I thank the Minister for that clarification.
What could possibly be watered down? The Environmental Audit Committee asked the Transport Secretary for a guarantee that air quality standards would not be watered down after Brexit, but he refused to give us that guarantee, saying that he found it
“hard to believe that any Minister is going to stand before this House and argue for a reduction in air quality standards.”
He is right. No Minister will have to stand before this House and argue for that, because the Bill does away with that requirement. We saw the Secretary of State for Exiting the European Union’s mask slip once before during his statement to this House on the White Paper, when 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.]
That was a Freudian slip that I return to time and again. We have also seen that from the Environment Secretary. Paeans have been heaped on his head, but in April, between his visiting Donald Trump in January and his rehabilitation to the Cabinet, he railed against the habitats directive, which he now somehow wants to protect from himself. He talked about homes in his constituency being governed by the habitats directive and how onerous it was for developers to have to offset their projects with green spaces. There is obviously more joy in heaven over one sinner who repents, but he was a deregulator before his damascene conversion. He is now deeply penitent, spending his day listening to the experts, and has since acknowledged that the environment needs to be protected from
“the unscrupulous, unprincipled, or careless”.
I wonder which of his colleagues he had in mind and who may yet succeed him at DEFRA.
How might Ministers go about watering down EU standards? The 2008 classification, labelling and packaging regulation or CLP regulation—CLP means something quite different in Labour terminology—is an example of direct EU legislation under clause 3, which will become retained EU law under clause 6. The CLP regulation aligns the EU’s system of classifying, labelling and packaging chemical substances. It enables chemical products to be traded in the European single market while protecting workers, consumers and the environment. It is why drain cleaners—the sulphuric acid that has been used in the terrible acid attacks—and paint strippers bear the red diamond hazard signs, with which we are all familiar. The regulation will need to be corrected after exit day, but the corrections proposed in the Government’s delegated powers memorandum show how the CLP regulation would be dramatically watered down.
The draft statutory instrument proposes to omit article 46 of the CLP regulation. Article 46 obliges the Government to enforce the safety standards in the regulation and to report on how well those standards are being enforced. In that draft SI, the Government say that because the Commission does not exist, they do not need to report to the Commission, and because they do not need to report, they do not need to enforce. This is a granular and detailed amendment, but that is the sort of thing that the proposed sifting committee will have to consider with an electron microscope to get to the heart of every single deficiency, some of which—with the best will in the world—will not appear until there is a legal challenge. We do not want the labelling and packaging of dangerous chemicals not to be enforced and not reported to any body. Some hon. Members may not be as sceptical as I am about Ministers’ intentions, but none of us can predict the future. We have had three Environment Secretaries in as many years.
Amendment 138 would protect retained EU environmental law, requiring Ministers to certify that they are satisfied that regulations made under clause 7 will not remove or reduce any environmental protection provided by retained EU law. That certification—similar to that created by the Human Rights Act—would be justiciable, meaning that it can be challenged in a court of law. An individual or group could apply for a judicial review if they felt that regulations made under clause 7 had removed or reduced environmental protection. That would not delay leaving the EU, but it would provide a vital check on the powers in clause 7, and it protects the protections.
4.15 pm
The hon. Member for Broxbourne (Mr Walker) and I discussed yesterday how the new committee could do what I call the magic ping—alerting Select Committee Chairs to particular instances. That is one way of doing it. Alerting other Select Committee Chairs is another way, but of course that excludes Members of Parliament who may have an interest in a particular matter—a constituency, historical or professional interest—and we need to think about how those alerts go out and how they work across the House so that people who are interested and have something material to contribute do not suddenly wake up and find that a measure was passed two or three weeks ago and no one really understood
what it meant. It is a modest change, and I look forward to working with the hon. Gentleman to make sure that that happens.
I want to look at how EU institutions monitor, enforce and update environmental standards. Member states are usually required to provide the Commission with reports. The Commission is a kind of environmental watchdog. It has bitten; it has used its teeth. In February this year it issued a final written warning to the UK to comply with the EU air quality directive. The UK’s response—the latest air quality plan—was published in April, and we await the Commission’s verdict on it.
The process ends with compliance or referral to the European Court of Justice, which can issue fines. We have heard how crucial that mechanism has been in securing environmental improvements. The threat of fines has certainly enabled DEFRA to punch above its weight in arguments with the Treasury. My Committee has heard how the Treasury has often ridden roughshod over DEFRA. In the autumn statement 2015 it cancelled the £1 billion carbon capture and storage competition. It scrapped the zero carbon standard for new homes. It failed to set a tax regime that would drive up recycling rates. However, if an environmental policy is linked to an EU obligation, with the threat of fines, that policy can often get through and escape the dead hand of the Treasury. After exit day this constitutional backstop for the environment will fall, and there is nothing in the Bill to replace it. Environmental law will be vulnerable to being watered down or quietly dropped at the stroke of a Minister’s pen.
How will the Government introduce new policies to tackle air pollution? How will the chemicals sector be regulated after exit day? It is not good enough to cross our fingers and say, as the Secretary of State said to me three short months ago, that we are going to regulate it “better.” We need a new environmental protection Act, which my Committee called for nearly a year ago, to monitor, enforce and update environmental standards. Conservative Members will say that since his return to the Cabinet the Environment Secretary has told us how that will be done. On 1 November he told my Committee that we would have no governance gap because there would be this new “Commission-like body”. During that Committee session that body metamorphosed into four bodies, one for each of the devolved nations. How on earth is that going to give regulatory certainty to businesses working across borders? How will this new body ensure compliance? Will it be able to fine Governments? Will it be independent of Government? Will it inherit the reporting obligations of the EU Commission? Who will it be accountable to? Who will determine its budget? Will it be underpinned by statute? Will it be ready before exit day? Since 1 November those questions have not been answered, although we have seen a speedy U-turn on animal sentience. I would like to see a very speedy U-turn, before Report, giving clarity on what the new environmental body will do and how it will be funded.
It would require significant constitutional innovation to create a UK domestic agency that was a clone of the EU Commission to perform these tasks. It is a necessary but not sufficient step, because it ignores the policy-making role that the European Commission and Parliament play in this vital area. The Environment Agency and the
Health and Safety Executive, which have been posited as regulators in this area, cannot be the regulator, the police officer, the judge and the policy maker in this area. New clause 62 would therefore require this new agency to report to Parliament on progress on meeting targets in retained EU environmental law, and to publish reports on whether the Government are meeting or missing those targets, and make recommendations for extra action. Obviously, we are limited in what can be put in a new clause, and I want the Government to go much further in developing their ideas on this.
In conclusion, we have worked together with our European partners for 40 years to develop world-leading environmental standards, and we must not reverse that progress. We cannot simply cut and paste them, and we must make sure that we do not have zombie legislation. Those laws need to be kept alive and given power and teeth by being backed up with sanctions. We did not vote to transfer power from Parliament to Ministers, and I urge the Government to accept my amendment.