When first announcing the government’s plans to legislate the UK’s withdrawal from the EU the prime minister assured the nation that the same rules and laws will apply on the day after exit as on the day before and that we will have a workable, certain, continuing system of law.
This really matters for the environment as 80 per cent of our environmental laws come from the EU and EU bodies have provided a vital degree of oversight and access to justice for UK citizens.
The government has accepted and promised to address the governance gap that will be created when the UK leaves the EU. It has also been persuaded of the need to maintain EU environmental principles, such as polluter pays or the precautionary principle. Both are essential parts of the environmental rule book.
During the parliamentary passage of the EU (Withdrawal) Bill debates have, therefore, focused not on whether these commitments will be delivered but on how and when.
Following significant parliamentary and stakeholder pressure, the government published its proposals for how it intends to address these issues, in the hope that they would be sufficient to persuade peers not to push forward with their plan to strengthen the bill. They were not.
Following a thorough debate yesterday, peers voted by 294-244 to amend the bill to ensure that Brexit does not lead to a weakening or diminution of environmental protections and governance. The amendment would also require the secretary of state to publish proposals for primary legislation to establish an independent environmental watchdog to ensure compliance with environmental law and to require public authorities to apply environmental principles.
They did this for five main reasons.
- The government’s plans fall well short of the status quo and are not world-leading
Crossbencher Lord Krebs led the charge making it clear that “After the big reveal of the consultation document, we now know that the government’s proposals open the door to weaker environmental protection after Brexit day.”
Labour peer Baroness Jones of Whitchurch said “This version is a pale imitation of what we had been led to believe the document would say. For whatever reason, it has clearly been watered down.”
Conservative peer Lord Deben explained that the reason he supported the amendment was that “we were promised that we would pass into UK law all the protections that we have as members of the European Union, so that, on the day after our leaving, we would be in the same position in respect of those protections. Under the present arrangements, we will not be.”
As several peers highlighted, the government promised a world-leading environmental governance system but the consultation document gives the environment less protection and provides for a watchdog with fewer powers.
Baroness Jones of Whitchurch was concerned that the consultation was “putting the very principle of access to justice at grave risk of being abandoned.”
Liberal Democrat peer Baroness Bakewell of Hardington Mandeville warned, “We cannot afford to leave a gap in environmental legislation that might allow irreparable harm to be done.”
Watchdogs need strong powers to hold government to account, a point ably illustrated by Labour peer Lord Rooker who said that, regardless of which party was in power, recent governments have been bad on the environment and have needed “a kick up the backside.”
- The government is conflicted and parliament must intervene
As Lord Deben highlighted, the consultation document appears to have been written by two hands: the hand that says, “We really must have an independent watchdog. We must stand up and say, ‘The environment comes first and we have to pass it on’”; and the other hand which says, “Ah, but ministers must always be in charge and we must balance this promise with all sorts of other things.”
Green peer Baroness Jones of Moulsecoomb summed up the view of the majority when she said, “It is perfectly right for parliament to insist that a statutory body, with real enforcement powers, should hold the government legally accountable to its national and international environmental obligations.”
- Time is running out
The government is under no obligation to publish its response to the consultation within a certain timescale. There are many examples where government proposals have stalled.
The pressure on the parliamentary business schedule shows no signs of reducing. The concerns that Greener UK understands have been expressed by other government departments are also not guaranteed to be addressed during or following the consultation. The consultation says that a draft environmental principles and governance bill will be published this autumn, but this is by no means certain.
Therefore, there remains a significant risk that the government may not be able to deliver on its commitments within an acceptable timescale. The amendment would reduce that risk by requiring the publication of draft legislative proposals within six months of the EU (Withdrawal) Act receiving royal assent.
- Future generations matter
Lord Deben argued that the public wants proper protection and to make sure that our children and grandchildren live in an enhanced and better world. The amendment was needed, he argued, “to strengthen the hand of the future and of the commonality of Britain.” Lord Krebs stressed that the amendment is “about a healthy environment for the future and about the health of future generations.”
- It is the right thing to do
Politicians are often accused of acting to further party rather than society’s interests. Nothing could be further from the truth in yesterday’s debate. Lord Krebs cited the words of Francis Cornford, written over 100 years ago. In his chapter on argument, he said that there are many reasons for not doing something but only one reason for doing it, which is “that it is the right thing to do.” Lord Krebs urged his fellow peers to support the amendment as it was the right thing to do.
What happens next?
The bill will shortly return to the House of Commons where MPs will consider all of the amendments made by the House of Lords and decide to accept, alter, reject or replace them, in a stage known in parliament as ‘ping pong’.
The government must now decide what more it can do to assuage the strong concerns that have been addressed. Without further action, there is no doubt that parliamentarians from all parties will continue to press for legislative safeguards to ensure that our existing protections endure and are not watered down.