European Union (Withdrawal Agreement) Bill

Baroness Jones of Whitchurch Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

Moved by

[Baroness Jones of Whitchurch]

31: After Clause 37, insert the following new Clause—
“Non-regression in relation to environmental and animal welfare matters
After section 16 (maintenance of environmental principles etc.) of the European Union (Withdrawal) Act 2018 insert—“16A Non-regression in relation to protected matters(1) Any action taken by or on behalf of a Minister of the Crown under—(a) this Act, or(b) any other enactment, for the purposes of or in connection with the withdrawal of the United Kingdom from the EU,is unlawful if it is intended to have, or in practice is reasonably likely to have, a regressive effect in relation to the protected matters.(2) A public authority exercising a function in respect of a protected matter must not exercise that function in a way that is intended to have, or is reasonably likely to have, a regressive effect.(3) Regulations may not be made under this Act if they are intended to have, or are reasonably likely to have, a regressive effect.(4) The protected matters are—(a) the environment,(b) food safety standards,(c) registration, evaluation, authorisation and restriction of chemicals, and(d) animal welfare.(5) For the purposes of this section an effect shall be considered regressive if it—(a) reduces a level of protection provided for in retained EU law, or(b) weakens governance processes associated with that protection.””Member’s explanatory statement
This amendment prevents Ministers from using powers relating to EU withdrawal to diminish protections in retained EU law relating to the environment and animal welfare.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lords who have added their names in support of this amendment on a cross-party basis. It would ensure that, post Brexit, the actions of Ministers and public bodies must not have a regressive impact on the environment, food safety, REACH and animal welfare. The amendment is necessary as the Government have seen fit to remove the provisions previously agreed in the 2018 withdrawal agreement, which provided for a legally binding commitment to non-regression in most areas of environmental law. The Government have said they remain committed to the principle of non-regression, so it is not at all clear why these provisions have been actively removed.

It goes without saying that there has never been a more important time for strong environmental legislation. The world is facing a climate change emergency, with global warming impacting food production, rising sea levels destroying habitats and catastrophic floods and fires threatening human life and livelihoods. The Government have signed up to the UN climate change conference political declaration, but those promises need to be backed up by binding and robust action. The Government have said that they want an ambitious environmental programme—indeed, the Conservative manifesto promised to legislate for high standards of environmental protection—so it seems strange that their first act is to water down a Bill that would have helped to achieve those high standards. Our amendment would put the non-regression principle back into the Bill where it belongs, and where other environmental principles remain via the withdrawal agreement.

The great advantage of a non-regression clause is that it would give reassurance for the longer term. It would protect current and future generations against the weakening of environmental standards once the issue drops out of the headlines and out of the list of government priorities. It would also help the Government to hold public bodies to account in achieving their environmental standards.

It is still not clear why the Government have taken the clause out of the Bill. If, as the Minister claimed in the Commons, the Government are committed to non-regression, why not leave it in? If the Government plan to put it in the environment Bill instead, what is the harm in having it in both pieces of legislation? If, as the Minister claimed in the Commons, the plan is to diverge from EU environmental principles and go it alone, who will judge whether the outcome will be as good as the environmental benefits that we have enjoyed in the past or that we should have enjoyed in the future?

As I said at Second Reading, over the years our environment has hugely benefited from EU directives and regulations, with over 80% of our environmental legislation derived from the EU. It is the main reason our habitats and birds have been protected and our water, air and soil quality have improved. The Government are expecting us to take a leap in the dark with their commitments to becoming a world leader in environmental protection outside the EU regime. If they are so committed, it is still not clear why they cannot accept a non-regression clause. Surely that is the minimum promise that they ought to be able to make if they are so ambitious for the future.

I hope the Minister will feel able to support our amendment. If not, I hope he can spell out in some detail what kind of non-regression guarantees are being proposed for the environment Bill. These questions were posed by a number of noble Lords at Second Reading, so far without a response. I hope that on this occasion the Minister can rectify that and give us some guarantees. I beg to move.

[Lord Randall of Uxbridge (Con)]

My Lords, I was very happy to add my name to this amendment because the whole question of environmental standards and what will happen after we leave the EU is something that concerns many on all sides of the House, as well as the general public. The environment, as the noble Baroness opposite said, is very high on people’s agenda.

I put my name to the amendment because, like the noble Baroness, I wondered why this issue was not going to be part of the Bill. However, I have to say that I have spent some time in detailed discussions with the Secretary of State and Ministers down the other end as well as with Ministers in this Chamber. I do not think I could ever be described as naïve, although I have been led astray sometimes by government Ministers on all sides, but I do not doubt for one minute this Government’s thorough commitment not only to maintaining the environmental standards of the EU but to going beyond that. This is a very useful exercise to reinforce to my noble friends on the Front Bench that no excuse will be taken if those standards are not maintained when the environment Bill comes forward, and I will be looking for improvement.

With that in mind, I have always regarded this more as a probing amendment—I have learned today that in Committee that tends to be what happens—but I do not at all regret adding my name to it because this is a matter of great importance.

--- Later in debate ---

The noble Baroness asked for some detail, and I think she may be on the edge of her seat.

[Baroness Jones of Whitchurch]

I am grateful for everything the Minister has said. I did ask—I do not know whether he specifically addressed this point—whether there will be a general non-regression clause in the environment Bill. He has talked about there being legally binding targets for improvements in some areas. I understand all of that—the Government will have improvements on air or water quality or whatever it might be—but the great advantage of a generalised principle of non-regression is that it applies to everything: not just the Government’s priorities today but the things that are not sexy today and that might be on the back burner. It encompasses everything, and I am not sure whether the Minister has given me that reassurance. Maybe it was buried away in his script, but it would be helpful if he could say it again.

[Lord Gardiner of Kimble]

The environment Bill has not been published yet, but it will not be long. I am not in a position to start talking about the detail of some of the clauses tonight, but that is why I spent some time on this. I say directly that I cannot start suggesting what the clauses of the Bill will be about, because I am not in a position to do so.

As I have tried to set out in this explanation, I obviously understand the points that have been made, but I am not sure I agree with all that the noble Baroness, Lady Bennett, may have said about some of these matters. Yes, of course we should endorse the work of the past, but I sometimes sense a determination that either this Government or the party I represent would find it impossible to be positive and strengthening about the subjects we are discussing. I would regret that, because the whole focus of what I have tried to explain in detail—it is why I was asked to deal with this amendment—is precisely to show that this department and the Government are absolutely committed to maintaining and enhancing our already high standards, including through the legislation which will come forward very shortly.

As regards any Section 8 regulations made under the withdrawal Act, noble Lords already have the ability to scrutinise any changes which those regulations might make to retained EU law. This Bill is a vehicle to implement the withdrawal agreement, not, in our view, to legislate for environmental policy.

I am grateful to the noble Baroness and to all noble Lords for this important debate. I have gone on rather longer than I think I was requested to because I felt it important to set out some detail on the measures that the Government will bring forward, and to highlight what is a clear direction of travel. Our intention is to move forward. I therefore hope that the noble Baroness and other noble Lords will accept my firm commitment on behalf of the Government and the department, and that she will feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I thank all noble Lords who have spoken in support of our amendment. I should say at the outset that the Minister will know, as we have said before, that he is held in high regard by this Chamber. We obviously do not doubt his intentions and commitment on many of the things he talked about. A lot of our concerns arise not from the intentions of Defra, or even perhaps the intentions in a future environment Bill, but through the pressures which will come from elsewhere. We can only anticipate or guess those pressures at this stage—from future trade Bills and future deals that might be wanted done.

Our anxiety is not about the Minister’s good intentions; we can see what is in the Conservative manifesto and the good words that have been written about all this. Many of us have worked on a number of the animal welfare issues that the Minister talked about, so, again, we do not doubt his good intentions or his record on all that. But we are going into an uncertain future, and deals will have to be made outside our immediate remit. I suppose that is where our concern comes from.

I am particularly grateful to the noble Lord, Lord Randall, for sticking his neck out on this issue, even if he back-tracked slightly. I had intended this to be slightly more than a probing amendment, and we have had a good debate as a result of it. We want to believe in the Government’s commitments in the way that he described.

Our particular concern about non-regression, which I know that the Minister felt he could not really respond to in the detail that we would have liked, was that it would give us that underlying safety net when everything else is moving around quickly, as it will be in the next year. I am still sorry that we were not able to go as far as we would have liked on that issue. The noble Baroness, Lady Bennett, was absolutely right: these progresses in policy that we have made over the years are hard fought for and hard won, and we all hold them very dear.

I have gone as far as I can at this point in the evening in probing the Minister. We are looking forward to the environment Bill. If it is anything like the draft we have already seen, it will be a long tome and we will spend many happy hours debating it all. I hope that we will see in writing the legal commitments that the Minister implied we will get at that point, so I look forward to the publication of and debate on that Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

European Union (Withdrawal Agreement) Bill

Baroness Jones of Whitchurch Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am sorry that I have to follow the noble Lord, because I feel he has lowered the tone of the debate in a Chamber that, up until now, has been doing a proper scrutiny role. That is what we are here for; it is what we are renowned for and we are confident that we can do it well. As I say, I am sorry that he has lowered the tone.

As other noble Lords have done, I will speak primarily to raise our concerns about the exclusion of the environmental clauses which we spent many happy hours crafting and agreeing in the 2018 withdrawal agreement. I very much regret that I have to raise these concerns again, as they received considerable cross-party support around the House at the time as well as the eventual approval of Ministers. Why are they no longer in this legislation and why have the Government now backtracked on that deal?

Of course, I accept that the Conservative manifesto contains promises to legislate to ensure high standards of environmental protection. Indeed, this was repeated in the Commons debate on this Bill when the Minister, James Duddridge, stated:

“We will maintain and uphold high standards for workers, consumers and the environment.”


However, he went on to say:

“We do not have to follow EU rules to achieve that; we can do it on our own.”—[Official Report, Commons, 8/1/20; col. 529.]


Our history shows that we have not been very good at doing it on our own. This is why, over the years, we have had to rely on EU directives to clean up our water, our waste, our air and our soil, and it is why we have had to rely on the 527 EU regulations to set strong standards for the environment. This is why something like 80% of UK environmental legislation is derived from the EU. Doing it on our own remains a big challenge.

Of course, while there is a cautious welcome for the Government’s commitments on the environment, there remains considerable concern among environmental and animal charities about what the future holds. This has been fuelled by the Government’s decision to remove the environmental clauses from this Bill. This is why we are tabling an amendment which will insert the principle of non-regression of environmental standards into the Bill. This will be a legally binding commitment to non-regression to protect current and future generations against weakening environmental standards. It will ensure that the Government do not take their eye off the ball and let standards fall behind through neglect or default.

As we have heard, when this was debated last week in the Commons, the Minister said that

“the underlying point is that there will be no regression.”—[Official Report, Commons, 8/1/20; col. 529.]

However, if this is the case, why are the Government so reluctant to have this clause in the Bill? If it is their intention to legislate separately on environmental standards in the Environment Bill, can the Minister confirm that a specific non-regression clause will be included in that Bill? What mechanism does the Minister envisage for regularly updating that environmental legislation in future years to ensure that it remains relevant and becomes the world leader to which the Government aspire?

There are also other consequences to diverging from established EU environmental rules. The European Commission president, Ursula von der Leyen, warned last week that any new trade deal giving tariff and quota-free access to the single market would come with strings attached. She specified that Britain would have to agree a level playing field on workers’ rights and the environment. If we are serious about a comprehensive new trade deal with the EU, we may well find that we need to match their environmental standards. Clearly, UK businesses will not welcome two sets of rules, one for the UK market and another for the EU export market.

In his response, can the Minister confirm that we accept the need to follow EU environmental standards and that any other provision in the Environment Bill will be at least as good as those provided for by the EU? Can he confirm that the Government do indeed intend to take forward their commitment on non-regression of environmental standards in that Bill? I look forward to his response.

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Monday 18th June 2018 Lords Chamber

[Lord Wigley (PC)]

My Lords, at earlier stages of the Bill, when an amendment of the noble Lord, Lord Krebs, was debated, the Minister made the point that the amendment as then tabled could constrain the devolved authorities. Will he explain to the House how his amendment has overcome that problem?

[Baroness Jones of Whitchurch (Lab)]

My Lords, government Motion B follows the debate that we have been having throughout the passage of the Bill on the enforcement of environmental principles. On each occasion, noble Lords have voted on a cross-party basis around the Chamber to send a message that the Government’s proposals are not good enough and do not represent the protections for the environment that we currently enjoy in the EU.

At Third Reading this House supported, with a significant majority, an amendment that set out how current EU rights could be replicated in UK law. I am sorry that the Government did not feel able to support it when it went back to the Commons. They did, however, finally and reluctantly—as the noble Lord, Lord Krebs, said—come up with their own alternative. It is a step forward, and I am pleased that many of the arguments made by our side of the House, and across the Chamber, have had some impact.

As the Minister will know, the views that we expressed are supported by tens of thousands of individuals, activists and NGOs around the country who have campaigned vigorously on these issues. So we have made progress, but there remains—as my noble friends said—unfinished business. We will continue, therefore, to use every opportunity to achieve what we have been promised. All we are trying to do is replicate what we already have—and to be assured that it will be in place on Brexit day.

At the heart of environmental protection we need a green watchdog, on a statutory footing and independent of government, that can take appropriate enforcement action against Ministers and arm’s-length bodies when they ignore their environmental responsibilities: in other words, a watchdog that replicates the current role of the EU Commission. We also want an obligation on Ministers to act in accordance with the provisions of the Bill, rather than simply to “have regard to” the provisions, which is a much less stringent legal requirement and could lead to considerable legal uncertainty. Finally, we want to ensure that our exit from the EU does not end, by accident or design, in a diminution of rights and powers otherwise enjoyed in the EU.

It is important that these issues are resolved because, as we debated at Third Reading, the Government’s proposed alternative—the environmental principles and governance Bill—will not be available, at the earliest, until after the next Queen’s Speech. For many of us, moreover, the consultation document produced in advance of that Bill is a thin and unpromising start to the promises made by the Secretary of State to deliver a world-leading environmental body, with independent, statutory backing, to hold the Government to account.

I hope, therefore, that the Minister will address our ongoing concerns, despite the progress that has been made. I hope that he will make it clear that what we have before us is a minimum set of proposals and that negotiations will continue on the details. I hope, too, that he fully understands that we are not going away and will press these arguments at every opportunity.

[Lord Callanan]

My Lords, as I said at the start of this debate, the issue of environmental protections has been widely discussed during the Bill’s passage through both Houses, and I thank all noble Lords who have contributed today. In particular I say to the noble Baroness, Lady Jones—who I know feels passionately about these issues—that we agree with her that the environment should be left in a better state than when we inherited it, and that we want to use the opportunity of Brexit to design environmental policies that in many respects are more advanced than those of the European Union but are tailored purely for the benefit of the United Kingdom. I am sorry that the noble Baroness feels disappointed, but she has the commitment of the Government—and the Secretary of State—to take these matters forward in the Bill once the consultation is finished.

I will address some of the points that were made. As I set out earlier, the consultation document is clear that these proposals are for England only. They cover areas that are the responsibility of the UK Government. The amendment requires the Secretary of State to publish a draft Bill and makes no substantive change to the law in Wales or anywhere else. This goes to the heart of the point made by the noble Lord, Lord Wigley. We will work closely with the devolved Administrations on the new body, including on whether they wish to take a similar or, indeed, different approach themselves. The UK Government view is definitely that this amendment does not meet the test for legislative consent.

I reiterate that the amendment sent to us from the Commons represents an opportunity to strengthen and enhance our environmental protections, not to weaken them, and I hope that your Lordships will agree it today. I emphasise that we are still out to consultation on the main legislation. There will be plenty of opportunity to contribute to that consultation. I know that noble Lords and noble Baronesses who feel passionately about these matters will be able to contribute to that consultation—and then, of course, once the draft Bill is launched, there will be frequent opportunities in this House to debate the issues at great length, which I am sure noble Lords will take full advantage of.

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Baroness Byford (Con)]

My Lords, this is an important amendment. At various stages, I have spoken very strongly in favour of environmental protection. Whether or not noble Lords agree with my conclusion is up to them, but it is very important that the House be aware that I am absolutely 100% in favour of protecting the environment.

I have a difficulty with the amendment before us. Had the Government not brought forward their consultation document, I would be repeating many of the things that have been said. In fairness, however, they have, and I think there are things we can do in the future better than we have done them in the past. I have listed a number of bodies that are either directly or indirectly affected by things to do with the environment. My question to the House at the end of the day is, could we do it in a simpler way and better way, and is not this consultation document exactly what Brexit is about?

With the leave of the House, therefore, I will talk about existing bodies that have some say on the environment. We have the Commons EFRA Committee and the Commons Environmental Audit Committee; the Lords EU Energy and Environment Sub-Committee; the Lords Select Committee on the Natural Environment and Rural Communities Act 2006, which we have just debated; the National Audit Office; the Natural Capital Committee; the Joint Nature Conservation Committee; a committee on climate change, for which my noble friend Lord Deben has done so much; the Environment Agency; Natural England; the Rural Payments Agency—I am not so sure there—and the many groups and charities dealing with wildlife and conservation. We now have the opportunity of a consultation document—and I wonder how many people who have spoken have actually read right through it; I plead guilty to having read right through it—and we are promised that, in the autumn of this year, a Bill will come forward.

Therefore, I ask myself and other noble Lords: are our present arrangements doing what we want them to do? I would be shaking my head and saying, “I think that we can do it better”. We have had an overlapping of many of the organisations, and a waste of money and time. I encourage Members of your Lordships’ House to at least consider what is in here, and for those who think that there is not enough in here, this is our opportunity to do something about it.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Krebs, for setting out so clearly the arguments for this amendment, and to all noble Lords who have spoken in support of it. I say to the noble Lord, Lord Framlingham, that he clearly has not listened to our arguments or to the respectful and considered way in which we have conducted ourselves throughout the debate on the environmental and other issues.

[Lord Framlingham]

My Lords—

[Baroness Jones of Whitchurch]

I think the noble Lord has already heard that he cannot intervene, because he has already spoken, so I am not going to give way. I hope that the Minister will echo the fact that we have responded to and dealt with the issues in a very respectful way on both sides.

[Lord Framlingham]

My Lords—

--- Later in debate ---

[Baroness Jones of Whitchurch]

No, I am not going to give way. The noble Lord has already had several opportunities to intervene, and he does not have the support of the House behind him.

[Lord Deben]

Would the noble Baroness please give way? It is sensible in debate to give way, and I hope that the noble Lord, Lord Framlingham, will be allowed to intervene.

--- Later in debate ---

[Lord Framlingham]

Does the noble Baroness accept that nobody is keener on the environment than me, as many people in this House know? I am simply saying that this is not the vehicle for it.

[Baroness Jones of Whitchurch]

I do not know the noble Lord’s record on the environment; I am sure he will have other opportunities to tell noble Lords about it. But certainly, if he cares about the environment, this is exactly the place we should deal with it, and that is exactly why noble Lords from around the House are so passionate about the need to pursue this amendment. I hope that the noble Lord will read our amendment and see the sense of it.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

I will not support the amendment at this stage; I will probably support it or something similar at the stage when the Bill—the primary legislation—reaches us. However, to help the noble Baroness’s argument and to address the excellent points made by my noble friend Lady Byford, should she not address the fact that we are seeking that the European regulations have the force of law after we have left, and how that goes to the heart of the amendment to which she is speaking? She is not addressing those points as forcefully as she might.

[Baroness Jones of Whitchurch]

I thought that I had addressed that. If after Brexit day we are to have the same powers and enforcement as we had prior to it, we need to have a green watchdog with those enhanced powers that Europe has given us in the past—as we heard from the noble Lords, Lord Rooker and Lord Smith, and other noble Lords. That is the need. If we do not replace that in some way with an independent body that can achieve that, we will have no way of enforcing the regulations to which the noble Baroness referred.

The key thing in our amendment is that we have an independent body with the powers to ensure compliance by public bodies with environmental law. There will be a governance gap, a power gap, if that does not occur. I say to all those people—including, again, the noble Baroness, Lady Byford—who say that the consultation is the right way to deal with this, that the idea that a consultation will deliver a new watchdog with some teeth when it is not included in the consultation is magical thinking. We all know that the reality is that the opposite is the case with government consultations and, inevitably, further compromises tend to occur before legislation is finalised. I do not think that to hold that out as a hope and an offer is going to give us much reassurance.

Finally—and this is also a really important point—Michael Gove has already acknowledged that there will be a governance time gap. This consultation proposes a Bill in the next Queen’s Speech. That would not be enacted until, say, the end of next year at the earliest. A lot can go wrong before then. As we have discussed before, a rather large number of Defra Bills have been promised and are already in the queue for enactment. Timescales are already slipping. Even with the most optimistic projections, the current plans mean a time lag where environmental protections will not be—as promised in the Bill—the same as we had before exit day.

Our amendment addresses that gap. It addresses those omissions and requires that the legislation would be produced within six months of the date on which this Act is passed and therefore fill that gap. This is the only way to maintain both the spirit and the substance of continuity with EU rights which the Bill promised and the only way to protect the environment for future generations. I hope that noble Lords will see fit to support it.

[Lord Callanan]

My Lords, it is, frankly, disappointing that this amendment has been tabled today. We have debated the important topic of environmental protections on numerous occasions in your Lordships’ House, and the Government have taken clear action in response to many of the points raised. There was support across the House for the Government’s amendments removing the powers in this Bill to create new public authorities and our commitment to do so only in primary legislation.

Indeed, the noble Baroness, Lady Hayter, said on Report:

“the very way that we set up quangos—how they are appointed, funded and run, and particularly their reporting structures and independence from both government and any other organisation they happen to be regulating—is key to how they work, hence the need for primary legislation so that we can interrogate all these things”.—[Official Report, 25/4/18; cols. 1585-86].

I agree with her. The Government have committed to do precisely that—to bring forward primary legislation so that Parliament can fully scrutinise, indeed interrogate, the powers of a new environmental watchdog. Yet here we have an amendment designed to use this Bill to set the parameters of such a body without the benefit of the consultation that we are now undertaking and without the scrutiny that would come from considering a Bill that is specifically introduced for that purpose.

We have endeavoured to provide as much transparency as possible to our plan for ensuring environmental protections are enhanced and strengthened, not weakened, as we leave the European Union. In November, the Secretary of State for Environment, Food and Rural Affairs gave a commitment on the Floor of the other place to create a new comprehensive policy statement setting out environmental principles, recognising that the principles currently recognised in UK law are not held in one place. At that time, the Secretary of State also announced our intention to consult on a new, independent and statutory body to advise and challenge the Government and potentially other public bodies on environmental legislation, stepping in when needed to hold these bodies to account and being a champion for the environment.

In direct response to the points made by the noble Lord, Lord Krebs, we welcome all consultees’ views on how this is best achieved, and that includes on the range of enforcement measures that might be required. On Report, I gave a firm undertaking that this consultation would be published ahead of Third Reading, and we did just that on 10 May. The consultation includes proposals on a new, independent statutory body to hold government to account on environmental standards once we have left the European Union and a new policy statement on environmental principles to apply post EU exit. I say to the noble Baroness, Lady Jones, that this is a consultation: we want to hear all views and we have, as yet, made no decisions on how these bodies might operate.

On the subject of timing, I am afraid that the noble Baronesses, Lady Jones and Lady Bakewell, are simply wrong. The Secretary of State for Environment, Food and Rural Affairs announced that we will bring forward a new, ambitious environmental principles and governance Bill in draft in the autumn of this year, with introduction early in the second Session of this Parliament, to deliver these proposals in advance of the end of the agreed implementation period.

Put simply, Amendment 1 risks compromising the timely and full consideration of many important issues. It requires consultation with stakeholders—a point well made by my noble friend Lord Ridley—and yet mandates a set way forward in primary legislation. This is neither helpful nor necessary, as the issues it seeks to bind the Government to commit to are those we will explore in the consultation. In short, the amendment is premature and it prejudges the views of important stakeholders.

There are good reasons for gathering and properly reflecting on views ahead of taking action. Indeed, if we did not do so, I suspect that we would be criticised by the very people moving this amendment. For example, a significant proportion of environmental policy and legislation is devolved. We 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 United Kingdom. Amendment 1 risks compromising consideration of these important issues, as well as the wider devolution settlement, by requiring the UK Government to take UK-wide action, including to publish proposals for UK-wide primary legislation on governance and principles.

The government consultation is concerned with England and reserved matters throughout the United Kingdom, for which responsibility sits in Westminster. However, we are exploring with the devolved Administrations whether they wish to take a similar approach, and would welcome the opportunity to co-design proposals to ensure that they work well across the whole of the United Kingdom. We would also welcome views from a wide range of stakeholders, including environmental groups, farmers, businesses, local authorities and the legal profession. I welcome the comments of my noble friend Lady Byford, who made some excellent points worthy of our consideration.

Turning to the issue of environmental principles, the published consultation outlines our proposal to require Ministers to enshrine these principles in a comprehensive statutory public policy statement setting out their interpretation and application. As we have said many times before, the core purpose of this Bill is to provide for continuity in our framework of laws and rules before and after exit: no more and no less. The Bill takes a comprehensive—

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, my noble friend Lord Judd and the noble Lords, Lord Tyler and Lord Lisvane, have also put their names to this amendment. It is a variation on a similar amendment debated in Committee, but it now includes a sunset clause to restrict the scale of its application, which the Minister expressed concern about at that stage. It is, of course, put forward in a spirit of helpfulness to the Government, although I find that a bit difficult to say at this time of night. It encourages the Government to seek wider advice and assistance in spotting any errors in the large number of statutory instruments—between 800 and 1,000 in addition to the normal numbers—that will need to come forward as a consequence of the EU withdrawal Act. I am concerned about possible flaws in the statutory instruments because of the large number of them, the pace at which they will have to come forward, the lack of staff with sufficient experience in some government departments and the overall pressure of Brexit-related legislation.

It is important that the statutory instruments are available for scrutiny before being formally laid, as once they are laid they cannot be amended under either the affirmative or negative procedure. The only option then would be to seek to annul any flawed statutory instrument. That is the nuclear option which would run the risk of leaving gaps in the legislation on exit, which I am sure the Government would not wish.

I thank the Minister and his team for meeting me and the noble Lord, Lord Tyler. The noble Lord, Lord Callanan, was quite rightly keen that consultation should not mean three months for all subjects great and small. The Government have now laid amendments and given formal assurances on this issue, as have some individual government departments. I welcome the pre-scrutiny proposed for the negative procedure statutory instruments, which would mean that they were published as “negatives in draft” and would give a 10-day window for commentators to express concerns about their substance before they were formally laid.

I understand that Defra, which is likely to have about 10% of the statutory instruments, is putting in place a high-level group of external commentators who will advise on the adequacy of the consultation process—a sort of consultation on consultation. It would be good if Defra and any other departments planning this mechanism could press forward so that we might see how this would work.

In their response to the Lords Constitution Committee’s report, the Government have undertaken to lay requirements on Ministers to make statements in explanation of statutory instruments in certain circumstances—for example, where a criminal offence is created or where an urgent statutory instrument is brought forward—but it is likely that such statements will be published only when the SI is laid formally and it is therefore too late, as I have outlined.

I am sure that the Government are committed to preparing this torrent of statutory instruments in as open a way as possible to make sure that the process of transfer of the snapshot of EU legislation into UK law is as uncontentious as possible. The amendment gives the Minister a real opportunity to flesh out this commitment and would place on the parliamentary record the full range of formal and less formal means of consultation and debugging planned by the Government. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 64, which has been ably explained by my noble friend Lady Young. She has attempted to address one of the many practical challenges which will face us in the run-up to Brexit day. We know that we will have to process a large number of statutory instruments in a very short timescale, so how can we be assured that mistakes and oversights do not slip through the net in the rush to meet the deadlines?

We have a particular interest in this issue from an environmental perspective, especially as so many of the regulations will transfer environmental protections—but, obviously, the challenge spans all sectors. We know that civil servants in Defra are already under intense pressure. They are already working on a number of EU-related Bills, including on agriculture, fisheries, environmental standards, and animal welfare and sentience. They also face other pressures from the Secretary of State to modernise other animal welfare and environmental policies. Their number and expertise have been significantly cut and, although new staff have now been taken on to help with Brexit, they do not have the wealth of experience that previously existed. Without safeguards of the kind proposed by the amendment, mistakes in drafting will occur without any means to correct them.

In Committee and subsequently, the Minister took steps to reassure us that pre-scrutiny and sifting processes will be put in place, but the proposals to date have only a partial impact and do not address the more fundamental challenge of delivering proper scrutiny and ensuring that regulations are fit for purpose. So we very much welcome the proposals in Amendment 64. They would give space to allow those affected by the regulations, NGOs and parliamentarians to see the draft wording and have an input before the final version. This is about driving up quality and delivering good governance and I hope that the Minister will welcome the proposals in this spirit.

The amendment focuses on those issues that have a wider environmental and social purpose, where errors and omissions would be more keenly felt. As my noble friend has explained, a new sunset clause of 2021 has now been inserted so that this does not inadvertently become the new norm. I hope the Minister will take this proposal in the positive and constructive form that my noble friend has intended and that she will feel able to support it.

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Byford (Con)]

My Lords, I will speak briefly to these amendments. I am one of perhaps three or four people in the Chamber today who took through the original Animal Welfare Act 2006, so I am supportive of anything we can do to make sure that animal welfare is top of the agenda. As an associate member of the BVA and the royal college, and as somebody who has had animals on the farm, this is a key interest of mine.

I have talked often with the noble Lord, Lord Trees, about the fact that although I am 100% behind what he is trying to do, I am not sure in my mind that this amendment is the right vehicle. I apologise if that is a disappointment to him. I am grateful for the observations of the noble and learned Lords, which were above the understanding I had before the debate started. It is very clear that the Government have tried to rectify a problem that was raised in the House of Commons by bringing forward a draft Bill. I think they realise, in hindsight, that that Bill is not sufficient to do what they wish it to. As others have said, it is quite difficult to deal with this on Report because we have to wait and then we cannot come back. However, I am hopeful that the Minister will be able to give us much greater clarification than we have had up to now as to the Government’s thinking about where we stand. While we are not fully behind the wording of the amendment, I hope no one thinks that we in any way do not believe in the full commitment we should have to animal welfare. Although I have no idea what the Minister is going to say, I hope he will bring us up to date on where we are and what the Government’s thinking is.

I say to my good friend the noble Lord, Lord Trees, and others that I am grateful to them for bringing forward this amendment. It has given the House another chance to reflect on an issue that some people might think is not important but which, I say to my noble friend the Minister, is hugely important. I hope his words will give greater resolve to those of us who wish to see this welfare issue taken forward in a meaningful way.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 40 in the name of the noble Lord, Lord Trees, to which I have added my name.

The noble Lord made an authoritative contribution explaining why this issue is important, as have a number of other noble Lords. It followed the excellent debate in Committee, which had widespread support from around the House. At that time the noble Lord, Lord Callanan, confirmed that animals should be regarded as sentient beings. The question we are debating now is how best to enshrine that in UK law.

We can all agree that the rushed Animal Welfare Bill was not fit for purpose. As the Commons’ Environment, Food and Rural Affairs Committee said in a scathing report on that Bill, animals,

“deserve better than to be treated in a cavalier fashion”.

As we have heard, the closing date for the consultation on that flawed Bill was 31 January. We are still waiting for the Government’s response. It is now April and we do not have a revised animal sentience Bill or a commitment in this Bill to recognise animals as sentient beings. This is the worst of all worlds.

During the debate the Minister tried to reassure us. He said that the Government would publish their summary of the consultation on the Bill and the next steps in due course and, hopefully, before Report. Indeed, he went further and said that if that was not the case, he would look at what could be done in its place. We still have not got the information that the Minister said—I would not say promised—he hoped to give us before Report. We are therefore left with the dilemma of how to plug that governance gap.

Time is going on. We are leaving next year and, if our amendment is rejected today, we will not have that commitment in the Bill as it stands and we will not have anything in its place. Our amendment provides that stop-gap. It provides reassurance to those in this Chamber and outside it who care about this issue that the recognition of animal sentience will transfer over and will apply from day one.

We await with interest the Government’s future plans to extend the application of animal sentience—they may answer all of the issues raised today—but we do not have that before us and I venture that we will not have it on the statute book before next March. A report on the next steps of a draft Bill, which the Minister may offer today, is not the same as delivering primary legislation before Brexit day.

As time ticks by, the number of Defra Bills promised but not delivered is stacking up. While I do not think that deliberate on anyone’s part, the fact is that the Defra Secretary of State is losing control of his promises and of the scheduling. Perhaps his civil servants are finding it hard to keep up with him or he might be embroiled, as we read in the papers, in the battle for his priorities with other Cabinet colleagues. I am not going to go there. However, I know that the timetables for other Bills are slipping. Any separate animal sentience legislation will need to take its place behind other Defra Bills, including Bills on agriculture and fishing. We have been promised a Bill on the environment and primary legislation is needed for a ban on ivory sales. So an animal sentience Bill will have to take its place in that queue.

A number of noble Lords have said that they want to get this right—I understand that; we all want to get it right—and when the new version of the animal sentience Bill is published and we see it, we will want to get that right too. We do not want to be rushed to agree it; we want to take time on it. The sensible thing to do today is to agree a simple amendment now which sets recognition of animal sentience as a duty in UK law. That is our holding position and our amendment will deliver it. We can then take time to craft a new animal sentience Bill which delivers Michael Gove’s promise of improving animal welfare post Brexit.

The noble Lord, Lord Hodgson, asked whether this Bill was the right place for this issue. Yes, it is, because it is an important environmental principle. We have been promised that before and after exit day, rights and protections will be the same. However, if we do not put it in this Bill in this form, those rights will not be the same the day after Brexit. This is the right place to put it.

In the absence of a government amendment, which is where we find ourselves today, I hope noble Lords will agree that this is the right way forward and, given the dilemma in which we now find ourselves and lacking any other way of plugging this gap, will see fit to support our amendment.

--- Later in debate ---

[Baroness Jones of Whitchurch]

I am always loath to argue with noble and learned Lords on technical legal matters.

[Lord Rooker]

Perhaps I may suggest a reply to my noble friend. I am being practical now. We are in charge of our own procedure in this House, so what would be the problem, if the House wants to pass this amendment, in passing a technical drafting amendment to remove four words exclusively on Third Reading? That is the end of the problem.

[Baroness Jones of Whitchurch]

As ever, I thank my noble friend for his helpful advice. He must be right.

We of course support the amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb. It is another option but, on the basis of the debate we have had so far, I hope noble Lords will support Amendment 40 as it stands.

[Lord Callanan]

My Lords, let me start by being crystal clear about the Government’s commitment to animal welfare as we leave the EU. As the Prime Minister said in another place on 22 November,

“we already have some of the highest animal welfare standards in the world, and as we leave the EU, we should not only maintain, but enhance them. We have already set out our proposals to introduce mandatory CCTV in slaughterhouses; to increase sentences for animal cruelty to five years; to ban microbeads, which damage marine life; and to ban the ivory trade to help bring an end to elephant poaching”.

The Prime Minister went on to explicitly confirm:

“We also recognise and respect the fact that animals are sentient beings and should be treated accordingly. The Animal Welfare Act 2006 provides protection for all animals capable of experiencing pain or suffering which are under the control of man”.—[Official Report, Commons, 22/11/17; col. 1038.]

The following day my right honourable friend the Secretary of State for Environment, Food and Rural Affairs set out in a Written Ministerial Statement in the other place that:

“This Government will ensure that any necessary changes required to UK law are made in a rigorous and comprehensive way to ensure animal sentience is recognised after we leave the EU”.


But, as he further noted,

“The withdrawal Bill is not the right place to address this”.—[Official Report, Commons, 23/11/17; cols. 35WS-36WS.]

In this respect I agree with my noble friend Lord Hodgson. The Government’s commitment to legislating in this area is in no doubt. I can confirm to the noble Baronesses, Lady Jones and Lady Bakewell, and to my noble friend Lady Byford, that not only have we made that commitment but we have begun work on drafting and developing that legislation.

In December, the Government published draft legislation to address the recognition of animal sentience through the Animal Welfare (Sentencing and Recognition of Sentience) Draft Bill. The public consultation on the draft Bill closed on 31 January. We have received over 9,000 responses, which the Government are analysing. The magnitude of the response highlights not only the importance and complexity of animal sentience in and of itself, but also the manner in which it is recognised in legislation.

On 1 February, the Environment, Food and Rural Affairs Select Committee in the other place published its pre-legislative scrutiny of the draft Bill, and the Government’s response to that was published earlier this week on 23 April. I do not know whether that is the consultation which the noble Baroness, Lady Jones, said she had not seen yet, but if that is the case, I will be happy to get my officials to send her a copy. However, we have responded to that consultation. In its report, the committee highlighted a number of concerns about the draft Bill, which once again serves to underscore further the complexities of the issue and why it is so important that we get this area of the law right, a point that was well made by my noble and learned friend Lord Mackay. That is what we all want, but I am afraid that the amendments before us will not achieve that, as I will outline shortly.

As previously stated, there is no question but that the Government regard animals as sentient beings. As we said in relation to this issue during the Committee stage of this Bill, we certainly agree with the underlying sentiments of amendments such as that tabled by the noble Baroness, Lady Jones of Moulsecoomb, and of course the noble Lord, Lord Trees. However, as we also said in Committee, we cannot support them.

In order that there can be no ambiguity regarding the Government’s resolve on this matter, let me be clear again that the Government intend to retain our existing standards of animal welfare once we have left the EU and, where possible and practical, to enhance them. My noble friend Lady Oppenheim-Barnes set out some important areas that we would want to consider in this respect. Perhaps I may also be clear that the Government fully recognise the level of support for our commitment to maintaining and enhancing our high standards of animal welfare as expressed not only in this Chamber and the other place but also among the general public. The groundswell of feeling on this matter is surely a testament to the UK as a nation of animal lovers who share a proud and long history of legislating to protect animals from cruelty and suffering, much of which of course predates our accession to the EU. As we move towards a new relationship with Europe and the rest of the world, we are absolutely determined to maintain our high animal welfare standards, to improve on them where appropriate, and to legislate to do so where necessary.

However, as has been said, the purpose of this Bill is to provide continuity by ensuring that we have a functioning statute book upon our exit from the EU. As I am sure noble Lords appreciate, in relation to the European Union and EU member states, Article 13 creates an obligation to have full regard to the welfare requirements of animals when formulating and implementing EU policies on the basis that animals are sentient beings. However, the underlying requirement to consider the needs of animals contained in Article 13 is limited to a small number of EU policy areas. The resulting impact of Article 13 on domestic law is therefore minimal. At its conception, Article 13 was considered by many to be a symbolic step change in our relationship with animals that would drive radical improvement in animal welfare across Europe. In reality, its impact has failed to materialise. Simply transferring Article 13 as it stands into domestic law would be a disservice to the cause of animal welfare and is not in keeping with the Government’s aim for the UK to be a world leader in this area.

The draft Bill that I mentioned earlier sets out a possible method to better enshrine the principles of animal sentience in domestic law. Notably, and unlike Article 13, the draft Bill does not seek to restrict the recognition of animals as sentient beings to specific policy areas, a change that we hope noble Lords will agree is a significant improvement. The draft Bill also imposes a clear duty on Ministers of the Crown to have regard to animal welfare.

Given the complexities that I touched on earlier, it is crucial that this issue is given the consideration and effective legislation that it deserves to avoid replicating the issues contained in Article 13. For this reason, I regret to say that we cannot support the amendment tabled by the noble Baroness, Lady Jones of Moulsecoomb. The amendment appears to seek to transfer the obligations contained in Article 13 to domestic law. However, this clause applies only to the formulation, rather than to the formulation and implementation, of law and policy. It is the Government’s view that this clause would further reduce the already limited scope of Article 13.

I would like to reassure noble Lords—and I know that the noble Lord, Lord Trees, is particularly interested in this fact—that the Government and the EU have reached agreement on an implementation period following our exit from the EU until the end of December 2020, and Article 13 would continue to apply during that period.

Turning to Amendment 40, moved by the noble Lord, Lord Trees, the proposed new clause seeks to place a duty on Ministers of the Crown and the devolved Administrations to pay due regard to the welfare requirements of animals when formulating and implementing public policy. I am grateful to the noble Lord for his contribution, and as other noble Lords have indicated, he does of course have much experience in this area. I am also grateful for the constructive engagement that he has had with the Government, and I was pleased to meet with him earlier this afternoon.

The clause also seeks to prevent judicial review for failure to comply with that duty, instead requiring the Secretary of State to account to Parliament and requiring the devolved Administrations to account to their respective legislatures. This appears designed to address concerns raised by the Commons EFRA Committee about the need to avoid an unnecessary and costly burden being imposed on the courts in the pursuit of replacing Article 13. However—and this reflects on the points made by the noble and learned Lords, Lord Hope and Lord Judge—due to the constitutional significance of legislation to this effect, very clear wording is required to remove the availability of judicial review. The current drafting of the amendment is not sufficiently clear, meaning that it is likely that policy decisions could still be subject to judicial review for failure to comply with the duty to pay due regard. Here I bow to the superior wisdom of my noble and learned friend Lord Mackay on this subject.

In addition, the Secretary of State and the devolved Administrations would be accountable to their respective Parliaments for their compliance with the duty and need to report on an annual basis on the formulation, implementation and effectiveness of policy related to animal welfare. Subsection (3) states that it is for Parliament to decide how the duty has been properly discharged. However, it is likely to be argued by some that subsection (1) creates a distinct duty that can in fact be used to judicially review policy decisions.

We are carefully considering how to take forward the recommendations made by the EFRA Committee and others during the consultation. We are grateful to the noble Lord, Lord Trees, for his proposed formulation and will consider it carefully as we decide how to take forward the measures that we have set out in the draft Bill.

I again reiterate that the aim of this Bill is to provide a framework which ensures that our impending exit from the EU occurs in an efficient and timely manner. It will urgently provide the reassurances needed in order to plan for day one as we leave the EU. As part of that function, this Bill will retain the existing body of EU animal welfare law in UK law, ensuring that the same protections are in place in the UK following our EU exit.

I hope that what I have had to say provides reassurance to the noble Lord and the noble Baroness on the Government’s firm stance on animal sentience and that the noble Lord will feel able to withdraw his amendment. However, I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House, he should do so now.

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 27 and will speak to Amendment 41. I will explain, as my noble friend Lord Judd knows, our slight concerns about his amendment.

The noble Baroness, Lady Brown, along with a number of other noble Lords from around the House, spoke very eloquently on this issue. In their own way, they have all reinforced the point that this amendment is necessary to ensure that the current environmental protections exist after exit day with the same certainties and enforcement which have helped us shape our world-class environmental standards up to now. We have rehearsed before the importance that the EU has played in setting those standards. To deliver this certainty, we need the same core principles that apply to EU law to be transposed in full, and, more importantly, we need a new organisation to replace the enforcement powers operated by the EU Commission and the Court of Justice, which guarantee the standards that we currently enjoy.

When we debated similar amendments in Committee, they received widespread support from around the Chamber. That has been echoed this evening, and I very much hope that the Minister has heard those calls. In his response to that debate in Committee, the noble Lord, Lord Callanan, tried to reassure us and told us not to worry too much. He said that a number of environmental principles were also included in international treaties, such as the Rio principles, to which the UK will continue to be a signatory. Of course, it is true that some of those environmental principles do exist in other forms, but they are not all covered in the same range and depth as exists in the EU, and we do not have the same recourse to challenge breaches of these principles and demand compliance as we do within current EU structures. If we did, we would have been more successful, for example, in stopping the decimation of the Amazon rainforest, which sadly is causing enormous climate change problems across the globe. The existence of other international treaties is not sufficient grounds for the Government to back-track on this issue.

This brings us to another argument that the Minister used in Committee—that our amendments were not necessary as Michael Gove had already accepted the need for a new comprehensive policy statement setting out the Government’s environmental principles. So far, so good, but in a follow-up letter to a meeting we had with the noble Lords, Lord Callanan and Lord Gardiner, the noble Lord, Lord Gardiner, wrote to us to say:

“The withdrawal Bill will preserve environmental principles where they are included in existing EU directly applicable environmental regulations and case law”.


Our argument is that this definition does not cover the full scope of environmental principles as they currently exist. If we just use that definition—the definition that is currently in the Bill—we will lose out. That is why a promised new set of environmental principles is so important. But, as we have heard, time goes on and there is no sign of the Government’s statement or a timeline for implementation which would ensure that the new principles were in operation by March next year. Our amendment fills that time gap by setting out the key environmental principles currently in operation in the EU which should apply until we are able to agree a more comprehensive package of the kind that we have consistently been promised but which has not yet materialised.

Even more worrying is the governance gap, to which a number of noble Lords have referred. If we do not have an independent body to hold the Government to account after exit day, we will lose out. Michael Gove has acknowledged the need for such a body and has said that he intends to consult upon it but, again, no details have been published and the clock is ticking. It has also become clear that Michael Gove’s ambitions for such a body are not necessarily shared by Ministers in other departments—for example, Transport and Treasury Ministers are on record as saying they have a much narrower view of the remit of the watchdog.

The noble Baroness, Lady Miller, referred to the report on the Natural Environment and Rural Communities Act, which not only looked backwards but, helpfully, forward. It mentioned post-EU structures and the great advantages we have had from being in the EU, which we have all rehearsed. It went on to refer to the UK watchdog and said that it needed to be independent and accountable to government, with diffuse sources of funding and the ability to deal with issues raised by individuals and NGOs, including taking government and other public bodies to court. That is the kind of package we are looking for.

However, as noble Lords and my noble friend Lady Young have said, these things take time to set up and, again, the clock is ticking. It is hard to see how this body is going to be up and running by Brexit day. If it is not, our protections will be diminished. We hope the Minister has heard the strong arguments that have been put forward on this.

On Amendment 28, my noble friend Lord Judd knows that I agree with everything he said. The reason we did not put it forward as one of the amendments we wanted to have at this stage as an environmental principle is because it is not currently seen as an EU environmental principle. Therefore, while I agree with everything he said, it might be a battle that we have to fight another day.

We wholly support the amendment of my noble friend Lord Whitty. It had considerable support from around the House when it was debated the first time round and we have heard the same comments echoed this evening. When we debated it before, for example, my noble friend Lord Rooker made a compelling case for our continued involvement in the EU’s rapid alert system for food and feed, which provides a 24-hour alert to all EU countries on serious health risks from contaminated products. On that issue, the noble Lord, Lord Callanan, was only able to say that this would be subject to ongoing negotiation.

Similarly, when my noble friend Lord Whitty probed on the issue of REACH—which he again referred to today—the noble Baroness, Lady Goldie, was only able to say that our involvement was the subject of live negotiations but that we could not remain a member of REACH. She sought to reassure us and told us not to worry because work was starting on a new IT system to oversee registrations and regulation. That prospect should strike fear into all Ministers if they expect that new IT system to be up and running on time.

The amendment of my noble friend Lord Whitty is crucial. Food and chemicals are global industries which need shared standards, shared safety levels and shared risk procedures. If we do not use those shared methodologies we are in danger of a massive duplication. Apart from the unnecessary costs, this would also have implications for animal-testing data because we would be in danger of having to duplicate research on animals, with the resulting unjustified impact on animal welfare. This is an important issue.

I hope the Minister has heard the strength of feeling on this—we have been made promises which have not materialised—and that he is in the mood to reach out to us today and provide reassurance. Otherwise, I hope noble Lords who have proposed amendments will be prepared to press them to a vote when the time comes.

[Lord Callanan]

My Lords, we welcome the sentiments behind Amendment 27, tabled by the noble Baroness, Lady Brown of Cambridge, Amendment 28, tabled by the noble Lord, Lord Judd, and Amendment 41, tabled by the noble Lord, Lord Whitty. While the Government welcome the amendments as being well intentioned, as I have said before, we believe them to be ultimately unnecessary and in some elements they go beyond the existing environmental regulation that is in force today.

As the noble Baroness, Lady Brown, reminded us, when the Prime Minister launched the 25-year environment plan on 11 January this year, she said:

“Let me be clear, Brexit will not mean a lowering of environmental standards”.


We have already taken firm steps towards that goal, as my noble friend Lord Deben remarked. Our recent announcements include an increase in recycling rates in order to slash the amount of waste polluting our land and seas, a consultation on a deposit return scheme later this year and a ban on the sale of plastic straws, drinks stirrers and plastic-stemmed cotton buds. In line with this commitment, the Secretary of State for the Environment, Food and Rural Affairs announced on 12 November our intention to create a new comprehensive policy statement setting out our environmental principles, recognising that the principles on which we currently depend in UK law are not held in one place. It is intended that the new policy statement will draw on current EU and international principles and will underpin future policymaking, underlining our commitment that environmental protection will be enhanced and not diluted as we leave the European Union.

At that time, the Secretary of State also announced 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 where needed to hold these bodies to account and being a champion for the environment. I can confirm for noble Lords that it is our intention to publish the consultation in time for the Third Reading of this Bill. The consultation will explore, first, the precise functions, remit and powers of the new statutory and independent environmental body and the nature, scope and content of the new statutory policy statement on environmental principles. It is of course important to gather the views of many stakeholders in this area before coming to any conclusions. Amendments 27 and 28 would prejudge the outcome of the forthcoming consultation by setting requirements in legislation now.

As my noble friend Lord Inglewood remarked, the purpose of the EU withdrawal Bill is to convert and preserve the law so that, after exit, the laws which we have immediately before exit day will, as far as possible, be the same as those we have now. This includes the wild birds and habitats directives, transposed through to domestic legislation, as well as the protection and enhancement of biodiversity as requested by the noble Lord, Lord Judd, in Amendment 28. I am sure that the noble Lord will be reassured to know that the UK is already a signatory to many of the multilateral environmental agreements that underpin such regulations, and that will continue to be the case after we have left the European Union.

The environmental principles are framed in the EU treaties as general objectives for the EU rather than having a direct, binding effect on the delivery of EU measures by member states. Amendment 27 goes further than that, in particular by placing a duty on all public authorities to apply the environmental principles listed in the amendment. This duty does not currently exist either in EU or UK law, and it is not appropriate for this Bill to introduce new powers of that kind.

In addition, a significant proportion of environmental policy and legislation is of course devolved. We need to take account of the different government and legal systems in the home nations as well as the different circumstances of the different parts of the United Kingdom. Amendments 27 and 28 risk compromising consideration of these important issues, as well as the wider devolution settlement, by requiring the UK Government to take UK-wide action. This includes requiring the UK Government to publish UK-wide proposals for governance and principles. Our starting point is that the new statement of principles and environmental body should cover England and environmental matters that are not currently devolved. If the devolved Administrations would also like to take action on these issues, then of course we are open to co-designing the proposals to ensure that they work more widely across the United Kingdom.

Finally, Amendment 27 would require the creation of both a list of statutory functions that can contribute to the protection and improvement of the environment and a list of functions currently exercised by EU bodies that must be retained or replicated in UK law to protect and improve the environment. SIs made under the correcting power in the Bill will be presented to Parliament for scrutiny. They will set out which UK body will perform functions, such as regulatory ones, currently performed by EU bodies. It therefore seems unnecessarily bureaucratic to require by law the creation of lists of functions.

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Deben (Con)]

My Lords, the proposal here is to overcome the problem that arises under this present law, as presented to your Lordships’ House, which is that it does not include those elements of European Union law that are not specifically written down but are in the protocols and the like. I will not press this amendment to a vote, and I am sure my noble friends will be pleased about this. I make it clear now, however, because an amendment will be debated on Monday that I will want to press to a vote. In this circumstance, some of my colleagues may wish to press it, but I merely put the point to the House that the Government promised us something very simple. They said, “We are going to put into British law all that we now have in European law. Then, after that, if we want to make changes, we will be able to make those changes”.

Even those of us who are deeply disturbed by the Government’s decision to continue with the extremely damaging activity of leaving the European Union at least felt that we were then going to start with a situation where we were not automatically losing some of the protections provided by the European Union. What was more, we felt that, were we then to decide to change things, perhaps we would find that there were some advantages to our leaving the European Union. So far, I have not found any, but let us imagine that we were to do so. Then we would, in proper parliamentary order, decide on the changes. I say to my noble friends that the real issue for me here is that—and I say this, too, to those who are leavers—the Government have not carried through what they said they would. They have not put into the withdrawal Bill all those things that protect us and provide for our sensible behaviour in the European Union. They have also made it clear, by a number of parts of it, that they will not offer Parliament the chance in the future to make decisions in a proper parliamentary way. Indeed, they intend to do by subsidiary legislation a whole range of things that, in my view, should not be done.

We have just had a vote that has made it clear that this House believes in parliamentary democracy and this is another attempt to raise these issues. I say to my noble friends—particularly to my noble friend Lord Callanan, who is, of course, a leaver, so he has the disadvantage of believing in this Bill—that the Government have promised something, and I do not believe that they are carrying out that promise. Therefore, we sought in this amendment to encourage the Government to think to themselves that they should really take seriously the proposition that, in future, we would have in our law,

“the rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day, form part of domestic law by virtue of section 2(1) of the European Communities Act 1972”.

These should continue and, after exit day,

“be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.

Even if my noble friends do not like this fact, we need this because the public, our businesses, our organisations and our voluntary organisations need it too. They need certainty and I do not see why they should not have it. We have managed to have all this for a very long time. I cannot say we have had all of them for 40 years, because some of these things were brought in in the meantime, but we have had them for a very long time and it has not destroyed our nation. Why can we not continue in this way until we decide, in a parliamentary manner, that we want to change it? That seems a perfectly sensible attitude. Therefore, we have tabled this amendment, which is designed to ensure those protections.

Many people will feel that this is the right amendment to support. I hope that they will also support the amendment on the environment that we have tabled for Monday, with the enormous support of people from across the House, particularly the Liberal Democrats, who have been very helpful in understanding what this is about. We have an amendment that covers much of what we are trying to say here, but I still think this is the Government’s opportunity to explain a simple thing to us: why do the Government not want to ensure that what they said they would do is in fact done? If the Minister says that there is something wrong with the amendment, I understand: we are all amateurs at writing amendments. Of course, it is quite possible that there is some fundamental reason why this is not the way to do it. If that is the case, I would like the Minister to say, “We will take this away and, in the excellent manner that we have in the House of Lords, come back at Third Reading with an amendment that simply does what we promised”.

I have been in politics for a very long time and was a Minister for 16 years. I have always thought that Governments should do what they promise. I have always been as critical of my own party when they did not do it as I was of coalition parties and the Opposition. I do not like promising things and not delivering, so I hope that as a result of this amendment my noble friend will say, “Yes, you have a point here; there are some things we have left out. Can we sit down and talk about what those things are and can we produce an amendment that will meet that requirement?” Can we also guarantee that, if in the future we wish to change those things, we will do so with proper parliamentary procedure and not with something that we all know is a means by which the Executive imposes things on the people?

This Parliament—elected or not elected—is here to protect the people against the overuse of executive powers. That is what we are here for. I am afraid that some of my noble friends are not here, but I am appalled by some people who get up and say that the reason why we are proposing these things is because we do not want to leave the European Union. We know perfectly well that we do not want to leave the European Union, but the reason we are proposing these things is that, if we do leave the European Union, we do not want to lose some of the things that are beneficial to us. I object to people insulting me, saying that I am trying to stop the Bill. I am trying to make the Bill acceptable to the British people. People did not vote to muck up their whole future, to get rid of things merely to enable some rather extreme people to run the country in a way that is unacceptable. They voted to maintain the good things and they did not want to remain a member of the European Union. I am sorry that they decided that, but I do not see why I should not try to make this the best Bill that I can. I object to being insulted by saying that I am trying to do something else. I am trying to make this a good Bill. Therefore, I say to my noble friends: “Will you help me make this a good Bill? If this is the wrong amendment, then will you please promise to produce the right amendment?” I am very happy—and I am sure my noble friends will join me—to help the Government to produce the amendment that would do what we want to do here, if this is not the right way to do it. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 12, to which my name has been added, and the comments of the noble Lord, Lord Deben. The amendment follows the concerns expressed by the Constitution Committee over the current wording of Clause 4. These were extensively debated in Committee and the case was powerfully made by the noble Lords, Lord Krebs—who unfortunately cannot be with us this evening—Lord Pannick and Lord Carlile, among others, that existing Clause 4 creates legal uncertainty, not least by its determination that provisions in directives must have been tested in a court prior to exit day.

What is more, existing Clause 4 fails to deliver the promises made time and again—promises that we have heard again this evening—that the withdrawal Bill will apply the same rules and laws after we leave the EU as existed before exit day. This is because there is no mechanism built into the Bill to address any omissions or powers incorrectly or incompletely transferred. Instead, the noble Baroness, Lady Goldie, suggested that we would have to rely on correcting mistakes or omissions through domestic legislation, without an obligation on the Government to do just that. Therefore, our amendment addresses this challenge head on. In order to ensure that environmental protections—and other protections, because this is not just about the environment —are not weakened by omission or design, it will place a duty on Ministers to correct that error.

To achieve this comprehensively we have drafted a new clause to replace Clause 4 which makes clear those obligations on Ministers. The new clause removes the problematic prescriptions in Clause 4(2)(b) concerning the need to have the rights predetermined in a court of law. This never made sense, as many environmental rights are accepted either as common-sense policies or have such huge public support that they could not realistically be challenged through litigation. It then makes it clear that the Minister has a duty to act and make a remedy where rights, powers, liabilities, obligations and so on are incorrectly or incompletely transferred.

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Wednesday 7th March 2018 Lords Chamber

[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.

--- Later in debate ---

Moved by

[Baroness Jones of Whitchurch]

66: After Clause 6, insert the following new Clause—
“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)

Moved by

--- Later in debate ---

[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.

--- Later in debate ---

Amendment 67A (to Amendment 66) not moved.

[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.

European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Renfrew of Kaimsthorn (Con)]

My Lords, in welcoming Amendment 28 I note that it supplements Clause 4 in a way that can be considered constructive. Among other things, it would strengthen the position of archaeology and cultural heritage, which are often associated with environmental issues. A new policy statement has been promised, but that would surely be weaker than a statutory approach, which this amendment follows. It takes a more comprehensive approach in what I consider to be a constructive way.

As drafted, the Bill does not fully transpose the environmental principles set out in the European Communities Act 1972 into United Kingdom law. The amendment would therefore impose a duty to make regulations to remedy this deficiency. It is fair to say that we do not want our rich body of archaeological remains to be put at risk by deficiencies that might remain in the legislation following our withdrawal from the European Union. The amendment is supported by the Council for British Archaeology and the Chartered Institute for Archaeologists. It offers an important safeguard and I am very happy to support it.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I added my name to Amendment 28, although my colleagues the noble Lord, Lord Krebs, and the noble Baroness, Lady Brown, have made the case for it very eloquently. We have rehearsed many times before in this Chamber that 80% of UK environmental law derives from the EU, so we have a particular interest in ensuring that those same environmental protections are fully transposed and are not weakened by either omission or design in the transposition. Our concern is that the current wording of Clause 4 does not give us that guarantee. The tablers of Amendment 26 attempted to address that ambiguity in one way and we have attempted to address it in a different way, but I think we are aiming to achieve the same outcome.

Crucially, the amendment concerns the issue of whether the rights, powers, obligations et cetera derived from EU law are incorrectly or incompletely transposed, and the duty to remedy that deficiency. The noble Lord, Lord Krebs, gave some examples of that. For example, under current directives there is an expectation of reporting obligations, which will cease on Brexit day and are not part of the provisions that will be transposed. Although the Government have promised to create a UK body to oversee future standards and reporting obligations, we have not seen the detail of that, so we are being asked to make a decision blind. We need a substitute for that current arrangement to be spelled out.

Equally, the principles and preambles that underpin EU environmental legislation have an important but amorphous status that needs to be underwritten with guarantees as we transfer. Such provisions set out, for example, the aims and purposes of directives. They include Article 1 of the environmental liability directive, which refers to the “polluter pays” principle, and Article 1 of the habitats directive, which sets out the aim to contribute to biodiversity conservation. These things are important; they are not about to be transposed automatically, and we need extra provision to make sure that they can be followed through, which we believe our amendment does.

Finally, I agree with the noble Lord, Lord Pannick, who described matters not having been being dealt with by the courts as a rather odd way of defining what should and should not be transposed. He made the case much better than I could, but he is spot on and I hope that the Minister is able to answer those points.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak very briefly, first, because it is already past my bedtime and, secondly, because noble Lords have already outlined some of the problems. It was a pleasure to hear the noble Lord, Lord Renfrew, speak on this matter in relation to archaeology. I started a speech about 15 years ago, when he was in the audience, by saying that when I was a trainee archaeologist he was such an icon that I thought he was already dead. I am therefore absolutely thrilled to see that he is still not dead; it is always a pleasure to hear him.

I want to put my comments in simple terms so that Members of your Lordships’ House on the other Benches understand exactly what the problem is with the EU withdrawal Bill on this issue. Amendment 28 —and, by implication, Amendment 26—is designed to make sure that we do not miss out on important parts of EU law; namely, directives. EU directives place obligations on our Government to act in particular ways, such as bringing forward particular legislation. Examples include the working time directive, a social measure, and the habitats directive, an environmental measure. These directives cover a wide span of issues. The wording of the Bill leaves huge gaps that these important directives could fall through. The amendments would plug those gaps and make sure that they are all brought over into UK law. They would also allow or require Ministers to make sure that these directives are properly implemented so that we receive whatever benefits, rights and remedies were intended. As has been said several times, the big problem with the approach set out in Clause 4 is that it will exclude legal rights simply because they have not been litigated on. I do not see the sense in that. I am sure the Government will see that it needs a little bit of fixing and that we will see some positive compromises come forward.