European Union (Withdrawal) (No. 6) Bill

Lord Krebs Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Howell of Guildford (Con)]

My Lords, this Bill will of course go through, but any idea that it will solve all our problems can dismissed here and now. We have already heard of some of the dilemmas ahead and they will be not only for my party and the Government but for the Labour Party, as the morning newspapers and broadcasts make clear. There are some difficult questions for Labour to resolve, which it has not yet done.

In the light of this difficulty for all the parties, there is, possibly, a way out that begins to have some light in it for remainers and remoaners, leavers and believers—in fact, for all of us. That could occur on or around 17 October, with the possibility, at present dismissed by almost everybody, of an amended withdrawal agreement with—using the words of Monsieur Macron, Angela Merkel and, although perhaps not the Taoiseach himself, many people in the Republic of Ireland—the “unnecessary” backstop modified or removed.

The noble Lord, Lord Newby, eloquently and again and again, says there is no hint of alternatives. There are massive alternatives that have been worked out with huge authority by a vast range of people—by consulting border operations throughout the world, by taking examples everywhere, by drawing back into the history of the Northern Ireland border in immense detail, by analysing precisely the kind of traffic going across every day and by taking into account that we remain, with the Republic, in the common travel area and outside Schengen. These details exist. It suits everybody involved at the moment to say that there are no details. It suits Monsieur Barnier to say that there is no hint of an alternative. He is quite wrong. He is bound to say it for the moment, but there are massive volumes containing immense detail, which could provide the alternative to the backstop. The date is 17 October.

[Lord Krebs (CB)]

One is very interested to hear about this massive detail. I may be mistaken but I read in the paper that, when the Prime Minister met Chancellor Merkel a few weeks ago, it was agreed that he would produce his alternative plan within 30 days. One wondered why he needed 30 days if the plan already existed. Perhaps the noble Lord could tell us—if he knows—whether Mr Johnson has revealed this cunning plan to Chancellor Merkel and whether she has accepted that it is an appropriate alternative to the backstop.

[Lord Howell of Guildford]

My Lords, the word “reveal” is a misnomer. The full reports of the alternative arrangements group exist. The summaries exist. All the background material is available for anyone to read. To what extent it has been pressed by government negotiators in Brussels—Mr Frost and others—I do not know. You do not need to reveal something that has already been published. These things have been worked out and are available. I am not saying that anyone will agree to them, and it pays people at the moment to pretend they do not exist or have not been revealed. They have and they are there.

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[Baroness Neville-Rolfe]

My Lords, as a woman I find it very difficult to get in in these sorts of debate, but I rise to speak on the European Union (Withdrawal) (No. 6) Bill and to contribute to the scrutiny. I am delighted to follow the noble Baroness, Lady Deech. We should thank her for the excellent speech she made yesterday which helped us to move forward and to be here today to scrutinise the No. 6 Bill. I am also grateful for the midnight peace talks admirably led by the new Chief Whip. Thanks to him, we all had some beauty sleep.

My amendments were not reached yesterday, but I was horrified by the way the procedures of our House were being perverted. I knew a plot was afoot because on Tuesday I walked into the Moses Room by mistake. I was too well-behaved to eavesdrop or to tweet what was going on—I have a good convent education to thank for that. Scrutiny is at the heart of the work of this House, as I think we agreed yesterday. Today’s debate and tomorrow’s Committee and Report stages give us an opportunity to go through this Bill line by line, which is what I hope we will be able to do.

I believe there is growing evidence of the negative impact of Brexit on the economy and society. I am in business, and uncertainty has been rising. It is extremely difficult for all involved. Noble Lords will know that I am a remainer and have worked for most of my career on EU matters. However, I share the view of growing numbers of people in this country that we must get on with Brexit. Months, or even years, of delay to Brexit day, which I think this Bill accommodates, will make matters worse, not better. We cannot have another three years of going round in circles. I think that is a risk. We need an agreement.

However, as I have said on a number of occasions in this House, from my long experience in Brussels, we have to keep open the option of no deal; otherwise our negotiating position in the Brexit negotiations is undermined. Indeed, on the matter of no deal, I was glad to hear from the right reverend Prelate the Bishop of Leeds, who asked us to look critically at the actual impact of no deal. I took some comfort from the Statement earlier this week by my noble friend Lord Callanan, and I know that the Chancellor of the Duchy of Lancaster is heading up no-deal contingency planning with enormous drive and professionalism. I think the pace of transformation is at a completely different scale and rate from what we saw under the May premiership. That is just in case we cannot come up with the agreement that we want.

[Lord Krebs]

On the matter of the Chancellor of the Duchy of Lancaster, he said on “The Andrew Marr Show” on Sunday morning that there would be no shortages of fresh food, but the British Retail Consortium, with which the noble Baroness will be very familiar from her work with one of our major food retailers, immediately said that that was categorically untrue. Does she accept what the Chancellor of the Duchy is saying, or does she accept that the trade association for the business in which she used to work knows what it is talking about?

[Baroness Neville-Rolfe]

I know what I know and I know what I do not know, and I know that the Chancellor of the Duchy of Lancaster is pushing things forward with an enormous amount of energy. No doubt after that exchange he will have been straight on to Defra, or whoever is responsible for these things, to talk further about the arrangements. Clearly, there are going to be problems from Brexit, whether with a deal or with no deal, and of course I know that food is a particularly difficult area. However, I am saying that we need to have proper management across the board, and I think we are seeing signs of that.

You have to look at both sides of the argument, but this debate has been very one-sided so far. I am interested in talking about the Bill rather than wider polemics or history, which I can help the House with less. My current inclination is to oppose the Bill and vote against it if I have the opportunity.

That brings me on to my questions, and I hope the noble Lords opposite—I see that the noble Lord, Lord Rooker, is in his place—will be able to help me with a more detailed justification of the Bill’s provisions so that there will be more explanation and fewer polemics in the debate. The Bill as it stands—and I have read it—appears to force the Prime Minister’s hand. It seems that he would have to accept almost any deal that the EU offered up. I am also concerned that the Bill gives the EU too much power over timing. Clauses 3(1) to (3) seem to tie the Prime Minister’s hands quite tightly. I am not sure what Clause 3(4) does and whether it moderates any risk.

I am keen to assist with the scrutiny of the Bill, but I fear that we may come to regret some of its provisions, especially if we do not look very carefully at something that was pushed through at great speed under the guillotine culture of the other place, which we discussed yesterday. We need to find the right result for our economy and our people and to end this cloud of uncertainty that is a real problem for the country. I hope I am wrong and that this will help us, but I remain extremely unsure.

European Union (Withdrawal) Bill

Lord Krebs Excerpts

Monday 18th June 2018 Lords Chamber

Tabled by

[Lord Krebs]

At end to insert “and do propose Amendments 3C to 3K as amendments to Commons Amendment 3A—

3C: Line 8, leave out “making and development of policies” and insert “exercise of relevant functions”

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3K: Line 34, at end insert—
“(3) The Secretary of State must take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment.””

[Lord Krebs (CB)]

My Lords, while not moving my Motion B1, I should like first to thank the Minister for and acknowledge the changes made in the other place; I would say that they capture about 80% of what we were trying to achieve with the amendment moved in this House at Third Reading. In particular, as the Minister said, the amendment that he has tabled ensures that the new independent green watchdog, as it is often called, will have powers including the power to take legal action where necessary. I was also pleased to note that he referred to it in his comments as an independent watchdog, which was one part of my amendment, so that is already recognised by the Government, and that the Government would take both proportionate and appropriate measures, which was again part of my amendment.

However, in not moving my amendment, I do not wish to give the impression that this is the end of the story. I think that the Government’s commitment to replace the environmental protection that we have now as a member of the European Union is close but not quite there, and I hope that when the new environment Bill comes before this House later in the year, as we are promised, there will be a further chance to debate these matters. At that point, we can push the Government further.

Motion B1 not moved.

European Union (Withdrawal) Bill

Lord Krebs Excerpts

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

Moved by

[Lord Krebs]

1: After Clause 3, insert the following new Clause—
“Maintenance of EU environmental principles and standards
(1) The Secretary of State must take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment.(2) In particular, the Secretary of State must carry out the activities required by subsections (3) to (5) within the period of six months beginning with the date on which this Act is passed.(3) The Secretary of State must publish proposals for primary legislation to establish a duty on public authorities to apply principles of environmental law established in EU law or on which EU environmental law is based in the exercise of relevant functions after exit day.(4) The Secretary of State must publish proposals for primary legislation to establish an independent body with the purpose of ensuring compliance with environmental law by public authorities. (5) The Secretary of State must publish—(a) a list of statutory functions that can be exercised so as to achieve the objective in subsection (1); and(b) a list of functions currently exercised by EU bodies that require to be retained or replicated in UK law in order to achieve the objective in subsection (1).(6) The Secretary of State must before 1 January 2020 lay before Parliament a Statement of Environmental Policy which sets out how the principles in subsection (7) will be given effect.(7) The principles referred to in subsection (3) include—(a) the precautionary principle as it relates to the environment,(b) the principle of preventive action to avert environmental damage,(c) the principle that environmental damage should as a priority be rectified at source,(d) the polluter pays principle,(e) sustainable development,(f) prudent and rational utilisation of natural resources,(g) public access to environmental information,(h) public participation in environmental decision making, and(i) access to justice in relation to environmental matters.(8) Before complying with subsections (3) to (6) the Secretary of State must consult—(a) each of the devolved administrations;(b) persons appearing to represent the interests of local government;(c) persons appearing to represent environmental interests;(d) farmers and land managers; and(e) such other persons as the Secretary of State thinks appropriate.”

[Lord Krebs (CB)]

My Lords, I wish to move this amendment which has been tabled in my name and those of the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville, and the noble Lord, Lord Deben. We have discussed extensively amendments with similar wording and the same intent in Committee and on Report, so I will try to be brief.

Why have we brought this amendment back at Third Reading? On Report, my noble friend Lady Brown of Cambridge withdrew the amendment because the Minister promised the imminent publication of a consultation document which would deal with the issues that the amendment seeks to address. This is what he said:

“Yes, we are saying that we will be able to address this issue again after noble Lords have had a chance to look at the consultation on the statement of principles and the consultation on the new environmental body. I hope my reassurances are enough to enable noble Lords not to press the amendment and that they will take the opportunity to consider the contents of the consultation before we get to Third Reading”.—[Official Report, 23/4/18; col. 1436.]


We have considered the contents of the consultation, which was published last Wednesday, and we are not satisfied. Although the consultation document is encouraging, it does not go far enough.

Let me recap briefly on the central issue. We have heard many times that the purpose of the Bill is to ensure that everything is the same the day after Brexit as it was the day before, yet for environmental protection things will not be the same. We are talking here about protection of our air quality, water quality, rivers, oceans, habitats and biodiversity. That is because, although the rules for protecting our environment will be translated into UK legislation, crucially, the environmental principles underpinning those rules will not and, furthermore, the current mechanisms for enforcing the rules will disappear and not be replaced. If approved, the amendment would fill those gaps and so ensure that, as intended, the protection of our environment after Brexit will indeed remain the same as it is now.

At first sight, the Government’s consultation appears to address our concerns, as the Minister assured us that it would. It includes discussion both of the environmental principles, such as the precautionary principle and the polluter pays principle, and of a new green watchdog to ensure that environmental standards are upheld, thus filling the governance gap that otherwise would be created by Brexit. Those would be part of a new Bill, the environmental principles and governance Bill, to be published in the autumn and introduced into Parliament early in the second Session—in other words, next summer.

However, on closer inspection, the Government’s proposals are simply too weak. There is no commitment to enshrine in legislation the environmental principles to which I have referred. Instead, the preferred option is to create a policy statement, which, as the consultation document says, would allow the Government,

“to balance environmental priorities alongside other national priorities”,

and,

“offer greater flexibility for Ministers”.

The favoured option for the green watchdog’s enforcement role is that it would be able to serve advisory notices to the Government or other public bodies. To quote again from the consultation document:

“government believes that advisory notices should be the main form of enforcement”.

That is far weaker than the current arrangements, under which the Commission has the power to initiate court action. In contrast, an advisory notice can be ignored and there is no sanction if it is. The consultation document even acknowledges the need for strong enforcement when it says:

“there is a special case to act on the environment. Most EU infringement proceedings against all Member States have related to environmental law, indicating a greater need for oversight in this area. In addition, while there are individuals or bodies with direct interests to protect in other areas of EU law, the environment is in a different position”.

Finally, the Government’s timetable for their proposals, weak as they are, show that their new mechanisms would not be in place by Brexit day.

I can imagine that the Minister in his reply may well say that the amendment would pre-empt the result of the consultation and that everything would be taken care of in this promised environmental principles and governance Bill, but I do not accept that. If the Government were really committed to maintaining our environmental protection after Brexit, why not seize the opportunity to show that commitment today? Why should we expect the promise of jam tomorrow when it may turn out that the jam is no more than what is sometimes called thin gruel? Greener UK, a consortium of NGOs, said this in response to the consultation:

“the government has failed to meet the minimum requirement for maintaining the current level of environmental protection. And this disappointment is magnified because ministers – including the prime minister – promised a ‘world-class’ watchdog, and not just to protect but to enhance standards. In proposing a bill that clearly weakens existing protections, it has fallen very short of expectations”.

Noble Lords who care about the preservation of our environment for future generations should support this amendment. After the big reveal of the consultation document, we now know that the Government’s proposals open the door to weaker environmental protection after Brexit day. I beg to move.

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[Lord Callanan]

As the implementation period has already been agreed, it will be the subject of further legislation in this House. Irrespective of that, we are giving a commitment to bring forward the environmental legislation already announced by the Secretary of State for Environment, Food and Rural Affairs, on which I have already updated this House.

[Lord Krebs]

My Lords, I thank all noble Lords who have taken part in the debate this afternoon. We have heard some very passionate and powerful arguments, many in favour of this amendment. I also thank the Minister for his response, although I found it as disappointing as he found my amendment. In fact, I was reminded of the words of Francis Cornford, written over 100 years ago. In his chapter on argument, he said that there are many reasons for not doing something but only one reason for doing it, which is that it is the right thing to do. I strongly believe that in this case, the right thing to do is to support the amendment.

In his speech, the noble Lord, Lord Deben, reminded me of something I heard him say over 20 years ago when he was Secretary of State. He defined sustainability as “not cheating on our grandchildren”. One of the advantages that many noble Lords will share with me is that, as you get older, you have grandchildren. I am fortunate to have three wonderful grandchildren. But with that pleasure comes the responsibility to care about their future. This amendment is about caring for the future of our grandchildren. It is not just about birds, bees, butterflies and wild flowers, because the health of our grandchildren is intimately related to the health of the environment that we leave for them to live in. This is about a healthy environment for the future and about the health of future generations. So, in spite of the arguments for not doing so, I wish to test the opinion of the House.

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.

--- Later in debate ---

[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.

European Union (Withdrawal) Bill

Lord Krebs Excerpts

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

[Lord Carlile of Berriew (CB)]

My Lords, when I was a young barrister doing cases in strange places such as Caernarfon Crown Court, nobody at that time thought of bringing charges under the Justices of the Peace Act 1361, but some time in the 1970s somebody had that bright idea. The Justices of the Peace Act 1361 applies to certain public order issues. Suddenly, charges of affray started appearing before those courts, and nobody questioned the efficacy or applicability of the Justices of the Peace Act 1361 in that context. Noble Lords may well be thinking: it is bedtime and that is a good story, but what on earth has it got to do with this amendment? I venture that it has something to do with it.

I am not a member of the Constitution Committee but I admire everything it has done and I support what my noble friend Lord Pannick has just said. This is about the clarity of the law. Normally, if we in this Parliament enact a law and nobody questions its efficacy for years—such as, for example, the Justices of the Peace Act 1361—we tend to pat ourselves on the back and say, “For once we’ve got something right. It’s not troubling their Lordships and Ladyships in the Court of Appeal or the Supreme Court, so we can be well satisfied with our legislative process”. What seems to be being said here, at least to the ordinary reader, I suspect, is that if a particular provision, though it exists, has not been tested and questioned before a court, in some circumstances it should not apply. But if it has given rise to difficulty and has had to be tested in court, that is a kind of imprimatur of quality. I just do not understand it. I hope that your Lordships, at least at 9.20 pm, tend not to understand it either.

Whichever version of this particular law we have—which has, I say to the Minister, the commendable virtue of retaining existing rights and allowing us to presume that we can act on our retained rights—please may we have clarity on what is intended and, if necessary, an explanation of why the Government wish to disapply certain rights that exist?

[Lord Krebs (CB)]

My Lords, I will speak to Amendment 28, in my name and that of the noble Baroness, Lady Jones of Whitchurch, and my noble friend Lady Brown of Cambridge. This amendment, which seeks to replace Clause 4 with a new clause, includes the same intent as that of Amendment 26 but goes further. It aims to preserve, more comprehensively than the existing Clause 4, the rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972. Where such rights, powers, liabilities, obligations and so on are incorrectly or incompletely transferred, it also imposes a duty to make regulations to remedy the deficiency.

The Government’s ambition for the withdrawal Bill is for the same rules and laws to apply after the UK leaves the EU as they did before. This ambition has been repeatedly stated, including in the Government’s great repeal Bill White Paper. As the noble Lord, Lord Pannick, reminded us in Monday’s debate,

“the Prime Minister said that this Bill is not an occasion for changing the law, it is an occasion for ensuring that on exit day we have a workable, certain, continuing system of law”.—[Official Report, 26/2/18; col. 550.]

However, the Bill as drafted fails to retain all EU law and therefore does not meet this objective which has been set by the Prime Minister.

I am approaching this from the point of view of environmental protection. The problem is not exclusive to environmental law, but because 80% of environmental law stems from the EU it is particularly important in this area. I would expect the Government to welcome this amendment as it will help to support their ambitions for protecting the natural environment. As the Secretary of State for Environment, Food and Rural Affairs reaffirmed recently:

“It is this Government’s ambition to leave our environment in a better state than we found it”.


It is widely accepted that, over recent decades, the state of our environment has improved in many respects, due primarily to the introduction of EU laws. Amendment 28 will therefore support the Government’s ambition to go further in protecting and enhancing our environment by addressing four problems with the current Clause 4.

The first problem is the one identified by the noble Lord, Lord Pannick, in his Amendment 26. As the Explanatory Notes explicitly state,

“any directly effective provisions of directives that have not been recognised”—

that is, by a court—

“prior to exit day … will not be converted”.

I do not propose to say more about this because the noble Lord has explained, in better terms than I could, the ambiguity created by this clause.

Secondly, the proposed new clause in Amendment 28 imposes a duty on the Government to make regulations that will remedy any cases in which there have in the past been an incorrect or incomplete transfer of EU law. If the Minister considers this to be unnecessary, perhaps we could understand why. The powers to do so are contained in Clause 7(2)(f) but, surely, she would agree that there is a significant difference between a power to do something and a duty to use that power.

The third point that the amendment aims to rectify is that a number of provisions of directives are relied on directly, rather than via transposition into UK legislation. The status of these provisions is unclear as the Bill stands. An example is the Government’s current environmental reporting obligations. Can the Minister confirm that these will be put on a domestic footing as a result of the Bill?

The fourth point, on which I do not intend to elaborate because it is dealt with in Amendment 58, is that the current Clause 4 does not include the preambles to EU directives, which are important in interpreting existing EU legislation. I shall not say more about that today.

Without the amendment to Clause 4, which I am proposing with others, the Bill puts at risk EU law provisions such as the requirements to review and report on the adequacy and implementation of laws such as those in the marine strategy framework directive, the air quality directive and the habitats directive. It does not place obligations on the Government to report and send information to the European Commission —not surprisingly—which is then able to aggregate this information and use it in its consideration of the appropriateness of laws and their implementation.

Without Amendment 28, the Bill omits the aim and purpose of directives, such as the habitats directive specifying that its aim is to contribute towards biodiversity conservation, while some obligations incumbent on member states that have not been transposed into UK law will be lost—for example, the water framework directive’s requirement that water-pricing policies provide adequate incentives for users to use water efficiently. Without Amendment 28, the requirement for regional co-operation in transboundary environmental matters—for example, in article 6 of the marine strategy framework directive—would be lost.

As I have already mentioned, these problems will not only be felt in the field of environmental law. There are other examples of where directives have been incompletely or incorrectly transposed, and which would therefore be lost because of the current drafting of the Bill. These include article 15 of the e-commerce directive and article 4 of the employment equality directive, to name but two.

Finally, I would like to give one practical example of why Amendment 28 is needed. Article 6 of the energy efficiency directive requires member states to ensure that central governments,

“purchase only products, services and buildings with high energy-efficiency performance, insofar as that is consistent with cost-effectiveness, economical feasibility, wider sustainability, technical suitability, as well as sufficient competition”.

This obligation is currently implemented through a procurement policy note. The legal basis for such guidance is article 6 of the directive. No statutory obligation exists in UK domestic law. This means that the article 6 obligation on the Government to purchase highly energy-efficient products, services and buildings will disappear from our law after exit day. The procurement policy note has no legislative status and could be revoked by a Government at any time, without any form of parliamentary scrutiny.

I hope that the Minister will address my points in her response and, if she is not prepared to accept Amendment 28, will explain what additional steps the Government intend to take to ensure that the environment is protected by law and that this Bill ensures that we will have a workable, certain and continuing system of law on exit day.

--- Later in debate ---

[Baroness Goldie]

My Lords, I rise to respond to these amendments with one very clear thought in my mind: I wish my noble and learned friend Lord Keen were standing at this Dispatch Box. We are dealing with issues that are clearly perplexing much greater intellects than mine, but I shall do my best. These amendments, tabled by the noble Lords, Lord Krebs and Lord Pannick, concern the operation of Clause 4 and I am grateful for the opportunity to further explain and discuss the Bill’s approach to directly effective provisions arising from EU directives, one of the issues raised by these amendments.

As the Committee is aware, one part of EU law that the Bill is not converting into our domestic law is EU directives. The reason for this is clear: as they are not a part of our domestic law now, they should not be after we leave the EU. Indeed, my noble and learned friend Lord Mackay of Clashfern made this point very succinctly in the earlier debate. Instead, the Bill is saving the domestic measures that implement the directives under Clause 2, so it is not necessary to convert the directives themselves. My noble and learned friend Lord Keen clarified that in the earlier debate. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease and it makes no sense to retain the direct effect of this category of law within our domestic law.

However, the Bill recognises one important exception to this approach: where, in a case decided or commenced before exit day, a domestic or European court has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will provide for that right, power, et cetera, to continue to have effect in domestic law.

The debate seemed to centre around the nub of phrasing in Clause 4(2)(b). In the earlier debate the noble Baroness, Lady Ludford, raised the interesting question of what “kind” means in the phrase “of a kind”. That question was repeated by the noble Lord, Lord Pannick. In Clause 4(2)(b) “of a kind” is to be read in the context of a right recognised in a decided case. Rights recognised in particular cases are often described in specific terms particular to that case and to the individual who has brought the action. The phrase “of a kind” is designed to ensure that comparable rights particular to other cases and individuals are also retained by Clause 4 but in respect only of decisions pertaining to that same directive. It is the opinion of the Government that this strikes the right balance, ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty in our statute book about what will be retained in UK law at the point of exit. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, encapsulated that point very neatly.

The amendment of the noble Lord, Lord Krebs, which is similar to the one tabled by Lord Pannick, would instead remove this balance. These amendments could have the effect that pre-exit directives would give rise to a directly effective right that has not previously been identified, for an unspecified period after our exit. Such rights would therefore become part of our law. The Government have always conscientiously implemented EU legislation, in accordance with our obligations as a member state, but once we are no longer in the EU, we should have no enduring obligations in relation to the implementation of EU directives. To accept these amendments would be to undermine the certainty that this Bill seeks to achieve. Businesses and individuals will be placed in the difficult position of not knowing when their rights might change, and our courts could face practical difficulties.

The amendment of the noble Lord, Lord Krebs, goes even further. It would place Ministers under a continuing duty and obligation to make regulations where there has been incorrect implementation of any of the EU law that is retained through Clause 4. I would argue that this provision is harmful for several reasons, and it would not be consistent with the principle that we are separating our domestic statute book from that of the EU.

First, binding Ministers to legislate to give effect to any incomplete or incorrect directly effective EU law retained through Clause 4 would effectively require the UK to act on obligations of implementation relative to the EU framework that it was no longer under—a situation that would be simply inappropriate following exit day. Such an approach would impact on the certainty that the Bill aims to provide in our domestic statute book. By potentially allowing developments in the EU to continue to flow into UK law past the point of exit day, the clear snapshot—I know some Members do not care for the term but I think it is the best term we can come up with—taken by the Bill will be distorted, giving rise to confusion about what our law actually is and where it comes from.

[Lord Krebs]

The Minister has just said that it would be inappropriate to rectify omissions or incorrect translations. But if the overall aim of the Bill is to move what is currently governed by the EU into UK law and, as it happens, maybe by accident or some other reason, we have made a mistake in the past, surely it would be right within the overall aims of the Bill to rectify errors in the translation, rather than to say, “We made a mistake in the past so we will persist with the mistake”. I just do not understand the logic of not wanting to rectify mistakes.

[Baroness Ludford (LD)]

Can I repeat something that I have raised in the Chamber before and about which I had correspondence with a Minister? The European Investigation Order, one of the directives cited by the Prime Minister in her Munich speech that she wants us to stay part of, was transposed at the end of last year into UK law, but incorrectly. It is like a European arrest warrant, but for evidence. Instead of saying that it could be opposed on the grounds that it breaches the European Charter of Fundamental Rights, which is what the directive says—I know, because I was one of the MEPs who battled to get that in—it says that it could be refused if it breaches the European Convention on Human Rights, which is not an EU measure. That has therefore not been transposed correctly. What is the status after exit day? Can someone challenge an EIO on the grounds that it breaches the charter, or only on the grounds that it breaches the convention?

European Union (Notification of Withdrawal) Bill

Lord Krebs Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord O'Neill of Clackmannan (Lab)]

My Lords, I am a supporter of nuclear power and I would like to facilitate nuclear energy in any way I can. However, I am not sure whether the legal forest through which the noble Lord, Lord Teverson, tried to take us can be dealt with as simplistically as he suggests. In the first instance, we signed up to a separate treaty when we joined the Common Market in 1973, but by 2008 circumstances had changed. Euratom was by that time integrated into the EU in a way that I do not think renders it the separate entity that the noble Lord has suggested. It is worrying that the Government clearly had not given any serious attention or thought to this. In the course of the last two or three weeks, there has been quite a major change in the climate, in so far as a number of people, myself included, have raised this issue at different times. But we have to recognise that, when we talk about the nuclear industry, we are not talking only about power generation. At the same time, it has to be said that EDF—the agent of the French Government, which I imagine will remain in Euratom—will be running 20 power stations for some years to come. Therefore, in that respect at least, it may be somewhat premature to get too worried about this.

The fact is that the nuclear industry is not just about generation. It is concerned with the fuel cycle, decommissioning procedures, regulatory arrangements for safety and general UK regulatory competence. In all these areas, we enjoy a position of world leadership. The industry gets castigated because we do not build our own reactors any more—we build them for our nuclear submarines, but not for civil generation—but there is an incredible amount of science and manufacturing expertise at stake here. Frankly, I am not too concerned at this stage about whether we are in Euratom, we are going to leave or we have to leave. I am concerned that this industry should demand the proper attention it requires. It has already been suggested that in the Government’s industrial strategy, such as it is, nuclear is going to play an important part. If so, we need to give proper recognition to the international character of the industry and to the fact that a considerable number of British businesses, and considerable British academic and industrial expertise, are still invested in this industry. In many respects, we will be pretty well the only country in the developed world with a nuclear new-build programme. We will see programmes in China and India, and there is one in America, but we do not see the kind of nuclear power development that we might have wished for.

If Britain is to carry on with and take advantage of this industry, the Government will have to give a lot more attention to it. I would like us to get beyond the platitudinous responses which have characterised the Government’s answers in debates and discussions so far. It would be helpful if the Minister gave us a little detail this evening on what is going to be done. How will we address this worrying conundrum of whether we will have a nuclear industry capable of operating on an international basis, and how can we take advantage of the very strong cards we still have to play?

[Lord Krebs (CB)]

My Lords, I refer to a report of the Science and Technology Select Committee from a few years ago, when I was its chair, on the subject of nuclear R&D in this country. In doing so, I support this group of amendments. In the report, we asked: given that the UK is committed to a civil nuclear programme and a refreshing of nuclear energy generation capability, do we have the skills in this country to deliver—not just in overseeing the build by foreign companies, but in the regulation? When we heard evidence from the witnesses, we realised that such capability in the United Kingdom has been seriously eroded. Here are some numbers: the workforce in nuclear energy and nuclear science decreased from 8,000 in the 1980s to under 2,000 by the early part of this century. Our investment in nuclear R&D is half that of the Netherlands and Norway, one hundredth that of France, and less than that of Australia, which does not have a nuclear energy programme at all.

Traditionally, we have not been investing enough in nuclear R&D capability. Therefore, the research capability sponsored through Euratom is, I believe, crucial to the future of our civil nuclear programme. In our report, we said:

“The nuclear industry and the regulator rely on the research base to train the next generation of experts. Once lost, these capabilities will not easily be replaced”.


It is important that the Government reassure us that, if we are to withdraw from Euratom, which I do not think we should, we have a mechanism in place to ensure that that nuclear capability is being developed. The Select Committee report made 14 recommendations, the vast majority of which the Government accepted. One was that the Government should set up a nuclear R&D strategy board. Has the nuclear R&D strategy board been consulted on this issue, and what is its view?

[The Earl of Selborne (Con)]

My Lords, I was lucky enough to serve on the Select Committee under the chairmanship of the noble Lord, Lord Krebs, and I now chair the Science and Technology Committee. We are revisiting this issue at present, looking at developments since the 2011 report. One of the recommendations, which was not fully implemented by the Government, but on which, nevertheless, there was a bit of progress, was that a strategy board be set up to advise government in the long term—and nothing could be more long term than a nuclear energy strategy. An organisation was set up called the Nuclear Innovation and Research Advisory Board. NIRAB was set up on a limited term of three years and produced its final report in February—last week, in fact—which is a survey of civil nuclear research in this country. I echo the question of the noble Lord, Lord Krebs: what will follow NIRAB? While in principle it is often a good idea for advisory boards and strategy boards to have a built-in termination—otherwise, they go on for ever—in practice we do need continuity of thought. That has clearly been lacking. Indeed, there has been no thought; that has been part of the problem. Successive Governments kicked this into touch. Nuclear research was an issue that, until recently, simply was not addressed adequately.

In its February report, NIRAB pointed out something totally obvious that nevertheless needs saying: that international collaboration is the main route for developing nuclear technologies. Of course, there are a number of ways of undertaking international collaboration, but we are quite a small player, however much we manage to build up our dismally low nuclear capability compared, say, with the 1960s, when we were indeed a large world player. We have been overtaken by a number of countries. If the industrial strategy, which has nuclear as one of its 10 pillars, is to be implemented, we have clearly got an awful lot of catching up to do.

I agree with the noble Lord, Lord O’Neill, that the noble Lord, Lord Teverson, slightly failed to note that, although we joined Euratom before the European Union evolved from the EEC, the European Union (Amendment) Act 2008—which I must admit had escaped my notice—joined Euratom and the European Union at the hip in some way. A lawyer can explain to me the implications of that but paragraph 18 of the Explanatory Notes explains that we have to withdraw from the European Atomic Agency Community, Euratom, because it is now part of the EU in legal terms. Be that as it may, it is absolutely clear that we have to have a relationship with Euratom and with other organisations around the world which are collaborating.

One such collaboration, again thinking long term, is the Generation IV International Forum. This is looking very long term, leapfrogging through to new technologies which have still to be developed—we are thinking about the year 2030 and beyond. At the moment, the NIRAB report describes us as only participating as an inactive member—that was the case in 2011—through the subscription to Euratom. When the Government responded to the Select Committee report, they said, “We don’t have to worry about joining the Generation IV Forum if we want to remain connected to the emerging technologies, because we are members of Euratom”. Clearly, that answer does not work anymore if Brexit is going to happen and we are going to leave Euratom. We clearly need quite quick answers.

I agree entirely that this is not controversial. The Government are the first to say that we simply have to develop a nuclear strategy and a nuclear capability, and we have to collaborate. If, for legal reasons—and I do believe they are only legal reasons—we have to withdraw from formal membership, surely when the Minister responds he can tell us, without prejudicing any negotiating position in this case, exactly what ideal situation we would like to achieve.