In the previous Parliament, I was a member of two Select Committees. I was on the recent chemicals inquiry. It is not just that Ministers have not got their heads around it and do not know where they want to go in terms of chemicals regulation, it is that they have not even had discussions with stakeholders. They have not even explored the issues. They are coming to it almost with a blank sheet of paper way after the referendum vote was held. A lot of these discussions should have taken place before we even had the referendum, so we could know what we were letting people in for.
I welcome the Procedure Committee’s amendments, but they do not provide for enhanced scrutiny as such. They simply provide a mechanism for a committee to recommend that statutory instruments introduced under the Bill should be treated under the affirmative procedure rather than the negative procedure. The committee sits, but it does not scrutinise. Members may request a debate and a vote, but they cannot require a vote to take place. The White Paper said that MPs could require a debate, but that is simply not correct. The Hansard Society described that inaccuracy in the White Paper as ignorance at best, deception at worst. Members who have been in the House for some time will know that for an affirmative resolution to be objected to and end up in a proper debate is very rare. The tactic is used very infrequently. I believe we need a model that allows for enhanced scrutiny. It should include options such as: requiring a Minister to provide further evidence and explanation for the statutory instrument; requiring a debate and vote on the Floor of the House; allowing a committee to be able to recommend amendments to a statutory instrument, which many Members have mentioned; and public consultation. My hon. Friend
the Member for Wakefield (Mary Creagh) talked about alerting Members to what is being brought forward before the House as a statutory instrument, because it is all too true that so many of them just pass unnoticed and we do not know what we are legislating on.
Enhanced scrutiny alone is not enough. The power to make corrections in clause 7 is still too broad, too general and too vague. It needs to be improved and clarified. The Bill must also put stronger substantive limitations on the powers in the Bill itself, including a general limit, as in new clause 24, and specific limits to safeguard environmental standards, such as in amendment 96. It is only by carefully restricting the Government’s powers and effectively scrutinising their use can we prevent powers in the Bill from being used in ways that weaken environmental protections or threaten to roll back 40 years of environmental gains. The hon. Member for Wells (James Heappey) said that Greener UK praised the earlier debate on the environment. I think it was praise for the amendments tabled and the discussion rather than the end result, because the Government did not accept any of the amendments, but we will continue to push on those issues.
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It is also essential to reduce the huge scope for error in this process and to ensure that, as is its stated purpose, the Bill achieves a workable framework of law seamlessly transposed from existing EU law. I accept that a method is needed to allow us to bring forward technical regulations to implement the legislative consequences of leaving the EU, and we need to be able to do that flexibly and speedily. It makes sense that a significant proportion of the modifications are made by statutory instrument, given their technical nature and the limited time available before exit day. Earlier, the Minister described such modifications as “often” of a technical nature, and the “often” is where difficulty arises. If they were just technical changes, we would all be fairly comfortable with the process suggested. It is the fact that they are not all of a technical nature that gives us grounds for concern.
It is crucial that any powers to modify laws given to Ministers by the withdrawal Bill are restricted. They must only be used to ensure that retained EU law continues to operate with equivalent scope, purpose and effect. The purpose of my new clause 24 is to ensure that the powers to create secondary legislation given to Ministers by the Bill can be used only in the pursuit of the overall statutory purpose, namely to allow retained EU law to continue to operate effectively after exit day.
New clause 24 is slightly different from some of the other amendments that address the same democratic deficit in the Bill, in that its schedules must and may only be used, insofar as is necessary, to ensure that retained EU law continues to operate with equivalent scope, purpose and effect following the United Kingdom’s exit from the EU. The fact that it must be used places a positive obligation and makes sure there are no gaps.
My hon. Friend the Member for Wakefield (Mary Creagh) talked about the concern that the explanatory notes refer to removing the requirement to obtain a legal opinion. Obviously, we would not look to obtain an opinion from the European Commission on a given issue, but the fact that it allows that requirement to be
removed completely was covered comprehensively by my hon. Friend. I just want to flag up that I agree with her comments.
I spoke about requirements during earlier stages of the Bill, and although they might look dry they are a crucial stepping stone in ensuring that the Government are complying with environmental standards. If there is not that reporting, monitoring and assessment, how do we know how the Government are faring? To give what might seem like a fairly obscure example, article 10 of the birds directive requires member states to send the European Commission reports of how we are doing, but it was never fully transposed or implemented by the UK Government in relation to the marine environment. Basically, seabirds are not covered, and unless we implement new clause 24, that will be lost.
Obviously, article 10 is not the be-all and end-all, but it is an example of where reporting is important. The approach to seabird data collection has been very patchy and since 2006, when the European seabirds at sea programme ended, there has been no state-co-ordinated or state-funded programme for systematic survey and monitoring at sea. Most of the surveys are carried out by developers looking at proposals for oil, gas and windfarms. They come at it with a certain mindset and objective, yet that is the only data we have on the aggregation of seabirds at sea. Those surveys are not designed to identify areas for site designation or to monitor change. As I said, it is non-systematic and patchy.
It is important that we implement article 10 of the birds directive in full, but my point today is about the reporting requirements. If they disappear, where does that leave us? The White Paper’s description of technical amendments used reporting requirements as an example and the impact assessment used reduced reporting as an example. That gives me cause for concern that the Government will use a statutory instrument to chuck out this requirement. At the moment, the Government are required to report to the Commission every five years. Will that be replaced with no reporting requirement at all?
The Government’s environmental reporting obligations must be put on a domestic footing, and my new clause places a positive requirement that delegated legislation under the Bill is used to ensure that EU law continues to operate with the same scope, purpose and effect. My amendment 96 would specifically prevent the powers from being used to weaken environmental standards.
Finally, I want briefly to speak on amendment 104, which relates to new clause 27. I see that the hon. Member for Brighton, Pavilion (Caroline Lucas) is here. I hope that she has a chance to move her new clause at the end of the debate. The Secretary of State’s promise of a new independent statutory environmental protection body and a public consultation early next year is welcome, but we need much firmer reassurances, and I believe that they should be written into the Bill. Amendment 104 would provide for any new public authority established under secondary legislation to be temporary. It would be wildly inappropriate for the new body to be implemented via the secondary legislation powers conferred by the Bill. The enforcement body must be established by primary legislation.
The promise of a consultation early in the new year is welcome, but we need the Government to commit to a firm timetable for that consultation, and it should be
published as quickly as possible, while there is still time for us to consider its implications for the withdrawal Bill. We cannot go through Report without knowing what the Government have in mind. Obviously, a Bill would be needed to establish the new body before March 2019. This is vital if we are to avoid a governance gap.
In conclusion, it is important that we enshrine more ambitious environmental protections in law. It is easy for the Government to be self-congratulatory. I can give examples of where successive UK Governments have been very good in pushing for progress at EU level, but I can also give many examples of where they have perhaps been a brake on progress, so it is important that we enshrine them in law. A green Brexit should mean going further than existing levels of protection, and the Government should commit to setting out plans for a new ambitious environment Bill. When I spoke on an earlier day in Committee, the Environment Secretary sat down on the Front Bench just as his Back-Bench colleagues were telling the Committee that he was committed to bringing forward such an environmental protection Bill. I am not entirely sure he knew what he was nodding at, but he nodded to say yes. It is important that we get some clarity from him soon.