(6 years, 9 months ago)
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Baroness Bowles of Berkhamsted (LD)
My Lords, Amendment 57 in my name is to Clause 6(3) which says:
“Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it … in accordance with any retained case law … general principles … and EU competences”.
My amendment would delete the words,
“so far as that law is unmodified on or after exit day”.
This would mean that retained EU law was continuing to run using EU-derived interpretation, including for the amended parts. This is by no means a perfect amendment, but it is intended to probe the relationship between the wording in subsection (3) and that in subsection (6), which says that modified law can be incorporated as in subsection (3) if it,
“is consistent with the intention of the modifications”.
I want to gain some more clarity on the presumptive path around those two subsections.
The general message that we are being given by Government—the high-level presumptive path, if you like—is that there is not really an intention for policy change via modification. But, there are no absolute commitments to state that on the face of the Bill, perhaps because incidental things may nevertheless count as policy change.
My submission, which applies to other clauses and the schedules as well, is that the need for adaptability does not remove the possibility for a more granular laying out of the presumptive path. That leads me to query what presumption comes from the order of the subsections. I submit that the default presumption should be that EU case law, principles and competences apply unless the Government have specifically explained why that does not work in connection with a particular modification. That seems a clearer and easier way to do things because the modifications are the focus of the attention, presumably with explanation. That will surely then be fed into the scrutiny when we get to the delegated legislation.
However, I also have in mind some of the debate we got into late on Monday night about rights in Schedule 1. The structure of Schedule 1 is somewhat similar in so far as all challenges are first disallowed and then some might be allowed by regulation. I contrast that with the present clause, which disallows interpretation to apply to modifications, and then subsequently says that it does not stop it being as in subsection (3). I note it does not say who is making it clear whether the modifications come under EU law. I wonder whether it will be left to the judges—if it is, they may want better clarity—or will the modifications themselves make it clear when they are put before us?
In the context of Schedule 1, the noble and learned Lord, Lord Keen, referred to the regulation that provides the right to challenge validity as an exceptional power, which I suppose it is by the way it is formulated as an exception to the earlier general exclusion of challenges. I took the noble and learned Lord to mean that the power would be used rarely, rather than, for example, as a list prepared in advance, which was the point probed by my noble friend Lord Beith. If I follow a similar logic on the follow-on positioning of Clause 6, does that mean that the situation envisaged in subsection (6), with the retaining of EU interpretation for some modified parts, will be exceptional, in the rare sense, or will it be normal in the sense of maximising the status quo? We need to know.
Also, again reflecting the Schedule 1 debate, Clause 6(3) refers to a question of validity of retained EU law, so is it correct that retained EU law can be struck down unless we follow the primary legislation suggestion of the Constitution Committee or unless it is already primary legislation, and that it would be struck down by common law, not EU principles or case law, which would just help with interpretation? If that is so, might some EU retained law be struck down in effect because it came under common law plus EU interpretation, whereas it might not have been struck down if it had been under common law alone? That is what I deduced from reading Hansard and the response to the question from the noble Lord, Lord Pannick, on common law. I confess that I did not necessarily hear the response properly at the time. That is nothing against the noble and learned Lord’s diction and more to do with the temporary impairment of my hearing due to my head cold, as well as to my voice today.
The other amendments in the group are of a different nature. They relate to things that can be taken into account in interpretation. My Amendment 59 and Amendment 58 in the name of the noble Lord, Lord Krebs, are similar, referencing recitals and preambles. My amendment is to subsection (3)(b), which relates to EU competences, because I wanted to draw attention to the fact that not only does the content of recitals need to be used for casting light on interpretation, but they are part of the competences architecture and directions relating to what is expected of delegated legislation, just as can be the case with empowerments for regulations in UK legislation. It is part of the definition of EU competences for interpretation purposes.
To make my position clear, Amendment 60 specifically references powers of delegation. Footnote 24 to paragraph 83 of the Explanatory Notes says:
“Recitals will continue to be interpreted as they were prior to the UK’s exit from the EU … casting light on the interpretation … but they will not themselves have the status of a legal rule”,
I do not think that that explanation is necessarily sufficient to encompass what I have just tried to lay out. Given that the role of EU agencies will be taken over by UK bodies, they should also take over the constraints that are written in, at least until Parliament decides otherwise. Therefore, recitals need to have a greater role than previously, or at least that possibility should not be excluded.
As a general point, I mention that there is a symmetry between how EU legislative Acts can be allocated as between those that should require primary legislation to amend and those which can be considered delegated, and the EU architecture of competences: those two are symmetrical. If that mapping is got right, getting returning powers allocated into their proper place in the UK, particularly between Parliament and regulators, then that logic of how interpretation is influenced, not just by EU competences versus member states but also with regard to internal EU levels of competences, will flow naturally into the structure.
There are other important policy points within preambles and recitals and I will leave those for other speakers to elaborate on. I will just say that I agree with all that I am expecting them to say on that point about their importance to policy. I beg to move.
Lord Krebs (CB)
My Lords, I shall speak to Amendment 58, in my name and those of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Jones of Whitchurch, and my noble friend Lady Brown of Cambridge. As the noble Baroness, Lady Bowles of Berkhamsted, has already mentioned, her Amendment 59 has a similar intent to Amendment 58 and therefore I support it.
The purpose of this amendment is very simple: it is to ensure that recitals and preambles to EU laws are given a clear legal status by the Bill. Why is that important? The recitals and preambles explain the background to, and objectives of, legislation and are therefore essential to understanding the legislation that follows. While in UK law the purpose of any piece of legislation will be clear as a result of the process leading up to the legislation—for instance, a Green Paper, a White Paper and a parliamentary debate—with EU-derived law there is no equivalent process. Therefore, the recitals and preambles are essential for placing the legislation in context. If they are not given a clear legal status they may be forgotten or ignored by decision-makers and the courts. As has already been mentioned, although the great repeal Bill White Paper, in footnotes 17 and 24, recognised the importance of recitals and preambles, this does not provide the legal certainty that is needed.
Baroness Jones of Moulsecoomb (GP)
My Lords, the noble Lord, Lord Krebs, has explained why these recitals and preambles are so important, and I thought that I would give an example. They are important because of the purposive approach of EU law, which is quite alien to our UK law, which has a literal approach. This is particularly important in the area of environmental law. For example, the European court relied on the recitals and preambles to interpret article 22 of the air quality directive in the ClientEarth litigation, where it successfully forced the Government to publish their air quality plans. This ruling was absolutely crucial for our health and well-being in the UK and without using the preambles the court would not have been able to properly interpret the wording of the substantive article. The courts in our country will have a huge job on their hands of making sense of all this retained EU law that we are going to thrust upon them if they do not have the recitals and preambles; these are essential to understanding the law and their job will be much harder without them. I beg the Government to look at this issue and rethink their position.
Baroness Jones of Whitchurch (Lab)
My Lords, my name is also added to Amendment 58 and I support the very compelling case made by the noble Lord, Lords Krebs, and, indeed, by the noble Baroness, Lady Jones.
I, too, speak as an environmentalist. As has already been highlighted, the implementation of EU environmental law in the UK is drawn from several sources, all of which, in our application of it, have equal weight. For the most part, it is a welcome and uncontroversial addition to our UK environmental legal framework; it is often uncontentious and applied without legal recourse. Indeed, few people would argue that we should revert to dirty beaches and polluted bathing water and there is a common consensus that we need to adopt the EU regulations and directives.
Though these standards are very much taken for granted they do not always originate from the same legal source, which is why amendments such as Amendment 58 are so important. All the amendment does is to seek to protect what we have now—nothing more than that. The recitals and preambles which preface the formal wording of the legislation are important for explaining, in layperson’s terms, as the noble Baroness, Lady Jones, explained, what the legislation intends to achieve. They often include important principles which underpin the legislation. I have referred previously to examples of these preambles, such as article 1 of the environmental liability directive, which includes reference to the polluter pays principle, and article 1 of the habitats directive, which spells out the aim to deliver biodiversity conservation. However, there are many others, some of which have gone on to be tested and captured in UK legal judgments, but others have not.
Very simply, my challenge to the Minister is: if these amendments are not acceptable, what will be the future status of these preambles, and how can we be assured that they will have the same effect as we have previously enjoyed? We regard them as an integral part of current EU law, so if there is no place for them in the transposed UK law, does the Minister accept that this will represent a watering-down of the Government’s promise to enhance, rather than diminish, our environmental standards? I hope he can clarify that.
Lord Mackay of Clashfern (Con)
My Lords, I would have thought it was clear that when we are incorporating EU law into United Kingdom law, the law in question will not be edited—apart from questions of not working and so on, which are separate—and the whole instrument will be transformed into UK law. Judges always try to understand the legislation as a whole and read the document as a whole. Therefore, I think I can assure noble Lords that the courts here will look with great interest at these recitals and preambles—particularly in view of what the noble Baroness said about the difficulty of some of them—to see if they can help them understand properly and make a proper construction of the instrument in question.
Baroness Jones of Moulsecoomb
My Lords, in that case, what is the point of not keeping them in?
Lord Mackay of Clashfern
There is no question of not leaving them in. They will be left in in any case. There is no question of putting them out. I will see what my noble and learned friend the Minister has to say about this but so far as I am concerned, it is not necessary because the whole instrument will be incorporated. There is no question of editing it or leaving out half of it or the beginning or anything. My noble and learned friend may be willing to give the assurance that the whole instrument will go in. I must say, I would have hoped that that would be understood without it having to be said.
Lord Whitty (Lab)
My Lords, I hesitate to challenge the noble and learned Lord, Lord Mackay, on points of law, but the fact of the matter is that when we have transposed directives and regulations previously, they have excluded the preambles and the recitals, as they have excluded aspects that are in the treaties rather than the individual directives and regulations. It may well be that the courts, in their wisdom, will take into account something that European law has previously said, but unless that is laid down as a central principle of this transposition, whether or not to take it into account will be at the courts’ discretion.
The Government’s commitment was that we would have the European law on day one of Brexit in exactly the same form as we did the day before. That has broken down in the way in which the Bill has been presented in a number of respects. It has broken down on the European Charter of Fundamental Rights; it has broken down with regard to animal sentience, as we debated the other day; it has broken down on the environmental law which the noble Lord, Lord Krebs, referred to; and I was going to use the air quality example that the noble Baroness, Lady Jones, referred to. Unless Parliament gives a signal to the courts that these preambles and recitals must be taken into account —as must, in my view, the principles laid down in the treaties—we are not doing what the Government have promised the people of this country that they would do; namely, that European law would not be changed on day one of Brexit and then only if it was necessary or Parliament so decided. Unless we do something very similar to what the amendment of the noble Lord, Lord Krebs, does, we are not doing what the Government have promised the nation.
Baroness Featherstone (LD)
My Lords, I support Amendment 58 in the name of the noble Lord, Lord Krebs. I was greatly relieved by the noble and learned Lord’s rebuttal because my interpretation of what we are doing is that we will not have the protection of the recitals and the preambles. Our problem is that any law leaves room for interpretation. EU law in particular is often a reflection of the manner of its birth: it has 28 single parents.
To reassure those of us, particularly from my point of view as the spokesperson on energy and climate change, who do not necessarily trust things to naturally follow and for this Government or possible future Governments to be as keen on some of the standards required in EU regulations and directives, it is in the recitals and preambles that we can gain some measure of comfort, as a guide to the intention of a particular instrument. The recitals supplement the operative part of the directive. They are interpretive tools in the EU legal order, and if we simply transfer the law but not the recitals we are removing a beneficial tool. I am afraid that assurances and good intentions from the Government are not adequate when it comes to something as important as our environmental protection.
It is quite clear that the Bill does not deliver that security and surety. We need certainty in the Bill, so I hope that the Minister will be able to accept the amendment. This amendment is only part of that certainty and protection.
Lord Goldsmith (Lab)
My Lords, these amendments fall into two, possibly three, groups. I shall start with the group that has been the subject of the recent speeches from noble Lords—the interpretation of EU retained law. The amendments tabled by the noble Baroness, Lady Bowles of Berkhamsted, and the noble Lord, Lord Krebs, particularly require that the preambles and recitals should be capable of being taken into account when it comes to interpreting EU law. They are completely right, as are other noble Lords who have spoken, that at the moment under EU law the recitals and the preambles are an important part of the interpretation. I have had the privilege of appearing on a number of occasions before the European Court of Justice, both in my capacity as a government Minister and before that as a lawyer retained to argue cases, and it absolutely is the case that, unlike the techniques that we apply when we come to interpret British statutes, the preambles and recitals are very important. It therefore would be significant that they should be capable of being applied in the interpretation of EU retained law after exit day. If they were not it could lead, for example, to the result that a piece of law applied and interpreted before exit day using the preambles and recitals could be interpreted differently after exit day, and that would be damaging to legal certainty.
I very much doubt that the Government intend that there should be any difference, and I believe they intend that the preamble and recitals should be capable of being used in the interpretation, as they so often are. The question then becomes whether it is important and right to make reference to that specifically in the Act as it goes forward so that everybody, including the public, know that application of the recitals and preambles to these EU instruments is something that Parliament intends. Where I might part company a little with the way that Amendment 58 is drafted is in its apparently requiring that the interpretation should be in accordance with the recitals and preambles. The recitals and preambles should certainly be taken account of and proper regard should be given to them, but it is possible that requiring that they be interpreted in accordance with the preambles is going a little too far. No doubt the Minister will have something to say about that, as I hope he will have something to say about the principle.
The principle, which I support from these Benches, is that it should be clear, one way or another, that the recitals and preambles should be capable of being taken into account in interpretation because that is an important part of understanding that legislation. I have no doubt that the noble and learned Lord, Lord Mackay of Clashfern, is right that the process of transposition which is intended by Clause 1 does not involve excising the recitals and preambles. What will come in is everything that is in that which is defined as EU retained law at the moment, but that does not quite cover the point about whether there is a risk that somebody might think that they are not allowed to, or should not, take account of the recitals and preambles. Of course, that depends on what the judges say. That is the principle in relation to the first part of this group of amendments. I support the need to be clear that those recitals and preambles can be taken into account, but will listen very carefully to what the Minister has to say on that.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, what I am about to say is designed to help—although whether it achieves that may of course be doubted. The Government have stated that the central object of the Bill is to ensure that the law on the day after Brexit is the same as on the day before. But it is also the Government’s stated aim—one I would hope is shared by all, or certainly the great majority, in the Chamber—that the EU law retained is certain and clear rather than left in very considerable doubt. I would suggest it is that which explains provisions such as paragraph 2 of Schedule 1, relevant to the question of whether the general principles of EU law are retained, which features in the provision under Clause 6(3), which we are now discussing. Indeed, it also explains Clause 4(2)(b), which we talked about a few days ago—although it seems like weeks—and the non-incorporation of the charter, although I shall show very considerable restraint and not go further down that road. We keep straying on to it—although I had thought that, at least for Committee stage, we had put it to bed some while back.
The amendments in this group, I suggest, will not assist in clarifying and making certain and predictable the application of retained EU law. I therefore cannot support them.
Baroness Young of Old Scone (Lab)
My Lords, I support Amendment 58. This comes down very simply to the fact that, as a result of the discussion we have heard today, the recitals and preambles either are brought across automatically—in which case, some of the statements made in the debate in the other place on this issue, which were quite lengthy and considerable, need to be re-examined, because my impression of those was that there was no guarantee of preambles and recitals being brought across—or they are not clearly brought across, in which case we need something in the Bill that does so. So I would be very grateful if the Minister would clarify, first of all, whether he believes the Government are convinced that they are already clearly brought across.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, first of all perhaps I may observe that, pursuant to Clause 3 of the Bill:
“Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day”.
That brings over direct legislation, including recitals, as I believe a number of noble Lords have understood.
The Government’s position is that, as long as retained EU law remains as part of the UK statute book, it is essential that there is a common understanding of what the law means. Therefore, to maximise certainty, any question as to the meaning of retained EU law will be determined in the UK courts, in accordance with the CJEU’s case law as it exists immediately before the UK leaves the EU. That is set out in Clause 6(3). Any other starting point would lead to a change in the law and risk creating considerable uncertainty, if not confusion, on exit day.
However, we do not want to fossilise that case law. That is why, pursuant to Clauses 6(4) and 6(5) of the Bill, there is provision for the Supreme Court, and indeed for the High Court of Justiciary in Scotland, to depart from that situation when employing their own jurisprudence. The test would be that which they apply at the present time in departing from their domestic jurisprudence.
While it would be fair to say that the Constitution Committee has not always seen eye to eye with us on the Bill, on this particular issue it described the Government’s position as clear and sensible. Retained EU law will of course be modified after exit day by Parliament, and indeed by the devolved legislatures. It is right and sensible that it should no longer be interpreted in line with retained EU case law, following those modifications. But, in other cases, it may be appropriate that, even where there has been some modification, it should continue to be interpreted in that same way. What we have in mind is a situation in which a modification simply changes a reference, for example from an EU commission or agency to a UK public body, but leaves the substantive scheme of the retained EU law exactly as it was before. That is the purpose of Clause 6(6): to ensure that, where there is a modification that has no impact on the operation of the scheme, we should continue, pursuant to Clause 6(3), to amend in an appropriate fashion.
Amendment 57, which was moved by the noble Baroness, Lady Bowles, would remove the reference to unmodified law from Clause 6(3). But one effect of that would be to cast doubt on the operation of Clause 6(6) and the ability of modifications to retained EU law to displace the binding effect of pre-exit CJEU case law. That uncertainty, we suggest, should be avoided.
Can I come on to the issue of recitals?
Lord Goldsmith
I intervene on the Minister before he moves on to that topic. If the words that the noble Baroness’s amendment would remove—
“so far as that law is unmodified on or after exit day”—
remain in, would it still be the Government’s position that any part of an EU law can be interpreted in accordance with these principles, even if another part of that law has been modified? Could he explain precisely? Is it a question of looking at a law and saying that part of it has been modified, and therefore we no longer look at EU retained law to interpret what is left—or is it that, once it has been modified a bit, it means that it is no longer subject to that interpretative technique? It would be very helpful to have that clarification.
Lord Keen of Elie
I am not sure that I am entirely following the noble and learned Lord’s point. To express it this way, where after exit there is a modification to retained EU law but that modification does not go to the substance of the retained EU law, which would have to be addressed on a case-by-case basis, Clause 6(6) then allows for the continued interpretation of that retained EU law by reference to Clause 6(3), notwithstanding the relevant modification. That is why I sought to give the example of a modification that simply took out the reference to an EU agency and substituted a UK agency.
Lord Goldsmith
I hope that the noble and learned Lord and the Committee will permit me to intervene, because it is important to know how this is going to be interpreted. I do not see in these words anything about a proviso where the modification does or does not go to the substance of the directive. What my question had in mind was that, if you had a directive that has 10 provisions in it, for example, and if one of those was modified, or indeed nine of them, when it comes to the one provision that has not been modified, does one treat the proviso as applying or not applying? In other words, is that therefore modified retained EU law, which cannot be interpreted in accordance with retained case law?
Lord Keen of Elie
With respect, it could all be interpreted with reference to retained case law. Clause 6(6) says:
“Subsection (3) does not prevent the validity, meaning or effect of any retained EU law which has been modified on or after exit day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications”.
So the point is being made that, even where there has been modification post exit to retained EU law, you may still find yourself on a case-by-case basis deciding that you can construe that retained EU law, notwithstanding the modification, in accordance with Clause 6(3). If the noble and learned Lord wishes to discuss the matter in some detail later, I am quite happy to take him up on that.
Lord Goldsmith
That is why I did not stand up, because I think that it is better if we discuss it outside the Committee.
Lord Keen of Elie
So be it. And there was me thinking that I was being clear.
I shall touch on Amendments 58 and 59 as well as Amendment 60, which are really concerned with what is being brought over into retained EU law. I reiterate the point that I made earlier that, pursuant to Clause 3, we bring over into retained EU law all the recitals and other material in the EU regulations and directives for the purposes of interpretation and then application—a point made by my noble and learned friend Lord Mackay of Clashfern earlier. If I may say so, that is reinforced, although perhaps not quite as patently as some noble Lords would wish, by Clause 6(3), which refers to the requirement to address the matter in accordance with any retained case law and retained general principles of EU law. The retained case law includes a body of case law that is establishing and has established clearly the principle of interpretation by reference to the relevant recitals in the directives and regulations.
Indeed, as the noble and learned Lord, Lord Goldsmith, observed, when addressing the matter in the context of the ECJ, as it was, or the CJEU, one finds that these recitals sometimes play a very material part in the way in which they interpret and apply legislation that is drafted in a rather—if I may say so, without being pejorative—looser way than is perhaps the norm in domestic statutory provision.
Baroness Bowles of Berkhamsted
I thank the noble and learned Lord for his response. I appreciate that some of what I was trying to outline was complicated, and made more so by it no doubt being difficult to listen to. I am not convinced that the point is nailed with regard to the recitals of directives, not least because there is no provision to publish those in Schedule 5. If you are going to rely on them in court, you will have to adduce some other evidence, whereas regulations are going to be published. That lies behind the amendment that I tabled to Schedule 5—it is for advance information, if you like.
I think this is a technical fix—I may be wrong, and I just bring that to noble Lords’ attention. I think I understand what has been said about Clause 6(6) in that, if the modification is trivial then, for that bit of the legislation, nothing changes and another bit in the same legislation would probably remain unaffected. So, within an individual piece of legislation, the impact of the recitals might have been removed from some bits and not from others. I think that is what was being said, and that is where the noble and learned Lord, Lord Goldsmith, was trying to get some clarity. Maybe we can take that offline to get that clarity. I am still not quite sure who makes that decision in Clause 6(6), and whether it will be something that appears when we get the schedule modifications or whether the courts and others will be left trying to decide it for themselves.
This may be something that we have to return to but, with the Committee’s agreement, I beg leave to withdraw my amendment.
“Maintenance of EU environmental principles
(1) Public authorities must have special regard to and apply the principles set out in this section.(2) The principles in this section are—(a) the precautionary principle as it relates to the environment,(b) that preventive action should be taken to avert environmental damage,(c) that environmental damage should, as a priority, be rectified at source,(d) the polluter pays principle, and(e) that environmental protection requirements must be integrated into the definition and implementation of policies and activities, with a view to promoting sustainable development.(3) The principles in subsection (2) may be called the “environmental principles”.(4) In carrying out their duties and functions arising by virtue of this Act, public authorities must take account of the public interest in—(a) promoting sustainable development in the United Kingdom and overseas,(b) preserving, protecting and improving the environment, (c) the prudent and rational utilisation of natural resources,(d) promoting measures at the international level to deal with regional or worldwide environmental problems, and combat climate change,(e) guaranteeing participatory rights including—(i) access to information,(ii) public participation in decision making, and(iii) access to justice,in relation to environmental matters, and(f) acting in a way that takes account of available scientific and technical data.(5) When making proposals concerning environmental protection, public authorities shall take as a base a high level of protection, taking account in particular of any new development based on scientific facts.(6) Subsection (7) applies in any proceedings in which a court or tribunal determines whether a provision of primary or subordinate legislation is compatible with the environmental principles.(7) If the court is satisfied that the provision is incompatible with the environmental principles, it may make a declaration of that incompatibility.”
Baroness Jones of Whitchurch
My Lords, this amendment stands in my name and those of the noble Lords, Lord Krebs and Lord Deben, and the noble Baroness, Lady Bakewell of Hardington Mandeville. Amendment 108 stands in my name and I have added my name to Amendments 112 and 113 in the name of the noble Lord, Lord Krebs.
This group of amendments goes to the heart of the concerns about the potential impact of the Bill on established environmental safeguards in the UK. On earlier amendments we rehearsed the gap in environmental protection that might occur if the transfer of legal rights is limited in the way that we have spelled out, particularly in its reliance on case law. The Minister may put forward a similar argument in answering these questions but it would be useful to have it on the record so that we can look at it in detail after the debate.
Amendment 66 tackles the issue of environmental principles head on and spells out the core principles that are needed to achieve the Government’s promise of equivalence in environmental standards. These are: the precautionary principle, the preventive action principle, the principle that environmental damage should be rectified at source, the polluter pays principle and the principle that environmental protection should be integrated into policies to promote sustainable development. To avoid any uncertainty these principles should be part of domestic law on day one, the public should be able to rely on them, the court should apply them and public bodies should follow them. These principles matter. For example, as we have discussed, the precautionary principle is important in the application of pesticides, where the impact of neonicotinoids on bee populations was suspected but not backed by scientific certainty. It created enough time and space for further research to be carried out which confirmed that the ban was justified.
Similarly, the polluter pays principle, which has been used, for example, in the application of the water framework directive, has enabled the Environment Agency to impose fines on water companies found to have polluted rivers and required them to repair the damage and invest in preventive measures for the future.
These principles have existing legal status. For example, in a recent case Friends of the Earth successfully argued that the Northern Ireland department had failed to consider the precautionary principle when it refused to issue a stop notice to prevent sand extraction in Lough Neagh. I hope that I have pronounced that properly. As a result partly of that argument, the department had to reconsider its position.
These principles of environmental law are not new, nor are they unique to EU law. They are also found in a number of international environmental treaties to which the UK is a signatory. These include the Convention on Biodiversity, the Convention on Climate Change and the Convention on the Law of the Sea. Currently, the UK gives effect to these international obligations through its membership of the EU as these principles are contained in Article 191 of the Treaty on the Functioning of the European Union. This is why, although we have strong support for the concept of enhancing biodiversity as set out in Amendment 67, in the name of my noble friend Lord Judd, in the spirit of transposing rather than refining the legislation we have tried to be true to the existing principles and objectives in Article 191, which do not yet include enhancing biodiversity, although, of course, we wish that they did.
When a similar amendment to Amendment 66 was debated in the Commons, it received strong support. In fact, Dominic Raab MP, who was then the Minister of State responsible for courts and justice, stated:
“Leaving the EU will not diminish our commitment to environmental principles. Indeed, it is an opportunity to reinforce them”.—[Official Report, Commons, 15/11/17; col. 501.]
So we believe that by restating the principles in the Bill by inserting this proposed coherent new clause, the Government can avoid the ambiguities which result from relying excessively on case law and make good their promise to enhance environmental protection.
More recently, the Government have announced that they plan to publish a new national policy statement setting out the environmental principles which will underpin future policy-making. In theory, we welcome this initiative as it would allow us to build on the existing principles, making them relevant and durable for the longer term—including, of course, the importance of biodiversity. This would be a document for the future. However, we have not seen a draft of it yet; it would then need to be subject to full consultation before becoming a reality. In addition, its legal status would be less clear as it could be changed by government without a parliamentary veto. In the meantime, as the date for leaving Europe grows nearer, it is important that we protect the existing principles that have stood us in good stead for so long. That is what Amendment 66 seeks to do.
The next amendment in my name is Amendment 108. It addresses the serious threat to air quality, which we were rehearsing just a moment ago, by seeking to ensure that the EU ambient air quality directive 2008, the other directives listed and the UK regulations that transpose it remain the law of the land. We know this is an issue of huge public concern, with public health implications. That concern is reflected by the courts, which have consistently ruled that the Government are in breach of the ambient air quality directive; and, of course, we saw the latest episode of this in the High Court last week, when the Government’s latest plans were declared unlawful. The Government’s reluctance to comply with the directive is a worrying indication of their likely approach to implementing air quality standards after the UK leaves the EU. Our amendment aims to put certainty into the withdrawal Bill so that existing standards and oversight remain in place.
Currently, the air quality standards regulations are secondary legislation; under the current terms of the Bill, they could be amended or repealed with minimum parliamentary scrutiny. In any event, the regulations will lose much of their effectiveness unless the courts are required to enforce them, in line with the principles established by case law of the Court of Justice of the EU. Anyway, once the UK leaves the EU, the European Commission will have no authority to bring infringement proceedings against the UK. Without this amendment, air quality protection is under threat, either by repeal or amendment—or, more subtly, through the removal of any effective enforcement mechanism. The air quality regulations could cease to be effective on Brexit day. It is therefore vital that the directive and the Air Quality Standards Regulations 2010 are transposed in full, with no weakening amendments. To guarantee public protection in the future, these air quality laws should be given the status of primary legislation, so that future changes require a full Act of Parliament. It is also vital that establishing EU case law applies in the interpretation and enforcement of these laws in the UK.
Finally, as explored in Amendments 112 and 113, there needs to be a robust and independent governance structure that deals with accountability and enforcement. We believe that the package set out in Amendment 108 is vital to delivering effective regulation and enforcement of air quality standards in the future. There are a number of other amendments in this group that explore different aspects of environmental protection and enforcement. We support these amendments, but I will leave those who have tabled them to make their case in more detail. In the meantime, I beg to move Amendment 66.
Amendment 67 (to Amendment 66)
“( ) protecting, enhancing and encouraging biodiversity,”
Lord Judd (Lab)
My Lords, I endorse every word that my noble friend said. There is nothing more important, it seems to me, for the qualitative future of the United Kingdom than the ground covered by these amendments. What kind of Britain do we want to leave to our children and grandchildren? Therefore, it seems that we have got tied up over how we can have firm policy in the future if we are to leave the European Union.
My amendment simply sanctions, I hope, what my noble friend said. She referred very strongly to biodiversity because it seems such a crucial issue. It needs very specific and precise attention; it needs to be covered very specifically in the legislation we are considering.
Lord Wigley (PC)
My Lords, I will speak to Amendment 317 in this group. Before I do so, I warmly endorse the comments that have already been made on the importance of getting the environmental dimensions right as we leave the European Union, if we have to.
Amendment 317 proposes a new clause on common frameworks for environmental protection, touching on a number of matters that have already been discussed. I hope that the Minister, when responding to this group of amendments, will see Amendment 317 as a constructive proposal for a possible way forward as we have to change our relationships as we move out of Europe. This amendment goes to the very heart of why I am both a Welsh nationalist and a European federalist, and those two attachments are in no way incompatible. I believe that every community should make as many decisions as possible that affect them for themselves, and where they cannot, for practical reasons—where, by their nature, some decisions have to be taken on a broader basis—those communities should have an effective voice in that wider decision-taking process The environment is one such issue.
Environmental protection is a devolved matter. However, while the UK is a European Union member state, most environmental law in the four countries of the UK is guided by common frameworks set at EU level. This amendment would require the four Governments to work together on proposals to establish minimum common environmental objectives and standards. As such, I hope it will appeal to all parts of the House. UK-wide frameworks will be needed to establish areas of common policy across the UK, even in areas of devolved competence. Crucially, this amendment would insist that devolved legislatures are equal stakeholders in the forming of those common policy areas. I will cover the principle of UK-wide frameworks, and my major concerns about Clause 11, when we get to that point of the Bill. Today, I will focus on the substantive relevance of this issue to the environment.
First, I will say a word about why common frameworks are needed. No area of policy will be more affected by the outcome of the common frameworks debate than the environment. According to analysis by the Institute for Government, there are more than 140 distinct policy areas where EU law intersects with devolved powers. The greatest number of these relate to the environment, which is unsurprising given that the EU frameworks have been widely created for environmental policy purposes.
Approximately 80% of environmental laws in the UK, including in the devolved nations, have some basis in EU legislation. Transboundary co-operation and common standards are widely recognised as important for the effective protection of the environment and the prevention of unfair regulatory competition. There are persuasive reasons for seeking to maintain common standards across the four nations of these islands post Brexit. Such frameworks would provide a set of minimum common standards and should be jointly agreed between the UK and devolved Governments. They will be important in a range of areas, such as the conservation of wildlife on land and at sea, environmental assessment and the co-ordination of action to address air and water pollution.
I shall give some examples of common frameworks. EU legislation relating to the natural environment—including the birds and habitats directives—currently helps to underpin effective environmental action by providing minimum common standards for site and species protection across the four nations. This facilitates the creation of a more ecologically coherent network of protected sites than would otherwise be the case. Such an approach will still be needed for the UK outside the EU, helping to ensure that actions in one jurisdiction complement, and do not counteract, conservation outcomes across these islands.
Similarly, the common frameworks provided by EU legislation—relating to the assessment of the likely environmental impacts of plans, programmes and projects—mean that consistent mechanisms are in place for assessing transboundary effects as well as allowing for public participation and transparency in decision-making across the four nations. Co-operation and joint agreement on common frameworks that provide minimum standards and shared high-level objectives are therefore needed.
I now turn to the role of the Joint Ministerial Committee. Most environmental issues are transboundary in nature and represent a shared concern across the four nations. In a welcome sign of progress, the UK and devolved Governments reached an agreement in October 2017, via the Joint Ministerial Committee on EU Negotiations, to develop and agree common frameworks in some of these areas post Brexit—to ensure the effective management of common resources that cross boundaries between the four nations.
For the sake of our shared environment, failure to recognise the importance of agreeing a set of common frameworks in these areas would be of great concern. We urgently need the UK and devolved Governments to commit to working more openly and transparently together, to secure the best possible system of environmental governance across the four nations following the UK’s exit from the EU. This should be informed by a robust assessment of the environmental implications and a transparent process that allows for public consultation and input from stakeholders across the UK.
In conclusion, I ask the Minister to accept that, in the absence of a replacement set of jointly agreed frameworks, environmental co-operation across the four nations would be undermined. Secondly, I ask the Minister to confirm that the views of the JMC will be subject to public consultation and parliamentary scrutiny. Finally, will the Minister provide clarity as to what will be the process with respect to pursuing common frameworks once the JMC analysis is published?
Lord Krebs (CB)
My Lords, I rise to move Amendments 112 and 113, which are in my name and those of the noble Baronesses, Lady Jones of Whitchurch and Lady Byford, and my noble friend Lady Brown of Cambridge.
The Countess of Mar (CB)
My Lords, I hate to interrupt my noble friend but he is not moving his amendment now; he is speaking to it. The same applies to the amendment in the name of the noble Lord, Lord Wigley.
Lord Krebs
I thank my noble friend Lady Mar for that correction. As well as speaking to my amendment, I shall be supporting Amendments 66 and 108, with which my name is associated and to which the noble Baroness, Lady Jones of Whitchurch, has already spoken.
It was very encouraging to hear the Prime Minister reaffirm in her Mansion House speech on Friday that:
“As we leave the EU we will uphold environmental standards and go further to protect our shared natural heritage”.
As the Chief Medical Officer for England made clear in her annual report published last week, our own health is intimately dependent on the health of our environment. We all recognise that the improvements over past decades in the UK’s environmental standards have been driven primarily by EU laws that cover roughly 80% of environmental legislation in this country, and a key part of that has been enforcement. There is no point in having high aspirations unless you have an effective mechanism to ensure that you deliver. As a member of the European Union, we have been subject to scrutiny and enforcement by the Commission, ultimately through infraction notices. As I pointed out at Second Reading, 46% of the judgments handed down by the European Court of Justice on UK infringements since 2003 related to the environment.
The Government have accepted that after Brexit there will be a governance gap and that therefore a new green watchdog will be required to hold the Government to account on their environmental performance. The purpose of Amendments 112 and 113 is to ensure that this new green watchdog is in place by exit day and that it will mirror as closely as possible the current arrangements that we have as a member of the EU.
When the Energy and Environment Sub-Committee of the EU Select Committee, of which I am a member, took evidence on this, the very strong view was that a new watchdog would be essential. I quote from our report:
“The importance of the role of EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be overstated ... The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations ... It will be important for any effective domestic enforcement mechanism to have both regular oversight of the Government’s progress towards its environmental objectives, and the ability, through the courts, to sanction non-compliance as necessary”.
I can imagine that in his reply at the end of this debate the Minister will say that we are going out to consultation on a new green watchdog. Indeed, the Secretary of State for Environment, Food and Rural Affairs has already indicated that there will be a consultation on a new statutory body early in 2018. Just checking my clock, “early” is moving quickly beyond us. In the Committee debate in the other place, Dominic Raab said on 15 November 2017 that the consultation was “coming imminently”. If one of my students at Oxford said that her essay would arrive imminently but nearly four months later it had not appeared, it would be a case for disciplinary action. Monsieur Barnier has repeatedly said that the clock is ticking, so can the Minister assure the Committee that the new green watchdog will be in place on a statutory basis by exit day?
Amendments 112 and 113 set out a number of key requirements for the new watchdog. First, as I have already said, it should be in place by exit day. Secondly—this resonates with what the noble Lord, Lord Wigley, has just said—the UK Government and the devolved Administrations should work together to ensure that the watchdog functions apply to the whole of the UK. If there are different watchdogs for the four countries of the UK, they should operate according to the same principles and should be established jointly and in the same timescale. Thirdly, as we heard from the noble Baroness, Lady Jones of Whitchurch, the Government should consult on incorporating EU environmental principles into primary legislation, support decision-making by the watchdog or watchdogs and ensure that the principles inform decision-making more broadly. Fourthly, there should be absolute transparency about the environmental governance functions that are transferred to the new watchdog or watchdogs by creating a publicly available register of functions.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I support Amendment 66, to which I have added my name; Amendment 67 in the name of the noble Lord, Lord Judd; and Amendment 67A in the name of my noble friend Lady Miller of Chilthorne Domer. These amendments are key to ensuring that the protection of our environmental heritage is enshrined in law in the Bill. This group of amendments is crux to the environmental agenda and must be included in the Bill. I fully support the thorough introduction to the amendment of the noble Baroness, Lady Jones of Whitchurch, and I am grateful to Rescue, the Chartered Institute for Archaeologists, the Environmental Policy Forum and Greener UK for their briefings.
As we all know, on 29 March 2019 key pieces of legislation such as the environmental impact assessment and strategic environmental directives will be transposed into domestic law, with the aim that planning policy will continue to function as currently. However, the Bill does not directly reference some important overarching principles established in the EU treaty, potentially weakening environmental protections which underpin planning-led archaeology. This process is difficult—not least because of the perceived weakness in the Bill, which may prevent its stated ambition of ensuring a smooth transition and avoiding a black hole in the statute book on the day of the UK’s exit next year.
For the Chartered Institute for Archaeologists and the Council for British Archaeology, the key issues are: the de facto weakening of environmental principles enshrined in the European treaty, which are not within the scope of the Bill as proposed; the loss of supranational jurisdiction to provide opportunities to bring legal challenges on environmental principles; the uncertainty over how the Government will use so-called Henry VIII powers to amend technical aspects of EU law when transposed, to ensure that they remain workable in a domestic context; and the uncertainty over how previously held EU powers—brought back to the UK after Brexit—will be reserved to devolve to Scotland, Northern Ireland and Wales.
In February, during the recess, I went to Cyprus for a holiday. During the week, my husband and I visited the marvellous and numerous archaeological remains on the island, including Aphrodite’s Temple, Aphrodite’s Rock, the Tombs of the Kings and the main archaeological site in Paphos. The Cypriot Government have spent considerable sums of money over many years excavating these sites and preserving the wonderful mosaics uncovered and other historical artefacts. I was struck by the number of non-Cypriot archaeologists who had funded and worked on the sites over the decades to bring the history to life for future generations. Many of these came from the UK.
To be clear on how important archaeological heritage is, we must turn to the survey of adults in England called Taking Part Focus On: Heritage. This was a DCMS survey of 2017 demonstrating both the cultural and economic value that heritage provides to our society and community. Some 74.2% of adults visited a heritage site in 2016-17, with a remarkable 94.2% of adults agreeing that it is important to them that,
“heritage buildings or places are well looked after”.
Another report, Heritage and the Economy 2017, by Historic England—again reporting English statistics—shows that,
“heritage directly contributed £11.9 billion in GVA”,
equivalent to 2% of our national GVA, and that:
“Heritage tourism generated £16.4 billion in spending by domestic and international visitors”.
The Welsh equivalent showed that it contributed 1.6% of GVA and Scotland’s Historic Environment Audit 2016 showed that heritage contributed,
“in excess of £2.3 billion to Scotland’s economy”.
The Countess of Mar
My Lords, I am sorry to interrupt the noble Baroness, but these amendments are about environment, not heritage. Does she have her right speech?
Baroness Bakewell of Hardington Mandeville
I thank the noble Countess for that intervention, but I believe I have the right speech and I hope she will bear with me until I get to the end.
With this in mind, it is important that the UK retains at least an equivalent provision for environmental protection in domestic legislation and policy to compensate for the loss of EU funding to the historic environment with domestic funding, ensure free movement of skilled and accredited archaeologists between the EU and the UK—
The Countess of Mar
My Lords, I am sorry to interrupt the noble Baroness again, but this is an amendment about the environment. We are asked in Committee to pay our attentions to the particular amendments that we are looking at. I have looked through the list of amendments and none of them applies to architectural heritage. Will the noble Baroness kindly let noble Lords who wish to speak on the environment have their turn?
Baroness Bakewell of Hardington Mandeville
I am sorry that the noble Countess is frustrated with me trying to link the environment to archaeology. However, Article 191 aims for a “high level” protection of the environment and is based on “preventive action” in which,
“environmental damage should as a priority be rectified at source and that the polluter should pay”.
The principles, including the polluter pays principle, the prevention principle and the precautionary principle, have all been the fundamental base of environmental—
Baroness Goldie (Con)
I am sure that the noble Baroness will realise that the interruption was not a personal allusion to her speech or its content.
Baroness Bakewell of Hardington Mandeville
I am sure it was not.
These principles have been the fundamental base of environmental protection and the way archaeology is carried out in the UK. The rejection by a very close margin in the other place last November of Amendment 67, which aimed to adopt these principles into UK law with other EU legislation, leaves historical environment protection vulnerable to future changes in British policy. This is not something that the public who visit archaeological sites would welcome.
The weakening of environmental principles enshrined in the environmental treaty has captured the attention of many in the sector in recent weeks and has promoted serious questions about environmental protections after Brexit. A significant amount of time was spent debating the importance of environmental protections and there has been universal acceptance of their value, with cross-party consensus on a need for statutory protections for these principles being evidenced. Discussions are under way towards including a new environmental protection Bill, to which the noble Lord, Lord Krebs, referred, to be brought forward before exit day. Given the legislative timetable and the scope of Bills that the Government hope to bring forward, surely it would be better to enshrine the principles of Amendment 66 in the Bill, rather than leave to chance bringing forward an environmental protection Bill prior to exit day.
The Government’s 25-year environment plan is wide-ranging and encouraging. Those in the natural environment sector have been encouraged by changes in the Government’s stance that have occurred since the new Secretary of State took office. However, the Government’s drive towards streamlined planning has demonstrated how easy it is to introduce provisions that—apparently unwittingly—undermine historical environment protections. We must be vigilant to ensure that damage does not happen by default.
I turn lastly to the impact of the large number of Henry V powers contained in the Bill.
Baroness Bakewell of Hardington Mandeville
Sorry, Henry VIII powers. They have caused such concern in the environment protection world and elsewhere. The withdrawal Bill’s aim is to convert EU law into UK law wherever practical and appropriate. Clause 7 confers major executive powers on the Government to bring about legal and institutional changes that would normally be the subject of detailed parliamentary debate and scrutiny. These powers are incredibly broad and would be able to achieve anything that could be done through an Act of Parliament, including repealing or amending existing pieces of primary legislation. It is estimated that around 800 to 1,000 statutory instruments are likely to be needed to address deficiencies in retained EU law through these powers. I look forward to this with trepidation.
The Environmental Policy Forum has made a number of extremely valid points, including supporting the House’s Constitution Committee’s recommendations that the Bill should require Ministers to demonstrate good reason for exercising Henry VIII powers and that the sifting committee’s powers be decisive in calling for the affirmative procedure for a statutory instrument as it deems necessary. The EPF also recommends that the Bill should require the Government to establish a new body or bodies to fulfil the roles and functions currently undertaken by the EU institutions to ensure effective governance of environmental law and an appropriate level of independence and authority. The new body should be funded by and directly accountable to the UK Assemblies and Parliaments and, in a similar way, to the National Audit Office.
It is vital that the UK and devolved Governments work together throughout the passage of the Bill to ensure that common frameworks can be established to set minimum environmental standards across the UK at or above current EU standards. This should allow each country to set higher standards should they wish to do so. This process should be jointly initiated to allow for genuine shared ownership. I fully support all the amendments in this group and I hope that the Minister—although probably somewhat weary of the Committee’s deliberations—has his listening hat on.
Lord Deben (Con)
My Lords, I rise to be helpful to the Minister because I think Amendment 66, to which I have added my name, merely ensures that we do what the Government have said they want to do. I speak as chairman of the Committee on Climate Change because this amendment, as the noble Baroness mentioned, refers to international obligations beyond the European Union, one of which is the Convention on Climate Change.
I am particularly interested in this because for four years I was Secretary of State for the Environment at a time when the British did not have a great reputation for environmental action. I have to say to the Committee that I found the presence of EU law, particularly on bathing waters and water quality, extremely helpful. It was not always easy to convince my colleagues that we really did have less good drinking water than much of the rest of the European Union. They rather took my mother’s view, which was that the reason that people had bottled water in France was because their ordinary water was unacceptable. There was a general view, much promoted in the Daily Telegraph, that there was no need for improvement. I have to say that there was need. There was even more need, as Surfers Against Sewage made clear, to do something about our appalling bathing water standards. We were, after all, in much of the country pouring unreformed ordure—I do try very hard to use phrases that the Committee will not object to—into the sea. We were able to change that, not, I may say, without very considerable difficulty and arguments about the price and cost of doing it. It was within a context of EU law, and not just precise pieces of law but the context in which we accepted certain standards and values to which we could refer when it came to making our own legislation.
I have looked at this amendment very carefully, and I cannot find anything in it to which the Government could possibly object. If my noble friend is busy looking it up at the moment, no doubt he may find something, but I do not see anything to which the Government could object. There is nothing here which does not pass from EU law into our law, and that, after all, is the purpose of the withdrawal Bill. My noble friend has sometimes been somewhat sharp with me in suggesting that I am asking for something more, so I have not put my name to those things which have asked for something more—mind you, I might well come back and ask for that—but this amendment asks for nothing more than that which has been promised by the Prime Minister, by the Secretary of State for Defra and by other Ministers: namely, that our standards would be at least those of the European Union were we to leave the EU. This merely puts down that contention.
Frankly, I think that my noble friend, if he were to say that we cannot have this amendment—I very much hope that he is not going to say that—has to explain, first, what in it is additional to the mere passing of the law from the EU into our national law. Secondly, he must explain why it is unacceptable to the Government for this House to repeat what the Government have themselves said: not an unreasonable thing, I think, for it to do.
I said earlier that I rose to be helpful, and I meant it. There is very considerable concern throughout the country, not just from environmental organisations but from civic society generally, that the Government will not be bound in the future, were we to leave the European Union, in the same way as they are bound now within the European Union. There is widespread concern, felt not just by those who are opposed to our leaving the EU but also by people who voted to leave because they were promised that leaving would not make a difference, in any sense, to these things. I want to be helpful because, if we do not do this, very large numbers of people will vote with their feet because they will not trust any Government. I do not trust any Government on these issues. I do not just mean that I do not trust this Government: I have not trusted previous Governments. I have fought with all of them one way or another on these principles. That is why this amendment is so important.
The vital issue is that the environment needs to have a framework within which people can have confidence that their interests will in fact be met. In the past, we have had the framework of the European Union. The Government say we can have just as good a framework outside the European Union—well, this is the framework, and there is no reason why they should refuse it.
In the Pope’s encyclical Laudato Si’, he makes the absolutely fascinating statement that climate change is in fact to be seen as a symptom of the way human beings have dealt with each other and the planet upon which we live. He goes on to express his desire that we should learn again how we should behave not only to each other but also to the world. The very best series of explanations of how we should behave are to be found in this amendment. They have been honed and argued over the years in the European Union, and I spent a good number of years of my life debating them both in the Environment Council and in the Agriculture Council.
Baroness Ludford (LD)
Before the noble Lord, Lord Deben, finishes, does he agree that one essential EU measure is the urban wastewater directive of 1991, without which we would not have built the Thames super-sewer? I am less reticent than the noble Lord because, on a weekly basis, untreated raw sewage flows into the Thames right outside this House. We are already nearly two decades overdue in implementing that directive, and without EU law we would not be doing so at all.
Lord Deben
I am very glad to acknowledge the noble Baroness’s point, but I have tried hard not to stray into other things because I want the Minister to accept this amendment. If he does not, I have a fundamental question to ask him, because I do not think the Government are serious about what they have promised. If they are, they cannot oppose this amendment, and if they do not oppose it, why on earth can they not accept it? If the Minister tells me that we do not need it because of this, that and the other, he will have to go through each item and explain how it is totally passed into our law without this amendment. He will also have to explain it in such a way that it can be understood by all those people outside this House who are worried and concerned about this change from our membership of the EU.
Viscount Ridley (Con)
Will my noble friend explain something to me? He has just said “passed into our law”, but there is confusion, particularly in relation to what the noble Baroness, Lady Ludford, said, about environmental law. This is surely about environmental principles, which are really quite different. They are, on the whole, aspirations, with which many of us may agree, but they are not part of the legislation as such.
Lord Deben
I fear that my noble friend is not right on that, for two reasons. First, all environmental law in the European Union has been intimately connected with the principles upon which it is based. Indeed, you cannot understand the law unless you understand the principles. That has always been the situation. All we are saying is: let us make our law understandable by the principles to which we have assented and to which, we are told, the present Government wish to continue to assent. The distinction between principles and law is not correct in this case. Secondly, even if he were right—and I am not sure that he and I would always agree on the same aspirations as far as the law is concerned—it is very peculiar for the Government, having said that this is what they want, not to be prepared to put it into the law, because these are the very words to which the Prime Minister and other Ministers have referred. This is a distinction without a difference in this case.
Since my noble friend has raised it, I say that when we voted on these laws—some of which I did as a Minister—we did so on the whole package, which was the principles as adumbrated in the law itself. It is not possible to take the legal bits out without the principles, as he would suggest, because it is the principles that enable one to interpret what the law says. That has always been accepted. The Government, in their statements, certainly gave every impression that that was what they wanted to do. I very much hope that whatever my noble friend says about additionality—
Lord Pannick (CB)
I will to try to help the noble Lord out. It is not just what the Government say; it is what is in the Bill. Clause 6(3) makes it absolutely clear that retained EU law must be interpreted,
“in accordance with … retained general principles of EU law”.
The Bill recognises it.
Lord Deben
I am so pleased to have been supported by the noble Lord. I was rather afraid that he was going to find something that I had got wrong in the law and I would not like to argue with him, although I have done on occasions, as he knows, because I do not like lawyers to be left to themselves. But he has, with legal elegance, expressed what seems so obvious for anybody who has dealt with European law.
I say to my noble friend is that one of the problems we all have is that those of us who have worked in the European Union, who have argued these laws line by line, and who have worked with our neighbours to do this wonderful thing of bringing countries together to have common laws, encounter the constant difficulty that those who do not like the European Union do not understand the way it is done. Very often, the reason they are opposed to it is because they have never understood the brilliance of the mechanisms that we have there. We may lose them—I say “may”—but we do not want to lose the environmental protection that they have given us.
Lord Rooker (Lab)
The last time I checked, the environmental directorate of the EU had taken 34 cases against the UK Government, of which it had won 30. I did not want to interrupt the noble Lord, who was an absolutely first-class Environment Secretary. I know that because later I worked in planning with John Prescott, as he was then, and we were always referring back to the good work that he had done.
I would have asked the noble Lord: when he was Environment Secretary, how often was he assisted, in his dealings with the Treasury in delivering on our legal obligations, by the threat of infraction? The power to fine the Government that the Commission has does not exist anywhere in the UK. The Supreme Court does not fine the Government. I discovered, when I was at MAFF for two years, Defra for two years and the Northern Ireland environment office for a year, that the threat of infraction was a powerful sanction to the Treasury. When you were arguing about the money to do something—which we were required to do anyway but resources were short—the case to the Treasury was, “Enable us to do this, we will do a deal with our budget and everything else, because paying a fine is an absolute waste of public resources”, and that is what happened.
Most of our environmental protection today is as a result of being in the EU. Ministers wanting to deliver have been helped to do so by the threat of infraction. So the thing that is missing from all this—although the noble Lord, Lord Krebs, touched on it—is the governance and delivery of the sanction. If it is not delivered, what is the sanction? If it is not money, it will not work. The evidence is there. It has to be money. It cannot be the chair or board of whatever is set up saying to the Minister, “We don’t like what you’re doing. You’ve got to do something different”. The first time they use the nuclear option, they will not be on the board the following year unless their independence is locked in solid in legislation. The threat of a sanction of money is pretty important. Without that, the principles cannot be delivered.
Baroness Byford (Con)
I shall follow the noble Lord, Lord Rooker, because I put my name to Amendment 112, which calls on the Government to look at the independent body. When I spoke at Second Reading I said that it was essential that the proposed new body should have teeth, and I am very grateful to the noble Lord, Lord Rooker, for reinforcing that point. The questions that I posed then—I shall not repeat the excellent contribution of the noble Lord, Lord Krebs, because that would test the temper of the Committee to say the least—were: who staffs it? Who pays for it? Who interprets it? What relationship does it have with other agencies? It is key that the new independent body that we are promised should be set up in time, and Clause 112 sets down a timescale. It may be that the Minister is not able to accept the amendment as it stands, but it is hugely important that we realise the strength of feeling about getting this body in place in time so that the laws will be regulated in the way that they have been traditionally—so I totally accept what the noble Lord, Lord Rooker, said.
The noble Baroness, Lady Jones, mentioned the 25-year environment plan earlier. I hope I misunderstood her, because she is very good on her brief, but I think she indicated that there was no 25-year environment plan. I thought it was out: I have read it and was looking forward to responding to it. The Government are looking to go out to consultation on it. Is the Minister able to give the Committee any direction on the timing of that? Will it be a UK consultation or an England one with the devolved assemblies looking at it from their point of view as well, and will the new body reflect this? It is hugely important that it is a UK one because that is the law that, hopefully, we are taking over from the EU in the way it is now.
On the question of feedback on the environment side, there will be very great differences, I suspect, between how England responds and how Scotland, particularly, and Northern Ireland and maybe Wales do. There are some very real and slightly wider issues here. I think it comes to the amendment to which I added my name because I was clearly very unhappy that we had no timetable. We have no idea whether the body will have teeth or who will impose it—and, importantly for me, who will pay for it and how independent the person paying for it will be. These are questions that we need answered today. I have others, but that is enough from me.
Baroness Jones of Whitchurch
I will just clarify that I did not mention the 25-year environment plan. I referred to a new national policy statement setting out environmental principles, which I think is a different document. Otherwise, I agree with everything the noble Baroness said.
Baroness Young of Old Scone
My Lords, I share the anxiety of the noble Baroness, Lady Byford, about the timescales, particularly in respect of the consultation on EU environment principles and the establishment of a new independent environmental watchdog. A large amount of environmentally related legislation has to be got through over the next few months or a year: a fisheries Bill, an agriculture Bill and a huge wall of statutory instruments on environmental law are coming towards us. There are something in excess of 800 instruments in total, the last I heard, with a considerable number of those being environmental. I am anxious, along with many other noble Lords, about whether there is air time for this consultation before the legislation that needs to follow to establish the new watchdog. I would press the Minister to tell us about the plans for the consultation.
I also share the anxiety of the noble Lord, Lord Rooker, about whether there will be real welly behind the regulator. I was chief executive of the Environment Agency, the environmental regulator, which had to help negotiate the urban wastewater treatment directive infraction proceedings that produced the Thames tideway. In spite of wanting and willing there to be an example elsewhere in the world of a body established by a Government that is capable of fining its own Government —and hence its own establishing power—I have not been able to find one. I hope, however, that Ministers will look assiduously at producing that result.
In the spirit of the noble Lord, Lord Deben, with the great hope that I am not going to be his unrefined ordure, I will also briefly help the Committee with another couple of examples about why the environmental principles are important. When I was chairman of English Nature, the debate about genetically modified crops was raging. There was huge public concern and the Government were in an impossible position, with the multinational American-based companies pressing very hard to have GM crops introduced. There was huge alarm about the release of triffid-like plants resistant to all known weed-killers and capable of killing insects stone dead at a distance of 100 paces. But the reality is that had there been an uncontrollable release of GM crops, it would have been more than unfortunate for biodiversity, agriculture and food security.
Viscount Ridley
Let me give the noble Baroness the chance to get her voice back by intervening on what she knows is one of my favourite subjects. Would she not accept that, many years down the line, we now know, because of the meta-analysis by Göttingen University, among other research, that the introduction of genetically modified crops has not led to triffid-like explosions, but has led to a reduction in the use of pesticides, on average, by 37% across the globe? That is something I think she would support.
Baroness Young of Old Scone
Perhaps I could continue our long-standing discussion with the noble Viscount outside the Chamber, to avoid the Committee having to listen to us going through that. The important point is that the principles helped us get a framework for thinking about the issues. That was very important at a time when that meta-analysis was not available.
Another example is our current position on the common agricultural policy. It was introduced before some of these environmental principles were refined and used in European legislation. As a result, we are now in the ridiculous position where the polluter pays principle would have helped us, as taxpayers and as water company customers and payers, avoid paying farmers twice. We are paying water companies to pay farmers to stop doing something that, as taxpayers, we are paying farmers to do. The polluter pays principle, had it existed when the common agricultural policy was first set in place, would have been a hugely valuable way of preventing that very wasteful situation.
Baroness Miller of Chilthorne Domer (LD)
I shall speak to my Amendment 67A, which sets food production within the context of Amendment 66. I heard what the noble Baroness, Lady Jones, said at the beginning and I completely appreciate that Amendment 66 is predicated, or modelled, on the original frameworks. But I want to draw out what is implicit in proposed new subsection (4)(c), which concerns,
“the prudent and rational utilisation of natural resources”.
Part of that is about farming and food production, which we touched on when we debated animal sentience. But the importance of food security, the quality of the food available to us and the price at which that food comes will be founded on the sort of principles that we choose to put into the Bill. I shall give a couple of examples that illustrate this very well.
The first of these would be pre-emptively dosing intensively farmed animals with antibiotics. Is that reckless; is it against the precautionary principle? Yes, it is. It has led to massively increased incidences of antibiotic-resistant bacteria in both animals and humans. Of course, that has had huge cost implications.
We have often talked in this House about the implications of agriculture for climate change. There is a choice coming up for agriculture, which contributes an estimated 11% to total global warming potential. There are better ways. We are looking at no-till agriculture, which will enable the soil to retain more carbon, and so on. I will not detain the Committee with all the details.
The amendment rightly talks of,
“the prudent and rational utilisation of natural resources”.
We have taken for granted for a long time that we have possibly the best grass-growing conditions in the UK: good soil and sufficient rainfall. The amendment is important because it says we must not go on taking any of this for granted. The issue of food production is something the public are rightly very concerned about. Food security is another issue. The principles in the Bill may seem a little esoteric, but when you bring it down to food—what is on the shelves of your local shops or, in the worst-case scenario, is not on the shelves of your local shops—the public will appreciate how right this House would be to debate and insist on these environmental principles being in this Bill.
The Earl of Caithness (Con)
I shall speak to Amendments 112 and 113 and support what has been said by the noble Lord, Lord Rooker, and my noble friend Lady Byford. It will come as no surprise to the Committee, because I have talked on this subject in our debates on the environment. I reinforce what my noble friend Lady Byford said: the new body that is to hold the Government to account must be independent and properly financed. I suggest to my noble friend the Minister that it should be financed by more than one department; if it just comes out of Defra’s budget, that will not be satisfactory. It needs to tie in with all the other departments, which need to contribute financially towards it.
Lord Deben
Is it not also important that the funding should in some way be protected? One of the real ways to overcome the toughness of independence is by funding being restricted. There needs to be some kind of exterior auditor that ensures that the funding is sufficient for the job.
The Earl of Caithness
That is a very valid point. Whatever Government are in power have always found funding bodies an extremely difficult thing to do on a continuous basis.
I was going to come to my noble friend Lord Deben and say just a couple of things to him. He should read what my noble and learned friend Lord Mackay of Clashfern said on the previous amendment, on principles. Also, when he was Secretary of State he took on an improving situation—and, of course, he forgot to mention that we were world leaders in combating the damage to the ozone layer.
We are speaking to Amendment 67, tabled by the noble Lord, Lord Judd. I am sure we all agree with him on the question of biodiversity, but whether it is relevant to have that in the Bill is debatable. I disagree with him, however, on how good the EU has been about biodiversity. If he is giving so much praise to the EU, why has biodiversity continued to decline? Why have the wild birds he mentioned continued to decline? It is largely due to EU policies, particularly the common agricultural policy. One benefit from getting out of the EU is that we will be able to do something quite positive and new for biodiversity and our wildlife, but that will mean a divergence from Europe.
The Countess of Mar
My Lords, I support Amendment 66 and the words of my noble friend Lord Krebs. I put in a note of caution here. The noble Lord asked that we mirror European law as it stands. Hot off the press came an announcement yesterday—I thank the European Environmental Bureau for this—with the headline, “Precautionary in principle, flawed in fact: European Commission review accepts environmental groups’ criticism of chemical regulation”.
The noble Lord, Lord Gardiner of Kimble, whom I am pleased to see is in his seat, knows how I have campaigned tirelessly about Roundup and glyphosate. I cite some of the points that have been made. There was a five-year review of the REACH regulation—the manner by which chemicals are regulated in the European Union. These are usually single chemicals, not mixtures. The licensing of mixtures depends on each country individually. It says:
“However, the Commission review highlights problems with substance registration dossiers, the failure to correctly apply the crucial precautionary and burden of proof principles and specific issues with REACH processes, particularly evaluation, restriction and authorisation”.
In the case of glyphosate, Monsanto has consistently hidden research that has shown that it is carcinogenic and affects the kidneys and liver. It is only now coming out after huge freedom of information requests in the United States. The European Union has chosen to ignore all that evidence; it has not asked Monsanto for it. As a result, we are being exposed to glyphosate; something like 90% of the population has glyphosate in their urine. We do not really know what the health effects are. We do know that the effects on the environment are not good. I therefore support the amendment, but I also ask that we do not mirror the behaviour of the REACH organisation and that we tighten up our own principles and make sure that we get it right.
Baroness Featherstone
My Lords, I rise to speak to Amendment 108, to which I added my name. We have become used to relying on the EU to oversee our compliance with directives—including those highlighted in Amendment 108—and that what we commit to is delivered. We are tested and, if we are found wanting, there are consequences. However, as the Secondary Legislation Scrutiny Committee said in its 19th report:
“The UK’s withdrawal from the EU raises questions about the effectiveness of oversight and enforcement of these commitments in the longer term”.
As the noble Lord, Lord Krebs, said, without enforcement, what is the point of the law?
Given that in Amendment 108 we are talking about a range of pollutants, including the five main air pollutants, the ambient air quality directive—which sets legally binding limits for concentrations in outdoor air of major air pollutants that impact public health, such as particulate matter and nitrogen dioxide—and other directives, this is a really crucial issue. We know from Defra that some of the existing mechanisms that we currently rely on to scrutinise whether we are keeping up to the environmental standards to which we are signed up are not being carried across.
As has been raised by other noble Lords, the Government said when they presented the 25-year development plan, “Don’t worry, we are setting up a new body to oversee all of that”, but what will it comprise? To what standard will it be judging? What powers will it have? If the consultation on all that is yet to start, what is the timetable for it to be up and running? And where is it in the Bill? Surely we need it in the Bill. Maybe the Government will come forward with an air quality Bill, but how on earth will that get into our law in time?
This amendment makes certain that we cannot fall foul of not having thought of something or set up new arrangements in a timely manner. It means that those of us who are concerned in this regard can cease our concern. The Government must not leave us in a situation where there is any chance or ability to lessen—whether by accident, desire or timing—the environmental protections that we currently enjoy, and I hope that the Minister can give us assurance on that.
On Amendments 66, 112 and 113, I simply say that, if the Government are sincere in their stated commitment —as the noble Lord, Lord Deben, said—to uphold all the environmental commitments that we are signed up to and to uphold the spirit of the transfer of EU law into UK law, they should have absolutely no hesitation in supporting all these amendments.
Lord Renfrew of Kaimsthorn (Con)
My Lords, I rise to support Amendment 66 and, in particular, to indicate my concern that these environmental principles should apply as much to the historic environment—including the built environment—and to the archaeological record as to the natural environment. It may be that—and I think that the noble Countess, Lady Mar, would prefer it—for the sake of clarity, a separate amendment should be introduced on Report to deal with archaeological and historical concerns.
It is now well established that the scheduling of ancient monuments and the listing of historic buildings, valuable though they are for the most conspicuous sites, are insufficient to protect rural landscapes and historic town centres. Indeed, planning authorities regularly make the provision of prior archaeological investigation a condition for the granting of planning consent for developments, whether for roadworks, motorways or new buildings.
Archaeological concerns are enabled and can be met by the application of environmental principles, which are codified in Article 191 of the Treaty on the Functioning of the European Union. These principles provide safeguards against adverse policy change and provide a basis for legal challenge. At a time when the Government are rightly encouraging the building of new housing—which is to be welcomed when proper safeguards apply—it is important that damage to the historic environment should be avoided where possible and that the polluter should pay when mitigation is needed. They should, for instance, fund the necessary archaeological excavation and the publication that should necessarily follow archaeological fieldwork undertaken in advance of development.
The Council for British Archaeology and the Chartered Institute for Archaeologists support Amendment 66, as well as Amendments 112 and 113, and would welcome a statutory footing in United Kingdom law for these principles. The Minister in his reply may give assurance that such an amendment is not necessary. Such an assurance could, indeed, give some comfort to the archaeologists who are concerned about these issues and who do not wish to see any weakening in the way archaeological remains are currently protected by the laws relating to planning and by the planning policy guidance. The guidance which is at present followed in general works quite well but a policy does not have the strength of legislation, and this is surely the time to work in that direction. For these reasons I support Amendment 66 and would welcome an assurance that either this amendment will be accepted or that a government amendment will be introduced on Report which would meet these concerns.
Baroness Jones of Moulsecoomb
My Lords, as a passionate environmental campaigner, I am distressed by the Government’s attempt to cut out social and environmental protections from the Bill. Their record on these issues is not particularly good and so I hope that they will rethink their opposition to these amendments. As an environmental campaigner I have had quite a few brushes with the law, but I have never had much to do with lawyers. Here in your Lordships’ House we are very fortunate to have a considerable number of noble and learned Lords who give us the benefit of their expertise. I have noticed that they often disagree, and very strongly. Therefore, surely keeping these issues in the Bill would save an awful lot of legal time and legal argument and would be better for the Government. I say that in a spirit of total helpfulness and support. Therefore, I urge the Government to rethink their opposition to these amendments. That seems axiomatic to me given that they promised to keep EU law as it is and to bring it all over. As the noble Lords, Lord Deben and Lord Whitty, mentioned, the Government promised to do that. I ask them please just to do it.
Baroness Brown of Cambridge (CB)
My Lords, I support Amendments 66, 108, 112, 113 and 317, but noble Lords will be glad to hear that I will not speak to them. However, I would like to speak to Amendment 186 in the name of the noble Lord, Lord Adonis, to which I have added my name. This amendment is something of a change of subject as it is about the EU Emissions Trading Scheme and seeks to keep the UK in the EU ETS. The clean growth strategy says that the Government are considering the UK’s future participation in the EU ETS post Brexit. It would certainly appear possible to stay in the EU ETS. Iceland, Liechtenstein and Norway participate in it. For a range of reasons it certainly appears to be a good idea.
On Friday, the Prime Minister told us that she wants to secure,
“broad energy co-operation with the EU”,
and to protect the single energy market on the island of Ireland and the UK’s participation in the EU internal energy market. This will be easier if we are in the EU ETS. The clean growth plan anticipates increases in electricity imports from Europe via interconnectors. This will be easier and fairer on UK generators if we are in the EU ETS.
The global direction of travel is one of growth in global carbon markets. The larger they are, the more efficient at delivering decarbonisation at least cost. The EU ETS and the Chinese market are the two biggest global markets, so I suggest that we might want to stay in the EU ETS. If the UK continues to make good progress in reducing emissions compared with our European neighbours, which I sincerely hope it will, we will have credits to sell in the EU ETS as the carbon price rises, bringing income to the Exchequer. That is another good reason to stay in the EU ETS. The accounting for our current carbon budgets is based on the fact that we are members of the EU ETS, so to retain the same level of ambition in emissions reduction, we would need to reset the levels of the fourth and fifth carbon budgets in legislation. It is not a huge challenge to redo the accounting but I think it would just make it slightly easier if we stayed in the EU ETS. I would like to ask the Minister to tell us more about the Government’s intentions. Should we not stay in the EU ETS?
Lord Cormack (Con)
My Lords, I wish to make two very brief points. First, I want to endorse entirely what my noble friend Lord Renfrew said. The points he made on the archaeological issues are of very great importance indeed, and it is crucial—I speak as a fellow of the Society of Antiquaries and a former vice-president of that body—that these points are taken into account.
My other point, in a slightly lighter vein—but still with serious intent—is to support my noble friend Lord Deben, who made a splendid speech. As he made it, I could not help but remember an Adjournment debate in the other place, over 30 years ago, when the late, great Reggie Bennett mentioned the problems that he had enjoying his favourite sport of swimming off the south coast. He said, “Mr Speaker, there are very few beaches onto which I can now go and swim. All I can do is go through the motions”. That just brings home, in a very simple but important way, that we owe a lot to directives that have come from Europe and been brought into our laws. My noble friend Lord Deben referred to that in his speech; he played a very important part in that regard. It is easy to bash directives—we have all done it; I have done it—but collectively, we owe a great deal to what has come out of Europe on the environment, and been sustained and endorsed in this country.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, the issue of environmental protection was widely debated during the Bill’s passage through the other place. Of course, it has now been widely debated, with great ability, by many noble Lords here. We have already had a thorough debate on the important topic of animal sentience and I am grateful to noble Lords for their amendments on that issue and on the wider issue of maintenance of EU environmental principles.
Although I welcome the sentiments behind these amendments—Amendments 66 and 108, in the name of the noble Baroness, Lady Jones; Amendments 112 and 113, in the name of the noble Lord, Lord Krebs; Amendment 67, in the name of the noble Lord, Lord Judd; and those in the names of the noble Lords, Lord Adonis and Lord Wigley, and the noble Baroness, Lady Miller of Chilthorne Domer—I believe them to be ultimately unnecessary, for reasons I will now set out.
As my noble friend Lady Byford indicated, on 11 January, the Prime Minister launched the 25-year environment plan. That sets out our determination to leave our environment in a better state than how we found it and outlines steps to achieve this. Launching the plan, the Prime Minister stated:
“Let me be very clear. Brexit will not mean a lowering of environmental standards”.
Of course, we are committed to internationally recognised environmental principles, as set out in the Rio Declaration on Environment and Development in 1992, known as the Rio principles. This declaration includes the ideas behind a number of the environmental principles listed in Amendment 66, including sustainable development, the precautionary principle, the polluter pays principle and access to environmental information. These, as well as other principles, are also features of multilateral environmental agreements to which the UK is a party. For example, the OSPAR Convention—the Convention for the Protection of the Marine Environment of the North-East Atlantic—and the Gothenburg Protocol on air pollution both apply the precautionary principle.
Although these principles are already central to government environmental policy, they are not set out in one place. That is why the Secretary of State for Environment, Food and Rural Affairs announced on 12 November our intention to create a new comprehensive policy statement setting out our environmental principles. The new policy statement will draw on current EU and international principles and will underpin all our future policy-making. The Secretary of State for Environment, Food and Rural Affairs also announced on 12 November our intention to consult on a new, independent and statutory body to advise and challenge government, and potentially other public bodies, on environmental legislation, stepping in when needed to hold these bodies to account and to be a champion for the environment.
In reply to the noble Lord, Lord Krebs, my noble friends Lady Byford and Lord Caithness and other noble Lords, this year we will consult widely on the details of the announcement from the Secretary of State for the Environment—I apologise to noble Lords that I cannot be more specific about a date at the moment. That consultation will explore the precise functions, the remit and powers of the new environmental body, and the nature, scope and content of the new statement on environmental principles. This will be the start of a detailed conversation with stakeholders. There are many stakeholders in this area and it is important to gather their views before coming to any decisions, which is why I cannot be more definitive at this stage on timescales.
Lord Krebs
My Lords, is the Minister familiar with Einstein’s theory of relativity? The reason I ask is because if you do the sums, I reckon that there is just over 12 months to go between now and the proposed date of exit from the European Union. We are talking about a three-month consultation period—starting heaven knows when, because we still do not know when the document for the consultation will be launched—then we have perhaps another nine months to pass an environment Bill through Parliament, if it is to be a statutory body, and then perhaps another six months to set up the organisation, fund it and appoint the staff. That sounds like a minimum of 18 months to go into 12. But of course, as Einstein pointed out, if you can travel at a speed faster than 186,000 miles per second, you can stretch time, so I hope that the Minister is proposing to invoke Einstein’s theory of relativity in ensuring that the body will be in place by the proposed date of exit.
Lord Callanan
I will take that as an observation rather than a question.
Amendments 66 and 67 would prejudge the outcome of the forthcoming consultation by setting requirements in legislation now. The result could be that we need to amend the legislation after we have considered this important input from stakeholders. I will say a few words in response to my noble friend Lord Deben’s points in a second. I am disappointed that he thinks that I am sometimes a little sharp with him; obviously, we do not often agree on many things, but I hope that I am as transparent as I can be with him.
Amendment 66 also goes further than the existing principles set out in EU and UK law today. In particular, it would introduce a new power for courts to declare provisions in primary or secondary legislation to be incompatible with the environmental principles. This power does not currently exist in either EU or UK law.
I will go a little further. The precautionary principle is included in, for instance, the REACH regulation and the invasive species regulation, so it will be preserved by the Bill in those areas. Similarly, the polluter pays principle, referred to by a number of noble Lords, is referred to in the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, which will also be preserved by the Bill. EU case law on chemicals, waste and habitats, for example, includes judgments on the application of the precautionary principle to those areas, which will, likewise, be preserved by the Bill.
The purpose of the Bill is to convert and preserve the law so that after exit it continues to operate as intended. This includes many of the directives referred to, such as the wild birds and habitats directives, as transposed through domestic legislation. It is not appropriate for the Bill to introduce new powers of this kind.
Lord Deben
My noble friend has explained that some things are already there. Can he give me an undertaking that if we were in consultation to remove from this amendment anything that is additional to where the European Union now is, he would accept this amendment? That is the issue. If we were to do that, would he accept the amendment?
Lord Callanan
I cannot give an assurance that we would do that. This is about legal certainty—taking a snapshot of existing laws and transferring them into UK law as it is. It is not about creating new powers within the Bill. There will be a further opportunity to discuss this when we publish our proposals for the new body.
Lord Deben
I have not said “new powers” or talked about creating legal certainty. He keeps using that phrase. I merely said that if we amend this so that there is no additionality to what is already in European law, will he accept that as an amendment?
Lord Callanan
If a new amendment is put forward, of course we will look at it and consider its legal implications. I can give that assurance.
On Amendment 112, our starting point is that the new statement of principles and the environmental body should cover England and environmental matters that are not devolved. To respond to the point made by the noble Lord, Lord Wigley, if the devolved Administrations would also like to take action on these issues, we are open to co-designing the proposals to ensure they work more widely across the UK. We would need to take account of the different government and legal systems in the home nations, as well as the different circumstances in the different parts of the UK. This amendment risks compromising consideration of these important issues as well as the wider devolution settlement by requiring the UK Government and devolved Administrations to consult jointly on UK-wide proposals for governance and principles.
On Amendment 113, the secondary legislation made using the powers under Clause 7 will be subject to parliamentary oversight, using well-established procedures. This amendment would require us to make all the regulations within one month of Royal Assent. This would not allow time for stakeholder consultation and would also not allow sufficient time to make all the SIs—noting that affirmative SIs take longer than one month to be laid and made.
Many areas of environmental policy are devolved. This amendment would require the Secretary of State to make regulations for all the UK, which would be contrary to the devolution settlement. It would also require the creation and maintenance of a register of functions indicating who is responsible to perform them before leaving the EU and who will be responsible after we leave the EU. This is a bit of bureaucratic procedure that has no added value. The SIs under the Bill will set which UK body will perform functions, such as the various regulatory functions.
On Amendment 108, the UK Government laid legislation transposing the national emission ceilings directive in Parliament on 1 February 2018, demonstrating our clear commitment to improving air quality. This legislation implements ambitious, binding emission reduction commitments for 2020 and 2030 into domestic law. Air quality has improved significantly over recent decades, with the UK reducing emissions of all the major five air pollutants. For example, since 1970 we have reduced emissions of nitrogen oxides by 69%, emissions of PM10 by 73%, and emissions of PM2.5 by 76%. Emissions will continue to reduce thanks to the action we have already taken, and we will publish a new clean air strategy in 2018 setting out how we will work towards our 2020 and 2030 commitments.
The Bill will ensure that the body of existing EU environmental law continues to have effect in UK law. It will be for Parliament—and, in some cases, for the devolved legislatures—to make any future changes in legislation after we have left the EU. The power under Clause 7 will be used to amend legislation to ensure continued operation of legislation, enabling the Government to continue to meet their environmental objectives.
Amendment 186, tabled by the noble Lord, Lord Adonis, and to which the noble Baroness, Lady Brown, spoke, would compel the Government to set out a strategy on the EU emissions trading system. This amendment is unnecessary given that our Clean Growth Strategy, published last year, clearly sets out our guiding principles on reducing emissions. We are considering the UK’s future participation in the EU ETS after our exit. We remain firmly committed to carbon pricing as an emissions reduction tool, while ensuring that energy-intensive and trade-intensive businesses are appropriately protected from any detrimental impacts on competitiveness.
Lord Adonis
The Minister said that the Government are “considering”; does that mean that they might propose to continue our membership?
Lord Callanan
This is a matter for the negotiations but it is certainly one of the factors we are considering. We will seek to ensure that our future approach is at least as ambitious as the current arrangements. Furthermore, we have set ambitious emissions reduction targets framed by the Climate Change Act 2008; leaving the EU does not change that.
As I have said, the purpose of the Bill is to ensure continuity and clarity in our laws without prejudice to the ongoing negotiations with the EU. I do not believe this amendment would help to achieve that, and I hope noble Lords will not press it.
I shall say a word on Amendment 260, also tabled by the noble Lord, Lord Adonis, which seeks to restrict the use of the Clause 17 power to weaken environmental protection. I reassure the noble Lord of the Government’s commitment to maintaining our strong environmental protection as we leave the EU. As such, it is essential that we ensure that the legislation which protects the environment remains coherent and tidy, so that it continues to function effectively after our exit.
While the noble Lord’s amendment is well intentioned, we cannot accept it. This is because it would restrict the Government’s ability to ensure that the consequences of the Bill—most notably the repeal of the ECA—were reflected throughout the statute book. It would also restrict the Government’s ability to bring to an end tidily the law and procedures that the Bill repeals. This is a vital part of providing businesses and individuals with the continuity and clarity needed for when the UK leaves the EU.
I want to make clear that these powers may be used only in consequence of, or in connection with, the coming into force of a provision of the Bill itself, not our withdrawal from the EU. Any changes made to environmental legislation to deal with the consequences of provisions of the Bill will be purely to ensure that the changes caused by this Bill are properly reflected in the statute book. To continue to work effectively and appropriately, the statute book must be tidy. It would not be proper, for example, that once the Act has been repealed, there are still references to the ECA lingering in a ghostly way across the statute book. This does not include adjusting important environmental legislation where—although I cannot imagine how this would diminish environmental protection—there must be no uncertainty as to whether the Government can make these statutes clear and up to date, ensuring their effectiveness by reflecting the consequences of this Act.
Case law and an array of legal authorities provide a very narrow scope for Governments to exercise powers of this type. As such, they cannot be used to make bigger, more substantive changes to equalities, human rights or environmental legislation; if needed, these will likely arise from our withdrawal from the EU and not from the effects of this Bill. They would therefore be made using the Clause 7(1) power where there is a deficiency arising from withdrawal. In this way, both minor technical amendments and more substantial amendments will be subject to appropriate scrutiny procedures. I hope the noble Lord is satisfied that the Government remain committed to maintaining environmental protections throughout the process of leaving the EU, and that this will enable him not to press this amendment.
I turn to Amendment 317, tabled by the noble Lord, Lord Wigley, which proposes a new clause in relation to common frameworks for environmental protection. As noble Lords will agree, protection of the environment is a key concern and I am grateful to him for raising this important issue. Common approaches are being considered in a number of areas, which will help to provide the necessary environmental protections. While the UK Government and the devolved Administrations sometimes make different choices on implementation of some policies, these common rules provide significant benefits, such as making it simple for businesses from different parts of the UK to trade with each other and enabling us to meet our international obligations and, therefore, protect our common resources. This is pertinent to the environmental commitments and protections that he rightly raised.
The proposed new clause would require the Government to publish consultation proposals for the replacement of European frameworks with UK ones. It is not the position of the UK Government, nor of the devolved Administrations, that the existing EU frameworks will be replaced by our own common frameworks in every instance. Noble Lords will be aware that the Government have been working closely with the devolved Administrations to determine where future frameworks—legislative or non-legislative—will be required when the UK leaves the EU. We are making good progress in constructive discussions, which continue to be guided by the principles agreed at the Joint Ministerial Committee on European negotiations in October 2017.
We hope, of course, to make further significant progress over the coming weeks and months. However, I recognise the importance that this is not just a conversation between Governments. The increased scrutiny and input of Parliament, the devolved legislatures and wider stakeholders are therefore welcomed as discussions on these issues move into a greater level of detail. As we move forward, this wider engagement will include stakeholders interested in the environmental issues that the noble Lord has raised. I therefore hope my reassurances will enable him not to press his amendment.
Finally, I turn to Amendment 67A, tabled by the noble Baroness, Lady Miller. I agree that it is vital to continue to support our fantastic farmers and growers as we leave the EU. The Government are determined to grow more, sell more and export more of our great British food and drink. Indeed, such exports reached a record level of £22 billion in 2017. On 27 February, the Government launched a formal public consultation, inviting views on a range of possible paths to a brighter future for farming. Health and Harmony: The Future of Food, Farming and the Environment in a Green Brexit describes how, in future, money can be redirected from direct payments under the common agricultural policy—which are purely based on the amount of land farmed—to a new, more appropriate system of paying farmers public money for public goods such as, principally, their work to enhance the environment and invest in sustainable food production. Other public goods which could be supported include investments in technology and in skills to improve productivity.
The consultation seeks views on the huge opportunities that exist for UK agriculture to improve its competitiveness: developing the next generation of food and farming technology, adopting the latest agronomic techniques, reducing the impact of pests and diseases, investing in skills and equipment and collaborating with other farmers and processors. It also discusses the introduction of an agriculture Bill that breaks from the common agricultural policy, providing the UK with the ability to set out a domestic policy that will stand the test of time. This could provide legislative powers, including measures to create new schemes to promote and increase agricultural productivity and resilience.
The Government are vigorously pursuing the measures needed to create a strong, profitable and sustainable future for food producers in this country. Our plans will be strongly influenced by information and evidence from the very many stakeholders in the industry. I hope my reassurances will enable the noble Baroness not to press her amendment.
Baroness Crawley (Lab)
We understand that consultation has yet to start on this new watchdog—that is, on the type of watchdog that we want in the future. However, perhaps the Minister would give us a clue as to what the Government would like to see as far as powers for this watchdog are concerned. For example, would they like the new watchdog to have the same sanctioning powers on Governments that the European Commission has at the moment, to which my noble friend Lord Rooker referred?
Lord Callanan
I thank the noble Baroness for her interest in this. I am sure she will understand that I cannot go any further at the moment. We hope to launch the paper shortly, but all these matters—what powers it will have, et cetera—will be a matter for the consultation.
Lord Hannay of Chiswick (CB)
The noble Lord has given us a trailer on the consultation for the new agricultural system. Will he tell us which of the elements that he has referred to could not be introduced under the common agricultural policy as it is currently practised?
Lord Callanan
As the noble Lord is aware, I said that the common agricultural policy is based on land-based production subsidies, whereas we can now move to other, different policies instead. This is one of the benefits of Brexit; the common agricultural policy has been one of the worst things the European Union is responsible for.
Lord Wigley
On that very point, if there is going to be a new, overarching agricultural Bill, will the Minister confirm that this would be applicable only to England, since agriculture is totally devolved to the three other nations?
Lord Callanan
Yes, I believe Scotland, Wales and Northern Ireland will be able to pursue their own policies in this regard—which is another benefit of Brexit.
Baroness Jones of Whitchurch
My Lords, I thank everyone who has contributed to this debate, and I thank the Minister for trying to set the record straight on this issue. As the Bill has progressed, I have sat through many happy hours listening to lawyers around the Chamber making some very thoughtful and considered contributions about the meaning of different parts of the Bill. Very often, we non-lawyers end up wondering whether these things matter or whether it is a case of dancing on the head of a pin. Then, of course, you begin to realise that they do matter and that some of these disagreements concern very profound and important points for our future, and I have felt that again today.
I have listened to a number of disagreements about what is and is not in the Bill and what guarantees we can and cannot have on the environmental principles that are already in the Bill. I have also listened to the guarantees that the Minister has attempted to give. However, in addition to the views that have been aired around the Chamber today, we have had our own legal opinion, which says something very different—that the principles that we are trying to outline are not readily embraced by and incorporated in the Bill. That is why we are trying to put them in with this new wording. Those legal differences are not just about the environmental principles that we have been debating; they are also about the recitals and preambles that we dealt with in an earlier debate. Therefore, there are some profound legal differences that need to be resolved at some point.
The Minister kept saying that he wanted to provide legal certainty, but I think that we are ending up with legal uncertainty, which is precisely what our amendments attempt to deal with. Amendments 66, 112, 113 and 317 give clarity. They spell out in detail in one simple form what the principles and the Government are attempting to achieve. You do not have to cross-reference different parts here and there to see what that might entail; the amendments spell it out in simple detail. I think that there is a lot to be said for proceeding on that basis as far as a layperson is concerned. As the noble Lord, Lord Deben, said, we are not asking for anything more; we are just asking for what is in the existing provisions. We are just trying to put it into language that most people would be able to understand and not tie it up in legal knots.
Lord Deben
Perhaps I may ask a single question. Would the noble Baroness be willing to sit down with the Minister and go through this amendment, removing anything from it which is not in the present law so that he would have a chance to accept it on Report?
Baroness Jones of Whitchurch
Yes, absolutely. In fact, I would go further than that. I am sure that we could provide the evidence not only in terms of international obligations but in terms of Article 191, where all these things can be found. However, let us do that trade and see where the gaps lie, and perhaps we can make some progress on that basis. Certainly, we would welcome any opportunity to iron out some of the differences that appear to exist.
The Minister made reference to the 25-year environment plan—which is great—and to the PM speaking about the need to have comparable environmental rights. Again, of course that is fine, but it is not the same as having the legal certainty of something being in the Bill. Furthermore, I think I said in my opening speech that the new policy statement on environmental principles will not have the same legal status as something that is on the face of the Bill. Therefore, we need that further certainty.
The Minister made reference to a number of consultations that are taking place. That is fine but we get only one stab at this Bill and we are being asked to accept an awful lot of promises regarding things coming on stream in months or, sadly, even longer—issues that should be set out in the Bill. It is unfortunate that we are being asked to accept that there will be deadlines for these things. The noble Lord, Lord Krebs, referred to Einstein’s theory of relativity, clearly making the point that these timetables are just impractical in terms of getting everything consulted on and in place by Brexit day. As I said, we would very much welcome the chance to work some of these things through so that we can have more certainty.
The noble Lord, Lord Wigley, made a very strong case for common frameworks. Again, I do not think that they are properly captured in the Bill, and I know that this comes up again in other sections of the Bill. Quite frankly, I would have thought that the Government would bite his hand off for the opportunity to sit down and talk about it. The noble Lord made a very compelling case. Certainly on the environment, the need for those common frameworks, despite devolution, is absolutely imperative. Therefore, I hope that there can be further discussions around that as well.
“Equality and discrimination
(1) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the EU does not diminish protection for equality in domestic law.(2) All individuals are equal before the law and have the right to the equal protection and benefit of the law.(3) All individuals have a right not to be discriminated against by any public authority on any ground including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.(4) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (2) and (3) as they apply in relation to Convention rights within the meaning of that Act—(a) section 3 (interpretation of legislation);(b) section 4 (declaration of incompatibility);(c) section 5 (right of Crown to intervene);(d) section 6 (acts of public authorities);(e) section 7 (proceedings);(f) section 8 (judicial remedies);(g) section 9 (judicial acts);(h) section 10 (power to take remedial action);(i) section 11 (safeguard for existing human rights); and(j) section 19 (statements of compatibility).”
Lord Wallace of Tankerness (LD)
My Lords, Amendment 70A stands in my name and that of the noble Lord, Lord Low of Dalston, and the noble Baroness, Lady Lister of Burtersett. It seeks to insert a new clause on equality and discrimination to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection of equality in our domestic law.
In their White Paper Legislating for the United Kingdom’s Withdrawal from the European Union, it is fair to say that the Government set out very strong commitments to continuing many of the equality laws that exist. Indeed, on Monday evening the noble Lord, Lord Duncan of Springbank, in replying to a debate on family and employment law, gave a very forthright and unequivocal commitment to retaining employment law and things such as the working time directive after we leave the European Union. On page 16 of that White Paper we were promised that,
“all the protections covered in the Equality Act 2006, the Equality Act 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU”.
As I said, the purpose of the amendment is to ensure that that is future-proofed.
It is fair to say that the relationship between the development of equality law in the European Union and domestically in the United Kingdom is almost what you could describe as symbiotic. There is no doubt that in many cases—I think this has already been aired in earlier debates—the minimum standards set down by the European Union have been exceeded by what has been brought in in the United Kingdom. On other occasions, the changes that have come about—for example, in 2003 with the expansion of protected characteristics to cover sexual orientation and religion or belief and a subsequent extension to cover age—have been as a result of European law. However, the extension to cover goods and services saw our domestic law overtake that of the European Union. Therefore, there has been progress, but an important part of that has been our membership of the European Union.
It is important to recognise that the Women and Equalities Select Committee of the House of Commons, in a report in February 2017, concluded:
“Ensuring that equality protections are maintained is not simply a matter of transposing existing EU law. In order to protect rights, the Government needs to take active steps to embed equality into domestic law and policy. The steps we recommend would entrench equality into the UK legal and policy framework and would ensure that the UK retains a strong, undiminished record of equality after it leaves the European Union”.
The purpose of the amendment is to give substance to that conclusion of the Women and Equalities Select Committee in the other place, and I am indebted to the Equality and Human Rights Commission for instigating this amendment.
As I have indicated, equality rights are currently underpinned by EU law. The right to equal pay for work of equal value, the protection of pregnant workers and many others cannot be removed from our domestic law as long as we are part of the European Union. However there are concerns that at some stage in the future a Government—not necessarily the present Government—may seek to erode these rights. The amendment seeks to provide an overarching domestic guarantee of non-discrimination by the state—in other words, a homegrown replacement for the safety net for equality rights which are currently provided under EU law.
Of course, a sovereign United Kingdom Parliament could at any stage repeal this provision but if it is in statute it would be much more difficult to take it away after it has been clearly set out. The Government’s difficulties in trying to remove the Human Rights Act show that when legislation is in statute it achieves a certain safeguard which Governments have to think twice—if not three or four times—about before trying to dismantle.
The right of equality builds on our common law principle of equal treatment without discrimination and is an important signifier of what kind of country we want to be after we leave the European Union. It is similar to what was said in the previous debate on environmental protection. Many of the environmental protection laws have come into the United Kingdom through the European Union. We have often built on them but, as we look forward, we want to be a green country which values fairness and equality.
The amendment’s application would not be confined to Brexit-related legislation but will be an enduring new right in United Kingdom law. It will strengthen protection, for example, for children, who currently have limited protection from unjustifiable discrimination under our domestic law. Subsection (2) of the proposed new clause in the amendment provides:
“All individuals are equal before the law and have the right to the equal protection and benefit of the law… All individuals have a right not to be discriminated against by a public authority”.
Although they sound similar they are different things. Equality before the law means that the law must apply equally to everyone, so outlawing laws that have a directly discriminatory purpose. However, equal protection and benefit of the law means that laws must not have a discriminatory impact or effect unless it is justifiable having regard to the policy aim—for example, a law which caps benefits may apply to everyone but, in practice, a large proportion of those affected may be lone mothers and children and therefore such a law could affect them disproportionately and be incompatible with the new right unless it could be justified.
The proposed new clause also calls for a ministerial statement of compatibility, which parallels what is required in the Human Rights Act. It will support effective parliamentary scrutiny of new laws as parliamentarians in both this House and the other place consider the Government’s explicit policy justification for any potentially regressive measure. The right to challenge discriminatory laws in the courts provides an essential mechanism to ensure that the new right is enforceable by those affected. It will not impact solely on justifiable different treatment, so ensuring that the courts can take account of the policy justification for the measure in question, and will provide the flexibility necessary to deal with new and unforeseen circumstances.
The enforcement mechanism in the amendment is the same as for the convention rights under the Human Rights Act, with which our courts are wholly familiar when considering compatibility of laws with fundamental rights. It is completely different and distinct from the scheme under the Equality Act 2010. The provision will operate alongside existing rights in the Equality Act 2010 but will not replace them. Where the Equality Act 2010 provides an exception to the prohibition of discrimination because Parliament has determined that specific conduct should not be unlawful, this would also be expected to be treated by the courts as justifiable under the new right for the same reasons.
This is an important proposal. It is intended to apply across the United Kingdom but obviously its application in Scotland, Wales and Northern Ireland would require discussion with the devolved Administrations. The amendment seeks to ensure that the equality rights which have been developed as part of our membership of the European Union—of which we are justifiably proud—will be proofed into the future as we leave the European Union. I commend the amendment to the House. I beg to move.
Lord Adonis (Lab)
My Lords, I have four amendments in this group. They raise exactly the same issues as those raised by the noble and learned Lord and I have nothing to add.
Baroness Lister of Burtersett (Lab)
My Lords, I support Amendment 70A, to which I have added my name. It has a forward-looking approach which addresses the need to set our homegrown equality standards against which new laws will be measured by our courts after we have left the EU. I am grateful to the EHRC for promoting this amendment and for its assistance with it.
Returning to our earlier debate about children’s rights, among other things, as the noble and learned Lord said, the proposed new clause provides protection for children against unjustified discrimination. This contrasts with the provision under the Equality Act 2010, under which children are not protected from age discrimination in the provision of services and public functions. It requires a Minister to make a statement of compatibility when introducing new legislation, which will include that it does not unjustifiably discriminate against children. It also provides a mechanism for children to challenge laws and actions by the state which have a discriminatory impact on them.
As I argued on Monday, it is important, as the UK leaves the EU, that children do not lose the important protections they currently enjoy under the Charter of Fundamental Rights. The proposed new clause would replace the EU safety net for children’s rights with the UK’s own guarantee of fair and equal treatment for children. In doing so, it sets domestic equality standards against which new laws will be measured and makes our domestic courts the arbiter of equality compliance. It is a necessary addition to our equality laws to protect rights as we leave the EU.
The need for adequate legal protection for children against the discriminatory impact of laws is demonstrated by the way different cases have fared in the courts recently. In one case, currently the subject of appeal by the Government, the High Court held that regulations implementing the social security benefit cap, to which the noble and learned Lord referred, are discriminatory and unlawful in their impact on lone parents with children under the age of two. In his judgment, Mr Justice Collins referred to the difficulty, and often impossibility, of lone parents with children under two being able to do paid work and concluded:
“Most lone parents with children under two are not the sort of households the cap was intended to cover…Real misery is being caused to no good purpose”.
In this case the claimants were able to rely on convention rights, yet an earlier case on the same issue but from a slightly different perspective had failed in part because of the difficulties in doing so. The point of the example is to ask why discrimination that affects the welfare of children should be subject to such legal complexities. We have heard today about the problems created by legal complexities. The proposed new clause provides a straightforward domestic solution to a clear right to non-discrimination by the state to replace the loss of protection provided to children as we leave the EU.
Women are another group for whom this amendment is especially important, not least because of the responsibility they still tend to have for the everyday care of children and older people. Organisations representing women such as Fawcett and the Women’s Budget Group, of which I am a member, are concerned about the potential impact on women of our withdrawal from the EU and fear the possible regression of women’s and related rights despite welcome assurances from Ministers. Like the noble and learned Lord, I too welcome the strong statement made by the noble Lord, Lord Duncan of Springbank, on Monday in our debates then. He gave strong assurances, particularly on the working time directive. Nevertheless, the research to which I referred on Monday and the experience of my noble friend Lady Crawley, which she recounted in the same debate, suggest that the history of the UK Government’s engagement with the EU on the development of equality law is not as rosy as Ministers repeatedly suggest. I am afraid that concerns remain about what might happen if and when we leave. In response to such concerns, as noble Lords have already heard, the Women and Equalities Committee stressed—to take a slightly different quote from its report—that:
“It is therefore important for the Government, during the process of leaving the EU, to ensure that robust equality protection is embedded at each milestone”.
This amendment is a means of doing just that at this very important milestone. Given all the Government’s assurances about their commitment to equality, I cannot think of a single reason why they should not want to accept this amendment.
At the start of Second Reading, the right reverend Prelate the Bishop of Leeds asked us: at the end of this process, what sort of Britain do we want to inhabit? Many noble Lords subsequently referred back to that vital question. I believe that equality and human rights are fundamental values, which must stand at the heart of that Britain. Acceptance of this amendment would send a strong signal about the kind of country we want Britain to be.
Lord Low of Dalston (CB)
My Lords, I too rise to speak in support of Amendment 70A, which has just been moved by the noble and learned Lord, Lord Wallace of Tankerness, and spoken to by the noble Baroness, Lady Lister.
I apologise that I did not speak at Second Reading. My apology is in the same terms as that of the noble Lord, Lord Paddick, on the second day in Committee, who explained that he had taken the view that he was unlikely to be able to add anything new, bearing in mind the large number of speakers.
As we have heard from the last two speakers, the Government have strongly proclaimed their intention of maintaining existing equality protections once we leave the European Union. The proposed new clause contained in Amendment 70A provides the means of ensuring that this intention is fulfilled. It is thus in very much the same case as Amendment 66, which, as the noble Lord, Lord Deben, pointed out, does nothing more than what the Government want to ensure. It addresses concerns raised by the Women and Equalities Committee in another place, as we have heard—concerns that our exit from the European Union risks losing the entrenchment of our rights, provided by their under- pinning in EU law. To achieve this, the UK needs to replace the EU’s equality safety net with our own right to equality.
We in Britain are rightly proud that we have the strongest equality law in the world, which, in many areas, goes beyond what EU law requires. Yet some important protections—for example, for disabled people, who are naturally very close to my heart—as a result of the impact of EU law go beyond what we have been ready to do domestically. For example, the Coleman case in the European Court of Justice established that it is unlawful to discriminate against individuals because they care for a disabled person. When the underpinning of the EU law is taken away, there is a real risk that a future Government could seek to chip away at such protections. We have already seen this in the Red Tape Challenge under the coalition Government, when the existence of the EU safety net protected much of the Equality Act 2010, but we still saw provisions outside the EU directives being undermined. Many important protections in the Equality Acts could not have been changed at that time because they were part of EU law, as well as our own law. After Brexit, this will no longer be the case. Areas that some commentators have suggested may be at risk post Brexit even include aspects of equal pay legislation. This clause will set the equality standard against which new laws will be measured and make our courts the arbiter of equality compliance.
We have already heard what the Women and Equalities Committee stressed: ensuring that equality protections are maintained is not simply a matter of transposing existing EU law. To protect rights, the Government need to take active steps to embed equality into domestic law and policy. The proposed new clause specifically protects against disability discrimination and requires that a Minister must make a statement of compatibility when introducing new legislation. Specifically, this must include an undertaking that it does not discriminate on grounds of disability. This establishes an important mechanism for holding the Government to account in relation to new measures with a potential impact on disabled people. The clause also provides a mechanism for disabled people to challenge laws and actions taken by the state that have a discriminatory impact.
Sadly, it is all too true that the rights of disabled people need further protection in this way. For example, the High Court found, as recently as December of last year, that regulations determining entitlement to personal independence payment unlawfully discriminated against disabled people. The court held that the regulations were “blatantly discriminatory” against those with mental health impairments and that they were manifestly without reasonable foundation. In that case, the claimant was able to rely on her rights under the European Convention on Human Rights because she was able to show that the personal independence payment scheme falls within article 1 of the first protocol to the convention, which protects property rights. Therefore, the right not to suffer discrimination in the enjoyment of a convention right under article 14 of the convention was engaged. However, obtaining a remedy for such discrimination should not depend on whether the discrimination can be tied to a convention right. That is why a free-standing right to equality in UK law is needed, which is what the proposed new clause is intended to achieve.
Lord Cashman (Lab)
My Lords, I rise briefly to speak in favour of these amendments. I preface my remarks by saying that I agree absolutely with my noble friend Lady Lister of Burtersett. Human rights, fundamental freedoms and civil liberties define a country and its approach to civilisation. I remember 30 years ago looking on in horror as discrimination was visited on lesbians, gay men and bisexuals in this country by the then Conservative Government in Section 28 of the Local Government Act. That should remind us that there is never a continuous progressive line on equalities and human rights, and that we need to reinforce the protections that we have.
It is essential to guard against the excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights and freedoms are subject to full parliamentary scrutiny. I believe that is a matter of constitutional principle, as I have said on many occasions in your Lordships’ House and it bears repetition.
New scrutiny procedures introduced in the other place do not address this concern. They provide a mechanism, in the form of a sifting committee, to recommend—I emphasise “to recommend”—that the affirmative scrutiny procedure be used. I look forward to the Minister’s confirmation that such a recommendation does not have to be accepted by the Minister. Furthermore, stronger safeguards are required in the Bill to exclude changes to equality and human rights from the scope of these delegated powers.
I turn to Amendment 70A, having dealt with the principles of Amendments 161, 259 and the others in this group. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he introduced it, and the noble Lord, Lord Low, and my noble friend Lady Lister. Amendment 70A would introduce a new clause to ensure that the rights to equality presently enjoyed in accordance with EU law are enshrined in domestic law after the UK leaves the EU. Therefore, there is arguably no reason why the amendment should not be accepted. Indeed, for the Government to deliver on their commitment to non-regression on these rights, the UK needs to replace the EU’s equality safety net, referred to by the noble and learned Lord, with our own domestic right to equality. Amendment 70A would achieve this by setting a standard that all individuals are equal before the law and have a right not to be discriminated against by a public authority. For these reasons and many others, particularly the lessons of history, I support the amendment and others in the group.
Baroness Whitaker (Lab)
My Lords, I add my support to this group of amendments for all the reasons so eloquently set out by noble Lords. It would indeed be a retrograde step if the Government did not take advantage of these amendments to provide safeguards for our citizens.
Lord Judd
My Lords, I hope we are not going to end up with a minimalist position whereby if there is anything in which we are found to be lagging behind Europe, it has to be incorporated in the arrangements being made for the future. I agree totally with those who said that the kind of Britain I want to leave to my children and grandchildren is one that is a beacon for the principles of human rights and equality, in which we are seen to be leaders in the world. From that standpoint, I hope we will take this opportunity to make sure that we are making the necessary arrangements to ensure this.
Baroness Crawley
My Lords, I also support these amendments. The further embedding of equality principles in our legislation is an argument we would all accept.
Lord Mackay of Clashfern
My Lords, I ask the noble and learned Lord, Lord Wallace of Tankerness: assuming the amendment proposed on the status of EU law brought into this country’s law is passed—in other words, if it became primary legislation—what would be the relationship between that and the amendment?
Baroness Hayter of Kentish Town (Lab)
My Lords, we have heard repeatedly and correctly in the Chamber, given the Government’s assurance that all the rights enjoyed by British citizens on 29 March next year will still be in place on 1 April, that our task is to make sure that is the case. Clearly that is what these amendments are framed to do: ensure that the rights to equality we presently enjoy in accordance with EU law are enshrined in domestic law after exit day. That is needed because we have that safety net at the moment, which means that those rights cannot be removed, but, as I think the noble and learned Lord, Lord Wallace, said, we will need our own homegrown safety net to ensure the rights are protected. As we have heard, Amendment 70A sets the standards that all individuals are equal before the law and all individuals have a right not to be discriminated against by a public authority, which I am sure we all accept. As my noble friend Lord Cashman reminded us, we cannot take those for granted. He dealt with Amendments 161 and 259, so I will not repeat that. I repeat the words of my noble friend Lady Whitaker: we must make sure that there can be no retrograde move away from where we are now.
I feel fairly sure that the Minister concurs absolutely with what we are trying to achieve. I hope he can either accept this method or undertake to provide a similar one so that it can be written into the Bill and does what he and others want: to preserve all the rights we have, so that, on April Fools’ Day next year, we are not April fools.
Lord Low of Dalston
My Lords, if the noble and learned Lord, Lord Wallace, does not want to respond to the question from the noble and learned Lord, Lord Mackay, perhaps I might have a go. If I heard him and remember correctly, the noble and learned Lord asked what the relationship to this amendment would be if the Government were to introduce their own right to equality. If that is the question, the answer is quite straightforward. If the Government were to bring in their own freestanding right to equality, they would essentially have accepted the amendment and there would be no need for it because they would have introduced it into primary legislation of their own motion.
Lord Mackay of Clashfern
My Lords, I am sorry but that is not exactly the question, which was on the effect of the retained EU law brought into this country, assuming it is given the status of primary legislation. That is a different question from the one the noble Lord, Lord Low, has kindly answered. But it is quite an important question, because there is a danger at least of a degree of conflict between the two. It is just a question that I do not know the answer to.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
The noble and learned Lord, Lord Wallace, will have the opportunity to respond to the question posed by my noble and learned friend Lord Mackay after I have set out the Government’s position.
I thank noble Lords for this brief debate on this extremely important subject. Amendment 70A, tabled by the noble and learned Lord, Lord Wallace of Tankerness, seeks to ensure a firm basis for equalities protections as we leave the EU. In that sense, and in response to the noble Baroness, Lady Hayter, I of course understand and sympathise with the motivation behind the amendment and recognise the noble and learned Lord’s interest, shared by many others on all sides of the Committee. Indeed, the noble Lord, Lord Adonis, tabled Amendments 101A, 133A, 161 and 259 —I thank him for his brevity in not addressing them—which seek to restrict the powers in Clause 7 from making any changes to equalities and human rights legislation.
However, as I will endeavour to set out for the benefit of the Committee, we believe that these amendments are unnecessary given our commitment to maintaining existing equality and human rights legislation and, more widely, to sustaining our strong track record in this area. Amendment 70A would in fact give rise to significant new rights—which is not, of course, the purpose of the Bill—and in all likelihood would raise difficult questions, as my noble and learned friend Lord Mackay indicated, regarding legal certainty.
The Government have already made clear our commitment that all the protections in and under the Equality Acts 2006 and 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU. This has been stated unequivocally on several occasions, including in the March 2017 White Paper that preceded the Bill, the equality analysis we published in July 2017, and in the government response of October 2017 to the Women and Equalities Select Committee’s report, Ensuring Strong Equalities Legislation after the EU Exit.
As further assurance, the Government tabled an amendment in the other place—now paragraph 22 of Schedule 7—that will secure transparency in this area by requiring ministerial statements to be made about amendments made to the Equality Acts under each piece of secondary legislation under key powers in the Bill. These statements will in effect flag up any amendment to the Equality Acts and secondary legislation made under those Acts, while also ensuring that Ministers confirm that, in developing their draft legislation, they have had due regard to the need to eliminate discrimination and other conduct prohibited under the 2010 Act. We further confirmed in the other place that similar statements will be made in relation to other Brexit Bills. So we have clearly shown our commitment to maintaining the protections in our existing equality legislation, and ensuring that Brexit will not see the UK somehow regressing in this area. In contrast, Amendment 70A would go much further by creating new freestanding rights which would, indeed, apply in circumstances where the Charter of Fundamental Rights does not. Let me take a few moments to explain this in a little more detail.
First, subsection (3) of the new clause proposed by Amendment 70A takes an element from the Charter of Fundamental Rights, strips it of its original context and creates from it an exceptionally wide-ranging anti-discrimination duty. The effect of this is to go well beyond the requirements of the equivalent charter rights, which, as has been said, apply to member states only when they are acting within the scope of EU law, and well beyond the requirements of current domestic law. It would, for instance, introduce a legal duty on public bodies not to discriminate on grounds of language, property, birth or political opinion. That may sound reasonable on the face of it, but if we consider language for a moment, this duty could, for example, give all non-English speaking users of government services a right to claim discrimination if any of those services is available only in English and not in their own first language. This could ultimately mean that all public services would have to be provided in a very wide array of languages, at a substantial and disproportionate cost, which perhaps would even make some discretionary services unviable.
As many noble Lords will be aware, the key wording of subsection (3) of the new clause proposed by Amendment 70A originates in Article 14 of the European Convention on Human Rights. Again, I want to be very clear on this point: nothing in the Bill affects the Government’s ongoing commitment to the ECHR, which is, of course, given further effect in domestic law by the Human Rights Act 1998. Against this backdrop of clear commitments to the European Convention and to maintaining all the protections in and under the Equality Acts, I respectfully suggest that the concern expressed about the future of equality rights after we leave the EU and the assumption that new freestanding anti-discrimination rights are in some way needed to offset the impact of our exit is misplaced.
The Equality Act 2010 is the cornerstone of our equalities legislation. It covers all the requirements of the four existing EU equality directives but also goes much further. For example, our ground-breaking gender pay gap reporting requirements and our public sector equality duty have no equivalent in EU law. Also, there is no existing EU directive that prohibits, as our Equality Act does, discrimination by providers of goods or services because of age, disability, religion or belief and sexual orientation. We are proud of the UK’s track record on equalities and we do not need to be part of the EU to sustain that excellent record.
Subsection (2) of the new clause proposed by Amendment 70A seeks to establish a legal provision that everyone is equal before the law. However, that very principle is already reflected in the rule of law in the UK and is one of the longest-established fundamental principles of the UK’s constitution. The common law requires public authorities to act reasonably when exercising their powers, and this includes a requirement not to discriminate arbitrarily between different cases.
Finally, subsection (4) of the clause proposed by Amendment 70A would, albeit without directly amending the Human Rights Act 1998, have the effect of linking the new rights created by subsections (2) and (3) to the framework of key provisions in the 1998 Act. Again, with respect, I must say that I do not think that this is appropriate. We believe that it would create legal uncertainty and confusion, not least around the existing prohibition on discrimination under Article 14 of the ECHR, as set out in the Human Rights Act 1998. The bottom line is that substantive new rights are not consistent with the intended purpose of the Bill, which is about maintaining the same level of protection on the day after exit as before. It is not intended to be a vehicle for substantive legislative changes such as those proposed and so we cannot accept Amendment 70A, and I hope that the noble Lord feels able to withdraw it.
It is also to this end that, while we agree with and understand the honourable intentions behind the amendments of the noble Lord, Lord Adonis, we cannot accept them as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit. Indeed, the response that the Government put out in October 2017 highlighted some of these deficiencies. For example, the Equality Act refers in several places to EU or to Community law. These references are likely to need to be replaced with the term, “retained EU law”. As such, we believe that it is essential that the Clause 7 power is able to address these deficiencies so that we can ensure that the legislation that safeguards these rights and protections can continue to function effectively—which is what I would have thought we all wanted to see. Without this ability, businesses and individuals may be vulnerable to the resultant gaps in the law, which would be counterintuitive to the intentions of the noble Lord.
Equally, it cannot be the intention of the noble Lord to prevent the Government remedying a breach of our existing international obligations using Clause 8. Both these clauses are subject to the same restrictions on amending the Human Rights Act and the same equalities transparency requirements. In relation to Clause 9, to which Amendment 161, also in the name of the noble Lord, Lord Adonis, refers, one of our clearest similarities with the EU is our shared historic belief in the values of peace, democracy, human rights and the rule of law. It is extremely difficult therefore to envisage that any withdrawal agreement we negotiate with the EU, and by extension the Clause 9 power to implement parts of that agreement, will somehow undermine human rights and equalities law. Rather perversely, Amendment 161 would actually prevent Clause 9 strengthening human rights or equality law on the basis of something agreed in the withdrawal agreement with that effect.
However, as I have already set out, Clause 9 is, like Clause 7(1) and Clause 8, explicitly prohibited from being used to amend, repeal or revoke the Human Rights Act or any subordinate legislation made under it. In the case of Clause 17, I reassure the Committee that these powers may be used only in consequence of, or in connection with, the coming into force of a provision of the Bill itself. We expect that any changes made to equalities or human rights legislation to deal with the provisions of the Bill will be to ensure that the changes caused by the Bill are properly reflected in the statute book and that there is smooth transition in the law. To continue to work effectively and appropriately, the statute book must be tidy. Case law and other legal authorities provide a narrow scope for Governments to exercise consequential and transitional powers of this type. As such, they cannot be used to make truly substantive changes to equalities or human rights legislation.
I hope that what I have been able to say has satisfied noble Lords that the Government remain committed to maintaining equalities and human rights protections throughout the process of leaving the EU and I hope that that will enable the noble Lord to withdraw the amendment.
Lord Cashman
Before the Minister sits down, I asked him a direct question about the sifting committee and whether the recommendations had to be accepted by the Minister. Perhaps he could address that question.
Lord Callanan
I think my noble friend the Leader will be setting out our proposals for the sifting committee in this House. I have not seen the details, but my understanding is that there will be recommendations to the Minister.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who took part in this debate and I thank the Minister for his reply. He will perhaps not be surprised to learn that I was not wholly satisfied with his reply—although in fairness there was some common ground. He, like me, referred to the White Paper of March 2017 and the commitments that the Government made. Indeed, I accepted and acknowledged that in many cases the rights that have been established in relation to equality in this country have sometimes exceeded those in the European Union. However, that somewhat misses the point, because what I sought to do with this amendment was to ensure that, as we go forward and leave the European Union, these rights will still be there and that no future Government will be able to row back on them without having to give a proper explanation to Parliament.
The Minister made a couple of other points and I will reflect on what he said. I wonder about making the same offer as the noble Lord, Lord Deben, made in the previous debate: if he thinks that some of these go too far, if he and I were to meet and he were to excise the ones he thinks take it beyond what is already there, would he then be prepared to accept an amendment on Report without these? That might be something he would wish to consider.
I also note that while he made the point in relation to subsection (2):
“All individuals are equal before the law”,
as I did in my remarks, that that is part and parcel of our common law, he did not have anything to say about the second part, which refers to having,
“the right to the equal protection and benefit of the law”.
The noble Baroness, Lady Lister, very graphically described the recent case which shows that treating everyone equally before the law does not take account of the fact that some laws might impact disproportionately on some categories of people and end up in discrimination.