Cultural Heritage Protection post-Brexit

In mid-December BEFS encouraged its membership to lobby Members of the Scottish Parliament on what we perceived to be an anomaly in the definition of “the environment” within Part 2 of the UK Withdrawal from the European Union (Continuity) Scotland) Bill. Our proposed amendment was not put forward by any MSPs but Scottish Ministers have responded with their reasoning as to why it was unnecessary.

Thank you to all those that contacted MSPs, it was not in vain as it resulted in better engagement between the Bill team and our colleagues at HES. Scottish Ministers also give a commitment below to ensure that cultural heritage protections are adequately considered by the new body Environmental Standards Scotland – although it is noteworthy that cultural heritage does not appear to be an area of expertise of the chair or members.

Scottish Ministers’ response:

“We do not agree that the definitions of “the environment” in the Continuity Bill should change in the way outlined in your correspondence. The reference given in Schedule 3 of the Environmental Assessment (Scotland) Act 2005 is a representative list of issues to be included in the consideration of the potential significant effects of a project or programme. It is not a definition of the environment, and we do not believe that it can be used in the way that is proposed in your suggested amendments to the Continuity Bill.

With respect to the definition of the environment at section 12, we have designed the duties at sections 10(1), 10(2) and 11 of the Continuity Bill for the guiding principles on the environment to apply with respect to the natural environment. This will cover some aspects of cultural environment, but it is not our intention that the guiding principles should apply to the built element of the cultural environment, to architectural and archaeological heritage or to other parts of the built environment. These other considerations will remain valid in the conduct of Strategic Environmental Assessments, as they are at present.

In relation to the definition of the environment at section 40, we do not see the role of Environmental Standards Scotland (“ESS”) extending to ensuring compliance with the law on the historic and cultural environment or with the law on architectural and archaeological heritage. This would be the effect of the expanding the definition of the environment at section 40.

Officials have discussed this issue with colleagues in Historic Environment Scotland (“HES”). ESS functions in the Bill relate to monitoring and compliance with “environmental law” as currently defined in section 39 of the Bill: that is, so far as relevant in the current context, law mainly concerned with “environmental protection”. In terms of section 40(1)(b) “environmental protection” includes preventing, mitigating, minimising or remedying “environmental harm” caused by human activities. “[E]nvironmental harm” includes damage to property and impairment of, or interference with, amenities or other legitimate uses of the environment. We therefore consider that is clear that consideration of the cultural environment will fall under the definition of “environmental harm” at section 40(2).

We consider that when ESS sets out more detail about is functions in its Strategy, as required under section 18 of the Bill, the Strategy should include information about how it will take account of impacts on cultural heritage as a part of its judgments of environmental harm. We will encourage ESS to speak to HES and relevant stakeholders such as the Built Environment Forum as it develops its strategy.”

 

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