European Union (Withdrawal) Bill

Lord Krebs Excerpts

Wednesday 7th March 2018 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

My Lords, Amendment 57 in my name is to Clause 6(3) which says:

“Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it … in accordance with any retained case law … general principles … and EU competences”.


My amendment would delete the words,

“so far as that law is unmodified on or after exit day”.

This would mean that retained EU law was continuing to run using EU-derived interpretation, including for the amended parts. This is by no means a perfect amendment, but it is intended to probe the relationship between the wording in subsection (3) and that in subsection (6), which says that modified law can be incorporated as in subsection (3) if it,

“is consistent with the intention of the modifications”.

I want to gain some more clarity on the presumptive path around those two subsections.

The general message that we are being given by Government—the high-level presumptive path, if you like—is that there is not really an intention for policy change via modification. But, there are no absolute commitments to state that on the face of the Bill, perhaps because incidental things may nevertheless count as policy change.

My submission, which applies to other clauses and the schedules as well, is that the need for adaptability does not remove the possibility for a more granular laying out of the presumptive path. That leads me to query what presumption comes from the order of the subsections. I submit that the default presumption should be that EU case law, principles and competences apply unless the Government have specifically explained why that does not work in connection with a particular modification. That seems a clearer and easier way to do things because the modifications are the focus of the attention, presumably with explanation. That will surely then be fed into the scrutiny when we get to the delegated legislation.

However, I also have in mind some of the debate we got into late on Monday night about rights in Schedule 1. The structure of Schedule 1 is somewhat similar in so far as all challenges are first disallowed and then some might be allowed by regulation. I contrast that with the present clause, which disallows interpretation to apply to modifications, and then subsequently says that it does not stop it being as in subsection (3). I note it does not say who is making it clear whether the modifications come under EU law. I wonder whether it will be left to the judges—if it is, they may want better clarity—or will the modifications themselves make it clear when they are put before us?

In the context of Schedule 1, the noble and learned Lord, Lord Keen, referred to the regulation that provides the right to challenge validity as an exceptional power, which I suppose it is by the way it is formulated as an exception to the earlier general exclusion of challenges. I took the noble and learned Lord to mean that the power would be used rarely, rather than, for example, as a list prepared in advance, which was the point probed by my noble friend Lord Beith. If I follow a similar logic on the follow-on positioning of Clause 6, does that mean that the situation envisaged in subsection (6), with the retaining of EU interpretation for some modified parts, will be exceptional, in the rare sense, or will it be normal in the sense of maximising the status quo? We need to know.

Also, again reflecting the Schedule 1 debate, Clause 6(3) refers to a question of validity of retained EU law, so is it correct that retained EU law can be struck down unless we follow the primary legislation suggestion of the Constitution Committee or unless it is already primary legislation, and that it would be struck down by common law, not EU principles or case law, which would just help with interpretation? If that is so, might some EU retained law be struck down in effect because it came under common law plus EU interpretation, whereas it might not have been struck down if it had been under common law alone? That is what I deduced from reading Hansard and the response to the question from the noble Lord, Lord Pannick, on common law. I confess that I did not necessarily hear the response properly at the time. That is nothing against the noble and learned Lord’s diction and more to do with the temporary impairment of my hearing due to my head cold, as well as to my voice today.

The other amendments in the group are of a different nature. They relate to things that can be taken into account in interpretation. My Amendment 59 and Amendment 58 in the name of the noble Lord, Lord Krebs, are similar, referencing recitals and preambles. My amendment is to subsection (3)(b), which relates to EU competences, because I wanted to draw attention to the fact that not only does the content of recitals need to be used for casting light on interpretation, but they are part of the competences architecture and directions relating to what is expected of delegated legislation, just as can be the case with empowerments for regulations in UK legislation. It is part of the definition of EU competences for interpretation purposes.

To make my position clear, Amendment 60 specifically references powers of delegation. Footnote 24 to paragraph 83 of the Explanatory Notes says:

“Recitals will continue to be interpreted as they were prior to the UK’s exit from the EU … casting light on the interpretation … but they will not themselves have the status of a legal rule”,


I do not think that that explanation is necessarily sufficient to encompass what I have just tried to lay out. Given that the role of EU agencies will be taken over by UK bodies, they should also take over the constraints that are written in, at least until Parliament decides otherwise. Therefore, recitals need to have a greater role than previously, or at least that possibility should not be excluded.

As a general point, I mention that there is a symmetry between how EU legislative Acts can be allocated as between those that should require primary legislation to amend and those which can be considered delegated, and the EU architecture of competences: those two are symmetrical. If that mapping is got right, getting returning powers allocated into their proper place in the UK, particularly between Parliament and regulators, then that logic of how interpretation is influenced, not just by EU competences versus member states but also with regard to internal EU levels of competences, will flow naturally into the structure.

There are other important policy points within preambles and recitals and I will leave those for other speakers to elaborate on. I will just say that I agree with all that I am expecting them to say on that point about their importance to policy. I beg to move.

[Lord Krebs (CB)]

My Lords, I shall speak to Amendment 58, in my name and those of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Jones of Whitchurch, and my noble friend Lady Brown of Cambridge. As the noble Baroness, Lady Bowles of Berkhamsted, has already mentioned, her Amendment 59 has a similar intent to Amendment 58 and therefore I support it.

The purpose of this amendment is very simple: it is to ensure that recitals and preambles to EU laws are given a clear legal status by the Bill. Why is that important? The recitals and preambles explain the background to, and objectives of, legislation and are therefore essential to understanding the legislation that follows. While in UK law the purpose of any piece of legislation will be clear as a result of the process leading up to the legislation—for instance, a Green Paper, a White Paper and a parliamentary debate—with EU-derived law there is no equivalent process. Therefore, the recitals and preambles are essential for placing the legislation in context. If they are not given a clear legal status they may be forgotten or ignored by decision-makers and the courts. As has already been mentioned, although the great repeal Bill White Paper, in footnotes 17 and 24, recognised the importance of recitals and preambles, this does not provide the legal certainty that is needed.

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[Lord Wigley (PC)]

My Lords, I will speak to Amendment 317 in this group. Before I do so, I warmly endorse the comments that have already been made on the importance of getting the environmental dimensions right as we leave the European Union, if we have to.

Amendment 317 proposes a new clause on common frameworks for environmental protection, touching on a number of matters that have already been discussed. I hope that the Minister, when responding to this group of amendments, will see Amendment 317 as a constructive proposal for a possible way forward as we have to change our relationships as we move out of Europe. This amendment goes to the very heart of why I am both a Welsh nationalist and a European federalist, and those two attachments are in no way incompatible. I believe that every community should make as many decisions as possible that affect them for themselves, and where they cannot, for practical reasons—where, by their nature, some decisions have to be taken on a broader basis—those communities should have an effective voice in that wider decision-taking process The environment is one such issue.

Environmental protection is a devolved matter. However, while the UK is a European Union member state, most environmental law in the four countries of the UK is guided by common frameworks set at EU level. This amendment would require the four Governments to work together on proposals to establish minimum common environmental objectives and standards. As such, I hope it will appeal to all parts of the House. UK-wide frameworks will be needed to establish areas of common policy across the UK, even in areas of devolved competence. Crucially, this amendment would insist that devolved legislatures are equal stakeholders in the forming of those common policy areas. I will cover the principle of UK-wide frameworks, and my major concerns about Clause 11, when we get to that point of the Bill. Today, I will focus on the substantive relevance of this issue to the environment.

First, I will say a word about why common frameworks are needed. No area of policy will be more affected by the outcome of the common frameworks debate than the environment. According to analysis by the Institute for Government, there are more than 140 distinct policy areas where EU law intersects with devolved powers. The greatest number of these relate to the environment, which is unsurprising given that the EU frameworks have been widely created for environmental policy purposes.

Approximately 80% of environmental laws in the UK, including in the devolved nations, have some basis in EU legislation. Transboundary co-operation and common standards are widely recognised as important for the effective protection of the environment and the prevention of unfair regulatory competition. There are persuasive reasons for seeking to maintain common standards across the four nations of these islands post Brexit. Such frameworks would provide a set of minimum common standards and should be jointly agreed between the UK and devolved Governments. They will be important in a range of areas, such as the conservation of wildlife on land and at sea, environmental assessment and the co-ordination of action to address air and water pollution.

I shall give some examples of common frameworks. EU legislation relating to the natural environment—including the birds and habitats directives—currently helps to underpin effective environmental action by providing minimum common standards for site and species protection across the four nations. This facilitates the creation of a more ecologically coherent network of protected sites than would otherwise be the case. Such an approach will still be needed for the UK outside the EU, helping to ensure that actions in one jurisdiction complement, and do not counteract, conservation outcomes across these islands.

Similarly, the common frameworks provided by EU legislation—relating to the assessment of the likely environmental impacts of plans, programmes and projects—mean that consistent mechanisms are in place for assessing transboundary effects as well as allowing for public participation and transparency in decision-making across the four nations. Co-operation and joint agreement on common frameworks that provide minimum standards and shared high-level objectives are therefore needed.

I now turn to the role of the Joint Ministerial Committee. Most environmental issues are transboundary in nature and represent a shared concern across the four nations. In a welcome sign of progress, the UK and devolved Governments reached an agreement in October 2017, via the Joint Ministerial Committee on EU Negotiations, to develop and agree common frameworks in some of these areas post Brexit—to ensure the effective management of common resources that cross boundaries between the four nations.

For the sake of our shared environment, failure to recognise the importance of agreeing a set of common frameworks in these areas would be of great concern. We urgently need the UK and devolved Governments to commit to working more openly and transparently together, to secure the best possible system of environmental governance across the four nations following the UK’s exit from the EU. This should be informed by a robust assessment of the environmental implications and a transparent process that allows for public consultation and input from stakeholders across the UK.

In conclusion, I ask the Minister to accept that, in the absence of a replacement set of jointly agreed frameworks, environmental co-operation across the four nations would be undermined. Secondly, I ask the Minister to confirm that the views of the JMC will be subject to public consultation and parliamentary scrutiny. Finally, will the Minister provide clarity as to what will be the process with respect to pursuing common frameworks once the JMC analysis is published?

[Lord Krebs (CB)]

My Lords, I rise to move Amendments 112 and 113, which are in my name and those of the noble Baronesses, Lady Jones of Whitchurch and Lady Byford, and my noble friend Lady Brown of Cambridge.

[The Countess of Mar (CB)]

My Lords, I hate to interrupt my noble friend but he is not moving his amendment now; he is speaking to it. The same applies to the amendment in the name of the noble Lord, Lord Wigley.

[Lord Krebs]

I thank my noble friend Lady Mar for that correction. As well as speaking to my amendment, I shall be supporting Amendments 66 and 108, with which my name is associated and to which the noble Baroness, Lady Jones of Whitchurch, has already spoken.

It was very encouraging to hear the Prime Minister reaffirm in her Mansion House speech on Friday that:

“As we leave the EU we will uphold environmental standards and go further to protect our shared natural heritage”.


As the Chief Medical Officer for England made clear in her annual report published last week, our own health is intimately dependent on the health of our environment. We all recognise that the improvements over past decades in the UK’s environmental standards have been driven primarily by EU laws that cover roughly 80% of environmental legislation in this country, and a key part of that has been enforcement. There is no point in having high aspirations unless you have an effective mechanism to ensure that you deliver. As a member of the European Union, we have been subject to scrutiny and enforcement by the Commission, ultimately through infraction notices. As I pointed out at Second Reading, 46% of the judgments handed down by the European Court of Justice on UK infringements since 2003 related to the environment.

The Government have accepted that after Brexit there will be a governance gap and that therefore a new green watchdog will be required to hold the Government to account on their environmental performance. The purpose of Amendments 112 and 113 is to ensure that this new green watchdog is in place by exit day and that it will mirror as closely as possible the current arrangements that we have as a member of the EU.

When the Energy and Environment Sub-Committee of the EU Select Committee, of which I am a member, took evidence on this, the very strong view was that a new watchdog would be essential. I quote from our report:

“The importance of the role of EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be overstated ... The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations ... It will be important for any effective domestic enforcement mechanism to have both regular oversight of the Government’s progress towards its environmental objectives, and the ability, through the courts, to sanction non-compliance as necessary”.


I can imagine that in his reply at the end of this debate the Minister will say that we are going out to consultation on a new green watchdog. Indeed, the Secretary of State for Environment, Food and Rural Affairs has already indicated that there will be a consultation on a new statutory body early in 2018. Just checking my clock, “early” is moving quickly beyond us. In the Committee debate in the other place, Dominic Raab said on 15 November 2017 that the consultation was “coming imminently”. If one of my students at Oxford said that her essay would arrive imminently but nearly four months later it had not appeared, it would be a case for disciplinary action. Monsieur Barnier has repeatedly said that the clock is ticking, so can the Minister assure the Committee that the new green watchdog will be in place on a statutory basis by exit day?

Amendments 112 and 113 set out a number of key requirements for the new watchdog. First, as I have already said, it should be in place by exit day. Secondly—this resonates with what the noble Lord, Lord Wigley, has just said—the UK Government and the devolved Administrations should work together to ensure that the watchdog functions apply to the whole of the UK. If there are different watchdogs for the four countries of the UK, they should operate according to the same principles and should be established jointly and in the same timescale. Thirdly, as we heard from the noble Baroness, Lady Jones of Whitchurch, the Government should consult on incorporating EU environmental principles into primary legislation, support decision-making by the watchdog or watchdogs and ensure that the principles inform decision-making more broadly. Fourthly, there should be absolute transparency about the environmental governance functions that are transferred to the new watchdog or watchdogs by creating a publicly available register of functions.

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[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, the issue of environmental protection was widely debated during the Bill’s passage through the other place. Of course, it has now been widely debated, with great ability, by many noble Lords here. We have already had a thorough debate on the important topic of animal sentience and I am grateful to noble Lords for their amendments on that issue and on the wider issue of maintenance of EU environmental principles.

Although I welcome the sentiments behind these amendments—Amendments 66 and 108, in the name of the noble Baroness, Lady Jones; Amendments 112 and 113, in the name of the noble Lord, Lord Krebs; Amendment 67, in the name of the noble Lord, Lord Judd; and those in the names of the noble Lords, Lord Adonis and Lord Wigley, and the noble Baroness, Lady Miller of Chilthorne Domer—I believe them to be ultimately unnecessary, for reasons I will now set out.

As my noble friend Lady Byford indicated, on 11 January, the Prime Minister launched the 25-year environment plan. That sets out our determination to leave our environment in a better state than how we found it and outlines steps to achieve this. Launching the plan, the Prime Minister stated:

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


Of course, we are committed to internationally recognised environmental principles, as set out in the Rio Declaration on Environment and Development in 1992, known as the Rio principles. This declaration includes the ideas behind a number of the environmental principles listed in Amendment 66, including sustainable development, the precautionary principle, the polluter pays principle and access to environmental information. These, as well as other principles, are also features of multilateral environmental agreements to which the UK is a party. For example, the OSPAR Convention—the Convention for the Protection of the Marine Environment of the North-East Atlantic—and the Gothenburg Protocol on air pollution both apply the precautionary principle.

Although these principles are already central to government environmental policy, they are not set out in one place. That is why the Secretary of State for Environment, Food and Rural Affairs announced on 12 November our intention to create a new comprehensive policy statement setting out our environmental principles. The new policy statement will draw on current EU and international principles and will underpin all our future policy-making. The Secretary of State for Environment, Food and Rural Affairs also announced on 12 November our intention to consult on a new, independent and statutory body to advise and challenge government, and potentially other public bodies, on environmental legislation, stepping in when needed to hold these bodies to account and to be a champion for the environment.

In reply to the noble Lord, Lord Krebs, my noble friends Lady Byford and Lord Caithness and other noble Lords, this year we will consult widely on the details of the announcement from the Secretary of State for the Environment—I apologise to noble Lords that I cannot be more specific about a date at the moment. That consultation will explore the precise functions, the remit and powers of the new environmental body, and the nature, scope and content of the new statement on environmental principles. This will be the start of a detailed conversation with stakeholders. There are many stakeholders in this area and it is important to gather their views before coming to any decisions, which is why I cannot be more definitive at this stage on timescales.

[Lord Krebs]

My Lords, is the Minister familiar with Einstein’s theory of relativity? The reason I ask is because if you do the sums, I reckon that there is just over 12 months to go between now and the proposed date of exit from the European Union. We are talking about a three-month consultation period—starting heaven knows when, because we still do not know when the document for the consultation will be launched—then we have perhaps another nine months to pass an environment Bill through Parliament, if it is to be a statutory body, and then perhaps another six months to set up the organisation, fund it and appoint the staff. That sounds like a minimum of 18 months to go into 12. But of course, as Einstein pointed out, if you can travel at a speed faster than 186,000 miles per second, you can stretch time, so I hope that the Minister is proposing to invoke Einstein’s theory of relativity in ensuring that the body will be in place by the proposed date of exit.

[Lord Callanan]

I will take that as an observation rather than a question.

Amendments 66 and 67 would prejudge the outcome of the forthcoming consultation by setting requirements in legislation now. The result could be that we need to amend the legislation after we have considered this important input from stakeholders. I will say a few words in response to my noble friend Lord Deben’s points in a second. I am disappointed that he thinks that I am sometimes a little sharp with him; obviously, we do not often agree on many things, but I hope that I am as transparent as I can be with him.

Amendment 66 also goes further than the existing principles set out in EU and UK law today. In particular, it would introduce a new power for courts to declare provisions in primary or secondary legislation to be incompatible with the environmental principles. This power does not currently exist in either EU or UK law.

I will go a little further. The precautionary principle is included in, for instance, the REACH regulation and the invasive species regulation, so it will be preserved by the Bill in those areas. Similarly, the polluter pays principle, referred to by a number of noble Lords, is referred to in the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, which will also be preserved by the Bill. EU case law on chemicals, waste and habitats, for example, includes judgments on the application of the precautionary principle to those areas, which will, likewise, be preserved by the Bill.

The purpose of the Bill is to convert and preserve the law so that after exit it continues to operate as intended. This includes many of the directives referred to, such as the wild birds and habitats directives, as transposed through domestic legislation. It is not appropriate for the Bill to introduce new powers of this kind.