European Union (Withdrawal) Bill

Debate between Baroness Featherstone and Lord Whitty

Wednesday 7th March 2018 Lords Chamber

[Lord Whitty (Lab)]

My Lords, I hesitate to challenge the noble and learned Lord, Lord Mackay, on points of law, but the fact of the matter is that when we have transposed directives and regulations previously, they have excluded the preambles and the recitals, as they have excluded aspects that are in the treaties rather than the individual directives and regulations. It may well be that the courts, in their wisdom, will take into account something that European law has previously said, but unless that is laid down as a central principle of this transposition, whether or not to take it into account will be at the courts’ discretion.

The Government’s commitment was that we would have the European law on day one of Brexit in exactly the same form as we did the day before. That has broken down in the way in which the Bill has been presented in a number of respects. It has broken down on the European Charter of Fundamental Rights; it has broken down with regard to animal sentience, as we debated the other day; it has broken down on the environmental law which the noble Lord, Lord Krebs, referred to; and I was going to use the air quality example that the noble Baroness, Lady Jones, referred to. Unless Parliament gives a signal to the courts that these preambles and recitals must be taken into account —as must, in my view, the principles laid down in the treaties—we are not doing what the Government have promised the people of this country that they would do; namely, that European law would not be changed on day one of Brexit and then only if it was necessary or Parliament so decided. Unless we do something very similar to what the amendment of the noble Lord, Lord Krebs, does, we are not doing what the Government have promised the nation.

[Baroness Featherstone (LD)]

My Lords, I support Amendment 58 in the name of the noble Lord, Lord Krebs. I was greatly relieved by the noble and learned Lord’s rebuttal because my interpretation of what we are doing is that we will not have the protection of the recitals and the preambles. Our problem is that any law leaves room for interpretation. EU law in particular is often a reflection of the manner of its birth: it has 28 single parents.

To reassure those of us, particularly from my point of view as the spokesperson on energy and climate change, who do not necessarily trust things to naturally follow and for this Government or possible future Governments to be as keen on some of the standards required in EU regulations and directives, it is in the recitals and preambles that we can gain some measure of comfort, as a guide to the intention of a particular instrument. The recitals supplement the operative part of the directive. They are interpretive tools in the EU legal order, and if we simply transfer the law but not the recitals we are removing a beneficial tool. I am afraid that assurances and good intentions from the Government are not adequate when it comes to something as important as our environmental protection.

It is quite clear that the Bill does not deliver that security and surety. We need certainty in the Bill, so I hope that the Minister will be able to accept the amendment. This amendment is only part of that certainty and protection.