European Union (Withdrawal) Bill

Debate between Dominic Grieve and Kerry McCarthy

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Kerry McCarthy]

Amendment 57, which would leave out clause 4, is linked to new clauses 19 and 21. Many of the amendments I tabled in Committee have been proposed by Greener UK, a coalition of many environmental organisations that are concerned about the possible impact of Brexit on environmental protections. They see it as one of the biggest threats: I know other people see it as an opportunity, especially when it comes to rejigging how we subsidise agriculture once we leave the common agricultural policy. The concern is what protections would remain, given the importance of our membership of the EU for everything from cleaning up water pollution and protecting biodiversity to improving recycling and reducing waste. It is hard to believe that we used to allow untreated sewage to flow into our seas before the EU’s bathing water directive forced the UK Government to make our bathing waters fit for swimming and to test for bacteria such as E. coli. In 1990, only 27% of our bathing waters met minimum mandatory standards; by 2014, 99% complied.

When the then Secretary of State for Environment, Food and Rural Affairs gave evidence to the Environmental Audit Committee’s inquiry on the natural environment after the EU referendum, she told the Committee that approximately a third of the more than 800 pieces of EU environmental legislation will be difficult to transpose into UK law. The Committee also identified a considerable governance gap, which the Government have acknowledged, and I support new clause 18, which would enshrine what the Government have said they want in relation to carrying over environmental principles and establishing a new environmental regulatory body.

My amendment addresses the substantial flaws, gaps and democratic deficit in the Bill that were not addressed in Committee, in particular to fully transpose current EU environmental legislation in all areas effectively into UK law to avoid any weakening or loss of existing environmental protection during Brexit. The Secretary of State for Environment, Food and Rural Affairs has been encouraging in saying that:

“We must not only maintain but enhance environmental standards as we leave the EU. And that means making sure we secure the environmental gains we have made while in the EU even as we use our new independence to aim even higher”.

Opposition Members share the same aspirations and visions, but we cannot just take his word for it. We need those promises written into the Bill and concrete measures to deliver on those aspirations. This has to last longer than he is in post.

Amendment 57 would leave out clause 4, with a view to replacing it with new clause 19 which would preserve—more comprehensively than clause 4—rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law. The new clause seeks only to properly realise the Government’s stated ambition for the Bill—they have repeatedly assured us of this during the process—that the same rules and laws will apply after we leave the EU as before.

In their White Paper, the Government sought to reassure us that this Bill will mean that

“the whole body of existing EU environmental law continues to have effect in UK law”.

The Prime Minister has promised:

“The same rules and laws will apply on the day after exit as on the day before”,

but that is simply not the case. As drafted, the Bill will not properly capture and convert all EU environmental law into stand-alone domestic law.

Clause 4 appears to deal with full transposition. In Committee, the then Minister of State for Courts and Justice described it as a sweeper provision that

“picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act 1972.”—[Official Report, 15 November 2017; Vol. 631, c. 498.]

But it fails to do its sweeping properly, because some inexplicable and unnecessary restrictions in clause 4(l)(b) and (2)(b) mean that important aspects of environmental law will be lost. Those exceptions include rights that have not been recognised by a court before exit day. Effectively, the basic rights that everyone accepts but that have not been litigated on are at risk. Those rights have been hardwired into EU law and do not need enforcing, but once we no longer have the safety net of the EU, they could fall.

The Government’s defence of the limitations in these subsections in Committee was far from convincing. The Minister essentially argued that they were necessary because directives do not produce directly effective rights until they have been recognised as such by courts. However, if a provision in legislation creates directly effective law, it does not need a court to confirm that that is the case. If a piece of legislation creates a legal position, it does not need a judge to verify that that is the case. In fact, the Government have often not transposed certain provisions of directives on the basis that they function adequately directly from the directives without any need to transpose them into national law. That clearly demonstrates that there are parts of directives that currently form part of UK law that will be removed by subsection (2)(b).

Clause 4 does not adequately engage with failures to properly transpose EU law. An obligation should be placed on the Government to remedy incorrect and incomplete transposition. The powers to do so are contained in clause 7(2)(f), but there is a significant difference between a power to do something and a duty to use that power.

To summarise, amendment 57, in getting rid of clause 4 and replacing the linked new clause 19, seeks to rectify those errors. New clause 19 is simpler and more comprehensive than the existing clause 4. It would ensure that rights arising under EU directives are preserved and that a mechanism is in place after exit day to deal with problems arising from the incomplete or incorrect transposition of EU law before exit day.

If clause 4 is not amended, we could lose vital EU law provisions, including requirements to review and report on the adequacy and implementation of laws that are crucial to ensure the law is complied with and up to date. That includes the requirements contained in article 20 of the marine strategy framework directive, article 17 of the habitats directive and article 32 of the air quality directive. Without reported data under the latter, ClientEarth would not have been able to hold the Government to account through the courts on air pollution.

We will also lose obligations on the Government to report and send information to the European Commission, which is then able to aggregate it and use it for considering the appropriateness of laws and their implementation. On day 6 in Committee, I gave an example of how losing reporting requirements under article 10 of the birds directive could, for example, present a barrier to future investment in, and the roll-out of, marine renewable energy and other developments. The Government still have not said whether they intend these reporting requirements to disappear.

Without amendment, we will also see a loss of environmental standards and conditions. Some obligations on member states have not been transposed into UK law, such as article 9 of the water framework directive, which requires water pricing policies to provide adequate incentives for users to use water efficiently, or article 5 of the energy efficiency directive on energy performance requirements for publicly owned buildings. We have been promised a green Brexit, and we are told that leaving the EU will not threaten the health of people or nature, so why is there opposition to amending the Bill to make those promises legally binding?

Let me turn briefly to the other new clause tabled in my name. New clause 21 would ensure oversight of the transfer of functions from EU institutions to domestic institutions. It would do that by requiring the Government to establish a publicly accessible register of environmental governance functions and powers exercised by EU institutions and to make regulations that ensure that all relevant environmental powers and functions are continued. The register would allow the public to monitor and hold the Government to account on their plans for robust arrangements to be in place on exit day to deliver their ambition for a world-leading environmental justice system. The new clause also reflects strong public concern that the environmental governance gap that would arise on leaving the EU is filled as quickly as possible.

To conclude, I am simply saying that if the Government want the Bill to match their stated intentions, they need to accept these provisions.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It is a pleasure to follow the hon. Member for Bristol East (Kerry McCarthy) in respect of her provisions and to have the opportunity this afternoon to talk about the schedule of amendments in front of us, which we have to consider as a block between now and 4 pm.

The hon. Lady’s concern is about the fate of environmental law, as provided to us by the EU, once we leave, and about what provision we will make to provide it with adequate protection. However, the whole list of amendments, including those tabled by the official Opposition, goes to the issue of what happens to areas of entrenched law that have developed during our EU membership after we have gone. My right hon. and hon. Friends on the Treasury Bench keep on repeating insistently that it is not the intention, as a result of our removal from the EU, that any of these protections should be diminished in any way at all.

It is true that one or two of my right hon. and hon. Friends have made hinting noises at various times that there are areas that they might like to alter in future, in a way that suggests a possible diminution, but in fairness to the Government, that has never been the Government’s position. Indeed, as we have spent time looking at issues such as equality law or children’s rights, the message has come back over and again that the disappearance of the charter of fundamental rights or environmental law issues, for example, will not be used as an excuse for diminishing the existing legal framework.

The difficulty—it is the one that exercised me in Committee—is that it is all very well Ministers coming to the House and making very pleasant statements that that is what they intend to do, but it must be the responsibility of this House to ask the Government how, in practice, that is to be done, when such a powerful mechanism as our EU membership is about to be removed.

That raises a second and more fundamental problem, where I have considerable sympathy with the Government. I understand why, for many in this House—I think that I count myself as one of them, as a good Conservative—the idea of entrenched rights that override the sovereign power of Parliament is something with which we are not comfortable. Indeed, the official Opposition, when in government post-1997 and when seeking to enact the Human Rights Act 1998, recognised that, in that they did not seek to provide entrenched laws; they sought to provide a mechanism through the Human Rights Act whereby rights under the European convention on human rights might be protected in a special way through declarations of incompatibility. That was not sufficient to override primary legislation of this House, but, of course, it did provide a mechanism by which it could be overridden and struck down in the case of secondary legislation. That has always been a way of doing things that has commended itself to me.

I have always accepted that one of the consequences and problems of EU membership is that it has provided entrenched laws that ultimately override by virtue of our international obligations and the direct effect of the European Court of Justice. So I can understand that there should be reluctance on the Government side of the House, as we leave the EU, to simply take this category of laws and say that we are going to give it a special status that overrides the ordinary way in which this House does its business.

If we do that, however, it raises the question of what the Government propose to do to provide, for example, at least as much protection for these categories of rights as is currently enjoyed under the Human Rights Act. One possibility—we canvassed it in Committee—was that the Government might wish to enact primary legislation to add clauses to the Human Rights Act to provide such a mechanism. Indeed, if the Government were to come up with such a proposal, I would be enthusiastic about it, and it is a matter to which we have to give careful consideration.

I am also aware that some of the rights provided in the charter, for example, clearly pertain to EU citizenship, so they are irrelevant to this country once we leave. I also accept that some of the rights may be said to have a socioeconomic aspect, which makes it debatable whether they should be categorised as rights at all. However, that still leaves a very big area indeed of matters that, as I understand it from listening to my right hon. and hon. Friends on the Treasury Bench, Ministers acknowledge are of such importance that they are now seen as being equivalent to rights, yet they do not enjoy the protection of the convention.

Oral Answers to Questions

Debate between Dominic Grieve and Kerry McCarthy

Tuesday 25th March 2014 Commons Chamber

[The Attorney-General]

If I may say so, I always keep the funding arrangements under review, and I am always happy to discuss them with my colleagues in the Treasury. The nature of the SFO’s work load is very flexible, and I therefore think it almost inevitable that if it is to do its work effectively, there will be occasions when it will need extra funding, or will require funding in excess of what it needs. This is an interesting balance which we need to look at. That said, I am mindful of the fact that there may be other ways in which the funding can be delivered and I discuss that frequently with the director of the Serious Fraud Office.

[Kerry McCarthy (Bristol East) (Lab)]

9. What discussions he has had with the Crown Prosecution Service on prosecuting crimes of violence against subcultures as hate crimes.

Oral Answers to Questions

Debate between Dominic Grieve and Kerry McCarthy

Tuesday 9th July 2013 Commons Chamber

[The Attorney-General]

I trust that it has. If we wish to preserve trial by jury, it is extremely important that judges’ directions to juries not to conduct research are properly observed. If they are not, trial by jury will not survive. I have brought a number of cases against jury members; they have been reported, and I hope that as a result of my bringing them, I shall have to bring far fewer in future.

[Kerry McCarthy (Bristol East) (Lab)]

When the footballer Ched Evans was convicted of rape last year, his victim was named more than 6,000 times on Twitter. She has been forced to accept a new identity and relocation package. I understand that only a handful of people have ever been held to account for naming her, and that they have merely been ordered to pay compensation. Should we not send a much stronger signal to people who indulge in such behaviour?

[The Attorney-General]

The hon. Lady has raised two separate points The first relates to the way in which the CPS has gone about prosecuting these cases. It has obviously been selective. Cases have to be brought to its attention, and it seeks to deal with those cases, particularly cases involving those who have initiated such comments. I think that that must be the right way of going about things. As for the hon. Lady’s point about penalties, she must understand that they are not a matter for the CPS. If Parliament wishes to make the penalties more severe, that is a matter for legitimate debate in the House of Commons.

Oral Answers to Questions

Debate between Dominic Grieve and Kerry McCarthy

Tuesday 27th July 2010 Commons Chamber

[The Attorney-General]

By its nature, the Serious Fraud Office is concerned principally with offences of serious fraud. I certainly think that suborning a police officer is an extremely serious offence, but it seems to me to be a matter that is more likely to lie with the Crown Prosecution Service.

[Kerry McCarthy (Bristol East) (Lab)]

6. What assistance the Crown Prosecution Service gives to people with disabilities who are giving evidence as victims in rape cases.

Oral Answers to Questions

Debate between Dominic Grieve and Kerry McCarthy

Tuesday 22nd June 2010 Commons Chamber

[The Attorney-General]

I am very much aware that my hon. Friend has taken a close personal interest in this issue in his area. He will understand that each case must be scrutinised by a prosecutor under the tests set out in the code for Crown prosecutors. There is a duty in each case to keep that under review, in accordance with the evidence available. In some cases, if the police provide more information, that can result in a charge having to be reduced and, in some cases, lesser pleas accepted. But I agree with my hon. Friend that errors can happen, and if a case is brought to his attention that troubles him in this respect, he should, of course, contact me or the Solicitor-General and we will ensure that it is inquired into.

[Kerry McCarthy (Bristol East) (Lab)]

Does the right hon. and learned Gentleman agree that the success of the CPS cannot always be judged by prosecution and, indeed, conviction rates? May I urge him to look at what has been done in Bristol to tackle the problem of on-street sex work? We are using conditional cautions, and the CPS is working with projects such as One25 to try to tackle the root cause of the problem, rather than just taking it through the courts over and again.