European Union (Withdrawal) Bill

Caroline Lucas Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Sir Oliver Letwin]

New clauses 62 and 63. I do apologise. I am very bad at remembering the nomenclature, but I know which ones I am talking about. They are the ones that relate to the environment—their proponent, the hon. Member for Wakefield (Mary Creagh), is sitting behind the hon. Lady—and we had a long discussion about them earlier in Committee. Since those discussions inside the House, many of my hon. Friends, including my hon. Friend the Member for Richmond Park (Zac Goldsmith), and I have had considerable conversations outside the House with various people, such as the Secretary of State for Environment, Food and Rural Affairs, green non-governmental organisations and others. I am now confident that the Government will bring forward proper new primary legislation to create an independent body outside the House with prosecutorial powers that will replace the Commission as the independent arbiter to enforce environmental rules and to ensure that the Government are taken to task in court without the need for the expense of class action lawsuits.

[Caroline Lucas (Brighton, Pavilion) (Green)]

rose—

[Sir Oliver Letwin]

May I continue for a second? I may anticipate what the hon. Lady is going to say, but I will give way if I do not.

In addition to such a body being put on a statutory basis, I am confident that included in the relevant legislation will be a direct reference to the principles, so that it is clear that the policy statement, which will be mandated, must look to those principles and must explain how the Government of the day intend to carry forward the principles into action. The policy statement will then become justiciable and will, under the forthcoming legislation, receive support in the form of a resolution of this House and will therefore attain a statutory force of its own.

[Caroline Lucas]

rose—

[Mary Creagh]

rose—

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[Caroline Lucas]

I am pleased about the measures that the right hon. Gentleman outlines, to which the Government are apparently committed, but I am still worried about time, and I do not share his confidence that, given the amount of business that the Government have to get through in a small amount of time, we can be absolutely sure that the new body will be in place in time. Why can we not have a belt-and-braces approach? I agree that the Bill is not the ideal place to put such a provision, but it is an awful lot better to have it in the Bill than nowhere. I do not share his confidence that it will definitely get through Parliament in time otherwise.

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[Sir Oliver Letwin]

I agree with my hon. Friend. He is being unduly modest, because in large part it is due to pressure from him that the Government have introduced such an effective and incisive Bill in a timely fashion. I agree that that gives us considerable confidence about what will happen on this other, even wider ranging matter.

[Caroline Lucas]

I am pleased to see the change on animal sentience, but to correct the hon. Member for Richmond Park (Zac Goldsmith), the debate a few weeks ago was about whether we needed new legislation to provide for animal sentience when we left the EU. The Minister stood at the Dispatch Box and said that we did not need new legislation as it was already covered by existing UK domestic legislation. So I am pleased to see a screeching U-turn, but let us not pretend that it was not a screeching U-turn.

[Sir Oliver Letwin]

I have steadfastly resisted for 21 years engaging in meaningless partisan debate, and I am not going to abandon a career’s worth of effort in that direction to answer that point. Animal sentience is built into English law in various ways already, but the new Bill will vastly strengthen the position compared with what it is today under European law. That is a huge advance for our nation, one that many people on both sides of the House can be happy with. As my hon. Friend the Member for Richmond Park was pointing out, there is an exact parallel with what we and the Government are seeking to do in relation to environmental regulation. I really believe that if we could lay aside both the inevitable divisions about Brexit itself and the inevitable play of party politics, and simply focus on what is going to do the best thing for our environment, we would see that the programme we have before us is a huge advance and one we should gratefully welcome.

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[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Thank you, Mr Hanson, for the opportunity to join hon. Members in their criticism of the extraordinary breadth of the Henry VIII powers contained in this Bill and the inadequacy of existing scrutiny procedures for dealing with them. I welcome the host of amendments that have been tabled by hon. Members to help remedy these concerns.

The right hon. and learned Member for Beaconsfield (Mr Grieve) helpfully identified that there are two different types of amendments that seek to improve the situation. One group seeks to limit the scope of the powers so that they are used only in appropriate circumstances and only for the specific purpose of correcting tightly defined deficiencies. A second group of amendments seeks to enhance our ability to scrutinise the statutory instruments that Ministers will make using these powers. All those ideas are welcome. If several of them were passed this evening, they could make this part of the Bill a little bit more palatable.

I will focus on a third type of amendment that throws up a different issue in relation to clause 7—an issue for which I am not sure we have found the perfect remedy. Rather than limiting the use of Henry VIII powers or strengthening oversight of them, this group of amendments would require that the Government take action to ensure that certain important provisions of EU law can operate effectively after withdrawal. After all, clause 7 expressly anticipates—in fact, the whole thing is premised on the fact—that there will be chunks of retained EU law that will not operate effectively if deficiencies are not prevented, remedied or mitigated.

The express purpose of this Bill is saving and incorporating EU law as it stands on withdrawal day, but this purpose would be undermined considerably if parts of that EU law were allowed, whether by accident or design, simply to fester away uncorrected and therefore unable to operate effectively. It is for those reasons that a number of amendments have been tabled positively requiring action to be taken, including new clauses 62 and 63 on environmental law, amendment 131 on the rights of EU citizens and amendment 385 on European protection orders. I will focus on a similar example—new clause 53.

New clause 53 would require changes to the immigration rules to retain the effectiveness of the Dublin regulation. Dublin III is far from a perfect set of rules, but it has the welcome goal of ensuring that an asylum claim is determined in the most appropriate EU member state. Its most positive feature is the ability for a person who has made a claim in one member state to seek to have that claim transferred and determined by another member state—for example, where a young asylum seeker has a sibling, aunt or uncle in that country. For all the flaws of the Dublin regulation, those provisions are surely worth saving, regardless of how negotiations proceed.

Even though the rules are retained by the Bill in theory, Dublin III would clearly struggle to operate effectively unless corrected under clause 7. To prevent that, new clause 53 is designed to ensure that those powers are used so that “take charge” requests can continue to be made in the UK. Going further, for one limited and vulnerable group, the new clause seeks to bring the definition of family contained in UK family reunion rules in line with the definition of family in the Dublin regulations. It would mean that an unaccompanied child could seek family reunion with a broader group of family members without needing to make dangerous journeys to Europe in order to claim asylum and make a Dublin request. Currently—with the exception of when joining parents—alternative options for unaccompanied asylum-seeking children under the immigration rules are too restrictive and costly. As a result, they are rarely used. As UNICEF makes clear, a failure to take action risks adding to the number of unaccompanied children forced to take dangerous journeys with smugglers and traffickers in order to reach close family in the UK. That is why new clause 53 is so important.

I turn finally to a more general question. For every amendment or new clause that we are debating today requiring that retained and incorporated EU law in a particular area must be corrected using these powers, there will be large swathes of other EU laws where there is no such requirement. The question that occurs to me is: what happens if, by oversight or choice, the Government do not fix those provisions, rendering key measures useless? What are our courts going to do if confronted, for example, by a citizen seeking to establish rights under retained EU law when that retained law is riddled with deficiencies? Is the court supposed to try to make that work? Does the person lose their ability to exercise that right? I do not think that this issue has been touched on in the debate. In short, I wonder whether we still have work to do to find the appropriate and comprehensive solution in this Bill.

Should there be a mechanism, for example, to put Ministers under an obligation or duty to ensure that retained EU laws operate effectively? Should our courts be required to interpret retained EU laws in such a way as to make them operate effectively wherever possible? Should there be a procedure to allow courts to flag up rules they have found cannot operate effectively? More modestly perhaps, do we simply need to require the Government to publish a list of all the deficiencies they have found in retained EU law and to detail what, if any, action they are taking to remedy them? That is, do we require the Government to list not only the statutory instruments they intend to table under clause 7, but what deficiencies they have identified that they are not going to rectify in that way? I am concerned that, without such changes, Parliament’s intention of retaining EU law and an efficient and effective statute book after exit day may not prove as effective as we would wish.

[Caroline Lucas]

I rise to speak to the provisions in my name, and particularly to new clause 27, which I hope to press to a vote later this evening. I apologise to Members for being absent from the debate for a couple of hours while I was in a Committee.

New clause 27 aims to preserve the high level of environmental protection that comes with membership of the EU. As we have discussed tonight, there is a very real risk that Brexit will create a big gap when it comes to the enforcement, in particular, of environmental law and standards in this country. The European Commission’s monitoring of member states’ action to implement and comply with EU law, backed up by the European Court of Justice’s ability to impose effective financial sanctions, have been an absolutely vital driver in pressing for and delivering environmental improvements in the UK. The example of clean air in London is just one case study that makes that point. In the absence of an effective domestic enforcement regime replicating the vital roles and functions currently performed by the Commission and the ECJ, it is difficult to see how the Government can deliver on their manifesto pledge to leave the environment in a better state than they found it.

On day 2 of the Committee, on 15 November, we had a good debate on the case for fully transposing the EU environmental principles into UK law. The debate was ultimately fruitless in terms of amending the Bill, but we heard a great deal from both sides of the Chamber about the importance of the EU environmental principles to the future protection of the environment in this country.

Perhaps most significantly, environmentalists such as myself were encouraged by a rather remarkable double act, with nods and comedic timing, of the right hon. Member for West Dorset (Sir Oliver Letwin) and the Secretary of State for Environment, Food and Rural Affairs. From that, we learned a little more about the Secretary of State’s plan, first announced on 12 November, to consult on a new independent statutory body to

“advise and challenge government and potentially other public bodies on environmental legislation…stepping in when needed to hold these bodies to account and enforce standards.”

More to the point, we were led to believe that the Secretary of State now intends to introduce an environmental protection Bill to establish an environmental protection body with prosecutorial powers and independence from Government that is charged with policing and enforcing a national policy statement incorporating the EU environmental principles.

That amounts to a welcome recognition on the part of the Secretary of State of the risk of an ever-widening governance gap on environmental protection after the UK leaves the EU if there is not a domestic enforcement regime. Taken at face value, it also seems to be an acknowledgment that the new environmental protection body must be absolutely independent of Government; must be prosecutorial and investigatory so that it can hold the Government and other public bodies to account, including through the courts if necessary; and must be robust and durable so that it cannot easily be abolished or have its functions eroded by stealth.

However, what we still do not know is whether this is a concrete plan that will soon be put into practice so as to ensure the protection of environmental standards in the UK from March 2019, or something that the Secretary of State alone ruminates about while in the bath.

[Sir Oliver Letwin]

rose—

[Caroline Lucas]

I am sorry—I love having discussions with the right hon. Gentleman, but I am aware that other people want to speak.

I will come straight to the point. My case is that the right hon. Gentleman wants me to have enough faith in the Secretary of State and in the capacity of this Government to get through a whole new piece of legislation in time. The crux of this debate is whether the rest of the House is prepared to go along with the confidence the right hon. Gentleman demonstrates, or whether we want to have a belt-and-braces approach.

The right hon. Gentleman said earlier that the idea of putting something in the Bill was inelegant. It may well be inelegant, but it is also a belt-and-braces way of making sure that, come the day we leave the EU—if indeed we do—we have all this legislation in an enforceable form on our statute book. If the Government are already saying, “Of course we’re going to do it—why worry?” why would they be so afraid of putting this into the Bill too? I appreciate that it is not elegant, but I would rather be inelegant and effective than elegant and ineffective.

That is why I want to press new clause 27 to a vote. It is a belt-and-braces way of ensuring with absolute certainty that when EU laws are brought into UK law they are properly enforceable and can be properly implemented. I had more to say, but to be fair to others, I will end now.