European Union (Withdrawal) Bill — House of Lords, 2018-03-07
Topic: Environment
Margaret Beryl Jones (Labour, Centre-left): 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)