European Union (Withdrawal) Bill

Baroness Featherstone Excerpts

Wednesday 7th March 2018 Lords Chamber

[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.

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[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.