European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, I declare an interest as a remainer and I will focus on the deficiencies of the withdrawal Bill in respect of environmental issues and how they must be addressed. But, to be honest, it grieves me considerably that we are going to spend months of effort simply to ensure that we get back to where we started on EU legislation—all this just to keep the laws we worked hard to shape and develop in the past 40 years. It reminds me of that bit in Winnie the Pooh where Pooh and Piglet wander round in circles, lost in the woods, before they finally come back to exactly the same point. Pooh says—as only he can:

“I’m not lost for I know where I am. But however, where I am may be lost”.


This could be a good motto for the Government in their dealings with Brexit.

Proponents of Brexit will of course say that the benefit is taking back control of legislation. But the reality is that, with every trade deal we strike in the post-Brexit world, we will be agreeing to surrender some sovereignty over standards of many kinds. That is the nature of collaborative international agreements.

So the people have spoken—well, just over half of them have—and they may well speak again. In the meantime, the task in hand with the Bill is to bring safely across into UK law the 80% of our legislation on the environment that is European. We have taken a major role in the past in developing these laws within Europe and shaping them over the last 40 years, and they have considerably raised environmental standards so that people can enjoy cleaner beaches, cleaner air and water, better safeguarding from chemical hazards, and improved protection for wildlife and habitats. The noble Baroness the Leader of the House says that the Bill is simply technical and transfers all that effectively—but it does not. It will need considerable amendment.

On environmental legislation, the Bill fails to transfer across important environmental principles that have informed policy, law and judgments over the years. That includes principles such as “the polluter pays”, the precautionary principle and the principle that environmental damage should be rectified at source. The Government have indicated that they will come out with a new policy statement on these principles. But policy statements do not have the force of law, as is currently the case.

Then there is the status of this law when it has been transferred over. I much commend the position taken by the Constitution Committee that the retained law should be regarded as primary legislation. This law was originally agreed by a high-level democratic process and must not be able to be changed at the whim of a Minister by secondary legislation at any time in the future.

The Bill also fails to provide common frameworks, as the noble Lord said, to enable England and the devolved Administrations to work together on environmental standards which will underpin future international trade and future internal co-operation. Strangely, the environment does not recognise national boundaries. Most importantly, however, the Bill fails to provide a substitute for the powers to hold government and public bodies to account for failing to meet environmental standards, which the current EU monitoring, reporting and infraction processes provide. Nor does it transfer across access to environmental justice for citizens.

In the 25-year environment plan the Government have undertaken to consult on a new, independent body to hold government to account on environmental performance. Can the Minister assure us that this consultation will take place before the final passage of the Bill and that it will clarify the roles, powers and sanctions that the new body will have so that we can all judge whether it will be sufficiently independent and effective to take the place of the European provisions? Can he also assure us that the new body will be up and running before the demise of the European Court of Justice’s provenance so as to leave no gap into which environmental remedies can fall?

So a lot of amendments to the Bill will be required. We will have hours and hours of happy fun in the woods. However, even once the Bill has passed, more than 800 environmental provisions will have to be amended by statutory instrument to remain operable. The Government tell us that these will be minor tweaks, but we cannot judge whether they are really just tweaks, inadvertent changes or—dare I say it?—deliberate, more substantial changes. Personally, I believe in the cock-up theory of history and therefore that they may be inadvertent, but we could all help to keep the Government honest on these if they were published, open and consulted on before the final passage of the Bill—otherwise we are buying a pig in a poke.

It breaks my heart that Brexit is happening and that therefore we need the Bill. But we do need it and it needs to be much amended if precious environmental law is to come safely across—simply, alas, to maintain standards where they already are. I therefore encourage Pooh, Piglet and perhaps even Eeyore to come back into the woods.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

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

[Lord Adonis]

My Lords, there is no more terrifying ordeal in your Lordships’ House than intervening in a debate between lawyers, particularly following the noble and learned Lord. It appears to me, however, as a layman reading the Bill for the first time and reading the reports of our Constitution Committee, that a critical issue relating to all the debates we shall have on Clause 2 and the following clauses is whether converted law is primary or secondary legislation. Will the Advocate-General for Scotland give us his view, so that that can colour our discussion of the later groups?

When I was wrestling with this issue and reading debates in the other place, I noticed that the Solicitor-General said on 15 November last year:

“Converted law … will not automatically have the status of either primary or secondary legislation”.


He did not then go on to say what will determine whether it is primary or secondary legislation. Somewhat confusingly, he then said:

“Indeed … paragraph 19 of schedule 8 sets this out: ‘For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation’”.—[Official Report, Commons, 15/11/17; col. 416.]


Again, as a layman reading this, I wonder whether that means only in respect of the purposes of the Human Rights Act 1998 or with general applicability. I know that the Advocate-General for Scotland is good at speaking plain English as well as legalese, so will he set out for us in plain English his view of whether the generality of law converted into UK law under the Bill will be primary or secondary legislation?

[Baroness Young of Old Scone (Lab)]

My Lords, I repeat the worries about coming in on a debate populated primarily by lawyers, but if my noble friend Lord Adonis can do it, I can have a go. I very much welcomed the intent of the Constitution Committee and the amendment of the noble Lord, Lord Pannick, but I subsequently received a briefing that raised a question about it. I am very grateful to the noble Lord, Lord Pannick, for alluding to the issue of the amendment meaning that UK courts could not be required to consider existing European court decisions when interpreting and applying provisions that have been implemented through UK law by Acts of Parliament or regulations introduced under Acts of Parliament other than the ECA 1972. I am grateful that he referred to the Bingham Centre proposal that there needed to be consequent amendments later in the Bill to cover that. I want to highlight the importance of that because the reality is that about 80% of environment law stems from the European Union and much of it would be caught by this provision. We just need to be sure that if this provision were recognised as needing to be addressed by the Government, we will see that subsequent amendment to allow ECJ decisions to be taken into account.

[Lord Mackay of Clashfern]

I entirely agree with that proposition but since the noble Lord, Lord Pannick, had mentioned it, I thought for the sake of brevity I would leave it out of my remarks.

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[Baroness Young of Old Scone]

My Lords, I want to add to the voices of those who have said that there is a lack of clarity and point to a specific example that raises some questions: the circular economy package. We, along with our European colleagues, have been working on this since 2014 and it is due to be agreed shortly. There is legislation to amend six EU directives on resource use, all of which are incredibly important both domestically and internationally. That includes things such as the waste framework directive; the packaging and packaging waste directive, which has a big impact on the Government’s commitment on plastics; the landfill directive; and directives on end-of-life vehicles and batteries in electrical and electronic equipment, for example, all of which will be hugely germane to our potential export of motor vehicles and other electrical equipment. We will be approaching exit day with the package enshrined in EU law, but we will not have had time—nor indeed will many member states—to implement it.

For me, this package is important for a number of reasons. First, there are hugely important international commitments that we need this legislation to fulfil. Secondly, we have spent an awful lot of time on it and have been quite effective in making and shaping it to ensure that it fits with our requirements, as well as being effective for the environment. Thirdly, one assumes that we are going to keep a car industry going in this country, and I doubt that we can maintain our trade, or the levels of exchange of components for the automotive industry, across national boundaries if we do not adopt similar standards.

I am concerned about the “snapshot” mentioned by the noble Lord, Lord Pannick. I understand that it is required, but if that snapshot will leave us with a great need for this legislation to go forward but an inability to make it happen, then I must press the Minister on how he envisages that such a situation will be dealt with. It would have a poor effect not just on the environment but on our ability to trade.

[Lord Deben (Con)]

My Lords, I draw the attention of the House to my declaration of interests. I declare an interest in the question of waste and I would like to follow on from the noble Baroness.

I am inclined to follow the comments of the noble Lord, Lord Pannick, in dealing with this amendment. My problem with the snapshot concept—although it is the concept—is that it is rather fuzzy at the edges. Unless we think carefully through this, we will find that if we leave the European Union we may have signed up to obligations which we have not had time to carry through but which we intended to carry through. We may also sign up to obligations which, perhaps in retrospect we did not intend to carry through. However, that is unlikely. We may also have signed up to obligations where we had not worked out how we were going to carry them through. So there is bound to be uncertainty at this stage.

I emphasise what the noble Baroness has said: we have worked extremely hard across the board on a number of packages, particularly those concerned with the environment. Her Majesty’s Government have been enthusiastic about most of the elements that that contains. The noble and learned Lord who has replied to the previous two debates has been extremely helpful, not only in explaining to the House where the Government are but in giving us real hope that they will look carefully at the real questions we have raised. It is not a question of whether or not you are in favour of Brexit but of how we get this right. As the Minister has been kind and generous in that way, I hope he will help us to see what we should do. I say to my noble and learned friend that I do not think we should do this, but it is clearly something we have got to do if people are to know where they will stand.

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[Lord Mackay of Clashfern]

The question does not arise if they have not been adopted before. The amendment deals only with directives that have been adopted before Brexit day and, even if they are not part of our law, whether they should be admitted, which the Bill could do. The problem is that that might delay the finalisation of this as an Act in force for some considerable time.

[Baroness Young of Old Scone]

I would like some technical clarification on this. My understanding of the example I gave is that Europe will change the standards for packaging and packaging waste, the landfill directive, end-of-life vehicles, batteries, and electrical and electronic equipment and the old standards will no longer hold, except in Britain. Quite frankly, I am not sure that that is a viable way forward. We will continue to apply standards that everyone else has abandoned immediately on exit day if we do not take forward the implementation of that directive.

[Lord Mackay of Clashfern]

I am beginning to find myself answering questions that I should pass on to my noble and learned friend. So far as I am concerned, it is unlikely that all the member states, if they have plenty of time for implementation, will, except for us, have implemented them on exit day.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

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

[The Earl of Listowel (CB)]

My Lords, I declare my interest as a vice-chair of the Local Government Association. I support the amendment moved by the noble Lord, Lord Foulkes, because over the past two years I have been attending two inquiries led by the All-Party Parliamentary Group for Children: the first into children’s social care services and the second into different thresholds for access to those services.

It has become clear from the evidence I have heard that local authority funding has been cut by 30% to 40%. Local authorities are delivering their statutory services and safeguarding children as best they can, but all the peripheral services—the family support services and the charities—are really struggling to meet the need and therefore more and more children are being taken into care. As I said earlier, Lord Justice Munby, President of the Family Court, in his statement last year highlighted that more and more children were being taken into care and the courts were finding it difficult to process the numbers of children being taken into care.

What needs to happen is what has happened to adult social care: additional funding needs to be given to local authorities so that they can meet the needs of their children and family services and we can stop taking children away from families whom, if they had had additional support early on, they could have stayed with. It is relevant to this debate because we have heard in the inquiries that it is often the poorest local authorities, with the most deprived families, which have both the greatest demand on their services and the fewest resources to meet those needs. So in what the noble Lord, Lord Foulkes, proposes I see a way of reducing deprivation and improving the wealth of those communities so that there is more resource available to local authorities to meet local need, and reducing the need of families to turn to those kinds of services. I look forward to a response from the Minister to the principles that the noble Lord, Lord Wallace, has just set out.

[Baroness Young of Old Scone (Lab)]

My Lords, I add my support to Amendment 23, moved by the noble Lord, Lord Foulkes, from an environmental perspective. These funds have been hugely beneficial in helping bring environmental progress, together with economic and social progress, to these very deprived areas.

The ERDF is big and it is substantial—you can see it from the moon. Four of its 11 thematic objectives are environmental: climate change mitigation, climate change adaptation, wider environmental protection and sustainable transport. The thematic approach has really helped mainstream environmental considerations into development in these areas and encouraged more sustainable development strategies and schemes that provide local employment and economic activity, often in areas that have absolutely nothing but their natural resources to rely on. That has been a hugely valuable process.

I particularly commend the Interreg process as part of the EDRF. This focuses on cross-border environmental protection projects and has provided for projects that have struggled to get funding elsewhere because they span administrative and governmental boundaries. It is quite telling, as the noble Lord, Lord Wallace, said, that Norway participates in Interreg, and I encourage the Government to consider remaining in the Interreg process. It is hugely innovative and facilitates cross-border work which simply will not be done by a “Britain going it alone” process, as is the case with many of the issues that we will face in the future outside the European Union. This is particularly important in environmental areas because, of course, the environment does not recognise governmental or administrative boundaries.

I therefore ask the Minister whether she would consider how a strategy could be brought forward to fill the gap post-Brexit. It needs two elements. First, it needs to recognise that these funds are absolutely crucial and that that level of funding needs to be continued, because so many other sources of funding for these sorts of projects are diminishing. Local authority money is going, lottery money is going, the Government themselves are broke and the charities are not too well-off either.

Secondly, there is the whole issue of stability. If the funds are reshaped along Barnett formula lines—and if they are simply locked into the block grant and not ring-fenced—key areas of high need will lose out. Currently, these funds are allocated on the basis of need and merit proposals, and we would not see a degree of stability going forward if they were simply dealt with on a pre-existing formula. I therefore hope the Government will come forward with a strategy; this is a splendid proposition.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

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

[Lord Keen of Elie]

Not necessarily in the context of retained EU law, which comes over with that principle of supremacy standing behind it. I will come on to deal with that in more detail. I understand that, as the noble Lord indicated, his amendments draw on the recommendations made in the Constitution Committee report on the Bill—although I was interested to note that Amendment 33 appears to go further than the recommendations put forward by the committee, in that it extends the status of primary legislation to all retained EU law, rather than just to law being preserved by Clauses 3 and 4 of the Bill. So there is that difference between Amendment 33 and the recommendations of the Constitution Committee.

I understand entirely the concerns here and the attraction that these amendments have as a result. It is only right, however, that we should examine fully the consequences of dealing with status in a one-size-fits-all way.

[Baroness Young of Old Scone (Lab)]

Before the Minister moves on to the consequences, perhaps I might draw his attention to the status of environmental law currently drawn from the European Union. Of course, a considerable proportion of the anticipated changes that will be required are in environmental law, because so much of what we draw from Europe is environmental law. At the moment, the status of environmental law drawn from Europe has been pretty random, to be frank, and not at all reflective of the importance of the legislation. It has been random, whether it is drawn from a regulation which would be picked up by the clauses that the Minister mentioned or from a directive which would not be picked up in that way. But it did not really matter that it was rather random in its status, because the framework provided by the ECA was there, and therefore none of the legislation could be meddled with randomly by the Executive. Of course, once the safeguard provided by the ECA has gone, the status of existing environmental law becomes rather strange. It sticks out like a sore thumb, in that some of it that one would think was sufficiently important to be considered eligible, as it were, for primary legislation, has not got that current status, while other bits of law that are pretty functional and practical have a much lower status. So I urge the Minister to think about just how complicated the process would be if we did not simply adopt a single status for all that law.

[Lord Keen of Elie]

First, with respect to the noble Baroness, I do not accept that the way in which environmental law has been received and enforced in our domestic legislation has been random. We differ at the outset to that extent. Of course, various propositions have been put forward, one of which is to give the status of primary legislation to all retained EU law—but that would raise difficulties that I will come on to address. The categorisation below that can be carried out: indeed, the noble Baroness tried to set out for Amendment 32A a hierarchy that could be employed in that context. But I do not consider that environmental law stands out in the way that the noble Baroness suggests.

Our concern is that, as I mentioned, a one-size-fits-all approach will not really work. Again, I quote from the Bingham Centre’s report, which stated:

“We consider that the Rule of Law objectives of legal continuity and certainty are better served by the approach taken by the Government in the Bill. The principle of supremacy is well understood and its future role is very limited, being confined to the relationship between retained EU law and pre-exit UK law. Treating all retained EU law as primary legislation enacted on exit day, on the other hand, will increase legal uncertainty because it changes the settled approach and leaves unclear whether the interpretive obligation, to interpret pre-exit UK law so as to be compatible with retained EU law, continues to apply”.


EU law that is being converted into domestic legislation under this clause covers both a vast range of different policy areas and different types of EU law, from regulations and directives applying to agriculture and farming to detailed and technical pieces of tertiary legislation, such as the list of contents for a dye or chemical. At the end of the day, treating all of that as primary legislation would present, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, a quite enormous task for Parliament if it is going to legislate to amend any of that retained EU law. How many Acts of Parliament would we have to contemplate putting through this House to wrestle with that demanding position? It really would be formidable. Because this legislation will come on to our domestic statute book in a unique way, it will not already have been scrutinised and approved by this Parliament—so we would be bringing in this enormous body of law and treating it as primary legislation when nobody in this Parliament had actually examined it.

The breadth of this body of law, in the case of EU law being converted, is unique in its nature, which is why the Government have deliberately chosen to tread rather carefully and not simply assign a single status to that retained law in domestic legislation. While assigning a single status for all purposes to all retained EU law may be theoretically possible, it would have the most difficult consequences and might lead ultimately to a situation in which we had to extend the use of Henry VIII powers beyond any reasonable limit normally contemplated in the context of provisions of this kind.

Beyond that practical consideration, there is a more fundamental concern about the constitutional appropriateness of what has been proposed. Domestic primary legislation is less vulnerable to subsequent amendment and is less vulnerable to challenge in the courts for a very good reason—because, as I said, it has undergone scrutiny by both Houses of Parliament, which means that there can be no doubt about Parliament’s intentions so far as that primary legislation is concerned. That would not apply to retained EU law.

While we are spending considerable time scrutinising this Bill, we are not able to scrutinise the law it is converting. Some of that law is itself the EU’s own subsidiary legislation, which has not been subject to comparable scrutiny anywhere. The noble Baroness observed on an earlier occasion that the European Parliament had had the opportunity to scrutinise much of this. It has had the opportunity to scrutinise some of it, but scant scrutiny—if any—of the subsidiary legislation has actually occurred in the European Parliament. By contrast, our proposed approach has been to deal with the status of converted law for certain specified purposes, such as that alluded to by the noble Lord, Lord Pannick: that is, paragraph 19 of Schedule 8 in the context of the Human Rights Act and rights arising from there.

Of course I understand the concerns put forward by the Constitution Committee and noble Lords about the consequences of the case-by-case approach that we are taking. I do not dismiss them lightly and I do not say that the Bill is a perfect solution to the issue that we have to address. As I indicated on day three of Committee, there is some scope for considering how we can take this forward. Reference has already been made to the work of Professor Paul Craig and the alternative model of categorisation that he proposed in his article of 26 February. That is something that we are looking at—albeit, as the noble Lord, Lord Adonis, anticipated, that it might involve a considerable amount of work. But if that can be an appropriate and effective categorisation, rather like that of the noble Baroness, it is something that we are willing to look at.

Again, I ask the Committee not to dismiss lightly the potential ramifications of treating all this law as having the status of primary legislation just to exclude the concept of supremacy from the operation of Clause 5. That would raise formidable problems for us and we do not see it as an effective way forward for the Bill. But, as I indicated previously, we are looking at the mechanisms employed here, and a mechanism that avoids actually applying the doctrine of supremacy may find greater traction as a way forward if we can come up with a suitable categorisation for retained EU law, rather than a blanket categorisation of primary legislation. I invite the noble Lord to withdraw his amendment.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have Amendments 111, 137 and 192 in this group and share the unhappiness that has just been described. Mine is a narrow but, I think, important point.

The thrust of most of the amendments in the group —not the noble Viscount’s—is about consultation and transparency. You do not have to spend long working in Parliament to realise that scrutiny very much depends on the input of stakeholders—I hate the term but I cannot think of a better one at this time of night. They assist us to understand how things work in practice, both with technicalities and wider issues. That is not to say that I do not have great admiration for parliamentary counsel and the lawyers working in the departments, who are most concerned with statutory instruments, but my amendments would require consultation on the regulations provided for by Clauses 7 to 9. This should all be a co-operative venture, with stakeholders contributing at an early stage, not least for the reason that the regulations are statutory instruments and not open to amendment, so you have to get it right from the very start.

I was a member for some time of the Secondary Legislation Scrutiny Committee, which received a lot of very valuable representations—lobbying, if you like. I suspect we will not hear comments in support of Amendment 228 in the name of the noble Lord, Lord Adonis, about the Cabinet Office code, but I support the application of the code to the regulations. We may well be told that of course the code will apply. I have to say that in my time on the committee, we undertook quite a lot of work on the application of the code in practice and were quite critical of the responses we received from the Cabinet Office. One of our criticisms was that when consultation was undertaken—which it was not always—on the statutory instruments we were considering, the Government did not publish the responses to the consultation before they published the statutory instrument, so the work was not as helpful as it should have been.

Other amendments in this group are more detailed. Mine is not very elegant. I am not proprietorial about it but I wanted to raise the subject because some provision is necessary and, if I may say so, appropriate. It is a step that is very easy to miss out and I hope we will not be told that all the regulations in question are simply about technicalities and that stakeholders would have nothing to add to the exercise. Practitioners in almost every area may see what is workable in proposals being put forward, as well as substantive points.

[Baroness Young of Old Scone (Lab)]

My Lords, I shall speak to Amendment 227A in my name, which is also supported by the noble Lords, Lord Lisvane, Lord Tyler and Lord Judd. The amendment is intended to be helpful to the Minister, although it is unlikely that he will regard anything as helpful at this time of night. Nevertheless, it is intended in the spirit of helpfulness to ensure that the statutory instruments that the Government are proposing turn out to be correct and effective. Many of the changes made by the statutory instruments will be technical and potentially uncontroversial but some will involve policy choices. The aim of my amendment is to ensure wider consultation on statutory instruments before they are formally laid.

The nature of the challenge is quite severe. There will be an awful lot of them—potentially 1,000. I have been looking primarily in the last year at the number that will be required in Defra alone—over 100—on environmental issues. They will need to come thick and fast, and in many cases they are being dealt with in departments by staff who have only recently been recruited. Having seen these departments shrink in times of austerity, lots of people are now being recruited, some of whom are old faithfuls but some of whom are rather new and probably not as well acquainted with the policy area as we would like.

So there is a risk of two things: one is cock-up, if noble Lords will pardon the unparliamentary language—things just going wrong because of the sheer volume and pace; and the other is conspiracy. A large number of the Defra SIs will be roll-ups of a whole variety of issues. I am being ignoble in suggesting that the Government might hide under a pile of harmless stuff the odd thing with a slight curveball in it, but increased transparency and consultation would help reassure people that no fast ones were being tried.

The noble Baroness, Lady Hamwee, pointed out—and it is inalienable—that the process of both the affirmative and the negative procedures means that once measures are formally laid there is very little room for manoeuvre, so it is important that this consultation happens in advance. I thank the noble Lord, Lord Callanan, for his letter of 20 February, following Second Reading. It provided more information but offered only that the Government would make efforts to publish a sample of statutory instruments in draft where appropriate. That rather misses the point, which is to let loose on these drafts expert eyes from across a variety of sectors of stakeholders to help the Government with that checking process to make sure that nothing has been missed, there has not been a cock-up and the policy intentions have not been perverted in any way. I hope the Minister will consider this and see it as a genuinely helpful proposal.

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[Baroness Goldie]

My Lords, this is a wide-ranging group of amendments. I will begin with my noble friend Lord Hailsham’s Amendments 109, 134 and 188 on the effect of regulations made under the main powers of the Bill. My noble friend was commendably brief and very clear—very blunt—about what he seeks. My difficulty is that these amendments would end up running counter to the fundamental aims of the Bill. We have heard from my noble friend himself that these amendments are intended to cause any regulations made under Clauses 7, 8 and 9 to lapse two years after exit day. Quite simply, this would prescribe a rigid legislative timeframe for the Government to replace them and would risk unnecessary disruption. If we could not find an alternative vehicle to write these regulations into law by the two-year deadline, it would create holes in the statute book. However, it is surely illogical to force the Government to make these regulations again in an identical form when they have already legitimately made them once.

The powers themselves, quite rightly, already have their own sunsets: for Clauses 7 and 8 it is two years after exit day, and for Clause 9 it is exit day itself. That is a sensible way in which the Executive have constrained these delegated powers to avoid their being available in perpetuity. But surely the regulations made under these powers should not necessarily be so transient. They will, of course, be doing vital work to ensure that we have a fully functioning statute book for when we leave the EU. We do not want our functioning statute book, or bits of it, to lapse after two years. I sympathise with the intention behind the amendments, but it is too rigid a fetter on the Government and Parliament’s ability to manage legislative priorities and workload between now and 2021, and it certainly would exacerbate the very uncertainty that the Bill is seeking to reduce.

Amendments 111, 137 and 192, all tabled by the noble Baroness, Lady Hamwee, deal with stakeholder consultation. It is my pleasure to tell the Committee that departments are very keen to engage with stakeholders on current matters and progress of the negotiations, and will continue to do so where this is possible and does not negatively impact the negotiations in any way.

[Baroness Young of Old Scone]

I am not sure that the evidence stacks up on that. I have been seeking clarification from Defra for over a year now on just a simple list of the issues that might be subject to statutory instrument, and I have been unable to get that from the department. Perhaps the Minister might like to prod departments to reflect the terms she just stated.

[Baroness Hamwee]

My Lords, I too asked for a list of necessary statutory instruments from the Home Office, and the Parliamentary Answer was that the work had not been done to calculate the number.

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[Baroness Goldie]

Given the breadth of activity already referred to by both the noble Baronesses, Lady Young of Old Scone and Lady Hamwee—a huge breadth of activity involving a multiplicity of issues—it is inevitable that some of these matters will be caught up in the negotiations. I cannot be drawn on specific examples because we may be talking about generic issues. However, the Government are very anxious to avoid in any way hog-tying their freedom to conduct the negotiations with a degree of confidentiality and privacy.

[Baroness Young of Old Scone]

I share my noble friend’s perplexity. We are talking about a government commitment, in my field of expertise, to take existing European environment law and bring it safely across to preserve the same standards. It will not be a great surprise to the European Union and those with whom we are negotiating if what we propose is exactly the same in intent as what currently exists—if the Government are indeed genuinely committed to making sure that we enjoy the same standards post Brexit as we did previously. Therefore, I find it difficult to believe—I have not been able to think of an example—that there will be something monumentally important as regards the negotiating process.

[Baroness Goldie]

I merely observe that the breadth of activity implicit within the negotiations could anticipate issues arising that we are unable at this moment to specify. The Government have been sensible in retaining the flexibility in the negotiations to deal with these if they do arise. It is important in that event—

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[Lord Fox (LD)]

Just when noble Lords thought it could not get any better, they have double chemistry to look forward to. I shall speak to Amendment 115, which bears my name, and in support of Amendment 171. I 100% endorse the words of the noble Lord, Lord Whitty, so I will try not to repeat them and earn the ire of the Government Chief Whip.

As the noble Lord set out, REACH is a very complex system and not just chemical companies are affected by it. All manner of manufacturing employs chemicals, and those chemicals currently fall under the REACH process. That REACH process came through the co-operation and participation of many of those companies. I know from experience that companies have put a lot of time and effort into committees working to create this system. I know very well that they do not want to have to repeat that process. Above all, maintaining REACH or something as parallel as possible is a priority in this process.

The noble Lord, Lord Whitty, mentioned that the Prime Minister seemed to endorse that process. When the noble Lord, Lord Callanan, was speaking to Amendment 66, I thought I heard him endorse continued involvement in REACH, and that was heartening. This amendment seeks to achieve some sense of how the Government feel that is going to happen and unfold. It is not straightforward. Once we have left the European Union, how does the system continue to remain in parallel, or do the Government intend that we remain at the heart of REACH? If so, how do they expect to negotiate that process? Is it through associate membership, full membership or some other way? We need to understand not just how we remain at the point of exit but how we remain on a continuing basis, because this is a living thing. As new chemicals come into use and the ways of using them change, so REACH changes. Even by staying close to REACH, if the United Kingdom does not have full access to all the data, it is going to come up against legal problems if it starts to try to rule on chemicals without all the data behind it.

There is one issue I am very interested in which the noble Lord, Lord Whitty, did not mention. Recently, the Cabinet Office Minister David Lidington was talking about the possible necessity for Westminster to take back responsibility in previously devolved areas—this perhaps reflects on some of the debates we had earlier—in order to maintain,

“the integrity of the United Kingdom market”.

These are David Lidington’s words, not mine. In my words, he would be seeking to “undevolve” some issues. He took a specific example, saying that,

“if you’re a paint manufacturer in Wales you’ve got to stick to some chemical standards … but you want those to be the same as the paint standards in Scotland or Northern Ireland”.

He said it “makes sense” to have unity within a single market, by which he meant the United Kingdom. There is an element of irony in that. I was surprised by that, so perhaps the Minister can help us understand whether David Lidington was off piste on that occasion. It would be very helpful it the Minister could rule that out.

However, strangely enough, the point he was making about the need for a single set of rules within the United Kingdom is of course the whole point of REACH in the first place. The reason the REACH system was created is that manufacturing spans the whole of Europe. We need a chemicals management system that spans Europe, and we want to hear from the Government how that will happen.

[Baroness Young of Old Scone]

My Lords, I will speak briefly to support the amendments. As chief executive of the Environment Agency, I lived through the process of designing and delivering REACH, and it was a joy to work as closely as we did with British industry and industry across Europe in devising a system that was shared between government, regulators and business. It is a bit of an object lesson in how to go about it, and much admired globally. I welcome the Prime Minister’s expression of support, but would just take issue with one thing the noble Lord, Lord Fox, said. I do not think we should be aiming at a parallel system in any way—we should be a full and absolute member of the REACH process. It works, it is elegant and I hope we can get an assurance from the Minister tonight that we will move rapidly to find a way to give industry clarity about how the REACH process will operate post Brexit.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Whitty, and, in his absence, the noble Lord, Lord Adonis, for their amendments concerning the very significant issue of chemicals regulation.

The Bill will incorporate current EU law into domestic law and allow it to be corrected in order to operate properly, giving consumers and businesses as much certainty as possible. This includes regulations relating to chemicals. The Bill will convert the REACH regulation into domestic law, meaning that the obligations on duty holders and the environmental standards and principles that underpin REACH will continue to apply in the UK, including in the devolved areas. These include the specific measures included in the amendment in the name of the noble Lord, Lord Whitty.

We are working to ensure that we have a functioning chemicals regulatory and enforcement system in the UK for day one. For example, the Environment Secretary has given the go-ahead for the development of six new systems, including one for chemicals. Work has started on delivering the new IT system that will enable registrations and the regulation of chemical substances placed on the UK market. This will provide continuity for businesses after EU exit.

Let me be clear: our priorities are to maintain the effective and safe management of chemicals to safeguard human health and the environment, to respond to emerging risks and to allow trade with the EU that is as frictionless as possible. We have been engaging with a range of stakeholders to understand the detailed impacts of Brexit and are grateful for the pragmatic approach that the chemicals industry is taking to Brexit and for its positive approach to working with the Government to understand the impacts and deliver the best possible outcome for the industry after exit. We are committed to continuing this engagement throughout the process.

With regard to chemicals, REACH is underpinned—this is explicit in Article 1—by the precautionary principle. So, once REACH is translated into UK law through the withdrawal Bill, the precautionary principle will continue to exist directly in UK law in relation to REACH. The precautionary principle is also embedded in international conventions relevant to the regulation of chemicals, such as the Stockholm convention on persistent organic pollutants, and the UK is and will continue to be a signatory to the convention in its own right.

Further, our 25-year environment plan sets out our intention to publish a chemicals strategy that will set out our approach as we leave the EU. It will set out our priorities for action and detail how we will achieve our goals, building on existing regulatory approaches and tackling chemicals of national concern. The Government will discuss with the EU as part of the exit negotiations how best to continue co-operation on chemicals regulation in the interests of both the UK and the EU. As the noble Lord, Lord Whitty, acknowledged, in her Mansion House speech the Prime Minister said we want to explore with the EU the terms on which we could continue to co-operate with the European Chemicals Agency and participate in certain processes, the point that the noble Lord, Lord Fox, sought clarification on. As for the specifics, I think your Lordships will understand that I cannot go into more detail because this is the subject of live negotiation in the negotiation process.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

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

[Baroness Young of Old Scone (Lab)]

My Lords, I support Amendment 27. I feel some sympathy for the Minister but it is slightly bizarre that the Government have announced that they want the principles and the environmental watchdog, yet their consultation has not yet emerged. They said that it would take place in the spring. We must all admit that, in view of the weather, spring has been a little late this year but we are rapidly getting into summer and perhaps the Government need to act.

The consultation appears to be mired in politics. We are running out of time. If the consultation does not start soon, we will not have a clear legislative proposal coming forward. We need legislation for the environmental watchdog. There will then be all sorts of practical considerations, such as finding some poor sod of a chairman who is willing to put his neck on the line to speak out against power and report openly on behalf of the public in favour of the environment, as indeed the Environment Agency did in the eight years prior to the noble Lord, Lord Smith, taking up his chairmanship. We still managed to get away with it in those glorious days of the 1990s.

I want to press the Minister on what happens next. The Government cannot go around saying that they want to leave the environment in a better state than they inherited it if, in fact, they are not going to come forward with very positive proposals to safeguard the basic environmental legislation and governance from which the environment has benefited in a major way over the past 30 years. We have to have government consultation well in advance of Third Reading or—what I would prefer, quite frankly—a government amendment which does the same job as this one: to take those government commitments and put them into primary legislation in a simple way.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

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

Moved by

[Baroness Young of Old Scone]

64: After Clause 9, insert the following new Clause—
“Replication of EU law: consultation on impact and equivalence
(1) This section applies to regulations (whether or not under this Act) which—(a) are designed to replicate a provision of EU legislation (with or without modifications), or(b) amend or replace legislation which was made under section 2(2) of the European Communities Act 1972 or which was otherwise made for the purpose of giving effect to EU obligations.(2) Before making the regulations a Minister of the Crown must publish a statement that the Minister is satisfied that a draft has been published in such a manner, and for such a period, as to give persons representing interests affected by the regulations a reasonable opportunity to consider and make representations about—(a) the environmental, social and other impacts of the regulations, and(b) equivalence with EU legislation. (3) The period referred to in subsection (2) must not be less than 3 months, except where the Minister includes a statement that—(a) the Minister is satisfied that 3 months’ notice could not reasonably be given in the circumstances, and(b) as much notice was given as the Minister considers reasonably practicable.(4) This section ceases to have effect on 31st December 2021 unless the Secretary of State by regulation continues it.”

[Baroness Young of Old Scone (Lab)]

My Lords, my noble friend Lord Judd and the noble Lords, Lord Tyler and Lord Lisvane, have also put their names to this amendment. It is a variation on a similar amendment debated in Committee, but it now includes a sunset clause to restrict the scale of its application, which the Minister expressed concern about at that stage. It is, of course, put forward in a spirit of helpfulness to the Government, although I find that a bit difficult to say at this time of night. It encourages the Government to seek wider advice and assistance in spotting any errors in the large number of statutory instruments—between 800 and 1,000 in addition to the normal numbers—that will need to come forward as a consequence of the EU withdrawal Act. I am concerned about possible flaws in the statutory instruments because of the large number of them, the pace at which they will have to come forward, the lack of staff with sufficient experience in some government departments and the overall pressure of Brexit-related legislation.

It is important that the statutory instruments are available for scrutiny before being formally laid, as once they are laid they cannot be amended under either the affirmative or negative procedure. The only option then would be to seek to annul any flawed statutory instrument. That is the nuclear option which would run the risk of leaving gaps in the legislation on exit, which I am sure the Government would not wish.

I thank the Minister and his team for meeting me and the noble Lord, Lord Tyler. The noble Lord, Lord Callanan, was quite rightly keen that consultation should not mean three months for all subjects great and small. The Government have now laid amendments and given formal assurances on this issue, as have some individual government departments. I welcome the pre-scrutiny proposed for the negative procedure statutory instruments, which would mean that they were published as “negatives in draft” and would give a 10-day window for commentators to express concerns about their substance before they were formally laid.

I understand that Defra, which is likely to have about 10% of the statutory instruments, is putting in place a high-level group of external commentators who will advise on the adequacy of the consultation process—a sort of consultation on consultation. It would be good if Defra and any other departments planning this mechanism could press forward so that we might see how this would work.

In their response to the Lords Constitution Committee’s report, the Government have undertaken to lay requirements on Ministers to make statements in explanation of statutory instruments in certain circumstances—for example, where a criminal offence is created or where an urgent statutory instrument is brought forward—but it is likely that such statements will be published only when the SI is laid formally and it is therefore too late, as I have outlined.

I am sure that the Government are committed to preparing this torrent of statutory instruments in as open a way as possible to make sure that the process of transfer of the snapshot of EU legislation into UK law is as uncontentious as possible. The amendment gives the Minister a real opportunity to flesh out this commitment and would place on the parliamentary record the full range of formal and less formal means of consultation and debugging planned by the Government. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 64, which has been ably explained by my noble friend Lady Young. She has attempted to address one of the many practical challenges which will face us in the run-up to Brexit day. We know that we will have to process a large number of statutory instruments in a very short timescale, so how can we be assured that mistakes and oversights do not slip through the net in the rush to meet the deadlines?

We have a particular interest in this issue from an environmental perspective, especially as so many of the regulations will transfer environmental protections—but, obviously, the challenge spans all sectors. We know that civil servants in Defra are already under intense pressure. They are already working on a number of EU-related Bills, including on agriculture, fisheries, environmental standards, and animal welfare and sentience. They also face other pressures from the Secretary of State to modernise other animal welfare and environmental policies. Their number and expertise have been significantly cut and, although new staff have now been taken on to help with Brexit, they do not have the wealth of experience that previously existed. Without safeguards of the kind proposed by the amendment, mistakes in drafting will occur without any means to correct them.

In Committee and subsequently, the Minister took steps to reassure us that pre-scrutiny and sifting processes will be put in place, but the proposals to date have only a partial impact and do not address the more fundamental challenge of delivering proper scrutiny and ensuring that regulations are fit for purpose. So we very much welcome the proposals in Amendment 64. They would give space to allow those affected by the regulations, NGOs and parliamentarians to see the draft wording and have an input before the final version. This is about driving up quality and delivering good governance and I hope that the Minister will welcome the proposals in this spirit.

The amendment focuses on those issues that have a wider environmental and social purpose, where errors and omissions would be more keenly felt. As my noble friend has explained, a new sunset clause of 2021 has now been inserted so that this does not inadvertently become the new norm. I hope the Minister will take this proposal in the positive and constructive form that my noble friend has intended and that she will feel able to support it.

--- Later in debate ---

[Baroness Goldie]

The noble Lord makes a perfectly valid point, with which I have some sympathy, but I am endeavouring to deal with the points raised by the noble Baroness, Lady Young of Old Scone, in the context of her amendment. I am pointing out that it is not that there will not be consultation or robust parliamentary scrutiny. There will be an opportunity for parliamentarians in both Houses to identify the very sorts of concerns to which the noble Lord has referred.

I have set out the Government’s position. I hope the noble Baroness understands why the Government are unable to accept this amendment, and I urge her to withdraw it. I confirm that the Government do not propose to reflect further on this issue between now and Third Reading, so if she wishes to test the opinion of the House, it would be appropriate to do that now.

[Baroness Young of Old Scone]

I thank the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Judd, who have had the stamina to stay this late to speak to this amendment. The Minister’s response was disappointing. The undertaking that departments will engage with stakeholders where possible does not give me a lot of confidence. I understand that consultation takes up time and resources and that it needs to be focused on the important rather than the minor. But, as the noble Lord, Lord Judd, has just said, many technical and minor amendments can have major impacts.

I am not convinced that the statements and the transparency promised by the government amendments to the later schedules will fit the bill because, if I understand correctly, they are very much about statements made at the time when the statutory instrument is laid, by which time it is too late to make further amendments. It really is into the nuclear option situation, where only an annulment can then happen.

I had hoped that the Minister would use this opportunity to reassure the House generally and the wider audience about the real commitment the Government have to trying to make sure that we get all these statutory instruments right first time. I only hope that the debates we have had on this proposition and the continuing discussions we have with government departments will reveal that that intention does exist, even if it has not been laid out in the parliamentary domain tonight. In view of the time, I beg leave to withdraw the amendment.

Amendment 64 withdrawn.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

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

[Lord Smith of Finsbury]

No, I will not. I am sorry. The crucial part of the amendment is subsection (4), which talks about,

“an independent body with the purpose of ensuring compliance with environmental law by public authorities”.

When I was chairman of the Environment Agency, action was taken on some of the major issues affecting our environment—such as the fact that we discharge raw sewage into the River Thames 20 times or more a year, and the lethal levels of air pollution in our cities—only because of the prospect of infraction proceedings from the EU. If we lose that lever, we lose the ability to tackle these major environmental issues. It is essential that we insist—not just as part of the consultation but now—that the powers of the new environmental watchdog include the ability to take that sort of legal action.

[Baroness Young of Old Scone (Lab)]

My Lords, I was pondering in bed this morning, as one does, about when the change of tone came from the Government on the watchdog and the principles and the commitment to the environment.

We have heard really quite encouraging statements from the Government over the past year. These have included a pledge to be,

“the first generation to leave the environment in a better state than we inherited”;

saying:

“We need to fill the governance gap”.—[Official Report, 8/1/18; col. 8.];


and promising to create,

“a new, world-leading body to give the environment a voice … independent of government, able to speak its mind freely”,

with “clear authority” and “real bite”. These are not my words, these are the Government’s words. They were not enunciated just by the Secretary of State for the Environment, whom you would expect to say things like that, but they were quite frequently enunciated by the Prime Minister as well. That was jolly welcome to us environmentalists, who believe that the environment is not about birds and bees and tweety things but is actually about the ecosystems on which all of human life and economic prosperity depend.

However, somewhere along the line the cracks in the Government’s commitment to their intentions and their fine words have appeared. The consultation document which came out last week was total confirmation of that. There has been a huge watering-down of the status of the environmental principles to a policy statement, which the Government would only have to have regard to, on the basis that it would,

“offer greater flexibility for Ministers”.

I am not sure that that ought to be the objective of all this. Even though the Government promised that Brexit would not weaken our environmental protections, the way in which the principles are being dealt with in the consultation will not deliver that. As many noble Lords have said, the watchdog is more like a watchpoodle and simply will not do the task that has been carried out by the Commission and the European Court of Justice very successfully, as the noble Lord, Lord Smith, has just pointed out.

The consultation was very late. We should have smelled a rat when it did not appear as promised in November 2017. As a former chief executive of the Royal Society for the Protection of Birds, I know about little birds and a little bird has told us that this is a sign of cold feet in a range of departments—BEIS, the Treasury, the Department for Transport and, indeed, No. 10. There is a total lack of cross-government agreement and that means that the consultation is late, the governance gap is opening up under our feet and there is no chance of getting even these weak proposals in place before Brexit day.

The Government have made a commitment to ensure legal continuity on day one of Brexit so it is vital that the principles and the watchdog are part of domestic law.

[Lord Forsyth of Drumlean (Con)]

My Lords, I am most grateful to the noble Baroness for giving way. I am just contemplating the case that has been put for a really powerful watchdog to protect the environment. If we think, for example, of the decision to turn off the pumps in order to protect the birds on the Somerset Levels, it had a devastating effect on the people who live there.

[Baroness Young of Old Scone]

I shall no doubt see the noble Lord, Lord Forsyth, on this matter at a later point because, in fact, the folklore around that decision is wide of the mark. This is not the time or the place, but I am sure the noble Lord, Lord Smith, and I will be able to see him afterwards.

We really need the principles and the watchdog in place so that, on Brexit day, we have public bodies that are following the principles, courts that are applying the principles, and the public are able to rely on the watchdog to have a voice on the environment. This Bill is the only opportunity that will deliver that on time, so the way the Government deal with this now is the ultimate test of whether they really are truly committed to maintaining equivalence in environmental protection post Brexit. I hope the Government will stand up and meet this test.

[Lord Dykes (CB)]

My Lords, I add my thanks to the noble Lord, Lord Krebs, and the others who have their name to this amendment for their speeches and suggestions. I entirely agree with them and also with the words of the noble Lord, Lord Smith, who was in that prominent position himself at the Environment Agency. I personally felt very surprised at the rather over-robust outburst from the noble Lord, Lord Framlingham, about the whole purpose of this amendment and indeed the nature of the Bill itself. The noble Lord, Lord Deben, emphasised earlier the ecumenical nature of the formulations that have come out of this very serious and deep study made by many people, including the Government.