Brexit: Environment and Climate Change — House of Lords, 2017-03-23
Topic: Environment
Shaista Sheehan (Liberal Democrats, Centre to centre-left): My Lords, I start by thanking my noble friend Lord Teverson for his expertise in chairing the committee as it took evidence and discussed the diverse issues raised. I also take this opportunity to thank the clerks for their unfailingly high standards I aim to restrict my remarks to the enforcement of environmental legislation, which will be crucial to the successful transfer of the EU approach to environmental protection back to one under the jurisdiction of the UK. The report notes the importance of EU membership to UK environmental protection, with no less than 80% of UK environmental legislation being shaped by the EU. The overwhelming majority of witnesses to the inquiry believed that the UK’s membership of the EU had improved the UK’s approach to environmental protection and ensured that the UK environment had been better protected. During the referendum campaign, environmental issues did not feature large, but a national poll conducted by YouGov for Friends of the Earth found that support for the same or better environmental protection with high even among those who voted to leave the EU. The fact is that a majority of the British public remember and value the impact of our membership of the EU in cleaning up our beaches and our drinking water In its evidence to the Environmental Audit Committee, National Parks England reported that most environmental professionals feel that EU legislation has proved to have more clout than UK laws. It stated: "An important issue will be (if, as seems likely, the Habitats Directive no longer has to be applied) how the UK establishes equivalent fully independent administrative systems, to protect the most important wildlife sites. This seems likely to require some new legislative mechanisms if the current system for enforcing the Habitats Directive (ultimately, via the Commission and ECJ) becomes irrelevant" Although European law will be transposed to the UK, governance arrangements would not. We stand in danger of losing the stable policy environment that complex, well-enforced EU law has created—one that is resistant to change. The upshot of that has been higher investor confidence among businesses. This stability could be lost with the increased freedom of the UK to set its own laws The EU governance structure also allows the Government to be held accountable for their environmental actions—for example, through NGOs being able to challenge air quality policy in court. Professor Andrew Jordan told the committee that without the European Environment Agency, the European Commission and the European Court of Justice, there was a risk of legislation becoming "zombie legislation"—either no longer enforced or no longer updated to the latest scientific understanding The European Commission is a key player in the current enforcement of environmental legislation. Professor Lee said that, as things currently stand, we have, "obligations to report on how we intend to comply, then to report on how we did comply, and to explain how we will come into compliance if we fail to do so. We report to a well-resourced, well-informed, named body—the Commission" The Wildlife Trusts noted that the Commission, "provides a great deal of support on environmental legislation, including sharing information, monitoring progress, facilitating reporting on progress across Member States, providing guidance and interpretation of legislation" None of that currently exists in the UK, and how will we continue to provide that level of expertise to organisations and businesses Environmental NGOs have welcomed the role of the European Court of Justice and its right to bring infraction proceedings against member states of they failed to comply with their obligations under EU law. This is a powerful adjunct to the role of the Commission. It has the clout to levy meaningful fines, and its rulings are attended to carefully by member states This is the crux of the matter. The European Court of Justice has the resources and information at its fingertips to bring member states to book. Following Brexit, it would be for the domestic courts to enforce public authorities’ and Ministers’ compliance with environmental legislation, typically by means of judicial review. However, we heard evidence from Professor McCrory and Mr Andrews of ClientEarth that the cost of a judicial review could be prohibitive, as could its time-consuming nature. It was also pointed out that although the Commission can fine, the Supreme Court does not At the moment, the Government, spurred on by the Commission, drives a lot of thinking about how not to be infracted. Ms Mukherjee raised this fundamental question: "If it is not the Government but a sector, or the Environment Agency in the any of the four UK Administrations that raises the question, would there be that impetus and that brainpower behind assuring an avoidance of infraction?" To conclude, the Committee found the Government’s confidence in its ability to hold themselves to account was at odds with the concern expressed by the large majority of witnesses. I therefore strongly endorse the words found in paragraph 84 of the report that, "an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission" I shall leave noble Lords with the words of the Game and Wildlife Conservation Trust: "There is little use in having good legislation if there is limited means to enforce it".