Enabling powers for Scotland's Environmental Impact Assessment Regimes & Habitats Regulations: Analysis of Consultation Responses

Section B: The 1994 Habitats Regulations

Support for the Scottish Government’s rationale for seeking enabling powers which would better allow future amendments to the 1994 Habitats Regulations (Q4-6)

Context

The 1994 Habitats Regulations^[6] are the main piece of legislation which transpose the requirements of the EU Habitats Directive^[7] and elements of the EU Birds Directive^[8] 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^[9]), and to Scottish offshore waters (beyond 12nm from the coast) (the Conservation of Offshore Marine Habitats and Species Regulations 2017^[10]). Only the 1994 Habitats Regulations would be covered by the proposed enabling power.

We sought 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.

We also sought views on whether limitations should be placed on these powers, and what those limitations should look like. A key consideration highlighted in the consultation was the ability to ensure the appropriate balance between providing flexibility to amend regulations to make important improvements and/or adapt to future circumstances, whilst ensuring they continue to effectively underpin environmental protection and assessment processes in Scotland.

Balance of Opinion for the Scottish Government’s rationale for seeking enabling powers which would better allow future amendments to the 1994 Habitats Regulations

Responses to the closed Questions 4 and 5 fell broadly in line with responses to Questions 1 and 2.

An overall majority of 63% of all respondents agreed with the Scottish Government’s rationale in closed responses to Question 4. Again, only 7% of all respondents did not agree the with rationale and a significant number where either unsure (5%), provided other views (12%) or did not answer the closed question (12%).

Again, many respondents provided additional views in the open text fields regardless of their response or lack of response to the closed question.

Amongst those who agreed with the rationale, the proportion of organisational and individual responses were roughly in line. However, 10% of organisational respondents did not agree, with none of the individuals responding this way. Again, there were also significantly more comments provided by organisational respondents.

In response to Question 5, a smaller overall majority of 51% agreed that 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. Similarly to Question 2, 17% disagreed that there should be limitations whilst, again, a significant number were unsure (10%), provided other views (7%) or did not answer the closed question (15%).

Question 6 invited respondents to “Please provide examples and any information which you think would be useful to support your views” in an open text field.

Views provided by respondents in the open text fields for Questions 4 to 6 tended to cover all three questions and so have been analysed together when identifying common themes and issues. Where comments referred to a specific question this has been reflected in the analysis.

Key Themes and Issues Raised

Similar themes were identified in responses to Questions 4 to 5 as to those identified in Question 1 to 3. Respondents often referred back to their answers given to Questions 1 to 3, indicating that their views were applicable to enabling powers which would better allow future amendments in relation to both the EIA regimes and the 1994 Habitats Regulations.

These themes are drawn out again in the analysis below as well as any unique themes and issues which were found only in responses relating to the rationale for seeking enabling powers which would better allow future amendments to the 1994 Habitats Regulations.

Rationale for the enabling powers

Again, many comments focussed on the Scottish Government’s rationale for the enabling powers. As with the proposed powers relating to the EIA regimes, some respondents provided further detail outlining their support for the proposed enabling powers. For example, a respondent noted their recognition and support for the principle that there needs to be flexibility within the 1994 Habitats Regulations. It was also noted that being able to amend the regulations will help address the nature and climate crises by making the legislation for the National Site Network in Scotland fit for purpose in the 21^st century, and allow continued administrative improvements, improving public sector efficiencies.

Similarly, some respondents who did not agree with the Scottish Government rationale raised issues with the level of detail and clarity provided in the consultation. It was suggested that the consultation offered insufficient specific detail on the nature or necessity of reforms, and lack of detail on how the enabling powers may be used. As with the EIA regimes, it was suggested that existing powers should be sufficient.

Some respondents also thought that the examples provided in the consultation covered only relatively “small” and administrative amendments. There was concern amongst these respondents that too little detail was provided regarding how the powers may be used for any larger scale reform.

Two respondents suggested that any changes to the 1994 Habitats Regulations should be made via primary legislation, in order to provide clarity about the changes, the purpose of any changes and ensure appropriate levels of parliamentary scrutiny. Reasoning given for this included the criticality and effectiveness of the 1994 Habitats Regulations in safeguarding Scotland’s biodiversity and the potential for unintended consequences on ecological systems. It was suggested that significant reform of the 1994 Habitats Regulations is unnecessary and that the focus should be on effective implementation.

A respondent also noted the existing derogations process under the 1994 Habitats Regulations.

Public Consultation and Stakeholder Engagement

As with the questions relating to the EIA regimes – and with some respondents referring back to those responses – the most common concern, expressed firmly by many respondents, was that there should be a robust public consultation on any future amendments to the 1994 Habitats Regulations. This would be in order to provide an appropriate level of transparency and opportunity for relevant stakeholders and the wider public to comment on and participate in the changes. It was also highlighted again that this process should also be subject to appropriate impact assessments.

These views were found especially amongst those who agreed with the Scottish Government rationale for seeking the enabling powers but included some others. They were also expressed across the variety of individuals and organisational categories.

Environmental Standards

Despite a majority of respondents agreeing with the rationale for enabling powers, there was, again, significant concern amongst some respondents that the environmental protections offered by the 1994 Habitats Regulations could be weakened by future amendments.

In response to Question 5, one respondent specifically suggested that limits should be in place so that enabling powers are used by Ministers to maintain and strengthen, but not weaken, the 1994 Habitats Regulations.

This was echoed by some other respondents. Specific suggestions included that:

• safeguards should be built in to prevent dilution of the current standards which could include that changes in protected areas would only be allowed where designations were to be enhanced or protected areas enlarged
• the enabling powers should only be for the purposes of maintaining and enhancing the function of the 1994 Habitats Regulations, including keeping pace with wider developments in environmental law and standards.
• a clear process for individual citation changes in protected areas should be complemented by a wider framework for ensuring adequate conservation across the network.

Again, a few respondents specifically suggested that limitations should be achieved through inclusion of a “non-regression” clause or test. Conditions suggested for this were repeated for those suggested in relation to the EIA regimes in Questions 1 to 3, including requirements for Scottish Ministers to lay before Parliament and publish a statement explaining why they are satisfied that this non regression test has been met.

Some additional conditions suggested included that:

• all negative impacts on European sites are fully compensated-for;
• legal protection for all species currently listed in the 1994 Habitats Regulations is maintained or strengthened.

However, in line with the majority of closed responses agreeing with the rationale for Scottish Government seeking the enabling powers, there was also significant recognition, including amongst some of the respondents with concerns, that flexibility and adaptability was necessary and could provide benefits to environmental standards. It was suggested that they could be used to deliver improved environmental outcomes and help ensure Scotland keeps pace with wider developments in environmental law and standards.

A respondent acknowledged it would be difficult to define any limitations of what the enabling powers could cover, and this could introduce further inflexibility that was intended to be removed by the enabling powers. In particular they highlighted how setting out limitations to how the power to amend the 1994 Habitats Regulations could be used could inadvertently bump up against the power in section 1 of the UK withdrawal from the European Union (Continuity) (Scotland) act 2021 (“the Continuity Act”). They pointed out that the Continuity Act also sets out obligations on Scottish Ministers to apply the four environmental principles when proposing new legislation (section 14) and that this should provide confidence that amendments to the 1994 Habitats Regulations will maintain the relevant environmental protections.

One respondent commented that allowing for boundaries of designated sites to be changed, allowing for the removal as well as addition of designated features, and allowing for the inclusion of features that are not already protected or present would all be positive in supporting delivery of the Scottish Biodiversity Strategy and climate change adaptation.

Another highlighted that enabling powers offered an opportunity to provide a much clearer and coherent legal framework for what the 1994 Habitats Regulations require and how they fit with other legal provisions. Whilst another suggested that it could improve environmental standards by making legislation specifically for the National Site Network to make it more effective. They also highlighted that the ability to implement administrative improvements as and when they are identified could help improve public sector efficiencies.

Some responses from renewables organisations agreed that a wider range of powers would allow sites to be monitored, managed, and adapted to meet environmental challenges and help deliver offshore wind capacity necessary to meet 2045 targets.

Scottish Parliamentary Procedures

Respondents tended to repeat their views here regarding the legislative procedures necessary for appropriate Scottish Parliamentary scrutiny of any amendments.

A few respondents proposed a requirement that any secondary legislation brought forward under the enabling powers is subject to the full affirmative procedure in order to provide appropriate parliamentary scrutiny.

Another respondent suggested that minor amendments could be made by negative procedure, whereas wider-ranging amendments should be subject to greater Parliamentary scrutiny than that offered by the negative procedure.

Consistency across legislative regimes

Some respondents again expressed concern that the enabling powers presented a potential divergence between inshore and offshore and with wider UK approaches to the 1994 Habitats Regulations. Some respondents had stated that their initial response to the EIA regimes their views on this applied to the EIA regimes and the 1994 Habitats Regulations.

Respondents again suggested that the potential for divergence should be considered in Impact Assessments produced as part of an amendments process.

There was also acknowledgement that the current legal framework is already fragmented. One respondent suggested that this offered an opportunity to provide a much clearer and coherent legal framework for what the 1994 Habitats Regulations require and how they fit with other legal provision.