These Explanatory Notes relate to the draft Environment (Principles and Governance) Bill as published in Draft on 19 December 2018 (Bill Cm9751) damage. xRectification at source principle: Environmental damage should as a priority berectified by targeting its original cause and taking preventive action at source.xPolluter pays principle: The costs of pollution control and remediation should beborne by those who cause pollution rather than the community at large.xSustainable Development: Development that meets the needs of the presentgeneration without compromising the ability of future generations to meet theirown needs.xIntegration principle: Environmental protection requirements must be integratedinto the definition and implementation of polices and activities.xPublic Access to environmental information: Individuals should haveappropriate access to information concerning the environment that is held bypublic authorities. This can include information on the state of the environment,but also on policies or measures taken or on the state of human health andsafety, where this can be affected by the state of the environment.xPublic participation in environmental decision-making: Individuals should beable to participate in environmental decision-making processes.xAccess to justice: Individuals should be able to effectively access judicial andadministrative proceedings, including providing redress and remedy forcitizens.These principles cannot be changed without primary legislation.

These Explanatory Notes relate to the draft Environment (Principles and Governance) Bill as published in Draft on 19 December 2018 (Bill Cm9751) The OEP will also manage and investigate complaints about alleged contraventions of environmental law by public authorities. The draft Bill sets out who may make such complaints, what form they must take, and the time limits for making complaints. The OEP will also be able to take enforcement action where public authorities are suspected of being involved in a serious breach of environmental law.

Ministers of the Crown will consider the environmental principles in developing policy by having regard to a corresponding environmental principles policy statement published by the Secretary of State.

An Environmental Audit Committee report on the Government’s 25 Year Plan for the Environment (“the Plan”) was published on 18 July 2018. This report recommended that the Plan be put on a statutory basis. The draft Environment (Principles and Governance) Bill seeks to do this by introducing a duty on Government to prepare a plan for improving the natural environment, the first of which will be the current 25 Year Environment Plan.

There are some environmental elements of the Withdrawal Agreement which our current proposals do not cover, namely those concerning the independent body’s scope to enforce implementation of the “non-regression” clause. We will consider these provisions of the Withdrawal Agreement ahead of publishing the final Bill

The text sets out that, if the protocol is required, the UK and EU will not reduce their respective levels of environmental protection below those in place at the end of the implementation period

non-executive members are to be appointed by the Secretary of State

he Secretary of State must pay to the OEP such sums as the Secretary ofState considers are reasonably sufficient to enable the OEP to carry out itsfunctions

missions of greenhouse gases (within the meaning of the ClimateChange Act 2008), but not the subject matter of the FluorinatedGreenhouse Gases Regulations 2015 (S.I. 2015/310);(b) disclosure of or access to information;(c) the armed forces, defence or national security;(d) taxation, spending or the allocation of resources within government

Subsection (1) does not apply if the OEP considers that in the circumstances itwould not be in the public interest to publish a statement

nforcement(1) The OEP may make a review application in relation to conduct described in adecision notice given to a public authority as a failure of the authority tocomply with environmental law.(2) The OEP may make a review application in relation to conduct of a publicauthority occurring after a decision notice was given to the authority that issimilar, or is related, to conduct that was described in the notice as a failure ofthe authority to comply with environmental law.(3) In this Act, a “review application” means—(a) in England and Wales or Northern Ireland, an application to the HighCourt for judicial review, or(b) in Scotland, an application to the supervisory jurisdiction of the Courtof Session.(4) Neither subsection (1) nor (2) overrides any requirement for permission of thecourt to be obtained before making a review application

The written response to a decision notice must set out—(a) whether the recipient agrees that the failure described in the noticeoccurred,(b) whether the recipient intends to take the steps set out in the notice

A complaint under this section may not be made by any person whosefunctions include functions of a public nature.

either House of Parliament or a person exercising functions inconnection with proceedings in Parliament

not a devolved function

proper account

Duty on government as a whole to meet the objectives for example via a duty on the Secretary of State

Government to set targets, milestones and metrics. These should be set within a given period of the passage of the Act (for example, 12 months)

An independent body or bodies accountable to devolved parliaments for devolved responsibilities and to UK parliament for UK responsibilities.

oversight arrangements

responsibilities

•principles

objectives – because although objectives exist for a number of environmental issues, they have variable status, are currently piecemeal and inconsistent, do not reflect the ambition in the 25 year plan

The most powerful, appropriate and proportionate way is probably through organisations and imple-menting an environmental policy to take account of the environment in carrying out their activities.

spatial understanding of how the environment interconnects

To avoid this situation persisting, the new Act would need to make it a duty of government as a whole to create the conditions to achieve environmental objec-tives. This could be framed for example as“environmental goals to be considered and addressed across government as a whole in determining the most effective, integrated approach to resolving collective environmental problems

A duty on government to keep on track to achieve the goals. This would need to be accom-panied by a mechanism to ensure whole of gov- ernment responsibility

The main principles are in the EU treaty and will not apply after EU exit.

reduce unnecessary bureaucracy, progressively making policy more user friendly

internationally aligned – so they enable UK businesses to trade with the world and access markets for UK solutions.

oversight by an independent and respected body or bodies t

a coherent framework of maps and plans for the place-based environment so there is a clear and stable basis for sectors to plan, invest and collaborate to achieve the range of environmental outcomes that are place specific;4clear and lasting responsibilities for organisations who directly control and influ-ence the state of the environment to incorporate environmental objectives into their activities, reducing the need for government to prescribe 'end-of-pipe' solutions

an integrated process of plans at national level

ong term objectives, targets, milestones, metrics and principles,

The Environment Act may have been prompted by EU exit, but is an opportunity to establish a world lead-ing framework for the environment both on land and at sea.

when courts in the UK or the EU interpret provisions of national legislation intended to give effect to the agreements, they could take into account the relevant case law of the courts of the other party.

The agreed rule changes would also need to be given effect in UK law through domestic legislation. The UK Parliament would scrutinise this legislation in accordance with normal legislative procedure, respecting the principle that a sovereign Parliament has complete control over domestic law. This means that the UK Parliament could decide not to give effect to the change in domestic law, but this would be in the knowledge that it would breach the UK's international obligations, and the EU could raise a dispute and ultimately impose non-compliance measures.

the Joint Committee would consider whether a proposed new or amended UK rule remained equivalent with the EU’s existing rule, or an existing UK rule remained equivalent to a proposed new or amended EU rule.

There would therefore always be an option for the rule not to be added

where there is a common rulebook, these rules can be relied on by individuals and businesses and enforced by UK and EU courts in the same way, because they have been interpreted consistently;

As a result, the UK therefore proposes to:a.agree a mechanism for annual negotiations on access to waters and fishing opportunities; andb.promote sustainable fisheriesto meet international commitments such as sustainable development goals.

Based on key areas of current cooperation between the UK and the EU, these accords should cover: a.science and innovation; b.culture and education; c.overseas development assistance and international action; d.defence research and capability development; and e.space.

a series of cooperative accordsthat enable the UK and the EU to work together in areas ranging from science and innovation to development and international action; andd.an agreement onfishing opportunities that establishes a framework for reciprocal and fair access to waters and the allocation of opportunities, based on the most up-to-date scientific methodology, promoting sustainable fishing and respecting the UK’s position as an independent coastal state

The UK would advocate for the reduction of barriers to trade, particularly those stopping poorer countries accessing richer markets. The UK would also use its voice in the WTO to resist unfair protectionism, tackle unfair trading practices and hold others to account for the global rules

In the context of trade negotiations, a common rulebook for goods would limit the UK’s ability to make changes to regulation in those areas covered by the rulebook. Ifthe Government wanted to make a change, including in light of trade negotiations with other partners, it could discuss this with the EU through the mechanisms set out in chapter 4. However, the UK would retain the freedom to make changes in other areas of regulation if considered desirable domestically.

comprehensive Nuclear Cooperation Agreement (NCA) between Euratom and the UK

The UK’s world leading climate ambitions are set out in domestic law and are more stretching than those that arise from its current obligations under EU law. The UK will maintain these high standards after withdrawal.

that effect, the UK and the EU should commit to the non-regression of environmental standards. There should also be a reciprocal commitment to ongoing environmental

committing to high regulatory environmental standards through a non-regression requirement;

the UK is seeking access to the EU’s communications systems, such as the Rapid Alert System for Food and Feed (RASFF), Rapid Alert System for Serious Risk (Rapex), and the Information and Communication System for Market Surveillance (ICSMS).

By being outside the CAP, and having a common rulebook that only applies to rules that must be checked at the border, the UK would be able to have control over new future subsidy arrangements, control over market surveillance of domestic policy arrangements, an ability to change tariffs and quotas in the future, and the freedom to apply higher animal welfare standards that would not have a bearing on the functioning of the free trade area for goods –such as welfare in transport and the treatment of live animal exports

The UK will be establishing its own GI scheme after exit, consistent with the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS)

The UK’s proposal for a common rulebook on agri-food encompasses those rules that must be checked at the border.

The Government’s longstanding commitment to providing Parliament with a vote on the final deal as soon as possible after the negotiations have ended has been confirmed in statute by section 13 of the EU (Withdrawal) Act 2018. 143.Under section 13 of the EU (Withdrawal) Act 2018 the House of Commons must vote to approve the Withdrawal Agreement and Future Framework before the Withdrawal Agreement can be ratified. Section 13 also provides that the Withdrawal Agreement and Future Framework must be considered by the House of Lords. The Government expects and intends to achieve a deal that Parliament can support.144.Section 13 also sets out that the Withdrawal Agreement cannot be ratified until an Act of Parliament has been passed which contains provision for the implementation of the Withdrawal Agreement. This is a condition that will be satisfied by the EU (Withdrawal Agreement) Bill.145.The EU (Withdrawal) Act 2018 also sets out that the Government must, so far as practicable, hold the vote to approve the final deal in the House of Commons before the European Parliament votes on the Agreement.1

Before ratification takes place, there will be a final scrutiny processprovided for by the Constitutional Reform and Governance Act 2010 (CRAG). Under this Act, theWithdrawal Agreement must be laid before both Houses of Parliament for a period of 21 sitting days. Provided that the treatyis not resolved against, the Government may proceed to ratification.

The first step is approval of the final deal as negotiated under the Article 50 process. This will be Parliament’s opportunity to have its say on the withdrawal package the Government has negotiated, comprising theWithdrawal Agreement as well as the framework for our future relationship with the EU. The process for the vote is set out in the EU (Withdrawal) Act 2018

It is in everyone’s interests -the UK, the EU and third countries -that international agreements continue to apply to the UK during the implementation period. There is a willingness to find a pragmatic way to ensure continuity of international agreements and thereby minimise the impact of the UK’s departure on them. A number of countries have already welcomed this approach publicly, which is encouraging. 94.The continued participation of the UKin these international agreements will need to be provided for by the Bill. To the extent international agreements are considered a part of EU law under the Withdrawal Agreement,79theywould be given effect in the UK through the saved and repurposed ECA mechanisms.

The UK and the EU have agreed that representatives or experts from the UK will therefore be able tocontinue to attend certain Commission-led EU meetings, and meetings of EU entities where the presence of the UKis necessary and is in the interests of the Union, or where the discussion concerns acts addressed to the UK and its citizens.76The UK will also retain access to specific networks, information systems and databases on current terms for the duration of the implementation period.

As part of delivering a smooth and orderly exit, the UK and the EU have agreed that during the implementation period, the existing EU mechanisms for supervision and enforcement will continue to apply to the UK.68This will ensure that EU rules are interpreted and applied consistently in the UK and the EU during this time, providing certainty for businesses and citizens.

Whilst the Government would hope to make any corrections before the end of the implementation period, it is possible that some deficiencies will only become apparent after the conversion of EU law has taken place. The Billwilltherefore amend the sunset on the correcting power at section8 of the EU (Withdrawal) Act 2018so that the powerexpireson 31 December 2022. This arrangement will preserve Parliament’s intention when it passed the EU (Withdrawal) Act 2018 to give the UK Government and the devolved administrations two years beyond the end of the application of EU rules and regulations in the UK to ensure thatthe UK has a functioning statute book.

The Bill will also modify the parts of the 1972 Act whose effect issaved to reflect the fact that the UK has left the EU, and that the UK's relationship with EU law during this period is determined by the UK's commitments in the Withdrawal Agreement, rather than as a Member State. The Bill will take a selective approach to saving the effect of the ECA

During the implementation period, EU law will continue to apply to and in the UK under the terms set out in the Withdrawal Agreement.66New pieces of directly applicable EU law that are introduced will continue to apply automatically within the UK; other new EU measures introduced during the implementation periodwill need to continue to beimplementeddomestically.

The Withdrawal Agreement sets out that the UK’s implementation of the citizens’ rights agreement will be monitored by an independent authority.51This will be a new authority that the UK will establishin the Bill. Its powers will have effect from the end of the implementation period.48.The European Commission will perform theequivalent role of monitoring compliance in Member States. This arrangement will ensure that the citizens’ rights agreement is faithfully implemented in both the UK and the EU, providing additional assurance for EU citizens living in the UK and UK nationals living in other EU countries.49.In the UK, the Independent Monitoring Authority (IMA) will have the power to receive complaints from citizens and take appropriate action if they believe there has been a failure on the part of the authorities to implement the terms of the Withdrawal Agreement. The IMA, once established, will additionally: a.report annually to the Joint Committee on the implementation and application of Part Two of the Withdrawal Agreement in the UK;52andb.conduct inquiries into systemic problems with implementation in the UK.

A body corporate called the Trade Remedies Authority (“the TRA”) isestablished.

Collection of exporter information by HMRC

Mention has been made of the new environmental body. Strictly speaking, under this clause as it currently stands, the Government would be able to establish, under secondary legislation, the kind of body that the noble Lord, Lord Krebs, who is no longer in his place, was arguing for earlier—a body so powerful it could sanction other public bodies, including the Government, if it was able to reproduce the powers that presently rest with the European Commission. That is an enormous power, which this House would not allow the Executive arm of government on its own without primary legislation conducted through the two Houses.

“Appropriate” is another one. It is a word that creates space when we do not want to be precise—but when you are dealing with matters of law you need precision

“Necessary” is a high bar to meet. The courts have said that the nearest paraphrase for “necessary” is “really needed”, but such a test would be too constrictive.

The noble Baroness also expressed concern about not losing any EU functions. The Government are committed to ensuring continuity, but there are a small number of functions it would be inappropriate for us to transfer to a UK public authority after exit. Examples might include the functions of the Translation Centre for the Bodies of the European Union or the Authority for European Political Parties and European Political Foundations. The Clause 7(1) power makes provision to remove these functions, but only if, outside the EU, they were somehow deficient, not simply because the Government disliked them as a matter of policy.The noble Baroness raised the important matter of maintaining rights, standards and equalities protections, and I want to make clear to noble Lords it is not the intention of this Government to weaken these as a result of our exit from the EU. It is for that very reason that it is necessary for Ministers to have the ability to make adjustments to any relevant legislation to ensure we can continue to enjoy these rights, standards and equalities as we currently do when we are no longer part of the EU.

The Minister will have noted that not a single Member of the Committee has spoken in favour of the present position in the Bill. From all sides of the Committee, it has been stated that the Bill, as it stands, is not acceptable

I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise;

have had more representations on Clause 7 than on any other part of the Bill—representations from national organisations, human rights organisations, advocacy organisations, legal organisations, professional organisations, and from individuals.

The powers given to Ministers are “appropriate”. That is a weasel word. Nobody is better placed than I to describe it as such. It is a subjective word, very difficult to define in advance, impossible to challenge and non-judicable. That is why, when I was a Minister, I used it often—at the Dispatch Box, in drafting and in correspondence. I knew full well, as does every person who has stood at the Dispatch Box, that “appropriate” means precisely what the Minister wants it to mean.

I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment

When the bus with “£350 million a week” was going around the country, and when those who emerged from it, including the blonde bus conductor, told people, “We want to take power back from the European Union and Brussels”, no one said, “We want to take power back so we can give it to 109 Ministers or public authorities”. If they had said that, I rather fancy that the bus would not have received the generous welcome that it did on many occasions.

As to the distinction between “appropriate” and “necessary”, the suggestion I have heard that Ministers do not realise they are open to legal challenge is, I think, quite wrong. Ministers are well aware that they might be open to legal challenge, and that is why they prefer “appropriate” to “necessary”. It gives them a “plump legal cushion”—that wonderful expression of the noble Lord, Lord Wilson—behind which they can hide.

Then there was the Strathclyde review. Let us not forget what happened in 2015 when this House was criticised for flexing its political muscle. The review said that we should,“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.We were openly bullied and told, “Don’t you dare challenge a statutory instrument again”. In fact, I remember in that debate, the Government went so far as to say, “You are threatening the very existence of this House if you threaten us any more”. Now we have the potential for thousands and thousands of statutory instruments. Are we going to challenge every one of them and threaten our very existence every day? Do Henry VIII clauses give Governments the power of royal despots?

“Appropriate” is so bland, broad and subjective as to be almost meaningless, as has been said, and it gives the Minister excessive influence and discretion. “Necessary”, by contrast, is more specific and requires justification—and I believe that the courts prefer to handle litigation over “necessary” than “appropriate”, for reasons one can understand. Clause 7 is stuffed with powers that need to be addressed in this way.

The Bill confers on Ministers wider Henry VIII powers than we have ever seen”,

These amendments would tighten, in two ways, the threshold which the Minister of the Crown has to reach in order to be able to exercise the powers. They would tighten it by providing, first, that the powers could be used only where it was “necessary” to use them, not where it was considered “appropriate”. Secondly, they would give an objective test for whether the use of the powers was necessary, rather than the subjective test of whether the Minister considered it appropriate.

Yes, absolutely. In fact, I would go further than that. I am sure that we could provide the evidence not only in terms of international obligations but in terms of Article 191, where all these things can be found. However, let us do that trade and see where the gaps lie, and perhaps we can make some progress on that basis. Certainly, we would welcome any opportunity to iron out some of the differences that appear to exist.

As the noble Lord, Lord Deben, said, we are not asking for anything more; we are just asking for what is in the existing provisions. We are just trying to put it into language that most people would be able to understand and not tie it up in legal knots.

Common approaches are being considered in a number of areas, which will help to provide the necessary environmental protections. While the UK Government and the devolved Administrations sometimes make different choices on implementation of some policies, these common rules provide significant benefits, such as making it simple for businesses from different parts of the UK to trade with each other and enabling us to meet our international obligations and, therefore, protect our common resources. This is pertinent to the environmental commitments and protections that he rightly raised.

I thank the European Environmental Bureau for this—with the headline, “Precautionary in principle, flawed in fact: European Commission review accepts environmental groups’ criticism of chemical regulation”.

On Amendment 113, the secondary legislation made using the powers under Clause 7 will be subject to parliamentary oversight, using well-established procedures. This amendment would require us to make all the regulations within one month of Royal Assent. This would not allow time for stakeholder consultation and would also not allow sufficient time to make all the SIs—noting that affirmative SIs take longer than one month to be laid and made.

Amendment 66 also goes further than the existing principles set out in EU and UK law today. In particular, it would introduce a new power for courts to declare provisions in primary or secondary legislation to be incompatible with the environmental principles. This power does not currently exist in either EU or UK law.I will go a little further. The precautionary principle is included in, for instance, the REACH regulation and the invasive species regulation, so it will be preserved by the Bill in those areas. Similarly, the polluter pays principle, referred to by a number of noble Lords, is referred to in the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, which will also be preserved by the Bill. EU case law on chemicals, waste and habitats, for example, includes judgments on the application of the precautionary principle to those areas, which will, likewise, be preserved by the Bill.The purpose of the Bill is to convert and preserve the law so that after exit it continues to operate as intended. This includes many of the directives referred to, such as the wild birds and habitats directives, as transposed through domestic legislation. It is not appropriate for the Bill to introduce new powers of this kind.   Share this contribution Lord Deben   Share this contribution My noble friend has explained that some things are already there. Can he give me an undertaking that if we were in consultation to remove from this amendment anything that is additional to where the European Union now is, he would accept this amendment? That is the issue. If we were to do that, would he accept the amendment?   Share this contribution Lord Callanan   Share this contribution I cannot give an assurance that we would do that. This is about legal certainty—taking a snapshot of existing laws and transferring them into UK law as it is. It is not about creating new powers within the Bill. There will be a further opportunity to discuss this when we publish our proposals for the new body.   Share this contribution Lord Deben   Share this contribution I have not said “new powers” or talked about creating legal certainty. He keeps using that phrase. I merely said that if we amend this so that there is no additionality to what is already in European law, will he accept that as an amendment?   Share this contribution ​ Lord Callanan   Share this contribution If a new amendment is put forward, of course we will look at it and consider its legal implications. I can give that assurance.

My Lords, is the Minister familiar with Einstein’s theory of relativity? The reason I ask is because if you do the sums, I reckon that there is just over 12 months to go between now and the proposed date of exit from the European Union. We are talking about a three-month consultation period—starting heaven knows when, because we still do not know when the document for the consultation will be launched—then we have perhaps another nine months to pass an environment Bill through Parliament, if it is to be a statutory body, and then perhaps another six months to set up the organisation, fund it and appoint ​the staff. That sounds like a minimum of 18 months to go into 12. But of course, as Einstein pointed out, if you can travel at a speed faster than 186,000 miles per second, you can stretch time, so I hope that the Minister is proposing to invoke Einstein’s theory of relativity in ensuring that the body will be in place by the proposed date of exit.

I could not help but remember an Adjournment debate in the other place, over 30 years ago, when the late, great Reggie Bennett mentioned the problems that he had enjoying his favourite sport of swimming off the south coast. He said, “Mr Speaker, there are very few beaches onto which I can now go and swim. All I can do is go through the motions”. That just brings home, in a very simple but important way, that we owe a lot to directives that have come from Europe and been brought into our laws.

The points he made on the archaeological issues are of very great importance indeed, and it is crucial—I speak as a fellow of the Society of Antiquaries and a former vice-president of that body—that these points are taken into account.

The clean growth strategy says that the Government are considering the UK’s future participation in the EU ETS post Brexit. It would certainly appear possible to stay in the EU ETS. Iceland, Liechtenstein and Norway participate in it. For a range of reasons it certainly appears to be a good idea.On Friday, the Prime Minister told us that she wants to secure,“broad energy co-operation with the EU”,and to protect the single energy market on the island of Ireland and the UK’s participation in the EU internal energy market. This will be easier if we are in the EU ETS. The clean growth plan anticipates increases in electricity imports from Europe via interconnectors. This will be easier and fairer on UK generators if we are in the EU ETS.

Here in your Lordships’ House we are very fortunate to have a considerable number of noble and learned Lords who give us the benefit of their expertise. I have noticed that they often disagree, and very strongly. Therefore, surely keeping these issues in the Bill would save an awful lot of legal time and legal argument and would be better for the Government. I say that in a spirit of total helpfulness and support.

It is now well established that the scheduling of ancient monuments and the listing of historic buildings, valuable though they are for the most conspicuous sites, are insufficient to protect rural landscapes and historic town centres. Indeed, planning authorities regularly make the provision of prior archaeological investigation a condition for the granting of planning consent for developments, whether for roadworks, motorways or new buildings.Archaeological concerns are enabled and can be met by the application of environmental principles, which are codified in Article 191 of the Treaty on the Functioning of the European Union. These principles provide safeguards against adverse policy change and provide a basis for legal challenge

On Amendments 66, 112 and 113, I simply say that, if the Government are sincere in their stated commitment —as the noble Lord, Lord Deben, said—to uphold all the environmental commitments that we are signed up to and to uphold the spirit of the transfer of EU law into UK law, they should have absolutely no hesitation in supporting all these amendments.

I shall speak to my Amendment 67A

our current position on the common agricultural policy. It was introduced before some of these environmental principles were refined and used in European legislation. As a result, we are now in the ridiculous position where the polluter pays principle would have helped us, as taxpayers and as water company customers and payers, avoid paying farmers twice. We are paying water companies to pay farmers to stop doing something that, as taxpayers, we are paying farmers to do. The polluter pays principle, had it existed when the common agricultural policy was first set in place, would have been a hugely valuable way of preventing that very wasteful situation.

I also share the anxiety of the noble Lord, Lord Rooker, about whether there will be real welly behind the regulator. I was chief executive of the Environment Agency, the environmental regulator, which had to help negotiate the urban wastewater treatment directive infraction proceedings that produced the Thames tideway. In spite of wanting and willing there to be an example elsewhere in the world of a body established by a Government that is capable of fining its own Government —and hence its own establishing power—I have not been able to find one. I hope, however, that Ministers will look assiduously at producing that result.

Most of our environmental protection today is as a result of being in the EU. Ministers wanting to deliver have been helped to do so by the threat of infraction. So the thing that is missing from all this—although the noble Lord, Lord Krebs, touched on it—is the governance and delivery of the sanction. If it is not delivered, what is the sanction? If it is not money, it will not work.

you cannot understand the law unless you understand the principles. That has always been the situation. All we are saying is: let us make our law understandable by the principles to which we have assented and to which, we are told, the present Government wish to continue to assent.

The last time I checked, the environmental directorate of the EU had taken 34 cases against the UK Government, of which it had won 30.

one essential EU measure is the urban wastewater directive of 1991, without which we would not have built the Thames super-sewer? I am less reticent than the noble Lord because, on a weekly basis, untreated raw sewage flows into the Thames right outside this House. We are already nearly two decades overdue in implementing that directive, and without EU law we would not be doing so at all.

The vital issue is that the environment needs to have a framework within which people can have confidence that their interests will in fact be met. In the past, we have had the framework of the European Union. The Government say we can have just as good a framework outside the European Union—well, this is the framework, and there is no reason why they should refuse it.

I found the presence of EU law, particularly on bathing waters and water quality, extremely helpful. It was not always easy to convince my colleagues that we really did have less good drinking water than much of the rest of the European Union. They rather took my mother’s view, which was that the reason that people had bottled water in France was because their ordinary water was unacceptable. There was a general view, much promoted in the Daily Telegraph, that there was no need for improvement. I have to say that there was need. There was even more need, as Surfers Against Sewage made clear, to do something about our appalling bathing water standards. We were, after all, in much of the country pouring unreformed ordure—I do try very hard to use phrases that the Committee will not object to—into the sea. We were able to change that, not, I may say, without very considerable difficulty and arguments about the price and cost of doing it. It was within a context of EU law, and not just precise pieces of law but the context in which we accepted certain standards and values to which we could refer when it came to making our own legislation.

on 29 March 2019 key pieces of legislation such as the environmental impact assessment and strategic environmental directives will be transposed ​into domestic law, with the aim that planning policy will continue to function as currently. However, the Bill does not directly reference some important overarching principles established in the EU treaty, potentially weakening environmental protections which underpin planning-led archaeology

can the Minister assure the Committee that the new green watchdog will be in place on a statutory basis by exit day?

There is no point in having high aspirations unless you have an effective mechanism to ensure that you deliver. As a member of the European Union, we have been subject to scrutiny and enforcement by the Commission, ultimately through infraction notices. As I pointed out at Second Reading, 46% of the judgments handed down by the European Court of Justice on UK infringements since 2003 related to the environment.The Government have accepted that after Brexit there will be a governance gap and that therefore a new green watchdog will be required to hold the Government to account on their environmental performance. The purpose of Amendments 112 and 113 is to ensure that this new green watchdog is in place by exit day and that it will mirror as closely as possible the current arrangements that we have as a member of the EU.

nvironmental protection is a devolved matter. However, while the UK is a European Union member state, most environmental law in the four countries of the UK is guided by common frameworks set at EU level. This amendment would require the four Governments to work together on proposals to establish minimum common environmental objectives and standards. As such, I hope it will appeal to all parts of the House. UK-wide frameworks will be needed to establish areas of common policy across the UK, even in areas of devolved competence. Crucially, this amendment would insist that devolved legislatures are equal stakeholders in the forming of those common policy areas. I will cover the principle of UK-wide frameworks, and my major concerns about Clause 11, when we get to that point of the Bill. Today, I will focus on the substantive relevance of this issue to the environment.First, I will say a word about why common frameworks are needed. No area of policy will be more affected by the outcome of the common frameworks debate than the environment. According to analysis by the Institute for Government, there are more than 140 distinct policy areas where EU law intersects with devolved powers. The greatest number of these relate to the environment, which is unsurprising given that the EU frameworks have been widely created for environmental policy purposes.Approximately 80% of environmental laws in the UK, including in the devolved nations, have some basis in EU legislation. Transboundary co-operation and common standards are widely recognised as important for the effective protection of the environment and the prevention of unfair regulatory competition. There are persuasive reasons for seeking to maintain common standards across the four nations of these islands post Brexit. Such frameworks would provide a set of minimum common standards and should be jointly agreed between the UK and devolved Governments. They will be important in a range of areas, such as the conservation of wildlife on land and at sea, environmental assessment and the co-ordination of action to address air and water pollution.I shall give some examples of common frameworks. EU legislation relating to the natural environment—including the birds and habitats directives—currently helps to underpin effective environmental action by providing minimum common standards for site and species protection across the four nations. This facilitates the creation of a more ecologically coherent network of protected sites than would otherwise be the case. Such an approach will still be needed for the UK outside the EU, helping to ensure that actions in one jurisdiction complement, and do not counteract, conservation outcomes across these islands.Similarly, the common frameworks provided by EU legislation—relating to the assessment of the likely environmental impacts of plans, programmes and projects—mean that consistent mechanisms are in place for assessing transboundary effects as well as allowing for public participation and transparency in decision-making across the four nations. Co-operation and ​joint agreement on common frameworks that provide minimum standards and shared high-level objectives are therefore needed.

I warmly endorse the comments that have already been made on the importance of getting the environmental dimensions right as we leave the European Union

The purpose of this amendment is very simple: it is to ensure that recitals and preambles to EU laws are given a clear legal status by the Bill. Why is that important? The recitals and preambles explain the background to, and objectives of, legislation and are therefore essential to understanding the legislation that follows. While in UK law the purpose of any piece of legislation will be clear as a result of the process leading up to the legislation—for instance, a Green Paper, a White Paper and a parliamentary debate—with EU-derived law there is no equivalent process. Therefore, the recitals and preambles are essential for placing the legislation in context. If they are not given a clear legal status they may be forgotten or ignored by decision-makers and the courts. As has already been mentioned, although the great repeal Bill White Paper, in footnotes 17 and 24, recognised the importance of recitals and preambles, this does not provide the legal certainty that is needed.

The Joint Nature Conservation Committee put it unequivocally:“The EU plays a crucial role in developing policy and legislation to protect the environment and meet its objective for sustainable development. The EU has specific targets for biodiversity conservation with legislative protection for key habitats and species”.The committee makes two other points:“The EU and global biodiversity targets are partly delivered through a range of legislative measures, which place obligations on Member States to protect biodiversity and the natural environment. The EU and Member States have shared legal competence—shared responsibility—in forming and implementing legislation for the environment”.

HIGHLIGHTING that discussions on the other scenarios may continue to be pursued in parallel, but thatthis Protocol is based onthe third scenario of maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the1998 Agreement, and that it appliesunless and until an alternative arrangement implementing another scenario is agreed;

n accordance with the principle of sincere cooperation, the United Kingdom shall abstain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests,in particular in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right.4.Notwithstanding paragraph 3, during the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the areas ofexclusivecompetence of the Union, unless authorised to do so by the Union.

During the transition period, the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisation procedures provided for in Union law

Article 4a of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice shall continue to apply mutatis mutandis. The United Kingdom shall, however, not have the right to notify its wish to take part in the application of the measures pursuant to Title V of Part Three of the TFEU other than those referred to in Article 4a of Protocol No 21.

Paragraph 1 shall apply to all existing and individually identifiable goods within the meaning of Title II of Part Three of the TFEU, with the exception of:(a)live animals and germinal products;(b)other animal productsthan those referred to in point (a), including food and feed of animal origin and animal by-products.