Environmental Impact Assessment regime and Habitats Regulations - enabling powers: consultation

Part 3 - The 1994 Habitat Regulations

The Conservation (Natural Habitats, &c.) Regulations 1994

The 1994 Habitats Regulations are the main piece of legislation which transpose the requirements of the EU Habitats Directive and elements of the EU Birds Directive in Scotland, on land and in territorial waters (0-12nm from the coast). Separate versions of the legislation apply in England and Wales and to certain reserved matters on land and in territorial waters (the Conservation of Habitats and Species Regulations 2017), and to Scottish offshore waters (beyond 12nm from the coast) (the Conservation of Offshore Marine Habitats and Species Regulations 2017). Only the 1994 Habitats Regulations would be covered by the proposed enabling power.

The 1994 Habitats Regulations establish a general duty on Scottish Ministers, competent authorities and statutory advisors to exercise their functions so as to secure compliance with the requirements of the EU Habitats and Wild Birds Directives. The Regulations also set out provisions relating to the designation and management of protected areas which are important for certain natural habitat types (Special Areas of Conservation – SACs) and bird species (Special Protection Areas - SPAs). These sites are collectively referred to as "European sites" or "European marine sites", and form part of a UK site network. This includes procedural requirements in relation to the assessment of implications of plans or projects for these sites, and for how negative impacts should be managed and compensated for if there are imperative reasons why a plan or project should go ahead even if it will have an adverse impact on site integrity. Finally, the 1994 Habitat Regulations set out protections and licensing rules for certain species of animals and plants.

As explained in Part 1, the 1994 Habitats Regulations are assimilated law and the Scottish Government considers that this is an area where legislative reform may be appropriate in future.

What are we proposing?

The Scottish Government is seeking views on whether Scottish Ministers should have powers which would better allow future amendments to the 1994 Habitats Regulations. This would provide the ability to ensure that the regulations remain fit for purpose in future and do not effectively become frozen in time.

The 1994 Habitats Regulations are now thirty years old and have been amended to ensure their continued effectiveness on numerous occasions, which indicates there will continue to be a need for an enabling power in future. Some amendments were even made immediately before EU Exit because we were aware that the enabling powers available under the European Communities Act 1972 were going to be lost. We used this opportunity to allow for Scottish Ministers to delegate maintenance of Scotland's register of European sites to NatureScot. This has enabled NatureScot to host a more accessible version of the register online via SiteLink, rather than it being physical register stored at a Scottish Government building.

We are also seeking views on what limitations should be placed on these powers, whilst recognising we cannot fully predict every potential future scenario where such powers could be used. We want to ensure the appropriate balance is achieved between providing flexibility to amend the regulations to make important improvements and/or adapt to future circumstances, whilst ensuring they continue to effectively underpin environmental protection and assessment processes.

It is not possible to predict every circumstance under which the need for an enabling power may arise in future, although some potential scenarios have been identified. Any future use of the powers would be subject to public consultation and the appropriate impact assessments.

Below are some examples of how enabling powers could be used in future.

Scenario A

The 1994 Habitat Regulations form part of a wider framework of nature conservation legislation in Scotland and we need to ensure that they can function effectively both in their own right and within this wider context.

For example, section 36 of the regulations makes further provision in relation to byelaw making powers for the protection of European marine sites under section 37 of the Wildlife and Countryside Act 1981. However, this no longer makes sense because section 37 of the Wildlife and Countryside Act 1981 was repealed by the Marine and Coastal Access Act 2009 and the Marine (Scotland) Act 2010.

An enabling power would allow Scottish Ministers to update this provision to reflect the current legislative framework.

Scenario B

The 1994 Habitat Regulations place a duty on Scottish Ministers to adapt the UK site network (and specifically European sites in Scotland) in order to meet management objectives for the network. The management objectives relate to achieving or maintaining favourable conservation status for certain habitats or species listed in the EU Habitats Directive, and to ensuring the survival and reproduction of certain wild bird species listed in the EU Birds Directive.

At the moment, there is no mechanism to adapt European sites designated under the 1994 Habitat Regulations, other than to designate additional sites or to add additional protected species or habitats ("features") to a site citation. For example if evidence demonstrated that the natural range of a "feature" has shifted as a result of climate change, it would not be possible to amend an existing site boundary to reflect this, or to "remove" the feature from the site citation while ensuring that that habitat or species was suitably represented elsewhere within the network.

Scottish Ministers could amend the 1994 Habitats Regulations in future to ensure that European protected sites can be adapted to meet changing circumstances.

The reason for using a power in this way would be to ensure that Scottish Ministers can effectively meet their duties in relation to the UK site network, and to ensure that conservation effort can be targeted where it is most needed.

The following set of questions relate to the 1994 Habitat Regulations, please use the information provided to assist you.

Question 4

Do you agree with the Scottish Government's rationale for seeking enabling powers which would better allow future amendments to the 1994 Habitats Regulations?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Question 5

Do you agree there should be limitations on how Scottish Ministers can use the enabling powers being sought to better allow future amendments to the 1994 Habitats Regulations?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Question 6

Do you have views on how we can set the scope of/limits on these enabling powers?

Please provide examples and any information which you think would be useful to support your views.