European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, what I am about to say is designed to help—although whether it achieves that may of course be doubted. The Government have stated that the central object of the Bill is to ensure that the law on the day after Brexit is the same as on the day before. But it is also the Government’s stated aim—one I would hope is shared by all, or certainly the great majority, in the Chamber—that the EU law retained is certain and clear rather than left in very considerable doubt. I would suggest it is that which explains provisions such as paragraph 2 of Schedule 1, relevant to the question of whether the general principles of EU law are retained, which features in the provision under Clause 6(3), which we are now discussing. Indeed, it also explains Clause 4(2)(b), which we talked about a few days ago—although it seems like weeks—and the non-incorporation of the charter, although I shall show very considerable restraint and not go further down that road. We keep straying on to it—although I had thought that, at least for Committee stage, we had put it to bed some while back.

The amendments in this group, I suggest, will not assist in clarifying and making certain and predictable the application of retained EU law. I therefore cannot support them.

[Baroness Young of Old Scone (Lab)]

My Lords, I support Amendment 58. This comes down very simply to the fact that, as a result of the discussion we have heard today, the recitals and preambles either are brought across automatically—in which case, some of the statements made in the debate in the other place on this issue, which were quite lengthy and considerable, need to be re-examined, because my impression of those was that there was no guarantee of preambles and recitals being brought across—or they are not clearly brought across, in which case we need something in the Bill that does so. So I would be very grateful if the Minister would clarify, first of all, whether he believes the Government are convinced that they are already clearly brought across.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, first of all perhaps I may observe that, pursuant to Clause 3 of the Bill:

“Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day”.


That brings over direct legislation, including recitals, as I believe a number of noble Lords have understood.

The Government’s position is that, as long as retained EU law remains as part of the UK statute book, it is essential that there is a common understanding of what the law means. Therefore, to maximise certainty, any question as to the meaning of retained EU law will be determined in the UK courts, in accordance with the CJEU’s case law as it exists immediately before the UK leaves the EU. That is set out in Clause 6(3). Any other starting point would lead to a change in the law and risk creating considerable uncertainty, if not confusion, on exit day.

However, we do not want to fossilise that case law. That is why, pursuant to Clauses 6(4) and 6(5) of the Bill, there is provision for the Supreme Court, and indeed for the High Court of Justiciary in Scotland, to depart from that situation when employing their own jurisprudence. The test would be that which they apply at the present time in departing from their domestic jurisprudence.

While it would be fair to say that the Constitution Committee has not always seen eye to eye with us on the Bill, on this particular issue it described the Government’s position as clear and sensible. Retained EU law will of course be modified after exit day by Parliament, and indeed by the devolved legislatures. It is right and sensible that it should no longer be interpreted in line with retained EU case law, following those modifications. But, in other cases, it may be appropriate that, even where there has been some modification, it should continue to be interpreted in that same way. What we have in mind is a situation in which a modification simply changes a reference, for example from an EU commission or agency to a UK public body, but leaves the substantive scheme of the retained EU law exactly as it was before. That is the purpose of Clause 6(6): to ensure that, where there is a modification that has no impact on the operation of the scheme, we should continue, pursuant to Clause 6(3), to amend in an appropriate fashion.

Amendment 57, which was moved by the noble Baroness, Lady Bowles, would remove the reference to unmodified law from Clause 6(3). But one effect of that would be to cast doubt on the operation of Clause 6(6) and the ability of modifications to retained EU law to displace the binding effect of pre-exit CJEU case law. That uncertainty, we suggest, should be avoided.

Can I come on to the issue of recitals?

--- Later in debate ---

[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.

[Viscount Ridley]

Let me give the noble Baroness the chance to get her voice back by intervening on what she knows is one of my favourite subjects. Would she not accept that, many years down the line, we now know, because of the meta-analysis by Göttingen University, among other research, that the introduction of genetically modified crops has not led to triffid-like explosions, but has led to a reduction in the use of pesticides, on average, by 37% across the globe? That is something I think she would support.

[Baroness Young of Old Scone]

Perhaps I could continue our long-standing discussion with the noble Viscount outside the Chamber, to avoid the Committee having to listen to us going through that. The important point is that the principles helped us get a framework for thinking about the issues. That was very important at a time when that meta-analysis was not available.

Another example is our current position on the common agricultural policy. It was introduced before some of these environmental principles were refined and used in European legislation. As a result, we are now in the ridiculous position where the polluter pays principle would have helped us, as taxpayers and as water company customers and payers, avoid paying farmers twice. We are paying water companies to pay farmers to stop doing something that, as taxpayers, we are paying farmers to do. The polluter pays principle, had it existed when the common agricultural policy was first set in place, would have been a hugely valuable way of preventing that very wasteful situation.

[Baroness Miller of Chilthorne Domer (LD)]

I shall speak to my Amendment 67A, which sets food production within the context of Amendment 66. I heard what the noble Baroness, Lady Jones, said at the beginning and I completely appreciate that Amendment 66 is predicated, or modelled, on the original frameworks. But I want to draw out what is implicit in proposed new subsection (4)(c), which concerns,

“the prudent and rational utilisation of natural resources”.

Part of that is about farming and food production, which we touched on when we debated animal sentience. But the importance of food security, the quality of the food available to us and the price at which that food comes will be founded on the sort of principles that we choose to put into the Bill. I shall give a couple of examples that illustrate this very well.

The first of these would be pre-emptively dosing intensively farmed animals with antibiotics. Is that reckless; is it against the precautionary principle? Yes, it is. It has led to massively increased incidences of antibiotic-resistant bacteria in both animals and humans. Of course, that has had huge cost implications.

We have often talked in this House about the implications of agriculture for climate change. There is a choice coming up for agriculture, which contributes an estimated 11% to total global warming potential. There are better ways. We are looking at no-till agriculture, which will enable the soil to retain more carbon, and so on. I will not detain the Committee with all the details.

The amendment rightly talks of,

“the prudent and rational utilisation of natural resources”.

We have taken for granted for a long time that we have possibly the best grass-growing conditions in the UK: good soil and sufficient rainfall. The amendment is important because it says we must not go on taking any of this for granted. The issue of food production is something the public are rightly very concerned about. Food security is another issue. The principles in the Bill may seem a little esoteric, but when you bring it down to food—what is on the shelves of your local shops or, in the worst-case scenario, is not on the shelves of your local shops—the public will appreciate how right this House would be to debate and insist on these environmental principles being in this Bill.