European Union (Withdrawal) Bill

Lord Renfrew of Kaimsthorn Excerpts

Wednesday 7th March 2018 Lords Chamber

[Baroness Featherstone]

My Lords, I rise to speak to Amendment 108, to which I added my name. We have become used to relying on the EU to oversee our compliance with directives—including those highlighted in Amendment 108—and that what we commit to is delivered. We are tested and, if we are found wanting, there are consequences. However, as the Secondary Legislation Scrutiny Committee said in its 19th report:

“The UK’s withdrawal from the EU raises questions about the effectiveness of oversight and enforcement of these commitments in the longer term”.


As the noble Lord, Lord Krebs, said, without enforcement, what is the point of the law?

Given that in Amendment 108 we are talking about a range of pollutants, including the five main air pollutants, the ambient air quality directive—which sets legally binding limits for concentrations in outdoor air of major air pollutants that impact public health, such as particulate matter and nitrogen dioxide—and other directives, this is a really crucial issue. We know from Defra that some of the existing mechanisms that we currently rely on to scrutinise whether we are keeping up to the environmental standards to which we are signed up are not being carried across.

As has been raised by other noble Lords, the Government said when they presented the 25-year development plan, “Don’t worry, we are setting up a new body to oversee all of that”, but what will it comprise? To what standard will it be judging? What powers will it have? If the consultation on all that is yet to start, what is the timetable for it to be up and running? And where is it in the Bill? Surely we need it in the Bill. Maybe the Government will come forward with an air quality Bill, but how on earth will that get into our law in time?

This amendment makes certain that we cannot fall foul of not having thought of something or set up new arrangements in a timely manner. It means that those of us who are concerned in this regard can cease our concern. The Government must not leave us in a situation where there is any chance or ability to lessen—whether by accident, desire or timing—the environmental protections that we currently enjoy, and I hope that the Minister can give us assurance on that.

On Amendments 66, 112 and 113, I simply say that, if the Government are sincere in their stated commitment —as the noble Lord, Lord Deben, said—to uphold all the environmental commitments that we are signed up to and to uphold the spirit of the transfer of EU law into UK law, they should have absolutely no hesitation in supporting all these amendments.

[Lord Renfrew of Kaimsthorn (Con)]

My Lords, I rise to support Amendment 66 and, in particular, to indicate my concern that these environmental principles should apply as much to the historic environment—including the built environment—and to the archaeological record as to the natural environment. It may be that—and I think that the noble Countess, Lady Mar, would prefer it—for the sake of clarity, a separate amendment should be introduced on Report to deal with archaeological and historical concerns.

It is now well established that the scheduling of ancient monuments and the listing of historic buildings, valuable though they are for the most conspicuous sites, are insufficient to protect rural landscapes and historic town centres. Indeed, planning authorities regularly make the provision of prior archaeological investigation a condition for the granting of planning consent for developments, whether for roadworks, motorways or new buildings.

Archaeological concerns are enabled and can be met by the application of environmental principles, which are codified in Article 191 of the Treaty on the Functioning of the European Union. These principles provide safeguards against adverse policy change and provide a basis for legal challenge. At a time when the Government are rightly encouraging the building of new housing—which is to be welcomed when proper safeguards apply—it is important that damage to the historic environment should be avoided where possible and that the polluter should pay when mitigation is needed. They should, for instance, fund the necessary archaeological excavation and the publication that should necessarily follow archaeological fieldwork undertaken in advance of development.

The Council for British Archaeology and the Chartered Institute for Archaeologists support Amendment 66, as well as Amendments 112 and 113, and would welcome a statutory footing in United Kingdom law for these principles. The Minister in his reply may give assurance that such an amendment is not necessary. Such an assurance could, indeed, give some comfort to the archaeologists who are concerned about these issues and who do not wish to see any weakening in the way archaeological remains are currently protected by the laws relating to planning and by the planning policy guidance. The guidance which is at present followed in general works quite well but a policy does not have the strength of legislation, and this is surely the time to work in that direction. For these reasons I support Amendment 66 and would welcome an assurance that either this amendment will be accepted or that a government amendment will be introduced on Report which would meet these concerns.

[Baroness Jones of Moulsecoomb]

My Lords, as a passionate environmental campaigner, I am distressed by the Government’s attempt to cut out social and environmental protections from the Bill. Their record on these issues is not particularly good and so I hope that they will rethink their opposition to these amendments. As an environmental campaigner I have had quite a few brushes with the law, but I have never had much to do with lawyers. Here in your Lordships’ House we are very fortunate to have a considerable number of noble and learned Lords who give us the benefit of their expertise. I have noticed that they often disagree, and very strongly. Therefore, surely keeping these issues in the Bill would save an awful lot of legal time and legal argument and would be better for the Government. I say that in a spirit of total helpfulness and support. Therefore, I urge the Government to rethink their opposition to these amendments. That seems axiomatic to me given that they promised to keep EU law as it is and to bring it all over. As the noble Lords, Lord Deben and Lord Whitty, mentioned, the Government promised to do that. I ask them please just to do it.

European Union (Withdrawal) Bill

Lord Renfrew of Kaimsthorn Excerpts

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

[The Duke of Montrose (Con)]

My Lords, we have spent a lot of time today trying to define what is a snapshot and what could give clarity in the transposition of the legislation. We are now poking around as to where the fuzzy edges are, and some of this is very much more than just fuzzy edges. In fact, it is very good that the noble Lord, Lord Krebs, outlined areas that this measure would solidify and imply. My worry about Amendment 28 concerns subsection (3), which deals with law that,

“incorrectly or incompletely gives effect”.

It is hard to say what that will apply to. It is obviously drawn up that way because we do not know what it will apply to. In some ways, it seems we are now trying to include laws in the snapshot when we do not know what they are or what they might be.

My main gripe is that the amendment says that,

“a Minister of the Crown must make regulations for the purpose”.

This is one of the things for which we might say that a Minister of the Crown “may” make regulations, because we wish to leave some power to the UK Government to intervene to construct the type of law we would like to see.

[Lord Renfrew of Kaimsthorn (Con)]

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

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

[Baroness Jones of Whitchurch (Lab)]

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

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

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

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