European Union (Withdrawal) Bill

Baroness Jones of Whitchurch Excerpts

Wednesday 7th March 2018 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the noble Lord, Lord Krebs, has explained why these recitals and preambles are so important, and I thought that I would give an example. They are important because of the purposive approach of EU law, which is quite alien to our UK law, which has a literal approach. This is particularly important in the area of environmental law. For example, the European court relied on the recitals and preambles to interpret article 22 of the air quality directive in the ClientEarth litigation, where it successfully forced the Government to publish their air quality plans. This ruling was absolutely crucial for our health and well-being in the UK and without using the preambles the court would not have been able to properly interpret the wording of the substantive article. The courts in our country will have a huge job on their hands of making sense of all this retained EU law that we are going to thrust upon them if they do not have the recitals and preambles; these are essential to understanding the law and their job will be much harder without them. I beg the Government to look at this issue and rethink their position.

[Baroness Jones of Whitchurch (Lab)]

My Lords, my name is also added to Amendment 58 and I support the very compelling case made by the noble Lord, Lords Krebs, and, indeed, by the noble Baroness, Lady Jones.

I, too, speak as an environmentalist. As has already been highlighted, the implementation of EU environmental law in the UK is drawn from several sources, all of which, in our application of it, have equal weight. For the most part, it is a welcome and uncontroversial addition to our UK environmental legal framework; it is often uncontentious and applied without legal recourse. Indeed, few people would argue that we should revert to dirty beaches and polluted bathing water and there is a common consensus that we need to adopt the EU regulations and directives.

Though these standards are very much taken for granted they do not always originate from the same legal source, which is why amendments such as Amendment 58 are so important. All the amendment does is to seek to protect what we have now—nothing more than that. The recitals and preambles which preface the formal wording of the legislation are important for explaining, in layperson’s terms, as the noble Baroness, Lady Jones, explained, what the legislation intends to achieve. They often include important principles which underpin the legislation. I have referred previously to examples of these preambles, such as article 1 of the environmental liability directive, which includes reference to the polluter pays principle, and article 1 of the habitats directive, which spells out the aim to deliver biodiversity conservation. However, there are many others, some of which have gone on to be tested and captured in UK legal judgments, but others have not.

Very simply, my challenge to the Minister is: if these amendments are not acceptable, what will be the future status of these preambles, and how can we be assured that they will have the same effect as we have previously enjoyed? We regard them as an integral part of current EU law, so if there is no place for them in the transposed UK law, does the Minister accept that this will represent a watering-down of the Government’s promise to enhance, rather than diminish, our environmental standards? I hope he can clarify that.

[Lord Mackay of Clashfern (Con)]

My Lords, I would have thought it was clear that when we are incorporating EU law into United Kingdom law, the law in question will not be edited—apart from questions of not working and so on, which are separate—and the whole instrument will be transformed into UK law. Judges always try to understand the legislation as a whole and read the document as a whole. Therefore, I think I can assure noble Lords that the courts here will look with great interest at these recitals and preambles—particularly in view of what the noble Baroness said about the difficulty of some of them—to see if they can help them understand properly and make a proper construction of the instrument in question.

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Moved by

[Baroness Jones of Whitchurch]

66: After Clause 6, insert the following new Clause—
“Maintenance of EU environmental principles
(1) Public authorities must have special regard to and apply the principles set out in this section.(2) The principles in this section are—(a) the precautionary principle as it relates to the environment,(b) that preventive action should be taken to avert environmental damage,(c) that environmental damage should, as a priority, be rectified at source,(d) the polluter pays principle, and(e) that environmental protection requirements must be integrated into the definition and implementation of policies and activities, with a view to promoting sustainable development.(3) The principles in subsection (2) may be called the “environmental principles”.(4) In carrying out their duties and functions arising by virtue of this Act, public authorities must take account of the public interest in—(a) promoting sustainable development in the United Kingdom and overseas,(b) preserving, protecting and improving the environment, (c) the prudent and rational utilisation of natural resources,(d) promoting measures at the international level to deal with regional or worldwide environmental problems, and combat climate change,(e) guaranteeing participatory rights including—(i) access to information,(ii) public participation in decision making, and(iii) access to justice,in relation to environmental matters, and(f) acting in a way that takes account of available scientific and technical data.(5) When making proposals concerning environmental protection, public authorities shall take as a base a high level of protection, taking account in particular of any new development based on scientific facts.(6) Subsection (7) applies in any proceedings in which a court or tribunal determines whether a provision of primary or subordinate legislation is compatible with the environmental principles.(7) If the court is satisfied that the provision is incompatible with the environmental principles, it may make a declaration of that incompatibility.”

[Baroness Jones of Whitchurch]

My Lords, this amendment stands in my name and those of the noble Lords, Lord Krebs and Lord Deben, and the noble Baroness, Lady Bakewell of Hardington Mandeville. Amendment 108 stands in my name and I have added my name to Amendments 112 and 113 in the name of the noble Lord, Lord Krebs.

This group of amendments goes to the heart of the concerns about the potential impact of the Bill on established environmental safeguards in the UK. On earlier amendments we rehearsed the gap in environmental protection that might occur if the transfer of legal rights is limited in the way that we have spelled out, particularly in its reliance on case law. The Minister may put forward a similar argument in answering these questions but it would be useful to have it on the record so that we can look at it in detail after the debate.

Amendment 66 tackles the issue of environmental principles head on and spells out the core principles that are needed to achieve the Government’s promise of equivalence in environmental standards. These are: the precautionary principle, the preventive action principle, the principle that environmental damage should be rectified at source, the polluter pays principle and the principle that environmental protection should be integrated into policies to promote sustainable development. To avoid any uncertainty these principles should be part of domestic law on day one, the public should be able to rely on them, the court should apply them and public bodies should follow them. These principles matter. For example, as we have discussed, the precautionary principle is important in the application of pesticides, where the impact of neonicotinoids on bee populations was suspected but not backed by scientific certainty. It created enough time and space for further research to be carried out which confirmed that the ban was justified.

Similarly, the polluter pays principle, which has been used, for example, in the application of the water framework directive, has enabled the Environment Agency to impose fines on water companies found to have polluted rivers and required them to repair the damage and invest in preventive measures for the future.

These principles have existing legal status. For example, in a recent case Friends of the Earth successfully argued that the Northern Ireland department had failed to consider the precautionary principle when it refused to issue a stop notice to prevent sand extraction in Lough Neagh. I hope that I have pronounced that properly. As a result partly of that argument, the department had to reconsider its position.

These principles of environmental law are not new, nor are they unique to EU law. They are also found in a number of international environmental treaties to which the UK is a signatory. These include the Convention on Biodiversity, the Convention on Climate Change and the Convention on the Law of the Sea. Currently, the UK gives effect to these international obligations through its membership of the EU as these principles are contained in Article 191 of the Treaty on the Functioning of the European Union. This is why, although we have strong support for the concept of enhancing biodiversity as set out in Amendment 67, in the name of my noble friend Lord Judd, in the spirit of transposing rather than refining the legislation we have tried to be true to the existing principles and objectives in Article 191, which do not yet include enhancing biodiversity, although, of course, we wish that they did.

When a similar amendment to Amendment 66 was debated in the Commons, it received strong support. In fact, Dominic Raab MP, who was then the Minister of State responsible for courts and justice, stated:

“Leaving the EU will not diminish our commitment to environmental principles. Indeed, it is an opportunity to reinforce them”.—[Official Report, Commons, 15/11/17; col. 501.]


So we believe that by restating the principles in the Bill by inserting this proposed coherent new clause, the Government can avoid the ambiguities which result from relying excessively on case law and make good their promise to enhance environmental protection.

More recently, the Government have announced that they plan to publish a new national policy statement setting out the environmental principles which will underpin future policy-making. In theory, we welcome this initiative as it would allow us to build on the existing principles, making them relevant and durable for the longer term—including, of course, the importance of biodiversity. This would be a document for the future. However, we have not seen a draft of it yet; it would then need to be subject to full consultation before becoming a reality. In addition, its legal status would be less clear as it could be changed by government without a parliamentary veto. In the meantime, as the date for leaving Europe grows nearer, it is important that we protect the existing principles that have stood us in good stead for so long. That is what Amendment 66 seeks to do.

The next amendment in my name is Amendment 108. It addresses the serious threat to air quality, which we were rehearsing just a moment ago, by seeking to ensure that the EU ambient air quality directive 2008, the other directives listed and the UK regulations that transpose it remain the law of the land. We know this is an issue of huge public concern, with public health implications. That concern is reflected by the courts, which have consistently ruled that the Government are in breach of the ambient air quality directive; and, of course, we saw the latest episode of this in the High Court last week, when the Government’s latest plans were declared unlawful. The Government’s reluctance to comply with the directive is a worrying indication of their likely approach to implementing air quality standards after the UK leaves the EU. Our amendment aims to put certainty into the withdrawal Bill so that existing standards and oversight remain in place.

Currently, the air quality standards regulations are secondary legislation; under the current terms of the Bill, they could be amended or repealed with minimum parliamentary scrutiny. In any event, the regulations will lose much of their effectiveness unless the courts are required to enforce them, in line with the principles established by case law of the Court of Justice of the EU. Anyway, once the UK leaves the EU, the European Commission will have no authority to bring infringement proceedings against the UK. Without this amendment, air quality protection is under threat, either by repeal or amendment—or, more subtly, through the removal of any effective enforcement mechanism. The air quality regulations could cease to be effective on Brexit day. It is therefore vital that the directive and the Air Quality Standards Regulations 2010 are transposed in full, with no weakening amendments. To guarantee public protection in the future, these air quality laws should be given the status of primary legislation, so that future changes require a full Act of Parliament. It is also vital that establishing EU case law applies in the interpretation and enforcement of these laws in the UK.

Finally, as explored in Amendments 112 and 113, there needs to be a robust and independent governance structure that deals with accountability and enforcement. We believe that the package set out in Amendment 108 is vital to delivering effective regulation and enforcement of air quality standards in the future. There are a number of other amendments in this group that explore different aspects of environmental protection and enforcement. We support these amendments, but I will leave those who have tabled them to make their case in more detail. In the meantime, I beg to move Amendment 66.

Amendment 67 (to Amendment 66)

Moved by

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[Baroness Byford (Con)]

I shall follow the noble Lord, Lord Rooker, because I put my name to Amendment 112, which calls on the Government to look at the independent body. When I spoke at Second Reading I said that it was essential that the proposed new body should have teeth, and I am very grateful to the noble Lord, Lord Rooker, for reinforcing that point. The questions that I posed then—I shall not repeat the excellent contribution of the noble Lord, Lord Krebs, because that would test the temper of the Committee to say the least—were: who staffs it? Who pays for it? Who interprets it? What relationship does it have with other agencies? It is key that the new independent body that we are promised should be set up in time, and Clause 112 sets down a timescale. It may be that the Minister is not able to accept the amendment as it stands, but it is hugely important that we realise the strength of feeling about getting this body in place in time so that the laws will be regulated in the way that they have been traditionally—so I totally accept what the noble Lord, Lord Rooker, said.

The noble Baroness, Lady Jones, mentioned the 25-year environment plan earlier. I hope I misunderstood her, because she is very good on her brief, but I think she indicated that there was no 25-year environment plan. I thought it was out: I have read it and was looking forward to responding to it. The Government are looking to go out to consultation on it. Is the Minister able to give the Committee any direction on the timing of that? Will it be a UK consultation or an England one with the devolved assemblies looking at it from their point of view as well, and will the new body reflect this? It is hugely important that it is a UK one because that is the law that, hopefully, we are taking over from the EU in the way it is now.

On the question of feedback on the environment side, there will be very great differences, I suspect, between how England responds and how Scotland, particularly, and Northern Ireland and maybe Wales do. There are some very real and slightly wider issues here. I think it comes to the amendment to which I added my name because I was clearly very unhappy that we had no timetable. We have no idea whether the body will have teeth or who will impose it—and, importantly for me, who will pay for it and how independent the person paying for it will be. These are questions that we need answered today. I have others, but that is enough from me.

[Baroness Jones of Whitchurch]

I will just clarify that I did not mention the 25-year environment plan. I referred to a new national policy statement setting out environmental principles, which I think is a different document. Otherwise, I agree with everything the noble Baroness said.

[Baroness Young of Old Scone]

My Lords, I share the anxiety of the noble Baroness, Lady Byford, about the timescales, particularly in respect of the consultation on EU environment principles and the establishment of a new independent environmental watchdog. A large amount of environmentally related legislation has to be got through over the next few months or a year: a fisheries Bill, an agriculture Bill and a huge wall of statutory instruments on environmental law are coming towards us. There are something in excess of 800 instruments in total, the last I heard, with a considerable number of those being environmental. I am anxious, along with many other noble Lords, about whether there is air time for this consultation before the legislation that needs to follow to establish the new watchdog. I would press the Minister to tell us about the plans for the consultation.

I also share the anxiety of the noble Lord, Lord Rooker, about whether there will be real welly behind the regulator. I was chief executive of the Environment Agency, the environmental regulator, which had to help negotiate the urban wastewater treatment directive infraction proceedings that produced the Thames tideway. In spite of wanting and willing there to be an example elsewhere in the world of a body established by a Government that is capable of fining its own Government —and hence its own establishing power—I have not been able to find one. I hope, however, that Ministers will look assiduously at producing that result.

In the spirit of the noble Lord, Lord Deben, with the great hope that I am not going to be his unrefined ordure, I will also briefly help the Committee with another couple of examples about why the environmental principles are important. When I was chairman of English Nature, the debate about genetically modified crops was raging. There was huge public concern and the Government were in an impossible position, with the multinational American-based companies pressing very hard to have GM crops introduced. There was huge alarm about the release of triffid-like plants resistant to all known weed-killers and capable of killing insects stone dead at a distance of 100 paces. But the reality is that had there been an uncontrollable release of GM crops, it would have been more than unfortunate for biodiversity, agriculture and food security.

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Amendment 67A (to Amendment 66) not moved.

[Baroness Jones of Whitchurch]

My Lords, I thank everyone who has contributed to this debate, and I thank the Minister for trying to set the record straight on this issue. As the Bill has progressed, I have sat through many happy hours listening to lawyers around the Chamber making some very thoughtful and considered contributions about the meaning of different parts of the Bill. Very often, we non-lawyers end up wondering whether these things matter or whether it is a case of dancing on the head of a pin. Then, of course, you begin to realise that they do matter and that some of these disagreements concern very profound and important points for our future, and I have felt that again today.

I have listened to a number of disagreements about what is and is not in the Bill and what guarantees we can and cannot have on the environmental principles that are already in the Bill. I have also listened to the guarantees that the Minister has attempted to give. However, in addition to the views that have been aired around the Chamber today, we have had our own legal opinion, which says something very different—that the principles that we are trying to outline are not readily embraced by and incorporated in the Bill. That is why we are trying to put them in with this new wording. Those legal differences are not just about the environmental principles that we have been debating; they are also about the recitals and preambles that we dealt with in an earlier debate. Therefore, there are some profound legal differences that need to be resolved at some point.

The Minister kept saying that he wanted to provide legal certainty, but I think that we are ending up with legal uncertainty, which is precisely what our amendments attempt to deal with. Amendments 66, 112, 113 and 317 give clarity. They spell out in detail in one simple form what the principles and the Government are attempting to achieve. You do not have to cross-reference different parts here and there to see what that might entail; the amendments spell it out in simple detail. I think that there is a lot to be said for proceeding on that basis as far as a layperson is concerned. As the noble Lord, Lord Deben, said, we are not asking for anything more; we are just asking for what is in the existing provisions. We are just trying to put it into language that most people would be able to understand and not tie it up in legal knots.

[Lord Deben]

Perhaps I may ask a single question. Would the noble Baroness be willing to sit down with the Minister and go through this amendment, removing anything from it which is not in the present law so that he would have a chance to accept it on Report?

[Baroness Jones of Whitchurch]

Yes, absolutely. In fact, I would go further than that. I am sure that we could provide the evidence not only in terms of international obligations but in terms of Article 191, where all these things can be found. However, let us do that trade and see where the gaps lie, and perhaps we can make some progress on that basis. Certainly, we would welcome any opportunity to iron out some of the differences that appear to exist.

The Minister made reference to the 25-year environment plan—which is great—and to the PM speaking about the need to have comparable environmental rights. Again, of course that is fine, but it is not the same as having the legal certainty of something being in the Bill. Furthermore, I think I said in my opening speech that the new policy statement on environmental principles will not have the same legal status as something that is on the face of the Bill. Therefore, we need that further certainty.

The Minister made reference to a number of consultations that are taking place. That is fine but we get only one stab at this Bill and we are being asked to accept an awful lot of promises regarding things coming on stream in months or, sadly, even longer—issues that should be set out in the Bill. It is unfortunate that we are being asked to accept that there will be deadlines for these things. The noble Lord, Lord Krebs, referred to Einstein’s theory of relativity, clearly making the point that these timetables are just impractical in terms of getting everything consulted on and in place by Brexit day. As I said, we would very much welcome the chance to work some of these things through so that we can have more certainty.

The noble Lord, Lord Wigley, made a very strong case for common frameworks. Again, I do not think that they are properly captured in the Bill, and I know that this comes up again in other sections of the Bill. Quite frankly, I would have thought that the Government would bite his hand off for the opportunity to sit down and talk about it. The noble Lord made a very compelling case. Certainly on the environment, the need for those common frameworks, despite devolution, is absolutely imperative. Therefore, I hope that there can be further discussions around that as well.