On 15 November, environmental amendments to the EU (Withdrawal) Bill were debated by MPs in Parliament. Among these amendments was one which sought to add a new clause to the Bill which would ensure that after withdrawal from the EU, the environmental principles currently enshrined in article 191 of the Treaty on the Functioning of the European Union (TFEU) would be transposed into UK law when the UK leaves the EU.
It was argued that, without this amendment, the Bill’s omission of these principles would mean a weakening, in effect, of the legal safeguards which protect environmental standards from being eroded by future policy changes, and could remove the right of environmental bodies to legally challenge developers who fail to meet standards.
Among the principles in the treaty – and replicated in the amendment – are the ‘polluter pays’ principle and the ‘precautionary principle’. Both of these are critical principles underpinning how archaeology has been undertaken in the planning process since 1990, funded by developers.
CIfA had supported these amendments and the benefits of ensuring that environmental safeguards retained a clear statutory footing. However, on Thursday night MPs voted to reject the amendment by a vote of 313 to 295.
This does not mean that these principles will cease to have any force when the UK leaves the EU. The Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) Directives will be transferred into UK law and existing structures in the planning will still continue to function as they previous have done. Many other environmental principles exist implicitly within other legislative implements and so there is unlikely to be any immediate impact after ‘exit day’ as a result of this decision.
However, the loss of overarching environmental standards is a major long-term concern which will influence the scope and potential direction of future reform and regulation of the environment, planning system, and archaeology, particularly given recent policy trends towards deregulation. The lack of a clear statutory commitment also potentially means that there is greater potential for courts to set harmful precedents in case law which go against these principles, and will remove the ability of environmental organisations to bring legal challenges with reference to the TFEU.
That being said, the rejection of these amendments by no means signals the end of the process of lobbying for greater reference to these principles in UK law. Indeed, during the debate the government confirmed that there was an intent to legislate in other ways. These suggestions included;
- an Environment Bill, to be brought forward before exit day, which would provide a more appropriate place to set out the principles of environmental protection;
- a National Policy Statement to underpin this Bill, and
- powers to be conferred on the recently announced environmental regulator to hold government to account.
CIfA has no doubt that ongoing lobbying on these issues will be crucial in the months ahead to ensure that these ideas are expanded upon and firm commitments made by government to outline an appropriate route to establishing effective protections for the principles which underpin environmental protection, including systems which enable commercial archaeology. There are also opportunities to revisit amendments to the Bill in the House of Lords.
CIfA will be working with its colleagues in The Archaeology Forum and in the natural environment sector to ensure that positive strides are made and that pressure is brought to bear on government in relation to this issue. CIfA members are encouraged to contact their MPs to ask them about these issues and exert pressure on parliament to recognise the potential impact that any weakening of environmental protections could have on archaeology and the wider environment.
Advice on writing to MPs has been produced by the Council for British Archaeology, Rescue, and the Built Environment Forum Scotland.
The full transcript of the debate can be read here. The relevant debate begins at Column 477.
