Mary Creagh

Working hard for Wakefield

Speech in the EU Withdrawal Bill committee stage debate

I rise to speak to new clause 60, which was tabled in my name, and to support the amendments tabled by other right hon. and hon. colleagues.​ I voted against the Bill on Second Reading because it puts sweeping powers in the hands of Ministers, sidelines Parliament and waters down our legal rights and protections, particularly environmental rights and protections. When we were asked to vote in the EU referendum, nobody voted for dirtier beaches or dirtier air.

The Environmental Audit Committee has undertaken three inquiries into the effect of leaving the EU on the UK’s environmental policy. We found that our membership of the EU has been overwhelmingly positive for our environment. We went from being the dirty man of Europe in the 1970s to bathing on cleaner beaches, driving more fuel efficient cars and, as colleagues have said, holding the Government to account on air pollution. I do not subscribe to the Panglossian view of the world that says everything will be awesome when we leave. Everything is not awesome, most particularly in the case of air pollution and seabird censuses. We are still a member of the EU and we are not meeting the laws to which we have collectively contributed and collectively signed up under successive Governments.

Eighty per cent. of UK domestic environmental laws are shaped by Brussels, so few areas of policy will be more affected by the decision to leave. Fully one quarter of the EU acquis, which the Bill is trying to cut and paste into UK law, is related to DEFRA—our beaches, rivers, coastlines and marine reserves. We have talked about the gaps in the Bill, and my amendment seeks to close those gaps because with this Bill we are running a risk that environmental law will no longer be monitored, enforced or updated and that on exit day we will be left with zombie legislation.

What we have heard from Ministers today has not reassured me, because they have outlined a path of managed divergence, which is very bad news when it comes to giving certainty to Government, businesses or investors looking to invest in this country. That is why my Committee called for a new environmental protection Act before we leave the EU. The laws are effective only if we have strong institutions to enforce them. As the Secretary of State said when he gave evidence to the Select Committee two weeks ago, there is currently a Commission-shaped hole in the Bill’s proposals.

The UK chemical industry is desperate for certainty on the future of chemical regulation. The Chemical Business Association told my Committee that one in five of its members are considering registering in other European capitals to mitigate the risk that the Government’s regulatory uncertainty has created. They are not waiting for us to debate it or for whatever fills that Commission-shaped hole; they are just upping sticks and creating businesses in other countries, taking their money and investment outside this country.

The Committee is just beginning an inquiry into the regulation of fluorinated gases—powerful greenhouse gases 14,000 more destructive than carbon dioxide. The UK’s reduction targets are currently set and monitored by the EU. We have said that we are going to reduce those gases over the next 20 years, but our progress towards our targets involves working through the EU. We have no idea how we are going to make that progress once we have left, or who will ensure that the Government meet the targets. That is one tiny introduction.

We have heard a lot about the environmental principles—the precautionary principles—that are the bedrock of environmental law. As colleagues have said, they are not unique to EU law; they are general principles found in a number of international environmental treaties to which the UK is currently a signatory and to which we will remain a signatory outside the EU. The Government promised that the Bill would ensure that the whole body of existing EU environmental law continued to have effect in UK law, but that is wrong—it simply does not do that. The Bill cuts and pastes a limited, watered-down version of the general principles of EU law. Paragraph 3 of schedule 1 will limit the legal remedies available to complainants and prevent courts from being able to quash any decision, rule or action as unlawful because it is incompatible with the principles. The general principles are carried over, but the legal remedies are not.

The second problem with this cutting and pasting is that the EU’s environmental principles are not included in the general principles, so there is a kind of double bind on the cut-and-paste approach to the acquis in this policy area. We have a problem in the UK: we have certain pieces of environmental legislation, but there is no general statement in UK law. This is a conscious decision by the Government: when the Select Committee asked the Secretary of State on 1 November whether he felt the Bill should carry over the environmental principles, he said no.

The Bill will remove the rights of citizens to challenge decisions taken by the Government or public bodies that violate environmental principles, and will thereby strip people of rights that they currently enjoy. Those rights are the cornerstones of wildlife and habitat protection, they are guidelines for courts, businesses, public bodies and Government decision making, and they provide a legal backstop. We know that over the past 40 years EU institutions have been bolder on enforcing the principles than UK courts. There is a rich body of case law around the principles: it is set out in the Lisbon treaty, developed in communications from the Commission, and it has been reviewed and applied by the European Court of Justice. It covers everything from chemicals regulation to food safety standards. It is anchored in a treaty, it is updated by communication and it evolves through jurisprudence, so it is a triple lock—a powerful backstop—for environmental protection. Contrast that with the precautionary principle in the UK courts. Case law shows that the principle is less onerous in the UK and, crucially, more deferential to the Executive. We need the principles to be enshrined in primary UK legislation, with clear legal remedies and penalties for the Government when they are violated—because violated they will be.

I wish to say something about chemicals, because I do not think people understand that those need to be registered, evaluated and authorised by the European Chemicals Agency before they can go into the single market. The Minister said that we will have REACH—the registration, evaluation and authorisation of chemicals—and that it has directly applicable effect. It is directly applicable, but there is no body in this country that applies it, because we set up that excellent body though the European Chemicals Agency. The Government will have to create and set up a whole new regulatory framework and a new regulator.

We are going to leave a system that we helped to create. By March 2019, British businesses will have spent £250 million registering their chemicals. Civil servants ​have told us that we are going to spend tens of millions of pounds to set up a carbon copy regulator. That, for me, is the height of absurdity. If we are to be world leaders in high environmental standards, we must retain those principles, make sure that polluters pay for their polluting activities and not put dangerous chemicals authorised for use on the market while we are still unsure of their effects.

I want to talk briefly about the Environment Secretary. He waved away our concerns about those principles. He said that it is not appropriate to put them on a statutory basis, but he gave us no explanation as to why. He said that he wants to embed the principles in policy guidance, but, while this debate has been going on, I have had a quick google on the matter. I found that policy statements need to be anchored in primary legislation. Therefore, all of his solutions require an environmental protection Act, as we said in January this year, but we are no further forward on that. We are still waiting for the environment plan. The policy statements raise a whole set of new questions. Are the Government bound to act according to the principles? If those principles are contravened, can the Government be taken to court? If they can, will acting contrary to the principles be material to the case? I am afraid that it looks like the answer is no.

We have just had a session with the Ministry of Justice. I know that the Minister of State could not be there because he was preparing for the debate yesterday. Government policy guidance says that all the refurbishment projects in our prisons and courts must be BREEAM—Building Research Establishment Environmental Assessment Method—excellent. Two thirds of those building projects over the past seven years have not had any BREEAM assessment or certification at all. Therefore, the Department charged with upholding the law is in breach of Government guidance, and there is nothing that we as a Committee or Parliament can do to hold the Ministry to account. There is no sanction. If a future Secretary of State wants to change or abolish the policy statement, what recourse will Parliament have to prevent them from doing so? Consigning these principles to guidance just weakens things, fails to create legal certainty, and fails to give a legal remedy for people who suffer.

In the summer, the Government talked about keeping all EU law, but the mask of the Secretary of State for Exiting the European Union has slipped once before. During his statement on the White Paper, he said:

“This is about reversing—well, not reversing but amending—and dealing with 40 years’ accumulated policy and law.”—[Official Report, 2 February 2017; Vol. 620, c. 1220.]

I always listen to what Dr Freud said. When the Secretary of State talks about reversing, that is what I am concerned about.

Now the Secretary of State says that he wants to incorporate all “relevant” EU law, but who decides what is relevant? It is this sovereign Parliament that decides. Eight hundred to 1,000 statutory instruments will be drawn up under this Bill, but we know that our environmental protections will be weaker. That gives Ministers the power to drop key protections at the stroke of a pen; it strips people of their legal rights and remedies and risks the UK’s status as a world leader on environmental standards. This is no solution from the Secretary of State, and I hope that we will press the amendment to a vote.

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