Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I rise with some trepidation, because I am at a disadvantage from not having been here for day 1 of Committee. I feel that there is an element of Monty Python about this—and now for something completely different.

I will speak to Amendments 10, 11 and 12 in my name and briefly to Amendment 37, in the name of the noble Baroness, Lady Hayman of Ullock, to which I have added my name.

There are an estimated 1,700 pieces of legislation that Defra will have to review by the end of December this year. Some will go into the retained, unamended pile; some will go into the likely to be amended pile; and some will be scrapped or abandoned altogether. This is a mammoth task for Defra.

Environmentalists in the country are extremely unhappy about the lack of detail in the Bill. Members of this Chamber are concerned that, given the short timeframe, some essential pieces of legislation will be lost. There is currently little clarity on which pieces the Government are planning to retain, scrap or amend. On all sides of the Chamber, Peers are seeking to exclude legislation that is vital to the environment of our country from this sunset deadline. The Conservation of Habitats and Species Regulations, the Bathing Waters Regulations and the Water Environment (Water Framework Directive) (England and Wales) Regulations—from Amendments, 10, 11 and 12 respectively—are three such pieces of legislation that must be preserved at all costs.

The habits and species directive is a crucial tool for environmentalists and local authorities attempting to preserve wildlife for future generations. Having sat in planning meetings on major housing developments, I know that it is vital that measures are taken to ensure the protection of habitats of local and nationally scarce species during and after development. The great crested newt, the English dormouse and the various species of bats in England will not survive if their habitat is not considered at an early stage of planning and through implementing developments.

There are developers who will seek to gloss over the presence of rare wildlife, but the wise community-based developer adheres to the planning conditions. If the habitat directive is jettisoned or watered down, biodiversity and wildlife will suffer. Once a species has become extinct or a rare orchid is lost, that is it: there is rarely any coming back. The current law protects them and hundreds of other species, and it is vital that this protection exists into next year and beyond.

There is a danger that we could enter open season for developers. Our biodiversity has already been drastically reduced; it is years since I saw a bullfinch in the wild. We cannot afford any more biodiversity loss. It has to be halted and reversed; otherwise, what were our natural species will suffer the fate of the sabre-toothed tiger and be confined to glass cabinets in museums.

The noble Duke, the Duke of Wellington, recently spoke in the Chamber about the bathing water directive, the inadequate quality of bathing water and the ill health that surfers around our shores suffer due to sewage pollution. We have seen professional surfers leaving our shores to resume their sport in Spain. The loss of the income from those who enjoy surfing or wild swimming is significant for our coastal communities, which are often reliant on the summer tourist trade to get them through the winter.

Closely related to Amendment 11 and the bathing water directive is Amendment 12 on the water framework directive. The quality of water flowing through our waters is essential for biodiversity protection. The River Parrett in Somerset flows through several areas of ecological interest and supports various rare and endangered species. It is a favoured leisure venue for recreation and has a long walking trail from source to sea. Eels and other wildlife can be found along its banks. Chemical pollution is a threat not just to the Parrett but to all rivers. The water framework directive currently provides some protection for this area and the iconic Somerset Levels. It is important to have an integrated approach to the protection of our rivers, waterways and canals. A siloed approach may help to protect specific areas, but other areas could suffer.

It is important that these directives appear in the Bill. In her Amendment 37, the noble Baroness, Lady Hayman of Ullock, has listed those amendments that she believes could be lost in the general Brexit clear-out of legislation, which would have a devastating effect on our way of life and environment. These range from the REACH Enforcement Regulations to the Welfare of Animals (Transport) (England) Order. I look forward to the debate on this important amendment and fully support the noble Baroness, Lady Hayman.

There is currently little information about the costs and impacts of implementing the Bill. The task of filtering 1,700 pieces of legislation is colossal, and many laws could be lost by default. The Minister has indicated that there are some laws that we no longer need and are no longer applicable. It is important that this House knows what these are. Can the Minister say whether Defra is able to provide a list of those laws to be retained unamended, those to be amended and then retained, and those it believes are no longer functional in the UK, as well as the methodology involved? Other noble Lords have raised this issue.

Yesterday, along with the noble Lord, Lord Callanan, the Minister helpfully provided a briefing in which he emphasised his and the Government’s support for the 25-year environment plan and all the strategies and plans that fall under it and support its implementation. No one can doubt the Minister’s desire and enthusiasm for implementing fully the 25-year environment plan, but unfortunately the noble Lord is unlikely still to be a Minister by 2030—perhaps he would have preferred it if I had said 2050. It is not unknown for Governments to give commitments from the Dispatch Box and for later occupants of posts to reverse those commitments. Sadly, one such case was the promise to provide compensation to the Windrush community, which had long campaigned for and very much welcomed the compensation, only to have this promise reversed under the current Home Secretary.

It is not that we do not have confidence in the Minister. Experience has shown the House that, in order to have full confidence that the Government will do what they say, there have to be clauses in the Bill to ensure legal protection. Will the Minister agree to Amendments 10 to 12 and the request for these directives to be in the Bill?

If the sunset deadline of 23 December is not extended for the Conservation of Habitats and Species Regulations, the Bathing Waters Regulations and the Water Environment (Water Framework Directive) (England and Wales) Regulations, I very much fear that the guillotine will fall, quite literally, on the great crested newt, the English dormouse, the blue fritillary butterfly, the water vole and other species. These will then disappear from our landscapes altogether, along with those who used to enjoy surfing and wild swimming. The Bill appears not to be fit for purpose. I beg to move.

[Baroness Hayman of Ullock (Lab)]

My Lords, I rise to introduce my Amendment 37. I thank the noble Baroness, Lady Bakewell, for her excellent introduction to her amendments and for leading our debate on this important subject.

Amendment 37 sets out a list of the most significant environmental and animal welfare laws that the Bill currently covers. The regulations listed in the 21 proposed new paragraphs (a) to (u) demonstrate the wide range of environmental and animal welfare protection legislation that comes within the scope of the Bill. The noble Baroness, Lady Bakewell, mentioned the habitats directive, the Bathing Waters Regulations and the water framework directive in particular. We support her amendment.

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[Lord Benyon (Con)]

I am very happy for the noble Baroness. As a parliamentarian in the UK Parliament, I had no say. However, many of the regulations were very good and we want to retain them.

I am grateful for the words of so many noble Lords. My noble friend Lord Cormack embarrassed and moved me with his nice words, but when such words are said in this House, I know that there is an enormous “but”. I will try to address it.

I count myself an environmentalist. I have been on the boards of different NGOs, I am a member of many and I have campaigned and worked on the environment all my life. I see my role as a Minister as just a small part of that. I would absolutely not be standing here if I thought that we were indulging in some means of trashing the kind of protections that we want to continue and improve in this country. There are opportunities; as my noble friend Lord Caithness said, we have had these regulations but biodiversity continues to decline, as it has done for decades. We now have a commitment to reverse that decline, stop it by 2030 and see it increase as against 2020 data by 2042. No Government will be able to escape that, so the idea that we could get rid of regulations that would make that happen is wrong.

I find at the moment that all roads in Defra lead towards our land use framework. I applaud those Members of this House who wrote a really good report on it, as my noble friend Lord Caithness mentioned. I agree with him that if we are going to get this right and achieve anything on environmental regulation, incentives to farmers through ELMS, our water policy, anything to do with air quality, the health of people and the benefits of nature, mentioned by the noble Lord, Lord Krebs, then we need really to understand how, in a finite piece of territory, we will manage all those requirements and our international commitments, some of which I have already mentioned.

As my noble friend said, the powers in the Bill will empower departments to unleash innovation and propel growth across every area of our economy. The Bill is simply an enabling Act. It is up to departments and the devolved Administrations what they will do on specific pieces of policy.

In Amendment 10, the noble Baroness, Lady Bakewell, has raised the Conservation of Habitats and Species Regulations. I reassure her that the Government remain committed to the ambitious plans set out in the Environment Act, which sets out legally binding targets to halt nature’s decline by 2030. The noble Baroness, Lady Young, said that the habitats directive was the jewel in the crown; she is absolutely right that it has been a huge driver in environmental policy, although not an exclusive one. She raised a point about interpretive effects. Interpretive effects are the general principle of EU supremacy as set out in Section 4 rights and do not relate to case law. However, I absolutely assure her of our commitment to 30 by 30. Our commitment to protect 30% of our land and oceans remains fundamental. We will continue to do that—we would not be able to if we damaged our environment in the ways that some noble Lords have suggested.

[Baroness Hayman of Ullock (Lab)]

To clarify the point about interpretive effects, I point out that the letter says:

“Anything preserved will be subject to clauses 3-6 of the Bill which repeal retained EU interpretive effects.”


Can the Minister clarify what this actually means in practice? How does it affect case law?

[Lord Benyon (Con)]

Interpretive effects are not case law; they are the principle of EU supremacy—general principles and Section 4 rights. The general principles of EU law directly affecting rights, which end in—

[Baroness Hayman of Ullock (Lab)]

Perhaps the noble Lord could write to us with a detailed explanation.

[Lord Benyon (Con)]

I will certainly do so; I will then be able to read my own writing. As the Secretary of State reiterated in her speech at the launch of the environmental improvement plan on 31 January, Defra’s default approach will be to retain EU law unless there is a good reason either to repeal it or to reform it. This allows us to keep protections in place, provide certainty to businesses and stakeholders and make reforms tailored to our needs—

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[Lord Benyon (Con)]

There is a core team of Defra civil servants co-ordinating this but every policy area is involved, so it is impossible to say precisely how many full-time equivalents are being apportioned to this on a weekly or monthly basis or how many will be over the next six months. However, I assure the noble Lord that this is an absolute priority for my department. We have separated the different areas of REUL to suit Ministers’ areas of responsibility; we are working through them and making sure that we rigorously examine whether we have them in the right frameworks for retaining, removing or any other aspect of this process.

[Baroness Hayman of Ullock (Lab)]

The Minister says that the sunset can be extended to 2026, but surely we need to know which regulations the department is looking to extend. How do we know that? How is Defra going to go about attending to that? The Treasury managed to take its regulations out; they are exempt. Why does Defra not just do the same and save all the bother?

[Lord Benyon (Con)]

If we have to extend, that would be the subject of a secondary legislation measure, so this House would be able to review it.

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[Lord Benyon (Con)]

A delay is reform, because it gives more time to get it right. There may be specific technical issues relating to a regulation that require more work to be done than can be allowed in the timeframe of the sunset.

On the marine issues, which the noble Viscount raised, we are committed to 30% of seas being protected. We have very clear policies on restoring fisheries and fish biomass in the sea, and we have provisions through the marine strategy framework and others to see that achieved.

A number of Peers have raised the issue of resources. We are putting huge resources into this. The noble Lord, Lord Fox, is right to raise this, and I understand the concerns. We want to make sure that we understand each and every one of the more than 1,700 areas of retained EU law. Our default position is to retain. Resources for retained EU law legislation will be needed from a range of policy officials, such as analysts and lawyers, to deliver a significant legislative programme. My officials are working closely with BEIS and the Cabinet Office to ensure that Defra has sufficient resources. Our aim will be to ensure that important work unrelated to retained EU law will continue.

[Baroness Hayman of Ullock (Lab)]

The default position is actually that it falls unless you have this extension. The extension mechanism, as the noble and learned Lord, Lord Hope of Craighead, said, relies on something specific being identified.

It is no criticism whatever of Defra staff, but if they have to identify extra pieces that need to be carried over, this is a huge amount of work. We do not even have a comprehensive list at the moment so it could increase, plus they have to get all the SIs sorted. All that has to be done by the end of this year before the Government can bring in an extension. As I asked the noble Lord earlier, does he really have confidence that Defra has enough staffing resources to achieve all this? I am really concerned about it. I reiterate that this is no criticism of the staff. This is about figures, numbers and cash.