Oral Answers to Questions
Kerry McCarthy Excerpts(4 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Attorney General
My hon. Friend raises an important point. The CPS and others have been working at pace to ensure that justice continues to be served. The Coronavirus Act 2020 enables the use of video and digital technology to facilitate court hearings during this crisis. The CPS is working with the judiciary to manage the listing of cases, so that cases that can be dealt with by way of a guilty plea or by other disposal are prioritised, which will go some way towards reducing the backlog in the system.
Kerry McCarthy (Bristol East) (Lab)
The Attorney General (Suella Braverman)
[Inaudible]—capacity across the criminal justice system, and our focus is to ensure that the most dangerous offenders are dealt with as a priority. All cases with an approaching trial date, including bail cases, are under review to ensure that serious and time-sensitive cases are prioritised for trial and that any bail conditions remain suitable.
Kerry McCarthy [V]
Given that there was already a backlog of more than 37,400 Crown court cases before the covid-19 outbreak—I am sure that many of those defendants were remanded in custody—what is the CPS doing to ensure that bail hearings for people who perhaps do not need to be remanded in custody can be expedited and that people can be released into the community when it is safe to do so? In that way, we can ease the pressures on the prison estate in dealing with the coronavirus outbreak.
The Attorney General
Clearly, any bail should be for the shortest possible period, because it restricts the ability of an individual to carry out their normal life while they remain innocent until proven guilty. Each case needs to be assessed on the individual facts, including the potential risks posed by a defendant of, for example, further offending or absconding. There are statutory limits underpinning the conditions that can be imposed, and the defendant has a right to apply to the court to vary or remove any conditions of bail. We need to ensure that these cases continue to be dealt with expeditiously, and the CPS is working with the judiciary to consider options for restarting some trials while maintaining social distancing.
European Union (Withdrawal) Bill
Kerry McCarthy ExcerptsTuesday 16th January 2018
(6 years, 10 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 16 January 2018 - (16 Jan 2018)
Kerry McCarthy (Bristol East) (Lab)
I beg to move amendment 57, page 2, line 42, leave out clause 4.
This amendment is linked to NC19, which would aim to preserve, more comprehensively than the existing Clause 4, rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972.
Mr Speaker
With this it will be convenient to discuss the following:
Amendment 4, in clause 5, page 3, line 23, leave out subsections (4) and (5) and insert—
“(4) Notwithstanding subsection (5), the Charter of Fundamental Rights continues to apply to retained EU law after exit day save as set out in subsections (5) and (5A) below and all references in the Charter to “the law of the Union” shall be deleted and replaced with “retained EU law”.
(5) The following provisions of the Charter shall not apply after exit day—
(a) the Preamble, and
(b) Title V.
(5A) Article 47 of the Charter shall apply after exit day as if it was drafted as follows—
“Right to a fair trial
“Everyone whose rights and freedoms guaranteed by retained EU law are violated is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
“Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”
(5B) With effect from exit day EU retained law, so far as it is possible to do so, must be interpreted consistently with the Charter.
(5C) With effect from exit day decisions, judgments, advisory opinions of the Court of Justice of the European Union must be taken into account when determining cases under the Charter.
(5D) With effect from exit day in relation to the rights conferred by the Charter with respect to retained EU law—
(a) section 4 of the Human Rights Act 1998 shall apply and the words “a Convention right” shall be replaced by “a Charter right” and all references to “primary legislation” shall be replaced by “retained EU law”,
(b) section 5 of the Human Rights Act 1998 shall apply,
(c) section 12 of the Human Rights Act 1998 shall apply and the words “the Convention right to freedom of expression” shall be replaced by “the Charter right to freedom of expression and information”, and
(d) section 13 of the Human Rights Act 1998 shall apply and the words “the Convention right to freedom of thought, conscience and religion” shall be replaced by “the Charter right to freedom of thought, conscience and religion”.
(5E) With effect from exit day, any derogation or reservation made under sections 14 or 15 of the Human Rights Act 1998 shall apply to rights under the Charter in the same manner as they apply to Convention rights.
(5F) With effect from exit day sections 16 or 17 of the Human Rights Act 1998 shall apply to rights under the Charter in the same manner as they apply to Convention rights.”
This amendment would retain the Charter Rights in UK law and afford them the same level as protection as the rights in the Human Rights Act.
Amendment 7, page 3, line 23, leave out subsections (4) and (5).
This amendment would allow the Charter of Fundamental Rights to continue to apply domestically in the interpretation and application of retained EU law.
Amendment 42, in clause 6, page 3, line 36, at end insert
“other than a matter referred to in paragraph 38 of the joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of the negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union dated 8 December 2017.”
This amendment would ensure that UK Courts and Tribunals can refer matters to the CJEU as agreed between the EU/UK negotiators in December 2017.
Amendment 55, page 3, line 36, at end insert—
“(1A) So far as it is possible to do so, retained EU law must be read and given effect in a way which allows it to operate effectively.”
This amendment (linked with Amendment 56) borrows language from the Human Rights Act 1998 to require courts and tribunals to interpret retained EU law, so far as possible, in order to overcome deficiencies in the operation of retained EU law which have not been dealt with using powers under clause 7.
Amendment 43, page 3, line 37, leave out subsection (2) and insert—
“(2) A court or tribunal may regard the decisions of the European Court made on or after exit day to be persuasive”
This amendment enables UK Courts and Tribunals to consider the decisions of the European Court to be persuasive.
New clause 7—EU Protocol on animal sentience—
“The obligation on Ministers of the Crown and the devolved administrations to pay regard to the welfare requirements of animals as sentient beings when formulating law and policy, contained within the EU Protocol on animal sentience as set out in Article 13 of Title II of the Lisbon Treaty, shall be recognised and available in domestic law on and after exit day.”
This new clause transfers the EU Protocol on animal sentience set out in Article 13 of Title II of the 2009 Lisbon Treaty into UK law, so that the obligation on the Government and the devolved administrations to pay due regard to the welfare requirements of animals as sentient beings when formulating law and policy is not lost when the UK leaves the EU.
New clause 9—Saving of acquired rights: Anguilla—
“(1) Nothing in this Act is to be construed as removing, replacing, altering or prejudicing the exercise of an acquired right.
(2) Any power, howsoever expressed, contained in this Act may not be exercised if the exercise of that power is likely to or will remove, replace or alter or prejudice the exercise of an acquired right.
(3) In subsection (2) a reference to a power includes a power to make regulations.
(4) In this section an acquired right means a right that existed immediately before exit day—
(a) whereby a person from or established in Anguilla could exercise that right (either absolutely or subject to any qualification) in the United Kingdom; and
(b) whereby the right arose in the context of the United Kingdom’s membership of the European Union and Anguilla’s status as a territory for whose external relations the United Kingdom is responsible.
(5) Nothing in this section prevents the use of the powers conferred by this Act to the extent that acquired rights are not altered or otherwise affected to the detriment of persons enjoying such rights.”
The intention of this new clause is to mitigate the impact of Brexit on the British territory of Anguilla which is dependent on frictionless movement between Anguilla and adjacent French and Dutch possessions of St Martin/Sint Maarten that are EU territories.
New clause 13—Classification of retained EU law (No. 2)—
“(1) Any retained EU law that was a legislative act or implements a legislative act enacted under Article 289 of the Treaty on the Functioning of the European Union is deemed to be primary legislation on or after exit day.
(2) Any retained EU law that was a delegated act or implements a delegated act under Article 290 of the Treaty on the Functioning of the European Union or was an implementing act or implements an implementing act under Article 291 of the Treaty on the Functioning of the European Union is deemed to be a statutory instrument on or after exit day, unless that law is already enacted as an Act of Parliament.
(3) Any change to the preceding characterisation shall be by regulation which may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”
This new clause would provide greater legal certainty by classifying retained EU law as either primary or secondary legislation.
New clause 16—Consequences of leaving the European Union: equality—
“(1) This section comes into force when this Act is passed.
(2) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection for equality in the law of the United Kingdom.
(3) All individuals are equal before the law and have the right to the equal protection and benefit of the law.
(4) All individuals have a right not to be discriminated against by any public authority on any grounds including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.
(5) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (3) and (4) as they apply in relation to Convention rights within the meaning of that Act—
(a) section 3 (interpretation of legislation);
(b) section 4 (declaration of incompatibility);
(c) section 5 (right of Crown to intervene);
(d) section 6 (acts of public authorities);
(e) section 7 (proceedings);
(f) section 8 (judicial remedies);
(g) section 9 (judicial acts);
(h) section 10 (power to take remedial action);
(i) section 11 (safeguard for existing human rights); and
(j) section 19 (statements of compatibility).
(6) A court or tribunal must have regard to any relevant decisions of the European Court of Human Rights in considering—
(a) the application of this section generally, and
(b) in particular, the meaning of discrimination for the purposes of this section.”
This new clause would ensure that the rights of equality presently enjoyed in accordance with EU law are enshrined in free-standing domestic law after the UK leaves the EU.
New clause 19—Saving for rights etc. under section 2(1) of the ECA (No. 2)—
“(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day are part of domestic law by virtue of section 2(1) of the European Communities Act 1972 continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).
(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations restrictions, remedies or procedures so far as they form part of domestic law by virtue of section 3
(3) Where, following the United Kingdom’s exit from the EU, retained EU law incorrectly or incompletely gives effect to any rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day, a Minister of the Crown shall make regulations for the purpose of giving effect to such rights, powers, liabilities, obligations, restrictions, remedies and procedures.
(4) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).”
This new clause is linked to Amendment 57 to leave out Clause 4 and aims to preserve, more comprehensively than the existing clause 4, rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972. Where such rights are incorrectly or incompletely transferred, it imposes a duty to make regulations to remedy the deficiency.
Amendment 40, in schedule 8, page 54, line 6, at end insert
“to which subsection (2) of section (Classification of retained EU law (Amendment2)) applies.”
This amendment is consequential on NC13.
Amendment 41, page 54, line 44, at end insert
“to which subsection (2) of section (Classification of retained EU law (Amendment2)) applies.”
This amendment is consequential on NC13.
Government amendments 37 and 38.
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.
Mr Leslie
Treaties are reformed every time there are adaptations to them, whether it is Maastricht, Nice or Lisbon. The body of European rules and regulations is adapted and reformed all the time. It is all part of working together in co-operation. Sometimes we get our way on particular issues; sometimes we have to continue to argue our case. That is the nature of pooling some of our rules and sharing sovereignty in some respects with our wider neighbours. That is the nature of agriculture and of the environment in which we live.
Kerry McCarthy
It is an absolute fallacy to suggest that this Government have been dying to ban live animal exports and that it is only the EU that has held them back. I think it was Germany and the Netherlands that tried in the past few years to put a limit of eight hours, transit time on live exports. The UK went along to those negotiations and argued against those proposals. This is definitely a question of political will.
The Solicitor General
May I reassure the hon. Lady by pointing out that there are many areas on which we have heard debates, such as on live importation? I want to make sure the new domestic law we introduce is comprehensive in a way that I know she would fully support. Cross-referencing to the obligations in article 13 —which apply only to EU policies, not to UK policies—would, if anything, create more confusion once we have left the EU.
Frankly, article 13 has not delivered and its effect on domestic law is minimal, and as my right hon. Friend the Environment Secretary has said, we can do better. We have made it clear that we intend to retain, and indeed enhance, our existing standards of animal welfare once we leave. This Bill will convert the existing body of EU animal welfare law into our law and will make sure the same protections are in place in the UK and that laws still function effectively after we leave.
The purpose of this Bill is not to improve EU laws; it is about providing a functioning statute book. That is why, as the hon. Lady has acknowledged, the Government have now published draft legislation—the Animal Welfare (Sentencing and Recognition of Sentience) Bill—which sets out why we can do it better. It is a significant improvement on article 13; it will impose a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas in article 13.
I also say to the hon. Lady that it is open to public consultation and we have to respect the views of thousands of members of the public who will be coming forward and making—[Interruption.] The hon. Lady believes in open and public consultation and democracy, and that is why we are doing what we are doing. [Interruption.] It ill behoves the hon. Lady to assume that my party somehow lies on a lower moral plain when it comes to issues of animal welfare. We share the passion and commitment to animal welfare that she professes and I know many other Members in this House do—I look to the hon. Member for Bristol East (Kerry McCarthy) as a shining example. We want to hear from the public and their view about it, and we want to get it right in domestic legislation, which is the right place for it.
There is much I could say about the wonderful, if small, British overseas territory of Anguilla. Having visited it myself in a ministerial capacity, I was very grateful to the hon. Member for Ilford South (Mike Gapes) for his description. We are very conscious not only of the importance of Anguilla, its people and its economy, but the need to make sure that the concerns of the Anguillan Government are considered and the rights people have in Anguilla, which are exactly the same as those of UK nationals, are preserved after we leave the EU. We will make sure that that situation will not change.
The debate on the charter has been an important one. It has been a further stage in the way in which we have looked carefully at the Bill. The Government remain open and we are listening to all views on how we can get this right. I am sure that, as the Bill makes its way into another place, the deliberations of this House will have done much to enhance the quality not only of the Bill but of our democracy itself.
Kerry McCarthy
I thank the Minister for praising me as a shining example on animal welfare, but that does not quite make up for my disappointment that he has failed to address the issues in my amendments. I therefore seek to press amendment 57 to a vote.
Mr Speaker
The hon. Lady had 10 seconds, and she has been indulged very modestly.
European Union (Withdrawal) Bill
Kerry McCarthy ExcerptsWednesday 15th November 2017
(7 years ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 15 November 2017 - (15 Nov 2017)
Robert Neill
I need to make some progress, so I hope the hon. Lady will forgive me. I have not much more to say.
Let me explain how this procedure will work. The proposed use of the affirmative procedure takes account of the fact that this amendment addresses only EU legislation that is in train, but not wholly in effect. These pieces of legislation have been subject to policy input and scrutiny processes, so they are very limited in number.
Support for this approach comes from two practitioner-based groups in the City: the International Regulatory Strategy Group, which I referred to in debate yesterday, and the Financial Markets Law Committee. The strategy group includes most of the key players in the London financial world. The law committee is an independent body drawn from leading practitioners in City firms and institutions and from members of the judiciary—in fact, it is chaired by Lord Thomas of Cwmgiedd, who recently retired as Lord Chief Justice. Their imprimatur is likely to indicate that this modest proposal has a pretty strong parentage in terms of its expertise and application.
The two bodies identify potential sources of legal uncertainty affecting the wholesale financial markets. Let me give two examples. First, there is the situation regarding the second payment services directive. The directive will apply from next year and will be domesticated, but important regulatory technical standards that will underpin the operation of the directive are not expected to be finalised by the European Banking Authority until after Brexit. At the moment, the Bill will not allow us to adopt those standards into UK law. The amendment would give us a streamlined means to deal with that.
Some of the provisions of the prospectus regulation came into force over the summer, and some important elements are due to take effect in the months after Brexit. Do we have to go through full primary legislation to incorporate that, or do we deal with it through a streamlined procedure? The City institutions and practitioners think it would be much more sensible to have the procedure I propose, so that they have certainty that they will not have delays in the primary legislative process. They can then have the regulation in place, and they are already prepared for it.
That is the nub of the amendment. I am grateful, again, to the Remembrancer’s Office of the City of London for its assistance with the drafting. I am sure the Minister will want to find the means to achieve what is set out in the amendment. I hope that he will be able to respond and find a means of taking this forward.
Kerry McCarthy (Bristol East) (Lab)
I rise to speak to my new clause 25, which has cross-party support. The Minister has already praised me from the Dispatch Box for the clarity with which I have spoken to it, but I can reassure him that now this really is me doing so. I also support new clauses 55 and 58. All these new clauses relate to retaining enhanced protections after exit day. As will be evident from other measures I have tabled, including new clause 28, which is in today’s second group, my main concern is retaining the valuable environmental protections that flow from our EU membership. However, of course, employment rights, equalities, and health and safety standards, as set out in new clause 58, which was tabled by Labour Front Benchers, are also vital, and the same arguments apply to them.
Sir Oliver Letwin
May I explain what I have in mind? I am more than willing to give way to the hon. Gentleman again if he does not agree as I go along.
The first point about a better structure is that it does indeed need to have a statutory base, but that need not be in this Bill. In fact, I think it is much better that it should be an environment Bill, because an environment Bill gives the scope and opportunity to determine these things in much more detail and much more carefully, and gives the House, rather than what we have now—two and a half hours, not all of which will be spent on this topic—days and weeks of consideration in both Houses. That is the right way to do long-term environmental legislation.
Kerry McCarthy
The Environmental Audit Committee recommended, after its inquiry into the future of the natural environment post Brexit, that the Government bring forward an environmental protection Bill in order to do just what the right hon. Gentleman says, but there is no sign that the Government are prepared to do so. In the absence of such legislation, does he not think that the second-best option would be to protect the environment by supporting new clauses 60, 67 and 28, which are on the table today?
Sir Oliver Letwin
Well, we must leave it to Ministers to speak for themselves, but I have to say that the discussions that I and others had with the Secretary of State, who, as people have remarked in this debate, is of a very different cast of mind from some previous Secretaries of State, suggest to me that actually there will be an environmental protection Bill coming forward. I think that is—[Interruption.] Ah! Maestro! With perfect timing my right hon. Friend the Secretary of State comes into the Chamber, at just the right moment for him to signify with a nod, if nothing more, that the possibility of proper environmental legislation in the form of a new statute is on his mind.
Kerry McCarthy
It is a pleasure to follow the right hon. Member for Newbury (Richard Benyon), who is very committed to protecting the environment and did an excellent job as a Minister. On a future day, we might consider a new clause tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas) that specifically deals with the governance gap. I hope that when we debate it we hear more from the Government about exactly how this agency will work, because at the moment it is only a vague proposition. It looks to be heading in the right direction, but I have a lot of questions about how it will work.
I shall speak to amendments 93, 94 and 95, and new clause 28, which stand in my name. The new clause covers similar ground to new clauses 60 and 67, on environmental principles, but I want first to speak to the amendments.
I am grateful to the Minister for thoroughly demolishing my arguments in advance of my having the chance to make them. It is not my intention to press the amendments to the vote, and I will reflect on what he said and consult with the lawyers I have been working with on the amendments, but I will outline my understanding of what the Bill means and what the amendments would improve.
The White Paper assured us that the Bill means that the whole body of existing EU environmental law will continue to have effect in UK law, and the Prime Minister promised us that the same rules and laws will apply on the day after exit as on the day before, but that is simply not the case, because the Bill does not properly capture and convert all EU environmental law into stand-alone domestic law.
There are legal obligations that will not be retained because they can be found only in EU directives and not in the domestic legislation that transposed those directives. Sometimes, that is because the directives have been incorrectly or incompletely transposed. There is also an issue in that the preambles to directives, which can be important in setting out their purpose and linking them with overarching legal principles and international obligations, will not have been transposed into UK law either, so they will not come over with the conversion.
Clause 4 may appear to deal with transposition but, as has been said, because of the inexplicable and unnecessary restrictions in subsection (1)(a) and (b), important aspects of environmental law would be lost. I was reassured to hear that the right hon. and learned Member for Beaconsfield was struggling to get his head round some of the language in clause 4. He is a far more distinguished lawyer than I ever was, and I hope that between us all we can perhaps bring some clarity to it by the end of this process. I am sure that if we do not succeed in doing so here, those in the other place will have something to say.
The aspects of environmental law that could be lost include reporting and reviewing obligations that are crucial in ensuring that the law is complied with and up to date. Without reported data, for example, ClientEarth would not have been able to hold the Government to account on air pollution. We would also lose obligations on the Government to meet various energy performance targets.
Ruth Cadbury (Brentford and Isleworth) (Lab)
Does my hon. Friend not agree that the action that ClientEarth brought on expansion of Heathrow could not have been pursued, had the law been as the Government propose to amend it?
Kerry McCarthy
There are various different aspects to what right we will have to pursue court cases and judicial review once this law comes into effect. We discussed some of those when we talked about the role of the European Court of Justice, the governance gap and the fact that if breaches of the law are not enforced, monitored and measured, it can be very difficult to bring court cases as well.
There is real concern about how the Government are restricting legal aid for environmental judicial review cases. Community groups really rely on this law—it is not just for groups such as ClientEarth, which is well supported and has been able to take the Government to court on air pollution three times and has instigated other proceedings. There is also a real issue about what this means for local people who want to challenge the Government—we may cover that in a different debate.
Mary Creagh
We heard in the Environmental Audit Committee session with the Ministry of Justice officials that the number of cases brought since the cap on costs was removed has fallen from 16 to 11 cases a month. The change is happening before we have even left the EU.
Kerry McCarthy
My hon. Friend is quite right. It is about the removal of the cap on costs as well, and the fact that local people bringing these cases might find themselves liable to a huge financial burden if they are not successful.
Amendment 93 removes clause 4(1)(b), which restricts rights in clause 4 to those which are
“enforced, allowed and followed accordingly”.
Amendment 94 removes clause 4(2)(b), which excludes rights arising under EU directives that have not been adjudicated by the courts before exit day. There is no explanation as to why only rights that have been litigated on or enforced are carried over. The Minister may dispute this, but my interpretation is that the result will be that contentious aspects of law will be retained, but those that have never been litigated, perhaps because they are really obvious and incontrovertible and no one has seen the need to challenge them—the ones that everyone accepts—will be the ones at risk, which seems a little bizarre.
Sir Oliver Letwin
I have a great deal of sympathy with the hon. Lady’s amendment 93. I hope she would agree that it would be helpful if the Minister responded to her amendment and the points that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) made by explaining what would be lost if paragraph (b), which is as clear as mud to many of us, were left out and paragraph (a), which is blissfully clear, were in place.
Kerry McCarthy
I can only invite the Minister to intervene on me at some point before I finish this speech and give a bit more clarity. I am glad that another superior intellect is as baffled as I was by that provision.
Amendment 95 adds wording that attempts to deal with the poor transposition of EU law, so that if retained law is found to have been incorrectly or incompletely transposed, there would be a statutory obligation on Ministers to make the necessary modifications to correct that. It says that until that piece of EU law is fully and correctly transposed, the EU directive itself can still be relied on. There are some clear examples of where we have not correctly transposed EU directives. For example, the Royal Society for the Protection of Birds points to article 10 of the birds directive in relation to the marine environment, which requires Governments to carry out research and other works to inform our efforts to protect wild birds. That goes back to what I was saying earlier—that it is not possible to enforce environmental protections properly without monitoring to ascertain the scale of the problem. The requirement to carry out research has not been transposed into domestic legislation, which means that, for instance, a new seabird census is long overdue. The Royal Society for the Protection of Birds was able to take that as a complaint to the European Commission, but there will clearly be a different scenario after Brexit.
New clause 28 concerns the enshrining of domestic principles in domestic law, which was referred to by my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) and with which I am sure my hon. Friend the Member for Wakefield (Mary Creagh) will deal shortly.
When the Government say that the Bill will ensure that the whole body of existing environmental law continues to have effect, that should mean not just specific substantive obligations but the broad and comprehensive framework in which those obligations are embedded, including the principles that underpin and aid the interpretation of environmental laws—such as the “polluter pays” principle, which states that those responsible for damaging our environment must pay, and the precautionary principle, which states that if there is a suspected risk that a policy could cause severe harm to public health or the environment, we should not proceed with it. Those principles are currently part of the body of EU environmental law in the treaty on the functioning of the European Union, and are also contained in a wide range of legal agreements to which the UK is party. They guide decision making, and provide a basis for legal challenge in court. Richard Benwell of the Wildfowl & Wetlands Trust has said:
“Take out principles like precaution and polluter pays and you rip the heart out of environmental law.”
NC28 would ensure that public authorities carrying out their duties must have regard to environmental principles that are currently enshrined in EU law. Schedule 1 states—the Minister touched on this—that
“There is no right of action in domestic law”
post-exit
“based on a failure to comply with”
EU “general principles”, other than those that have been litigated on by the European Court. That creates a problem. I should be grateful if the Minister could clarify another issue that was mentioned earlier by the hon. Member for North Down (Lady Hermon). “General principles” seem to specifically exclude environmental principles.
When the Environment Secretary gave evidence to the Environmental Audit Committee last week, he said that the principles could best be enshrined in UK law through guidance. Although we know that, in some cases, the precautionary principle has been enforced in the UK courts in relation to planning issues, that does not mean that it would apply more broadly than it does now. What we currently have is not simply guidance. For the principles to have equivalence on exit day, they must be placed in domestic legislation. Laws are binding, but guidance is only guidance. Public authorities must take it into account, but they need not follow it if it conflicts with other priorities.
Kerry McCarthy
I am about to finish my speech.
Guidance is much easier to change at the whim of the Government or, indeed, the Secretary of State. The courts are much less likely to uphold guidance. There is much more deference from the courts to the authority or organisation whose decision is brought under review. It is difficult to see how guidance would enhance observance of the principles above EU standard. We do not see our domestic courts doing that at present. The Environment Secretary talks of an ambition to raise standards rather than sticking to those that we currently have, and I should be grateful for clarity in that regard.
The purpose of new clause 28 is to transfer vital principles into domestic law, from the need to promote sustainable development in the UK and overseas to the “polluter pays” principle and the precautionary principle. I believe that only by enshrining those principles in UK law can we give the public confidence that they will be upheld.
RSPCA (Prosecutions)
Kerry McCarthy Excerpts(11 years, 9 months ago)
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Caroline Lucas
The hon. Gentleman is quite right: there is a smoke screen, and I want to show how the case is not coherent and has no real rigour.
Much of the interest has been about the amount of money spent, with concerns expressed that the expense was not justifiable. I disagree. It was a test case and one based on a high volume of evidence, which needed careful examination to determine whether it constituted a strong enough case to bring to court. Ironically, many critics of the cost are also questioning the RSPCA’s judgment on the prospects of success, even though the charity’s thoroughness in considering whether prosecution was appropriate and its experience of other high-profile criminal prosecutions were what allowed it to budget accurately and appropriately.
It is also worth noting that the defendants indicated right up until trial that they would defend all charges rigorously. Given the importance of the case, and that the evidence and public interest tests were met, the RSPCA had a duty to respond with equal rigour and not to back down in the face of lawbreakers and those guilty of animal cruelty. Indeed, the Charity Commission has vindicated the RSPCA’s decision, stating in the letter I just quoted that it did not consider the trustees to have
“breached their duty of prudence”.
The public interest test is important. Enforcing such an important piece of animal welfare legislation is in the interests of the public, for both those who support the law and those who wrongly believe that they are above it.
Kerry McCarthy (Bristol East) (Lab)
Rather than worrying about whether the RSPCA is misusing its funds in bringing the prosecution, should we not as taxpayers be criticising the CPS for not being prepared to spend its funding on bringing fox-hunting prosecutions?