European Union (Withdrawal) Bill — House of Commons, 2017-11-15
Topic: Environment
Kerry Gillian McCarthy (Labour, Centre-left): I can only invite the Minister to intervene on me at some point before I finish this speech and give a bit more clarity. I am glad that another superior intellect is as baffled as I was by that provision Amendment 95 adds wording that attempts to deal with the poor transposition of EU law, so that if retained law is found to have been incorrectly or incompletely transposed, there would be a statutory obligation on Ministers to make the necessary modifications to correct that. It says that until that piece of EU law is fully and correctly transposed, the EU directive itself can still be relied on. There are some clear examples of where we have not correctly transposed EU directives. For example, the Royal Society for the Protection of Birds points to article 10 of the birds directive in relation to the marine environment, which requires Governments to carry out research and other works to inform our efforts to protect wild birds. That goes back to what I was saying earlier—that it is not possible to enforce environmental protections properly without monitoring to ascertain the scale of the problem. The requirement to carry out research has not been transposed into domestic legislation, which means that, for instance, a new seabird census is long overdue. The Royal Society for the Protection of Birds was able to take that as a complaint to the European Commission, but there will clearly be a different scenario after Brexit New clause 28 concerns the enshrining of domestic principles in domestic law, which was referred to by my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) and with which I am sure my hon. Friend the Member for Wakefield (Mary Creagh) will deal shortly When the Government say that the Bill will ensure that the whole body of existing environmental law continues to have effect, that should mean not just specific substantive obligations but the broad and comprehensive framework in which those obligations are embedded, including the principles that underpin and aid the interpretation of environmental laws—such as the "polluter pays" principle, which states that those responsible for damaging our environment must pay, and the precautionary principle, which states that if there is a suspected risk that a policy could cause severe harm to public health or the environment, we should not proceed with it. Those principles are currently part of the body of EU environmental law in the treaty on the functioning of the European Union, and are also contained in a wide range of legal agreements to which the UK is party. They guide decision making, and provide a basis for legal challenge in court. Richard Benwell of the Wildfowl & Wetlands Trust has said: "Take out principles like precaution and polluter pays and you rip the heart out of environmental law." NC28 would ensure that public authorities carrying out their duties must have regard to environmental principles that are currently enshrined in EU law. Schedule 1 states—the Minister touched on this—that "There is no right of action in domestic law" post-exit "based on a failure to comply with" EU "general principles", other than those that have been litigated on by the European Court. That creates a problem. I should be grateful if the Minister could clarify another issue that was mentioned earlier by the hon. Member for North Down (Lady Hermon). "General principles" seem to specifically exclude environmental principles When the Environment Secretary gave evidence to the Environmental Audit Committee last week, he said that the principles could best be enshrined in UK law through guidance. Although we know that, in some cases, the precautionary principle has been enforced in the UK courts in relation to planning issues, that does not mean that it would apply more broadly than it does now. What we currently have is not simply guidance. For the principles to have equivalence on exit day, they must be placed in domestic legislation. Laws are binding, but guidance is only guidance. Public authorities must take it into account, but they need not follow it if it conflicts with other priorities.