The right way of doing Brexit

My stance on the EU Referendum put me at odds with many of my colleagues in the Green Party, as I voted Leave. Greens were eurosceptic when we first joined the EU, but for quite different reasons than Ukip or the right wing of the Tory Party.

Despite many good policies, I’ve never been converted to a europhile. It is common knowledge that many of our environmental and social protections have been built up by the EU, and many people are worried about losing those protections after Brexit, but like many (I suspect most) Leavers I did not vote to lose those rights or protections.

We owe many of our basic rights to the EU, partly through our own involvement. Things like maternity leave, clean beaches, and air pollution limits all exist because of European rules.

The government’s stated aim was to retain all existing European law by converting it into UK law and then only change those laws in the future. If the government was sincere in this, then we shouldn’t lose any of our environmental or social rules after Brexit. Many people would be much happier if that was the case, but sadly it’s not.

The problem is that the government is plainly failing to retain all existing European law. I’ve been part of a cross-party group of peers who are scrutinising the EU (Withdrawal) Bill in the Committee Stage of the House of Lords.

In its current form, the Bill leaves gaping holes through which so many of our environmental and social protections will fall. It’s either incompetence or deliberate, and I’m not sure which is more concerning.

The government has made a decision to exempt big chunks of EU law without any real justification for doing so. I’m a campaigner not a lawyer, so it has taken some getting my head around the ins and outs of EU law. It gets quite technical in parts, but I will try to explain it in the simple terms as I understand it.

The first group of problems stems from the blanket exception of a whole body EU rights which ‘are not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”’.

This means that there will be court cases in the future where people try to enforce their legal rights, but will be told that Parliament removed those rights because they were not ‘recognised’ by a court before exit day. This is a perverse approach by the government and they have completely failed to give any sensible justification for it.

The second group of problems is caused by the government trying to remove the ‘recitals and preambles’ from retained EU law. These are basically the footnotes and explanations which aid the courts to understand what the EU laws are supposed to mean.

This is particularly important in the EU legal system, because EU laws are supposed to be interpreted broadly and with their purpose in mind, in contrast to UK laws which are usually interpreted on the plain reading of the words on the page.

These recitals and preambles are perhaps most important in our environmental laws that protect things like habitats, clean water and breathable air. The ClientEarth campaign successfully took the UK government to the European Court of Justice and won, and the Court used the preambles to work out what the air pollution laws actually meant.

The British courts will have a hard time making sense of the ‘retained EU law’ – yet the government insists on making their job even harder by denying them the benefit of these recitals and preambles.

The third set of problems comes from the so called ‘governance gap’ which will happen once we are not part of the EU institutions. It’s an ongoing debate about exactly which EU bodies we should remain part of – but the government is slowly softening their stance as they realise just how important some of these institutions are.

The difficulty occurs when we have rights which were created by EU law but no longer have someone responsible for enforcing and protecting them. As an example, the European Commission currently plays a critical role in holding the government to account when they fail in their obligations to protect the environment.

Without the Commission, our government will be able to get away with failing to tackle our air pollution crisis. We need new bodies and enforcement mechanisms to make sure that our rights have teeth and don’t just erode away.

If we allow the EU (Withdrawal) Bill to pass in its current form, we will lose key protections, lose the true meaning of retained protections, and lose the enforcement of those protections.

This isn’t the Brexit that I voted for, and I’m working with Peers from across the House of Lords to make sure we plug these gaps. The government likes to accuse us of ‘trying to stop Brexit’ – but I’m proof that you can want Brexit and still see that the government is doing it completely the wrong way.

By Baroness Jones of Moulsecoomb, prominent member of the Green Party of England and Wales.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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