European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Wigley]

I hear what the noble Baroness says. All I would say is that by ensuring that we incorporate things into UK law, we then have an opportunity, democratically and in an accountable fashion, to make modifications as may be necessary. The danger is that we will throw out babies with bathwater.

Again, the Government have stated that the removal of the European Charter of Fundamental Rights from UK law,

“will not affect the substantive rights from which individuals already benefit in the UK”.

The White Paper notes that many of the rights protected in the charter are also found in UN and other international treaties that the UK has ratified, including the UN Convention on the Rights of the Child. However, in a centralised context there is no specific statutory provision requiring respect for children’s rights in lawmaking, nor a general requirement to safeguard and promote the welfare of children in the UK.

Furthermore, this particular argument has a specific Welsh angle. Stronger protection for children’s rights exists in the devolved nations, specifically in Wales. The Rights of Children and Young Persons (Wales) Measure 2011 imposes a duty on Ministers to have due regard to children’s rights as expressed in the UNCRC when exercising any of their functions. To achieve that obligation, since 2012 the Welsh Government routinely undertake child rights impact assessments on proposals for Welsh law or policy that will affect children directly or indirectly.

The withdrawal Bill will limit the scope of the devolved nations to alter law within the current devolution settlement and brings competence on matters that have been arranged under EU law back to Westminster. This would prevent the devolved nations from exercising their powers to withstand or amend legislation from Westminster, even where this contradicts their own commitments to children’s rights. I submit the amendment to the Committee as a contribution to the debate on these most important considerations.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise as a co-signatory to Amendment 35. I usually come to these debates feeling that I understand all the issues involved and, within minutes, I am confused by contradictory legal opinions and by arguments from across the House on issues that are not even relevant to the Bill. So can we go back to basics? I feel like the woman on the Clapham omnibus who is just seeing common sense. The fact is that the Government promised to bring over all EU law and are choosing to exempt this aspect of it. I do not understand that; they break a promise at their peril, because people out there will not understand.

I could not do better than repeat some of the things said by the noble and learned Lord, Lord Goldsmith, about the Equality and Human Rights Commission. Let me read again what it says:

“The simplest and best way of achieving the Government’s intention that substantive rights should remain unchanged and ensuring legal certainty is to retain the Charter rights in UK law”.


I do not understand why the Government do not see that as well. The legal opinion produced for the Equality and Human Rights Commission by Jason Coppel QC, which we have heard of already, states that failing to keep the charter will result in,

“a significant weakening of the current system of human rights protection in the UK”.

Why is that not accepted? It is a legal argument. Have the Government read that opinion? If so, will they re-read it and give us a considered response to it? It clearly has a validity that I doubt the Government’s position has.

The noble Viscount, Lord Hailsham, spoke about being on the centre ground, which I did not entirely agree with. I feel that I am on the centre ground; I feel that I, here, can at least express things that I hear out on the street. Out on the street, people think that the Government are going to keep all EU law and then amend it when it comes. That was the promise, so why are the Government refusing to fulfil it?

[Lord Kerslake (CB)]

My Lords, I want to speak in favour of Amendment 34 and in support of the other amendments in this group that seek to retain the EU Charter of Fundamental Rights in UK domestic law. I did not speak at Second Reading, in good part out of recognition of a long list of speakers. I hope that the Committee will accept my apologies and my contribution this evening.

The key question here is not whether one was for or against leaving the European Union, nor is it whether one agrees with every aspect of the charter; neither of those points is relevant to this debate. It is whether there are sufficient grounds to exclude the charter from being transposed into UK law in exception to every other law being so transposed. In my view, there is no argument that, if we exclude it, we will see a weakening of our rights. That is very clear from the analysis that we have had from the commission and others.

There is no doubt that excluding the charter will lead to confusion and uncertainty in the law—that, too, is made clear in the analysis by other lawyers. So the question one has to ask is: are the grounds for excluding the charter compelling? I have not been persuaded that they are.

When Ministers say that something is not necessary, I get nervous. It usually means that it really is necessary but they do not want truly to state the reasons why. That is the reality here. The hard truth is that people speaking against the charter’s inclusion do not like it. That is a perfectly reasonable position to take but, if they do not like the charter, that is a debate for further legislative change in the future; it is not a reason for accepting it now.

The public expect us to act with integrity and to do what it says on the tin in relation to this Bill. The two things that have been very clear right from the off on this Bill are that it will not see a diminution of rights and it will not try to change legislation from the EU but will transpose it, followed by a proper debate in this House about where change is needed. Unless those advocating the charter’s exception can come up with compelling reasons why it cannot be incorporated, the balance of argument must be for it to stay and be transposed into UK law.

I say to the Government: when you are in a hole, stop digging. This should be agreed; it is a straightforward amendment that we can make in this Parliament. It does not, mercifully, await the outcome of the deal or anything related to it; it is a simple matter of integrity in the process that we are carrying out through the Bill. We should support the amendment.

European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Baroness Jones of Whitchurch (Lab)]

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

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

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

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

[Baroness Jones of Moulsecoomb (GP)]

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

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

[Lord Brown of Eaton-under-Heywood (CB)]

I rise to seek clarification on the precise objective of Clause 4(2)(b) in this whole pattern of legislation, and therefore on the effect of the attempt made by the noble Lord, Lord Pannick, to get shot of it. As I understand it, Clause 4(1) faithfully reproduces Section 2(1) of the 1972 Act. On the face of it, these directly effective provisions are to continue to apply. Of course, it is not always easy to decide what is a directly effective provision that comes within the ambit of Section 2(1) of the 1972 Act, which is here given effect to. As I see it, though I may be quite wrong—I should like the Minister to confirm or reject this—subsection (2)(b) is there basically to say: “Look, if it’s one of those doubtful provisions as to whether it is indeed a directly effective provision under the EU legislation, whether it is completely unclear—there isn’t a case on it—and nobody has specifically suggested that it is, it is not to be argued henceforth that it is”. In other words, the certainty and clarity that this legislation overall is designed to achieve is supposed to be advanced by getting rid, in Clause 4(2)(b), of cases where the past jurisprudence simply leaves the thing high up in the air with no proper guidance.

European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

30: After Clause 4, insert the following new Clause—
“EU Protocol on animal sentience
The obligation on Ministers of the Crown and the devolved administrations to pay regard to the welfare requirements of animals as sentient beings when formulating law and policy, contained within the EU Protocol on animal sentience as set out in Article 13 of Title II of the Treaty on the Functioning of the EU, shall be recognised and available in domestic law on and after exit day.”

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this very amendment has been debated in the other House and was voted down by 18 votes. I think the Government were shocked by the public outcry at the amendment being lost.

EU law puts an obligation on the Government and devolved Administrations to “pay full regard” to the welfare requirements of animals when Ministers make decisions and implement policies. This means that Ministers have to think carefully about how their decisions might harm animals.

The British Government played a key role in making this law during our term of EU presidency. It has influenced more than 20 pieces of EU law, including the ban on conventional battery cages for chickens and the ban on cosmetics testing on animals. Certain lobby groups claim that protecting the animal sentience laws will be disastrous; for example, that farmers will not be able to control agricultural pests or to go out and shoot pigeons. This simply cannot be true. If it is not the case with the law as exists today, then nothing will change tomorrow if we retain it.

The Government’s stated intention in the White Paper was for the withdrawal Bill to bring all EU law into UK law and then only amend retained EU law in future legislation. I have raised this issue previously and find it rather offensive that the Government would make such a promise and then not honour it.

Ministers have admitted that these animal protections will be lost as the Bill is currently worded. I understand that it is unfortunate to have to make “single issue” amendments to the Bill, but unless and until we are able to fix the Bill properly to retain all EU law, I have little option but to propose this amendment.

As a compromise when the amendment was proposed in the other place, the Government said that a new Bill would be created to include protections relating to animal sentience—I am sure that they will claim today that my amendment is not needed because of that new Bill. However, the Government’s proposals are weaker than the EU law. They have changed the wording in the draft Bill and included a much broader list of exceptions. Ministers would have only to have “regard” rather than “full regard” for animal welfare, and there is a massive loophole whereby a Minister can make decisions harmful to animal welfare whenever there are other matters of public interest.

A legal opinion commissioned by Friends of the Earth concluded that the Government’s proposals make it far too easy for Ministers to ignore animals, and their decisions would be subject to legal challenge only where they were so irrational that no reasonable authority could have come to them. That is a rather broad exception. The Government’s proposals do a very good job of appearing to protect animal rights, while actually reducing them to near zero.

The House of Commons Environment, Food and Rural Affairs Select Committee looked at the Government’s draft animal sentience legislation and tore it to shreds. It basically said that it should be removed from the animal welfare Bill and kicked into the long grass. So it looks likely that, despite the Government’s best intentions, their draft legislation on animal sentience might never see the light of day, let alone reach the statute book. We need to keep this in the withdrawal Bill: it is essential that we retain the existing provisions of EU law. We cannot allow a gap in protections between Brexit day and the point at which the Government are able to provide a suitable animal protection Bill. Ministers have been telling various people that animal sentience is already protected in UK law and that we do not need my amendment. If so, why have the Government drafted their own proposal on the issue? The situation is very simple: this protection does not exist in UK law, it stems from EU law.

Without this amendment to retain Article 13, animals will lose these protections, there being only the vague hope that the Government might one day bring forward a Bill. Once it is retained, we can always go back to it and change it with a future Bill—I would be happy to work with the Government to improve these animal protections—but in the meantime my amendment will keep these animal protections once we leave the EU. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, it gives me great pleasure to follow the noble Baroness—I am sure we will have another opportunity to consider the contents of her amendment—and to speak to my own Amendment 212, which inserts a new clause. I hope that I am not responsible for the typo in subsection (3), which refers to, “the Untied Kingdom”. It is not in my interest or that of the country to untie all the arrangements that we have in the United Kingdom.

The purpose of this amendment is to consider,

“border arrangements relating to animal welfare”,

and broaden it out to other themes as well. I am delighted to see my noble friends the Minister for Exiting the European Union and the Minister with responsibility for agriculture in their place to hear these concerns. As of 11 pm on 29 March 2019 the UK becomes a third country and will be treated as such until the new relationship and other arrangements are in place. In her speech on Friday the Prime Minister set out five tests, one of which is that any agreement on our future relationship must protect people’s jobs and security. I wish to consider these remarks in the context, specifically, of the border between Northern Ireland and southern Ireland.

In our debates on Amendment 18 in Committee last week we were told, including by the Minister, that the Bill represents a snapshot. That snapshot would mean that there are no checks at borders between Northern Ireland and southern Ireland because of the common travel area. Indeed, the first scenario that exists today is that the Belfast agreement of 1998 setting up the common travel area means that there are currently no checks on the border between Northern Ireland and southern Ireland. The second scenario assumes that there will have to be a border if we have either a free trade area or, worse still, WTO rules, in which case there will be border checks. I reminded the Committee that that border is 300 miles long.

In preparing for today I came across a rather useful piece which I found, I regret to say, on Twitter, and which I bring to the attention of the Committee. It is by Katy Hayward, whom I believe teaches and lectures at Queen’s University Belfast. She looks at the case of Britain being outside the single market and the customs union, either in a free trade agreement with the EU or under no deal, and it appears that agricultural products would have to be checked at the border. Assuming that animals are moving across the Irish border, I put to the Committee that this cannot be done by technology, either for this category or indeed for food, farming and agricultural products. Instead, there will have to be physical checks and inspections by veterinary surgeons and other enforcement officers. This will also be because we have very high standards of animal welfare, animal health and animal hygiene in this country—which I am immensely proud of—which mean that goods passing across the border will have to meet EU requirements going into Ireland and our requirements coming into the United Kingdom from Ireland.

I draw the Committee’s attention to what Article 5.1 of the draft protocol published by the European Commission last Wednesday, 28 April, says about agricultural trade:

“The provisions of Union law on sanitary and phytosanitary rules”—


please do not ask me what phytosanitary rules are because I have not had time to find out—

“listed in Annex 2.5 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland”.

For the other 27 European Union member states, food and other agricultural products coming into Ireland from the UK, whether from Northern Ireland or Great Britain, will be in free circulation within the remaining single market. The remaining 27 member states will demand reassurance on standards, not least because some may seek economic and competitive opportunities from the Irish authorities in these circumstances.

The purpose of the amendment is to seek reassurance from the Minister that the Food Standards Agency will have the staff and resources it needs to ensure that these cross-border arrangements, when in place, will be policed properly.

--- Later in debate ---

I hope I have provided assurance to the noble Baroness and that she will feel content to withdraw the amendment.

[Baroness Jones of Moulsecoomb]

My Lords, I thank the Minister for his response and all noble Lords who have contributed to the debate. I would like to offer them all a hug but I fear I might be infringing HR regulations. I am aware that the Whips have been looking anxiously at the clock and I shall try to be brief.

The amendment would not change anything that exists in the UK at the moment—it is merely a safeguard. If the Government bring forth a Bill I will be incredibly supportive. I am not saying this is the best option for animal protection but it is as good as it gets. It is the best we have at the moment and I certainly do not want to see any worse protections.

Chickens have already been mentioned. I would like to add that mastitis is common in the States—it is an infection of the udder, which means that the milk produced has a high level of pus in it. Americans consume a lot of pus in their milk because of the way their animals are farmed. The noble Viscount, Lord Ridley, might have seen cows with sore udders in Texas. We cannot have this in our country and the British public would not allow the Government to drop our welfare standards. If the Government are going to bring forth a Bill, fantastic—but in the meantime let us have the amendment to keep things as safe as possible.

I hope the Government do not come back to your Lordships’ House with a fudge. Many noble Lords are more knowledgeable about this issue than I am, and it would not be accepted. It is a mistake for the Government not to say, “We will have this until we can do better”. If they did, I would support them. I would love to not withdraw the amendment but, with your Lordships’ permission, I will.

Amendment 30 withdrawn.

European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Roberts of Llandudno (LD)]

My Lords, I speak not as a lawyer—I find it difficult to follow some of these legal arguments—but as a grandfather to seven grandchildren, each of whom was born into European citizenship after the treaty of Maastricht. They are just representative of the more than 18 million others who were born since that treaty was signed. If the Bill were to go through unamended, we would withdraw rights and hopes given to them during the past 25 years. What moral right do we have to do this?

If I spoke today in favour of this Bill, what would I say to Haf, Osian, Manon, Megan, Reuben—I am trying to remember their names—Ianto and Aiden? They would say, “Taid”—which is Welsh for grandfather—“why did you not oppose this? Why did you not oppose the loss of all these freedoms and the availability we had in the previous time? You didn’t do a thing”. I am not the only grandfather in this room; I am not the only grandparent in this room. If a grandparent can vote to withdraw rights that have been cherished by their grandchildren, they are doing a tremendous disservice. To the various concessions in travel, in education and in so many other ways that we get as members of the European Union there will now be barriers, and it will be because we went along with the Bill—I would nearly call it an insane Bill—to withdraw these rights from those who have cherished them and used them during the past 25 years. We were able to choose to be members of the European Union; they were not. They were born into British citizenship; they were born into European citizenship, and, as my friend, the noble Lord, Lord Wigley, said, they were born into Welsh citizenship. We cannot withdraw these things. It is a blind way of treating the future generation.

That is all that I will say at this point. Seriously, we have no right. How will the Minister defend the withdrawal of such rights from 18 million citizens? We should remember that only 17 million people voted to leave; we are talking here about 18 million. How on earth can the Minister defend such a move?

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support the amendments. I speak not as a grandmother, although I am one, but as somebody who not only voted for Brexit but campaigned for it. Therefore, I carry quite a heavy burden to help ensure that we get the best outcomes for people living in our country.

When voting to leave, no one voted to lose their rights. The amendments would ensure that the Government safeguarded the rights and protections of people as we negotiate leaving the EU. It has been hard to get much sense out of the Government about their plans for Brexit. The default message is to refer to the Prime Minister's Florence speech or Lancaster House speech, but platitudes about “getting the best deal” or “making Brexit a success” simply are not enough to guarantee that our Government do not risk undermining our basic rights and protections during the Brexit negotiations.

The Government seem unable to agree on many of the big issues and it is unclear who is in charge. In the absence of principled, clear leadership, Parliament must take the reins and do what is right for the majority of people. The amendments would protect both British citizens and EU citizens, people who have built their lives around the opportunities given to them by EU membership. They would force the Government to stop abusing our rights as a political bargaining chip. There should never have been any question over the rights of EU citizens living in this country, but our Government insisted on using our basic rights as part of their struggle to gain bargaining power in negotiations.

It is often conceived by supporters of remaining in the EU that the main motivation for Brexit is a narrow-minded, nasty little racist attitude which blames all our country’s problems on foreigners. I could not be further away from that world view, although I believe that some of the Brexiteers—I have some names here but will not read them out—and others have a lot to answer for in the way that they used migrants as scapegoats for the very real destruction that our own Government have cast upon our society with their slash-and-burn austerity measures. The Government sowed the seeds for a lot of the division and anger that prevail in our country.

I celebrate migrants and migration. Humans have always moved around as we seek opportunities and form new communities. It is an essential part of what it means to be human and without migration we would probably be stuck in isolated little groups, still using flint tools and eating with our fingers. Instead, humans have done the most astonishing things and we have all gained enormously from the massive cultural and technological growth that results from humans meeting humans and sharing ideas, cultures, stories and lifestyles. These amendments would do what is absolutely right and fair. They are about breaking Brexit away from those who espouse anti-immigrant views and saying that Brexit is about being more open, tolerant and diverse than ever before. A Brexit that cannot achieve that is not a Brexit worth having and not one that I will support.

[Baroness D'Souza (CB)]

My Lords, if there is to be a commitment to the highest standards of protection of citizens’ rights—I go back to the amendment tabled by the noble Lord, Lord Haskel—this would presumably include the European Charter of Fundamental Rights. But the Bill suggests that we omit that charter, so can the Minister say what would be the mechanism by which those charter rights would be guaranteed for EU citizens who remain resident in the UK?

European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Lord Cormack (Con)]

My Lords, of course we should recognise those who have made sacrifices for us in the past, and at the same time we should not forget how many of them were British.

We have had some very eloquent speeches in this debate, and I have perhaps made the mistake of listening to all of them. I hope that no one in your Lordships’ House would question my commitment to human rights, nor question my commitment to staying in the European Union—and I have spoken to that effect many times in your Lordships’ House. I very much hope that, if Brexit comes to pass—as I fear it will—it will be a soft and understanding Brexit. But I have been persuaded this afternoon by the very eloquent speeches not of the noble Lord, Lord Pannick, who nearly always persuades me, but of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Baroness, Lady Deech, and my noble friend Lord Faulks.

The fact is that we are—deeply as I regret it—moving away from the European Union. I hope that we will indeed be able to move out with the deep and close relationship about which the Prime Minister is always talking. But we are moving out, and when this particular document was being adopted no one argued more eloquently against its generalisms than the noble and learned Lord, Lord Goldsmith. He did not see why we should sign up—but we did. If we were remaining in, we would of course remain signed up; it would be the right thing to do. However, as we are moving out, we have to dismiss the preamble and Chapter V.

We also have to ensure that this country, which through the centuries has been both a bastion and a beacon of liberty and human rights, honours its own history and continues to give an example to others. At the end of the Second World War, people looked to us and we, more than any other country, helped to put Germany together again as a democratic nation leading not only in Europe but in the world. We have not forgotten all those things, nor given up all those abilities and techniques—and we will have to exercise them again in the future.

Last week, without any hesitation, I voted for two amendments. I know that I shall be voting for others, because I think they are essential. In doing so, I shall be voting for the other place to reconsider and think again, although I have always acknowledged—and do again now—that the ultimate power rests at the other end of the Corridor. However, I have been persuaded this afternoon that this amendment is something that we do not have to do. Although I came into the Chamber rather thinking that I would abstain, which is an honourable course but not a comfortable one, I will not support this amendment, because I do not think that it is necessary or realistic. The powerful speeches which the House has heard this afternoon from those who are learned in the law do on balance, in my mind at least, outweigh for once—it is an unusual if not unique occasion—the forensic ability and marvellous eloquence of the noble Lord, Lord Pannick.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I hold the legal profession in high esteem. However, in Committee, it was obvious to me as a lay person—a person on the Clapham omnibus—that the lawyers disagreed and kept disagreeing. That was very upsetting for me, because it meant chaos instead of clarity—and the same thing is happening again. When I support this amendment, all I can do is apply my intelligence and political knowledge and think about what the safest thing to do is.

In Committee, we heard some noble Lords on the Government Benches insisting that the charter was some sort of bureaucratic bogeyman created by the EU to destroy parliamentary sovereignty and create a whole load of new rights that were fundamentally opposed to the British way of life. Now, later, other noble Lords, including the Minister, assert that the charter does absolutely nothing of significance and that all the charter rights exist elsewhere. Both those points of view cannot both be right—and in fact neither of them is right.

I am not convinced that what we heard is a fair representation of what exists. If two views are so opposed, what are we to believe? We are losing rights that are fundamental to our modern way of life. Very many people outside your Lordships’ Chamber think that Brexit is nothing more than an attempt by elites—that is us and others like us—to tear up everyone’s rights and freedoms. I voted for Brexit, but that was not the Brexit that I had in mind. If we lose the Charter of Fundamental Rights today, I will feel that I have been complicit in doing exactly that. I will leave it to other more learned Lords to try to work out what the exact effect would be of retaining or losing the charter. However, on the Clapham omnibus it feels as if we are spinning round in circles.

I will ask a very simple question. If I am unusually kind and give the Government the benefit of the doubt and accept that the charter rights are all in our law elsewhere, one question would remain. Why would your Lordships’ House replace a simple codified charter with a complex and diffuse legal mess? I simply do not understand that. The general trajectory of good law- making is to take complexity and make it simpler and more elegant. This House often takes a chaotic mix of case law, statutes and treaties and rewrites them in codified statutes which put them all together in one place and make them easier to understand. I cannot think of another example in this or any other Bill where this House has been asked to take a simple legal situation and make it infinitely more complex while seeking to achieve exactly the same thing. It simply does not make sense to scrap the Charter of Fundamental Rights. It is our duty as a revising Chamber to make sure that people outside understand exactly what we are trying to preserve, which is fundamental rights and freedoms.

[Lord Mackay of Clashfern (Con)]

My Lords, I will say a few words about this amendment. First, it is important to notice that the charter applies only when the EU law is implemented; therefore, the non-discrimination that the noble Lord, Lord Cashman, talked of is applicable only when EU legislation is implemented. There is a recent case in the Supreme Court which says exactly that. It did not allow claims of non-discrimination in a case where the law which was being implemented was not EU law. Therefore, this charter is very restricted in that respect. In addition, while we are in the EU we are implementing EU law, but there is a serious question as to whether we will be implementing EU law at all after Brexit. This is a matter of how you interpret the idea of bringing EU law into our law on Brexit day. However, it is extremely important that the whole charter is being incorporated by this amendment, including these serious restrictions, which are not easily applicable in Northern Ireland or elsewhere. I was interested to hear in Committee about the situation as regards Northern Ireland. The implementation of the charter in its present form in our law would be extremely defective.

Secondly, once we are out of the EU, surely the fundamental part of our constitution should be respected—that is, that the courts of Westminster Hall, as they were, and the courts of justice of our land have no jurisdiction to set aside Acts of Parliament. One of the fundamental aspects of this charter is that it professes to give the right to set aside Acts of Parliament when they are in breach of these particular responsibilities. In my submission it has been a fundamental part of our constitution for many years that Acts of Parliament cannot be set aside by the judiciary. That is nothing to do with the qualifications of the judiciary; it is to do with setting a reasonable control in a democracy in the hands of the elected representatives. You have only to look at the United States to know how different it is where the Supreme Court has the ultimate authority over the constitution of the United States and what the House of Representatives and the other aspect of its legislature can pass.

--- Later in debate ---

[Baroness Jones of Moulsecoomb]

I think it is obvious that I rise in support of Amendments 27, 28 and 41. In Committee, there were so many noble Lords who wanted to put their name to the amendment that I was not able to. Of course, they have my wholehearted support and I agree with everything that has been said so far. The Government are well aware that the public care very much about the environment these days, and not accepting this amendment will be a real problem for the Government. They will hear a lot from the public.

I was speaking to a Conservative Peer last week, and that Peer was shocked and surprised that the Government were not bringing over all EU law into UK law as they promised. I shall save that Peer’s blushes by not revealing a name. I then asked that Peer if they ever listened to anything I said in the Chamber, and they said no. But the point is that that person was shocked because it was believed that the Government would honour their promise to bring over all EU law, but they are not doing so. I do not want to go on again about that, but I feel very cheated, quite honestly, and the Government have to understand just how angry they have made a lot of people who voted to leave. They feel cheated as well.

I have to repeat the very serious point that, of all the issues that lose out with this Bill, the environment is the biggest loser, and we have to make changes to the Bill to make sure that that does not happen. The EU’s environmental principles and standards are the cornerstone of environmental law in this country. Successful legal challenges have been brought, and there are ongoing cases in our courts that seek to apply the environmental principles further. As the Bill is currently worded, we risk losing huge chunks of environmental law and the crucial enforcement role currently undertaken by the EU. The Government have admitted that there will be a problem when we leave the EU. The Secretary of State for the Environment seems to be promising a new Bill every week, in stark recognition that a wide field of environmental law must be retained and improved.

We were promised an update on the consultation before Report, and we have not had it—another broken promise. The consultation is supposed to feed into a Bill that is supposed to make sure that there is a new body. I have the list of EU Bills here—the guide to EU exit Bills—and I cannot see that Bill on the grid, so where is it? It is already going to be incredibly difficult to produce all the Bills that have been promised and get them through before exit day. I simply do not believe it can be done; the Government would have to perform a miracle, which is not something they are famous for. The consultation could anyway lead to nothing, or to a much weaker, unsatisfactory proposal. We just do not know.

These are not special interest amendments, trying to get something better than what already exists. They do nothing more, and nothing less, than ensure that environmental law in our country will be the same on 30 March as it was on 28 March. This is the seamless transition to which the noble Lord, Lord Inglewood, referred. The Government have had the opportunity to address all our concerns but so far they have chosen not to. They have left this House with no choice but to amend the Bill yet again.

[Lord Whitty (Lab)]

My Lords, Amendment 41 is in my name and those of the noble Lords, Lord Judd and Lord Wigley. I had a dilemma as to whether I should group it with these other amendments or return to a list of agencies to which the UK is at present a party and which are important in enforcing laws on the way we trade and on how our industrial and agricultural processes work. I have been banging on about the post-Brexit relationship between the UK and the EU agencies from the beginning of this Bill and I have yet to get a satisfactory answer from the Minister or any of his colleagues on how they see relations with those agencies—if at all—beyond exit day or, indeed, into the transition period. A slightly higher authority has given me a bit of a hint. The Prime Minister herself has said that we need to maintain a relationship with, for example, the European Chemicals Agency, which is referred to in this amendment.

My amendment interrelates with Amendments 27 and 28. If the independent environmental body to which Amendment 27 refers has full scope; if it is genuinely independent, as my noble friend—ex-friend—Lord Smith underlined; and if it has the powers of prosecution of other public bodies, which is vital, it will be able to replace some of the powers which are currently within the Commission and other European agencies. However, we do not know what that body looks like. As the noble Baroness, Lady Jones, said, it was hinted pretty heavily that the basis of that body, at least, would be presented to the House before the end of the Bill. It is vital that the Minister gives an indication tonight, and a detailed report prior to Third Reading, as to what that body looks like and whether it can actually fulfil the functions currently fulfilled by European agencies, some of which are referred to in my amendment.

This is not just a question of how the UK manages its own environment beyond Brexit. Every bit of industry, and every one of our agricultural and land-use processes, has an important trading dimension with Europe. Hitherto, the standards, and how they are enforced, have been set by Europe. In some cases, this is by particular agencies, in other cases by the Commission. It is therefore not just that this sceptred isle will have a Michael Gove-type, high-powered environment agency to oversee what happens within these shores, but that almost everyone within them trades with the outside world one way or another. The environment does not respect boundaries.

An example is our arrangements for, for example, the chemicals industry and the REACH processes. The European chemicals industry could not function without that being centralised at European level. Many of the companies concerned are multinationals which transfer substances internally within the countries of Europe and follow European standards. The same is also true of many other sectors. The agencies listed in the amendment need an effective replacement which also has a continuing relationship with the agencies of the remaining 27 EU countries. Since the beginning of the Bill, I have asked the Government how those relationships are going to operate.

The Prime Minister, in her Mansion House speech, said that she was looking at associate membership. That is an important move, but will not necessarily deliver us much influence. Generally speaking, associate membership in European institutions does not give you a vote. It is therefore important that we have a clear idea of what the relationship will be with these agencies here and with many others of the 40-odd agencies that exist within Europe, some of which I will return to later in the Bill. It is also important that we have a relationship which replaces the Commission’s power to enforce—for example, on air quality and on land management standards, partly through cross-compliance against CAP payments, which is a pretty effective form of enforcement. Unless we get answers or at least the outline of answers as to how that will happen after Brexit, I am afraid we will have to return to these matters. Tonight the Minister needs to spell out how that will happen.

European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support Amendment 40 in the name of the noble Lord, Lord Trees, to which I have added my name. We had a very full debate on this in Committee, and the issue was also debated at length in the other place, so I will not rehearse previous arguments.

The Government have made a commitment to the intentions behind Article 13 of the Lisbon treaty and have brought forward a draft animal welfare Bill, which went out to consultation, as the noble Lord, Lord Trees, said, on 12 December last year. The consultation closed on 31 January this year. I understand there were 9,000 responses, many criticising the Bill for its lack of breadth and for being open to possible misinterpretation. I can sympathise with those who made such comments. The consultation document consisted of 20 pages, only two of which were the actual Bill. When I read it, I found it hard to believe that the Government could be using taxpayers’ money on such a pathetic draft Bill.

Secondly, a huge amount of parliamentary business will need to pass through both Houses to underpin the Brexit Bill and ensure that legislation does not fall through black holes. This means that it would be wiser and safer to enshrine this amendment in the Bill at this stage of its passage.

Much discussion has taken place on what “sentience” means. The RSPCA, a widely respected and trusted organisation, defines it explicitly as,

“the capacity to have positive or negative experiences such as pain, distress or pleasure”.

While the Government’s animal welfare Bill 2018 was originally to be welcomed, it did not go far enough and leaves a gap in legislation. It is important that the UK is able to achieve trade agreements in livestock and livestock products with the countries of the EU and the rest of the world. In order to achieve this, the public and the farming community will seek reassurance that animal welfare has not been compromised by Brexit. They will need this reassurance now and certainly next year.

I understand that the Minister has hinted that the Government might bring forward a second draft animal welfare Bill. Is he able to give a commitment that this will be before 29 March 2019 and that the new draft Bill will have considerably more substance than the last one?

The Minister must be aware of the depth of feeling and concern around this subject among the public, interested businesses and organisations throughout the UK. Now is the time for him to concede that animal welfare is a key issue and to support this amendment. If he is unable to do so, I and my colleagues on the Liberal Democrat Benches will support the noble Lord, Lord Trees, in the Division Lobby.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak in support of Amendment 40, to which I have attached my name, and will also be speaking to my Amendment 41A.

The two amendments are complementary. Amendment 40 addresses some of the objections raised by the Minister in Committee and helps to bridge a gap in the current law and in the law that the Government may wish to see in their future Bill—a Bill that seems to be receding further and further into the future. Amendment 40 helps us to move towards the ideal but Amendment 41A follows up as a backstop to ensure that at least we do not lose what is already there. The Government cannot say that Amendment 40 goes too far and that Amendment 41A does not go far enough. In the absence of their own Goldilocks amendment which sits happily in the middle, we believe that it is incumbent on them to introduce an animal welfare Bill as soon as possible, and definitely before Brexit day.

In Committee, the Minister responded to my amendment by saying that,

“the purpose of this Bill is to provide continuity by addressing any deficiencies in law as we leave the EU. It is not about improving EU laws that the Government think could be better”.—[Official Report, 5/3/18; col. 880.]

I completely agree, and that is entirely the purpose of my amendment. It is specific and limited: it does no more and no less than is required to achieve the continuity of this Bill.

I was surprised in Committee to see that the only Member of this House to speak against the amendment was the Minister. He said that the Government want to bring forward an animal sentience Bill which goes further than Article 13, which is what we are trying to retain. I am very glad that the Government want to do better. I too want them to do better—much, much better—but I am afraid that at the moment they are absolutely failing. They are failing to hear what is being said in this House and they are failing to hear what people outside this House want. People do not want a lessening of animal welfare. That would be totally against any British feeling about animals and how they are handled.

I ask the Minister whether the next steps for the animal sentience Bill have been published. I do not believe that they have. If not, what does the Minister think can be done in place of that Bill? I believe that the only thing that can be done is to agree to this amendment.

[Lord Hope of Craighead (CB)]

My Lords, I am very much in favour of the idea that lies behind the amendment of the noble Lord, Lord Trees, and Amendment 41A, which the noble Baroness has just addressed us to. However, I have a technical problem with the amendment. In making this point, I wish to make it absolutely clear that I am not in any way criticising subsection (1) of the proposed new clause in Amendment 40 or the idea that lies behind it. My point is directed at proposed new subsections (4), (5) and (6), which, as I think the noble Lord hinted at, are designed to exclude judicial review as a means of holding Ministers to account. As the amendment is worded, it is for the Parliament,

“exclusively in the exercise of absolute discretion, to hold”,

Ministers to account. I think that the word “exclusively” is there to make it clear that there is to be no other remedy except to raise the matter before Parliament.

I recall arguments about 15 or 20 years ago when there was a real risk that the Government of the day would put provisions into Bills excluding the possibility of judicial review. There were occasions when the judges made their position clear and they were very unpopular as a result. There was a real risk of the Government taking that measure, and I think that that risk was diminished through various representations made through the Lord Chancellor and others. Eventually it was established as a convention that the Government would not seek to exclude judicial review. They might limit it in some respects, as they have done, by the length of time that can elapse before a petition is brought, and there have been other ways in which the opportunity for judicial review has been narrowed, but they have never excluded judicial review, because it is one of the essential protections of individuals against the state.

We are talking here not about people but about animals, and I can quite see that there is room for some difference, but I respectfully suggest that it would set an unfortunate precedent for us to pass a measure that excluded judicial review. If that were to be picked up later by a Government in areas where individual rights were involved, I think that we would greatly regret it.

I am sorry to raise that technical objection. I wish that we were not on Report but in Committee, where this matter could be sorted out. However, I feel it necessary to make that point clear at this stage.

European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Lord Dobbs]

I am glad that the noble Lord is still awake. I take it as a compliment. In 2016, Mr Clegg said clearly that we,

“have to abide by the instruction to quit the EU”.

Note the wording: not “advice”, not “recommendation” but “instruction” of the people to exit the EU. There are those in this House—decent, principled people—who hate the idea of leaving the EU. I understand those feelings. But there are also those in this House who have vowed to do everything they possibly can to destroy Brexit. That is a matter not of principle but of abuse of privilege—a direct attempt not to secure the best for Britain but to drive Brexit on to the rocks. This a wrecker’s amendment and I wish it ill.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am not a natural ditherer. I am very—perhaps overly—decisive. However, I did hesitate on some of the amendments that are coming up today. But I decided that, in the interests of democracy—which did not stop on 23 June 2016—that I would vote for them. However, the speeches in favour have turned me against this amendment. Clearly, there is more of an agenda than just allowing more of the people’s will, more of their say and more parliamentary control in the process. So I will not vote for the amendment now.

European Union (Withdrawal) Bill

Baroness Jones of Moulsecoomb Excerpts

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

[Lord Rooker (Lab)]

My Lords, I wish to confirm exactly what the noble Lord, Lord Deben, just said about the Climate Change Act. I moved the Second Reading of that Bill in this House: it started in this House, not in the Commons. At the end of the day, it required that effort down in the Commons, referred to by the noble Lord, to make it an all-party operation. So it is an Act genuinely owned by Parliament.

I want to be brief. It is only since the Maastricht treaty that the ECJ has had the ability to levy fines on non-compliant states, a power that the UK thought to give to the court. It had the advantage of lifting the laggard member states, which benefits us all. And the UK fares well on the scorecard of cases won. We have the third highest success rate of any country now in the EU. Of 750 cases opened against the UK since 2003, 668 were resolved before reaching the court, but the number on the environment suggest that a new system of environmental enforcement might be needed after we leave to maintain standards.

Overall, 34 environmental cases brought before the court by the Commission against the UK actually went to judgment. Four were dismissed as inadmissible or unfounded. The 30 remaining cases resulted in a judgment against the UK, in whole or in part. I am talking only about environmental cases; these do not include cases on agriculture or fishing. In our 44 years of membership of the EU, there has been a roughly 60/40 split between Tories and Labour: both have been bad on the environment and have needed a kick up the backside. In the four years from 2007 to 2010, the UK was the fourth worst in infringements among the 28 member states. In the six years from 2011 to 2016, we were the ninth worst in infringements among the 28. So it requires an external push to get change.

I know from my experience at MAFF and Defra, and from being responsible for agriculture at the Northern Ireland Office, that actions taken to avoid fines are cheaper than paying the fines. Infraction by the EU, or the threat of infraction, has driven environmental policy in this country for 30 years on all the issues referred to by the noble Lord, Lord Krebs, whether it is clean beaches or better water quality. Without the threat of a fine, an ultimate sanction that cannot be levied by the Supreme Court in this country, no action would be taken. This, therefore, is a very modest proposal to try to protect against some of the pressures that necessarily come from the economy, the Treasury and business on the environment. Who speaks for the environment? We had better all speak for the environment —without it, we are all sunk.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support the amendment of the noble Lord, Lord Krebs. He laid it out extremely well, but I cannot resist adding to his comments. I say, first and foremost, that this has nothing to do with Brexit, nothing to do with exiting the EU; it is all about British institutions. Quite honestly, I take deep offence at the disgraceful contribution just now. I voted to leave; I very much want us to have a successful Brexit, but for me a successful Brexit is a green Brexit. It is also about the Government honouring their promises to move all European law over. In my view, this is the most important amendment that we have considered in the whole passage of the Bill. This House has the opportunity today to secure our world-class environmental protections that have come about through our membership of the EU.

[Lord Framlingham]

Will the noble Baroness give way?

[Baroness Jones of Moulsecoomb]

No.

[Lord Framlingham]

Just briefly?

[Baroness Jones of Moulsecoomb]

No, no, no. These protections are for our air, our food, our animals, our countryside and ourselves: it is for us that we are doing this.

I have had a lot of flak from people for voting for Brexit, and one of the biggest things that they are unhappy with—obviously I get a lot of green people emailing me—is the risk of losing our environmental protections when we leave the EU. It is something that I worry about as well. Currently, our Government are policed by the Commission and the European Court of Justice. But our Government cannot be trusted on environmental issues, on which they have routinely lost legal cases. Examples include ClientEarth forcing the UK to make good on reducing our lethal levels of air pollution, and the Commission forcing us to reduce the disgusting levels of human waste in the River Thames. So I agree with the criticisms levelled against me and levelled against Brexit. If we do not replace the legal powers of the Commission and the ECJ and maintain the environmental principles that underpin them, Brexit will be a disaster from an environmental point of view. This amendment is our chance to put that right.

The naysayers to this amendment—if there are many in the House—might suggest that the whole point of Brexit is to remove ourselves from EU institutions and so it is wrong to try to recreate their functions. This is plainly wrong. Parliament can, and should, determine what our environmental principles are and who should enforce them. It is perfectly right for Parliament to insist that a statutory body, with real enforcement powers, should hold the Government legally accountable to its national and international environmental obligations.

To me, the crucial part of this amendment is proposed new subsection (1). The Government have repeatedly promised us that leaving the EU would not mean any diminishment of rights, obligations and protections. But, clearly, if we do not pass this amendment, we will be diminished.

Other Members of your Lordships’ House have said how feeble the option is that the Government are offering us. The reason for this feeble environmental watchdog is probably because of the divisions in the Government. On the one hand we have a wonderfully ambitious Environment Secretary, whom one can almost imagine frolicking in a field of wheat. On the other hand we have an International Trade Secretary who dreams of GMO-fed beef and chlorinated chickens from factory farms in America.

[Viscount Ridley (Con)]

My Lords—

[Baroness Jones of Moulsecoomb]

Really? Really?

[Viscount Ridley]

I am most grateful to the noble Baroness. Surely her speech and many other speeches would do very well as submissions to the consultation. The supporters of this amendment asked the Government for a consultation and they got a consultation. If they have criticisms to make of what has been proposed in the consultation, let them submit them to the consultation. Is that not how it is supposed to work?

[Baroness Jones of Moulsecoomb]

I thank the noble Viscount for his intervention. I will most certainly do as he suggests. That is a very good idea.

A compromise appears to have been reached between the Trade Secretary and the Environment Secretary. They seem to have said, “Okay, let’s have a watchdog but let’s make it toothless, so that it won’t actually have the powers and duties it needs to be effective”. So the Government propose that the new body will not be able to initiate legal action, will have no legal obligation to operate the current environmental principles—such as polluter pays—and will be kept out of anything to do with dangerous anthropogenic climate change. The consultation fails to propose anything close to what we have already.

The amendment is therefore inconvenient for the Government, so they will oppose it. Of course, a real environmental watchdog could not be anything but inconvenient to a Government. We want it to be inconvenient to a Government. We want it to actually hold them to account. We want it to stop them doing bad things. We want it to uphold all the principles of clean food, clean air and clean seas that we currently have.

The Minister has made good on his promise to put the issues out to consultation ahead of Third Reading, but it is simply too weak. It is weaker than the EU law that we have already and it could, of course, be weakened after the consultation. We have no guarantee that the issues will not be kicked into the long grass under the weight of other legislation coming through from Defra.

It is less than a year to Brexit day, and it is obvious that the Government’s promised Bill on the environment simply cannot be passed until long after we leave the EU. That means that there will be a governance gap, which we cannot afford. So I urge every Member of this House to vote for this amendment.