amend any of the first six schedules of the bill by adding to them bodies listed in schedule 7. Schedule 7 lists 150 bodies, at least 14 of which have environmental duties. Schedule 1 lists bodies to be abolished.

Just to be clear, in relation to the environment this bill will give the government the power, without debate, to abolish the Climate Change Committee, the Environment Agency, Natural England and the national parks authorities among others by the simple device of proposing to move them from schedule 7 to schedule 1 of the Public Bodies Act as it will then be.

Another sleight of hand is contained in the proposition that “some of these bodies’ functions would be excluded from the future use of the bill’s powers”. This sounds reassuring. But it is actually nothing more than a political promise. There is no list, in a bill that lists so much else, of those bodies to which those powers will not apply.

Since many of the bodies covered by this bill are regulatory bodies, including those concerned with the environment, this gives the government power to change the regulatory framework by fiat. It is not easy to see how that will inspire business confidence.

Intelligence analysts are taught to focus their efforts on an enemy’s capabilities, not his intentions. The capability being acquired by the government with this bill is to undermine the will of both the public and Parliament.

It will give this or any future government a nuclear deterrent to aggressive regulatory action on the environment. It creates a perfect target list for political or economic forces wanting to negate environmental regulations. Environmental regulators will be rendered so vulnerable as to have a severe chilling effect on the use of their powers.

There will be a blizzard of reassuring noises about the government’s good intentions with this bill. Ignore them.

Tony Blair’s theme song in government often seemed to be “I’m just a soul whose intentions are good, please don’t let me be misunderstood.” This government seems keen to adopt it.

About tomburke

Tom Burke is the Chairman of E3G, Third Generation Environmentalism, and an Environmental Policy Adviser (part time) to Rio Tinto plc. He is a Visiting Professor at both Imperial and University Colleges, London. He is a member of the External Review Committee of Shell and the Sustainable Sourcing Advisory Board of Unilever and a Trustee of the Black-E Community Arts Project, Liverpool.
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