Oral answer (Lords) on Air Pollution - Jan 9

To ask Her Majesty’s Government whether they will be liable to enforcement action brought by the European Commission in the European Court of Justice regarding breaches of air pollution rules during the proposed transition period; and if so, whether this will continue if the backstop is enacted.

My Lords, during the implementation period, Union law will continue to apply and the CJEU will have jurisdiction. Any breaches of air pollution rules by the UK during the implementation period could therefore result in enforcement action by the CJEU. Were the backstop to come into effect, the CJEU’s role would be strictly limited to interpreting and enforcing the small number of areas in which EU law would apply. This does not include most air pollution rules.

I thank the Minister for his Answer. I am sure he realises that air pollution is a huge problem in Britain today. My big concern is that we will end up with the Government’s draft environmental plan option, which is the office for environmental protection, which has absolutely no teeth and cannot prevent air pollution in any way. Why are the Government not replicating the EU regulations, which most people in Britain would like to see happen?

I know that the noble Baroness takes a close interest in this important matter. I agree that air pollution is very important. However, the answer to her question is that we are. After we have left the European Union, the same air pollution rules as before will continue to apply in the UK; that was legislated for in the European Union (Withdrawal) Act. The office for environmental protection, which we aim to set up by the end of the implementation period, will be able to enforce those same rules.

My Lords, will my noble friend confirm that one of the reasons we have a problem with air pollution is because of diesel engines, which were promoted as a result of the EU regulations, which were in turn promoted by German manufacturers, such as Volkswagen and others, which then went on to fiddle the rules for emissions standards?

As always, my noble friend makes an important point. It is also important to add to the reply that I gave to the noble Baroness, Lady Jones, that it is not only the UK; 13 member states, including all the big member states, are also subject to infraction proceedings by the Commission, primarily as a result of the failure of diesel engine vehicles to produce sufficient environmental reductions.

My Lords, it clearly would have been better had successive UK Governments implemented EU air pollution rules many years ago, as they were obliged to do. In fact, they had to be dragged through the courts to accept their responsibilities. But has the Minister not omitted something? Not only do we have to apply EU law during transition with the normal enforcement powers, but the Northern Ireland protocol obliges the UK not to reduce environmental protection below EU standards. Any disputes raised in the interpretation of EU law must go to the ECJ. Surely, that could include environmental law.

As I said, 13 member states are subject to these infraction proceedings. Were the backstop, or some level playing field provisions, to come into effect, they would not be enforceable by the European Court of Justice.

My Lords, according to the withdrawal agreement—I think it is in Annex 4, with which the Minister will be familiar—if there are any disagreements over air pollution commitments, they are to be agreed by the joint UK-EU committee. However, if those two sides cannot agree, unlike in other areas, there is no provision for an arbitration panel. Why is that?

It depends on whether the noble Baroness is referring to the implementation period or to the backstop. If she is referring to the backstop, I refer her to the answer I have just given to the noble Baroness, Lady Ludford.

I am sorry, but we are talking about enforcement, and the Minister has not answered the question on enforcement, as opposed to the rules.

I answered the noble Baroness, Lady Ludford. Were there to be a dispute over the application of the level playing field provisions, it would not be enforced by the European Court of Justice.

My Lords, the noble Baroness’s Question and the Minister’s Answer focus on agreement and the idea that a deal will be done and there will be an implementation period. If I understand the parliamentary arithmetic in another place, that is at least doubtful at this point. If indeed we have no deal and leave the European Union on 29 March, there will be no UK-based enforcement procedure for environmental standards because the Government have failed to produce an environment Bill that gives powers to the British Government to do what Europe has hitherto had to do. When will those powers come forward and what is the timetable for that Bill?

I think the noble Lord has provided his party with a good reason to vote for the withdrawal agreement, so that we will have an implementation period. However, he is of course correct: if we have no withdrawal agreement, by operation of the law, we will leave the EU on 29 March next year and none of the provisions of the withdrawal Act will come into force.

This year!

This year. I forgot that it is 2019.