European Union (Withdrawal) Bill

Lord Krebs Excerpts

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

[Lord Carlile of Berriew (CB)]

My Lords, when I was a young barrister doing cases in strange places such as Caernarfon Crown Court, nobody at that time thought of bringing charges under the Justices of the Peace Act 1361, but some time in the 1970s somebody had that bright idea. The Justices of the Peace Act 1361 applies to certain public order issues. Suddenly, charges of affray started appearing before those courts, and nobody questioned the efficacy or applicability of the Justices of the Peace Act 1361 in that context. Noble Lords may well be thinking: it is bedtime and that is a good story, but what on earth has it got to do with this amendment? I venture that it has something to do with it.

I am not a member of the Constitution Committee but I admire everything it has done and I support what my noble friend Lord Pannick has just said. This is about the clarity of the law. Normally, if we in this Parliament enact a law and nobody questions its efficacy for years—such as, for example, the Justices of the Peace Act 1361—we tend to pat ourselves on the back and say, “For once we’ve got something right. It’s not troubling their Lordships and Ladyships in the Court of Appeal or the Supreme Court, so we can be well satisfied with our legislative process”. What seems to be being said here, at least to the ordinary reader, I suspect, is that if a particular provision, though it exists, has not been tested and questioned before a court, in some circumstances it should not apply. But if it has given rise to difficulty and has had to be tested in court, that is a kind of imprimatur of quality. I just do not understand it. I hope that your Lordships, at least at 9.20 pm, tend not to understand it either.

Whichever version of this particular law we have—which has, I say to the Minister, the commendable virtue of retaining existing rights and allowing us to presume that we can act on our retained rights—please may we have clarity on what is intended and, if necessary, an explanation of why the Government wish to disapply certain rights that exist?

[Lord Krebs (CB)]

My Lords, I will speak to Amendment 28, in my name and that of the noble Baroness, Lady Jones of Whitchurch, and my noble friend Lady Brown of Cambridge. This amendment, which seeks to replace Clause 4 with a new clause, includes the same intent as that of Amendment 26 but goes further. It aims to preserve, more comprehensively than the existing Clause 4, the 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, powers, liabilities, obligations and so on are incorrectly or incompletely transferred, it also imposes a duty to make regulations to remedy the deficiency.

The Government’s ambition for the withdrawal Bill is for the same rules and laws to apply after the UK leaves the EU as they did before. This ambition has been repeatedly stated, including in the Government’s great repeal Bill White Paper. As the noble Lord, Lord Pannick, reminded us in Monday’s debate,

“the Prime Minister said that this Bill is not an occasion for changing the law, it is an occasion for ensuring that on exit day we have a workable, certain, continuing system of law”.—[Official Report, 26/2/18; col. 550.]

However, the Bill as drafted fails to retain all EU law and therefore does not meet this objective which has been set by the Prime Minister.

I am approaching this from the point of view of environmental protection. The problem is not exclusive to environmental law, but because 80% of environmental law stems from the EU it is particularly important in this area. I would expect the Government to welcome this amendment as it will help to support their ambitions for protecting the natural environment. As the Secretary of State for Environment, Food and Rural Affairs reaffirmed recently:

“It is this Government’s ambition to leave our environment in a better state than we found it”.


It is widely accepted that, over recent decades, the state of our environment has improved in many respects, due primarily to the introduction of EU laws. Amendment 28 will therefore support the Government’s ambition to go further in protecting and enhancing our environment by addressing four problems with the current Clause 4.

The first problem is the one identified by the noble Lord, Lord Pannick, in his Amendment 26. As the Explanatory Notes explicitly state,

“any directly effective provisions of directives that have not been recognised”—

that is, by a court—

“prior to exit day … will not be converted”.

I do not propose to say more about this because the noble Lord has explained, in better terms than I could, the ambiguity created by this clause.

Secondly, the proposed new clause in Amendment 28 imposes a duty on the Government to make regulations that will remedy any cases in which there have in the past been an incorrect or incomplete transfer of EU law. If the Minister considers this to be unnecessary, perhaps we could understand why. The powers to do so are contained in Clause 7(2)(f) but, surely, she would agree that there is a significant difference between a power to do something and a duty to use that power.

The third point that the amendment aims to rectify is that a number of provisions of directives are relied on directly, rather than via transposition into UK legislation. The status of these provisions is unclear as the Bill stands. An example is the Government’s current environmental reporting obligations. Can the Minister confirm that these will be put on a domestic footing as a result of the Bill?

The fourth point, on which I do not intend to elaborate because it is dealt with in Amendment 58, is that the current Clause 4 does not include the preambles to EU directives, which are important in interpreting existing EU legislation. I shall not say more about that today.

Without the amendment to Clause 4, which I am proposing with others, the Bill puts at risk EU law provisions such as the requirements to review and report on the adequacy and implementation of laws such as those in the marine strategy framework directive, the air quality directive and the habitats directive. It does not place obligations on the Government to report and send information to the European Commission —not surprisingly—which is then able to aggregate this information and use it in its consideration of the appropriateness of laws and their implementation.

Without Amendment 28, the Bill omits the aim and purpose of directives, such as the habitats directive specifying that its aim is to contribute towards biodiversity conservation, while some obligations incumbent on member states that have not been transposed into UK law will be lost—for example, the water framework directive’s requirement that water-pricing policies provide adequate incentives for users to use water efficiently. Without Amendment 28, the requirement for regional co-operation in transboundary environmental matters—for example, in article 6 of the marine strategy framework directive—would be lost.

As I have already mentioned, these problems will not only be felt in the field of environmental law. There are other examples of where directives have been incompletely or incorrectly transposed, and which would therefore be lost because of the current drafting of the Bill. These include article 15 of the e-commerce directive and article 4 of the employment equality directive, to name but two.

Finally, I would like to give one practical example of why Amendment 28 is needed. Article 6 of the energy efficiency directive requires member states to ensure that central governments,

“purchase only products, services and buildings with high energy-efficiency performance, insofar as that is consistent with cost-effectiveness, economical feasibility, wider sustainability, technical suitability, as well as sufficient competition”.

This obligation is currently implemented through a procurement policy note. The legal basis for such guidance is article 6 of the directive. No statutory obligation exists in UK domestic law. This means that the article 6 obligation on the Government to purchase highly energy-efficient products, services and buildings will disappear from our law after exit day. The procurement policy note has no legislative status and could be revoked by a Government at any time, without any form of parliamentary scrutiny.

I hope that the Minister will address my points in her response and, if she is not prepared to accept Amendment 28, will explain what additional steps the Government intend to take to ensure that the environment is protected by law and that this Bill ensures that we will have a workable, certain and continuing system of law on exit day.

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[Baroness Goldie]

My Lords, I rise to respond to these amendments with one very clear thought in my mind: I wish my noble and learned friend Lord Keen were standing at this Dispatch Box. We are dealing with issues that are clearly perplexing much greater intellects than mine, but I shall do my best. These amendments, tabled by the noble Lords, Lord Krebs and Lord Pannick, concern the operation of Clause 4 and I am grateful for the opportunity to further explain and discuss the Bill’s approach to directly effective provisions arising from EU directives, one of the issues raised by these amendments.

As the Committee is aware, one part of EU law that the Bill is not converting into our domestic law is EU directives. The reason for this is clear: as they are not a part of our domestic law now, they should not be after we leave the EU. Indeed, my noble and learned friend Lord Mackay of Clashfern made this point very succinctly in the earlier debate. Instead, the Bill is saving the domestic measures that implement the directives under Clause 2, so it is not necessary to convert the directives themselves. My noble and learned friend Lord Keen clarified that in the earlier debate. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease and it makes no sense to retain the direct effect of this category of law within our domestic law.

However, the Bill recognises one important exception to this approach: where, in a case decided or commenced before exit day, a domestic or European court has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will provide for that right, power, et cetera, to continue to have effect in domestic law.

The debate seemed to centre around the nub of phrasing in Clause 4(2)(b). In the earlier debate the noble Baroness, Lady Ludford, raised the interesting question of what “kind” means in the phrase “of a kind”. That question was repeated by the noble Lord, Lord Pannick. In Clause 4(2)(b) “of a kind” is to be read in the context of a right recognised in a decided case. Rights recognised in particular cases are often described in specific terms particular to that case and to the individual who has brought the action. The phrase “of a kind” is designed to ensure that comparable rights particular to other cases and individuals are also retained by Clause 4 but in respect only of decisions pertaining to that same directive. It is the opinion of the Government that this strikes the right balance, ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty in our statute book about what will be retained in UK law at the point of exit. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, encapsulated that point very neatly.

The amendment of the noble Lord, Lord Krebs, which is similar to the one tabled by Lord Pannick, would instead remove this balance. These amendments could have the effect that pre-exit directives would give rise to a directly effective right that has not previously been identified, for an unspecified period after our exit. Such rights would therefore become part of our law. The Government have always conscientiously implemented EU legislation, in accordance with our obligations as a member state, but once we are no longer in the EU, we should have no enduring obligations in relation to the implementation of EU directives. To accept these amendments would be to undermine the certainty that this Bill seeks to achieve. Businesses and individuals will be placed in the difficult position of not knowing when their rights might change, and our courts could face practical difficulties.

The amendment of the noble Lord, Lord Krebs, goes even further. It would place Ministers under a continuing duty and obligation to make regulations where there has been incorrect implementation of any of the EU law that is retained through Clause 4. I would argue that this provision is harmful for several reasons, and it would not be consistent with the principle that we are separating our domestic statute book from that of the EU.

First, binding Ministers to legislate to give effect to any incomplete or incorrect directly effective EU law retained through Clause 4 would effectively require the UK to act on obligations of implementation relative to the EU framework that it was no longer under—a situation that would be simply inappropriate following exit day. Such an approach would impact on the certainty that the Bill aims to provide in our domestic statute book. By potentially allowing developments in the EU to continue to flow into UK law past the point of exit day, the clear snapshot—I know some Members do not care for the term but I think it is the best term we can come up with—taken by the Bill will be distorted, giving rise to confusion about what our law actually is and where it comes from.

[Lord Krebs]

The Minister has just said that it would be inappropriate to rectify omissions or incorrect translations. But if the overall aim of the Bill is to move what is currently governed by the EU into UK law and, as it happens, maybe by accident or some other reason, we have made a mistake in the past, surely it would be right within the overall aims of the Bill to rectify errors in the translation, rather than to say, “We made a mistake in the past so we will persist with the mistake”. I just do not understand the logic of not wanting to rectify mistakes.

[Baroness Ludford (LD)]

Can I repeat something that I have raised in the Chamber before and about which I had correspondence with a Minister? The European Investigation Order, one of the directives cited by the Prime Minister in her Munich speech that she wants us to stay part of, was transposed at the end of last year into UK law, but incorrectly. It is like a European arrest warrant, but for evidence. Instead of saying that it could be opposed on the grounds that it breaches the European Charter of Fundamental Rights, which is what the directive says—I know, because I was one of the MEPs who battled to get that in—it says that it could be refused if it breaches the European Convention on Human Rights, which is not an EU measure. That has therefore not been transposed correctly. What is the status after exit day? Can someone challenge an EIO on the grounds that it breaches the charter, or only on the grounds that it breaches the convention?

European Union (Withdrawal) Bill

Lord Krebs Excerpts

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

Moved by

[Lord Krebs]

1: After Clause 3, insert the following new Clause—
“Maintenance of EU environmental principles and standards
(1) The Secretary of State must take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment.(2) In particular, the Secretary of State must carry out the activities required by subsections (3) to (5) within the period of six months beginning with the date on which this Act is passed.(3) The Secretary of State must publish proposals for primary legislation to establish a duty on public authorities to apply principles of environmental law established in EU law or on which EU environmental law is based in the exercise of relevant functions after exit day.(4) The Secretary of State must publish proposals for primary legislation to establish an independent body with the purpose of ensuring compliance with environmental law by public authorities. (5) The Secretary of State must publish—(a) a list of statutory functions that can be exercised so as to achieve the objective in subsection (1); and(b) a list of functions currently exercised by EU bodies that require to be retained or replicated in UK law in order to achieve the objective in subsection (1).(6) The Secretary of State must before 1 January 2020 lay before Parliament a Statement of Environmental Policy which sets out how the principles in subsection (7) will be given effect.(7) The principles referred to in subsection (3) include—(a) the precautionary principle as it relates to the environment,(b) the principle of preventive action to avert environmental damage,(c) the principle that environmental damage should as a priority be rectified at source,(d) the polluter pays principle,(e) sustainable development,(f) prudent and rational utilisation of natural resources,(g) public access to environmental information,(h) public participation in environmental decision making, and(i) access to justice in relation to environmental matters.(8) Before complying with subsections (3) to (6) the Secretary of State must consult—(a) each of the devolved administrations;(b) persons appearing to represent the interests of local government;(c) persons appearing to represent environmental interests;(d) farmers and land managers; and(e) such other persons as the Secretary of State thinks appropriate.”

[Lord Krebs (CB)]

My Lords, I wish to move this amendment which has been tabled in my name and those of the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville, and the noble Lord, Lord Deben. We have discussed extensively amendments with similar wording and the same intent in Committee and on Report, so I will try to be brief.

Why have we brought this amendment back at Third Reading? On Report, my noble friend Lady Brown of Cambridge withdrew the amendment because the Minister promised the imminent publication of a consultation document which would deal with the issues that the amendment seeks to address. This is what he said:

“Yes, we are saying that we will be able to address this issue again after noble Lords have had a chance to look at the consultation on the statement of principles and the consultation on the new environmental body. I hope my reassurances are enough to enable noble Lords not to press the amendment and that they will take the opportunity to consider the contents of the consultation before we get to Third Reading”.—[Official Report, 23/4/18; col. 1436.]


We have considered the contents of the consultation, which was published last Wednesday, and we are not satisfied. Although the consultation document is encouraging, it does not go far enough.

Let me recap briefly on the central issue. We have heard many times that the purpose of the Bill is to ensure that everything is the same the day after Brexit as it was the day before, yet for environmental protection things will not be the same. We are talking here about protection of our air quality, water quality, rivers, oceans, habitats and biodiversity. That is because, although the rules for protecting our environment will be translated into UK legislation, crucially, the environmental principles underpinning those rules will not and, furthermore, the current mechanisms for enforcing the rules will disappear and not be replaced. If approved, the amendment would fill those gaps and so ensure that, as intended, the protection of our environment after Brexit will indeed remain the same as it is now.

At first sight, the Government’s consultation appears to address our concerns, as the Minister assured us that it would. It includes discussion both of the environmental principles, such as the precautionary principle and the polluter pays principle, and of a new green watchdog to ensure that environmental standards are upheld, thus filling the governance gap that otherwise would be created by Brexit. Those would be part of a new Bill, the environmental principles and governance Bill, to be published in the autumn and introduced into Parliament early in the second Session—in other words, next summer.

However, on closer inspection, the Government’s proposals are simply too weak. There is no commitment to enshrine in legislation the environmental principles to which I have referred. Instead, the preferred option is to create a policy statement, which, as the consultation document says, would allow the Government,

“to balance environmental priorities alongside other national priorities”,

and,

“offer greater flexibility for Ministers”.

The favoured option for the green watchdog’s enforcement role is that it would be able to serve advisory notices to the Government or other public bodies. To quote again from the consultation document:

“government believes that advisory notices should be the main form of enforcement”.

That is far weaker than the current arrangements, under which the Commission has the power to initiate court action. In contrast, an advisory notice can be ignored and there is no sanction if it is. The consultation document even acknowledges the need for strong enforcement when it says:

“there is a special case to act on the environment. Most EU infringement proceedings against all Member States have related to environmental law, indicating a greater need for oversight in this area. In addition, while there are individuals or bodies with direct interests to protect in other areas of EU law, the environment is in a different position”.

Finally, the Government’s timetable for their proposals, weak as they are, show that their new mechanisms would not be in place by Brexit day.

I can imagine that the Minister in his reply may well say that the amendment would pre-empt the result of the consultation and that everything would be taken care of in this promised environmental principles and governance Bill, but I do not accept that. If the Government were really committed to maintaining our environmental protection after Brexit, why not seize the opportunity to show that commitment today? Why should we expect the promise of jam tomorrow when it may turn out that the jam is no more than what is sometimes called thin gruel? Greener UK, a consortium of NGOs, said this in response to the consultation:

“the government has failed to meet the minimum requirement for maintaining the current level of environmental protection. And this disappointment is magnified because ministers – including the prime minister – promised a ‘world-class’ watchdog, and not just to protect but to enhance standards. In proposing a bill that clearly weakens existing protections, it has fallen very short of expectations”.

Noble Lords who care about the preservation of our environment for future generations should support this amendment. After the big reveal of the consultation document, we now know that the Government’s proposals open the door to weaker environmental protection after Brexit day. I beg to move.

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[Lord Callanan]

As the implementation period has already been agreed, it will be the subject of further legislation in this House. Irrespective of that, we are giving a commitment to bring forward the environmental legislation already announced by the Secretary of State for Environment, Food and Rural Affairs, on which I have already updated this House.

[Lord Krebs]

My Lords, I thank all noble Lords who have taken part in the debate this afternoon. We have heard some very passionate and powerful arguments, many in favour of this amendment. I also thank the Minister for his response, although I found it as disappointing as he found my amendment. In fact, I was reminded of the words of Francis Cornford, written over 100 years ago. In his chapter on argument, he said that there are many reasons for not doing something but only one reason for doing it, which is that it is the right thing to do. I strongly believe that in this case, the right thing to do is to support the amendment.

In his speech, the noble Lord, Lord Deben, reminded me of something I heard him say over 20 years ago when he was Secretary of State. He defined sustainability as “not cheating on our grandchildren”. One of the advantages that many noble Lords will share with me is that, as you get older, you have grandchildren. I am fortunate to have three wonderful grandchildren. But with that pleasure comes the responsibility to care about their future. This amendment is about caring for the future of our grandchildren. It is not just about birds, bees, butterflies and wild flowers, because the health of our grandchildren is intimately related to the health of the environment that we leave for them to live in. This is about a healthy environment for the future and about the health of future generations. So, in spite of the arguments for not doing so, I wish to test the opinion of the House.