My Lords, I support Amendment 12, to which my name has been added, and the comments of the noble Lord, Lord Deben. The amendment follows the concerns expressed by the Constitution Committee over the current wording of Clause 4. These were extensively debated in Committee and the case was powerfully made by the noble Lords, Lord Krebs—who unfortunately cannot be with us this evening—Lord Pannick and Lord Carlile, among others, that existing Clause 4 creates legal uncertainty, not least by its determination that provisions in directives must have been tested in a court prior to exit day.
What is more, existing Clause 4 fails to deliver the promises made time and again—promises that we have heard again this evening—that the withdrawal Bill will apply the same rules and laws after we leave the EU as existed before exit day. This is because there is no mechanism built into the Bill to address any omissions or powers incorrectly or incompletely transferred. Instead, the noble Baroness, Lady Goldie, suggested that we would have to rely on correcting mistakes or omissions through domestic legislation, without an obligation on the Government to do just that. Therefore, our amendment addresses this challenge head on. In order to ensure that environmental protections—and other protections, because this is not just about the environment —are not weakened by omission or design, it will place a duty on Ministers to correct that error.
To achieve this comprehensively we have drafted a new clause to replace Clause 4 which makes clear those obligations on Ministers. The new clause removes the problematic prescriptions in Clause 4(2)(b) concerning the need to have the rights predetermined in a court of law. This never made sense, as many environmental rights are accepted either as common-sense policies or have such huge public support that they could not realistically be challenged through litigation. It then makes it clear that the Minister has a duty to act and make a remedy where rights, powers, liabilities, obligations and so on are incorrectly or incompletely transferred.
In Committee, the noble Lord, Lord Krebs, spelled out environmental policies which might be missed out if the current wording of Clause 4 is applied. For example, the current environmental reporting obligations—such as the requirement to review and report on the implementation of the marine strategy framework directive, the air quality directive and the habitats directive—will no longer be required by law when we leave the EU. Similarly, the obligation to review and adjust air quality targets in line with scientific information from the World Health Organization, and to reduce potentials in member states, is not yet present in UK domestic law, leaving a serious gap in air quality standard oversight. In addition, Article 5 of the energy efficiency directive has not been fully transposed into domestic legislation, with the result that public bodies do not have to ensure that their buildings adhere to energy performance requirements. There are other obligations not yet transposed into UK law, such as the water framework directive’s requirement that water pricing policies provide adequate incentives to use water efficiently.
We therefore believe that this amendment is important to fill the governance gap which will occur when we no longer have to abide by EU policies or report on progress to EU institutions. It also protects our environment against inadvertent errors or incomplete transpositions, which, sadly but inevitably, will occur. I therefore hope that the Minister will take these comments seriously and will feel able to give a positive response, and if not, as the noble Lord, Lord Deben, said, that she will come back at Third Reading with an alternative proposition to the very well thought out amendment we have put forward this evening.