European Union (Withdrawal) Bill

Baroness Bakewell of Hardington Mandeville Excerpts

Wednesday 7th March 2018 Lords Chamber

In the absence of this much anticipated but, equally, much delayed consultation, what is the Government’s current thinking on the nature of the new green watchdog? Will it, for example, have the power to fine the Governments? If not, what kind of sanctions and powers does the Minister envisage the watchdog having? How will its independence be assured? Are there existing models of watchdogs which might be taken as templates? How will it relate to existing regulators such as the Environment Agency, the Scottish Environmental Protection Agency, Scottish Natural Heritage, Natural England, Natural Resources Wales and the Northern Ireland Environment Agency? I look forward to the Minister’s answers to these and other questions.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support Amendment 66, to which I have added my name; Amendment 67 in the name of the noble Lord, Lord Judd; and Amendment 67A in the name of my noble friend Lady Miller of Chilthorne Domer. These amendments are key to ensuring that the protection of our environmental heritage is enshrined in law in the Bill. This group of amendments is crux to the environmental agenda and must be included in the Bill. I fully support the thorough introduction to the amendment of the noble Baroness, Lady Jones of Whitchurch, and I am grateful to Rescue, the Chartered Institute for Archaeologists, the Environmental Policy Forum and Greener UK for their briefings.

As we all know, 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. This process is difficult—not least because of the perceived weakness in the Bill, which may prevent its stated ambition of ensuring a smooth transition and avoiding a black hole in the statute book on the day of the UK’s exit next year.

For the Chartered Institute for Archaeologists and the Council for British Archaeology, the key issues are: the de facto weakening of environmental principles enshrined in the European treaty, which are not within the scope of the Bill as proposed; the loss of supranational jurisdiction to provide opportunities to bring legal challenges on environmental principles; the uncertainty over how the Government will use so-called Henry VIII powers to amend technical aspects of EU law when transposed, to ensure that they remain workable in a domestic context; and the uncertainty over how previously held EU powers—brought back to the UK after Brexit—will be reserved to devolve to Scotland, Northern Ireland and Wales.

In February, during the recess, I went to Cyprus for a holiday. During the week, my husband and I visited the marvellous and numerous archaeological remains on the island, including Aphrodite’s Temple, Aphrodite’s Rock, the Tombs of the Kings and the main archaeological site in Paphos. The Cypriot Government have spent considerable sums of money over many years excavating these sites and preserving the wonderful mosaics uncovered and other historical artefacts. I was struck by the number of non-Cypriot archaeologists who had funded and worked on the sites over the decades to bring the history to life for future generations. Many of these came from the UK.

To be clear on how important archaeological heritage is, we must turn to the survey of adults in England called Taking Part Focus On: Heritage. This was a DCMS survey of 2017 demonstrating both the cultural and economic value that heritage provides to our society and community. Some 74.2% of adults visited a heritage site in 2016-17, with a remarkable 94.2% of adults agreeing that it is important to them that,

“heritage buildings or places are well looked after”.

Another report, Heritage and the Economy 2017, by Historic England—again reporting English statistics—shows that,

“heritage directly contributed £11.9 billion in GVA”,

equivalent to 2% of our national GVA, and that:

“Heritage tourism generated £16.4 billion in spending by domestic and international visitors”.


The Welsh equivalent showed that it contributed 1.6% of GVA and Scotland’s Historic Environment Audit 2016 showed that heritage contributed,

“in excess of £2.3 billion to Scotland’s economy”.

[The Countess of Mar]

My Lords, I am sorry to interrupt the noble Baroness, but these amendments are about environment, not heritage. Does she have her right speech?

--- Later in debate ---

[Baroness Bakewell of Hardington Mandeville]

I thank the noble Countess for that intervention, but I believe I have the right speech and I hope she will bear with me until I get to the end.

With this in mind, it is important that the UK retains at least an equivalent provision for environmental protection in domestic legislation and policy to compensate for the loss of EU funding to the historic environment with domestic funding, ensure free movement of skilled and accredited archaeologists between the EU and the UK—

[The Countess of Mar]

My Lords, I am sorry to interrupt the noble Baroness again, but this is an amendment about the environment. We are asked in Committee to pay our attentions to the particular amendments that we are looking at. I have looked through the list of amendments and none of them applies to architectural heritage. Will the noble Baroness kindly let noble Lords who wish to speak on the environment have their turn?

[Baroness Bakewell of Hardington Mandeville]

I am sorry that the noble Countess is frustrated with me trying to link the environment to archaeology. However, Article 191 aims for a “high level” protection of the environment and is based on “preventive action” in which,

“environmental damage should as a priority be rectified at source and that the polluter should pay”.

The principles, including the polluter pays principle, the prevention principle and the precautionary principle, have all been the fundamental base of environmental—

[Lord Wigley]

I am sorry, my phone will not switch off.

[Baroness Goldie (Con)]

I am sure that the noble Baroness will realise that the interruption was not a personal allusion to her speech or its content.

[Baroness Bakewell of Hardington Mandeville]

I am sure it was not.

These principles have been the fundamental base of environmental protection and the way archaeology is carried out in the UK. The rejection by a very close margin in the other place last November of Amendment 67, which aimed to adopt these principles into UK law with other EU legislation, leaves historical environment protection vulnerable to future changes in British policy. This is not something that the public who visit archaeological sites would welcome.

The weakening of environmental principles enshrined in the environmental treaty has captured the attention of many in the sector in recent weeks and has promoted serious questions about environmental protections after Brexit. A significant amount of time was spent debating the importance of environmental protections and there has been universal acceptance of their value, with cross-party consensus on a need for statutory protections for these principles being evidenced. Discussions are under way towards including a new environmental protection Bill, to which the noble Lord, Lord Krebs, referred, to be brought forward before exit day. Given the legislative timetable and the scope of Bills that the Government hope to bring forward, surely it would be better to enshrine the principles of Amendment 66 in the Bill, rather than leave to chance bringing forward an environmental protection Bill prior to exit day.

The Government’s 25-year environment plan is wide-ranging and encouraging. Those in the natural environment sector have been encouraged by changes in the Government’s stance that have occurred since the new Secretary of State took office. However, the Government’s drive towards streamlined planning has demonstrated how easy it is to introduce provisions that—apparently unwittingly—undermine historical environment protections. We must be vigilant to ensure that damage does not happen by default.

I turn lastly to the impact of the large number of Henry V powers contained in the Bill.

[Noble Lords]

Henry VIII.

[Baroness Bakewell of Hardington Mandeville]

Sorry, Henry VIII powers. They have caused such concern in the environment protection world and elsewhere. The withdrawal Bill’s aim is to convert EU law into UK law wherever practical and appropriate. Clause 7 confers major executive powers on the Government to bring about legal and institutional changes that would normally be the subject of detailed parliamentary debate and scrutiny. These powers are incredibly broad and would be able to achieve anything that could be done through an Act of Parliament, including repealing or amending existing pieces of primary legislation. It is estimated that around 800 to 1,000 statutory instruments are likely to be needed to address deficiencies in retained EU law through these powers. I look forward to this with trepidation.

The Environmental Policy Forum has made a number of extremely valid points, including supporting the House’s Constitution Committee’s recommendations that the Bill should require Ministers to demonstrate good reason for exercising Henry VIII powers and that the sifting committee’s powers be decisive in calling for the affirmative procedure for a statutory instrument as it deems necessary. The EPF also recommends that the Bill should require the Government to establish a new body or bodies to fulfil the roles and functions currently undertaken by the EU institutions to ensure effective governance of environmental law and an appropriate level of independence and authority. The new body should be funded by and directly accountable to the UK Assemblies and Parliaments and, in a similar way, to the National Audit Office.

It is vital that the UK and devolved Governments work together throughout the passage of the Bill to ensure that common frameworks can be established to set minimum environmental standards across the UK at or above current EU standards. This should allow each country to set higher standards should they wish to do so. This process should be jointly initiated to allow for genuine shared ownership. I fully support all the amendments in this group and I hope that the Minister—although probably somewhat weary of the Committee’s deliberations—has his listening hat on.