At the end of January the EU (Withdrawal) Bill was the subject of a record-breaking debate in the House of Lords. One hundred and ninety peers spoke at the bill’s second reading, including several members of the expert Constitution Committee, which concluded that “the Bill risks fundamentally undermining legal certainty in this country”. There was also widespread concern about the ability of parliament to hold the government to account, the loss of the charter of fundamental rights and the implications for devolution.
Peers committed to improving the bill and are proposing a number of amendments. We were delighted to see Greener UK’s concerns and proposals highlighted across the House, demonstrating strong cross-party interest in the environment.
Environment: “the biggest casualty”
Peers picked up the baton seamlessly from the House of Commons scrutiny of the bill, putting down a number of markers on the parts they believe are deficient or flawed.
Three major areas of concern regarding the environment were raised by both party spokespeople and backbenchers:
- that the new green watchdog to oversee environmental governance may not be in place by exit day;
- that environmental principles, like polluter pays and the precautionary principle, may not be embedded in domestic law;
- and that the bill may not ensure that the full body of environmental law is transferred.
Baroness Jones of Moulsecoomb, the Green Party spokesperson, argued that the bill was “fundamentally flawed from an environmental and social perspective” and “the gaps in [the bill] will leave the environment as the biggest casualty”. She also cautioned against deferring issues to other bills, which she saw as “the promise of jam tomorrow”
No ifs or buts on the new watchdog
Crossbencher Lord Krebs pressed the government on timescales for the green watchdog: “We do not want to say that [the new body] is six months or a year until it comes into place; it has to be there on the day we leave”. Conservative peer Baroness Byford also argued it was “crucial that this new body is in place in time before we exit the EU”. Baroness Jones of Whitchurch from the Labour frontbench wanted to “…ensure that any new UK green watchdog is up and running by exit day, is placed on a statutory footing, is truly independent, and has the powers to fine ministers when environmental rules are broken”.
Environmental principles need legal footing
Several peers reflected the debates in the House of Commons in which MPs had discussed how and not whether the principles should be enshrined in the future. Liberal Democrat Lord Teverson encouraged the government to “bring the precautionary principle into the Bill”. For Labour, Baroness Young of Old Scone said that the government’s plans to include the principles in a new national policy statement would not have the force of law, as is currently the case.
Transferring the full body of green laws across
A number of peers argued that the bill currently missed out crucial elements of the EU environmental law framework. Liberal Democrat Baroness Featherstone emphasised the need to carry across provisions from EU directives that are not transposed into UK law. “We have to have the ability—nay, we have the obligation—to put right any deficiency in terms of failure to transpose EU law: it must be a duty and not simply a power”.
Baroness Jones of Whitchurch summed up the mood of the House when she said she would have liked to have seen the environment secretary “…wielding a comprehensive list of amendments guaranteeing that the environmental protections will be at least as good as those delivered by the EU in the past”. She confirmed that Labour will be supporting amendments that address that deficit.
A green Brexit needs more decisive action
The bill now enters a phase of line by line scrutiny in which the House of Lords will be discussing amendments and probing the government’s response to their concerns. Greener UK is working with a cross-party group of peers to champion environmental issues in the debates and keep up the pressure on the government to listen and act.
While the government’s consultation on environmental governance and principles will be welcome, it was promised early in 2018 and has yet to be published. It also isn’t clear to what extent the UK government is working with devolved governments to develop a shared approach to closing the governance gap.
Michael Gove has described green Brexit as “our chance to give the environment a voice in this time of national renewal.” However, the European Conservative and Reformist group which represents Conservative MEPs recently said Brexit will make it “impossible” to guarantee that current environmental standards can be maintained in Britain or the EU.
Without a firmer commitment from government to act, peers can be expected to push their amendments strongly. And, without a clear majority, the government must, therefore, decide whether to ride out its chances on votes, or to make concessions and bring forward its own amendments.