Floods and Water (Amendment etc.) (EU Exit) Regulations 2019

Lord Davies of Stamford Excerpts

Tuesday 22nd January 2019 Lords Chamber

[Lord Gardiner of Kimble]

My Lords, I thank all noble Lords for their contributions, which have shown that we take these matters extremely seriously.

My noble friend Lady McIntosh and the noble Baroness, Lady Jones of Whitchurch, raised reporting and governance requirements. My noble friend Lord Deben spoke of the role of Parliament and Select Committees in holding the Executive to account. I cannot for one minute believe that that will change, particularly if my noble friend is rightly in his place—and indeed all noble Lords, because clearly we all want to get this right. Our legislative framework already includes provisions for regulators to enforce our existing environmental regulations, and there is our system of judicial review. We will retain our rigorous parliamentary scrutiny and strong domestic legal framework for environmental protection, but we want to go further. I say that particularly to the noble Baroness, Lady Jones.

[Lord Davies of Stamford (Lab)]

I thank the Minister for giving way. Does he not accept that one very important thing we shall lose if we leave the European Union in two months’ time is the Francovich principle, under which individuals or groups of people can sue the Government or other state authorities for not observing the law on these matters? It is due to Francovich that on a number of occasions we won considerable improvements to our water quality and the cleanliness of our beaches. That constraint on government, that discipline, will disappear completely if we leave the European Union.

[Lord Gardiner of Kimble]

Had the noble Lord known what was coming in my remarks, he might have been furnished with the response. As I mentioned in the previous debate, establishing the office for environmental protection will ensure that this and every other future Government benefit from the expertise vested in a consistent, long-term, independent environmental body. We currently propose that the new body should have three main functions: to provide independent scrutiny and advice; to respond to complaints about the Government’s delivery of environmental law; and to enforce the Government’s delivery of environmental law, where necessary.

The office for environmental protection will report annually on progress in delivering, for instance, the 25-year environment plan. This is similar to the current reports of the European Environment Agency on member state progress. The OEP will be independent and set its own priorities, so it is not for government to direct its priorities. We would expect, however, that the OEP would choose to scrutinise such reports. As I mentioned before, we will put in place a holding arrangement during the interim period between 30 March 2019 and the launch of the OEP, if no withdrawal agreement is finalised. This will provide a mechanism for the OEP to receive a report of any perceived or—

[Lord Davies of Stamford]

I am sorry to interrupt the noble Lord again, but I am afraid that he may have missed the point. I am sure he knows an awful lot about this subject, so he must know about the Francovich principle. Some 17 successful cases have been brought against the British Government or authorities, and several hundred in the Union as a whole, since the European Court decided on the Francovich judgment. That is a discipline quite different from having regulators. Of course we must continue to have regulators, and the noble Lord has suggested that the Government will now set up another regulator. Regulators are fine, but far more effective as a discipline is the Francovich principle, under which the Government or any other state organisation can be sued in court. They are therefore not only exposed in the courtroom but can be made to pay damages and, no doubt, considerable legal fees. That discipline exists now but will not exist, because the Government specifically have no intention of continuing with it after we leave the European Union—if we do.

I have raised this matter before and I want, if possible, to persuade the Government to continue this valuable principle in our national life, given that it has been an important part of our membership of the European Union. So far, I have got nowhere at all, but I beg the noble Lord to focus his reply on Francovich and not give me instead interesting but irrelevant things, like a new regulator.