EU Exit: habitats regulations in Scotland

Amendments to the Habitats Regulations

For Scotland's terrestrial and marine environments, the requirements of the Habitats Directive and the Wild Birds Directive are transposed by five pieces of legislation:

• The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended on numerous occasions^[12]). These Regulations apply on land in Scotland, and in Scottish inshore waters (the area of sea adjacent to Scotland from 0 to 12 nautical miles);
• The Conservation of Habitats and Species Regulations 2017. These Regulations apply in England and Wales, but also apply to specific reserved and devolved activities on land in Scotland, and in Scottish inshore waters, including for consents under sections 36 and 37 of the Electricity Act 1989;
• The Conservation of Offshore Marine Habitats and Species Regulations 2017. These Regulations apply to all UK offshore waters (the area of sea beyond 12 nautical miles);
• The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001;
• The Wildlife and Countryside Act 1981.

Policy on the protections and standards afforded by the Habitats Regulations remains unchanged, but there have been some changes in terminology and the Scottish Ministers now exercise some functions that were previously carried out at an EU level.

• European sites are still protected in Scotland and the rest of the UK. The terms "European site", "European marine site", and "European offshore marine site", have been retained, as have "Special Area of Conservation" (SAC) and "Special Protection Area" (SPA).
• European sites, European marine sites and European offshore marine sites in the UK (as defined by the Conservation (Natural Habitats, &c.) Regulations 1994, and the Conservation of Offshore Marine Habitats and Species Regulations 2017) are no longer part of the European Union's Natura 2000 network. Instead, they form a UK-wide network of protected sites, referred to in the 1994 Regulations as the UK site network, and retain the same protections. The UK site network^[13] is made up of SACs and SPAs designated at various points in time before exit day (i.e. UK sites that formed part of the EU's Natura 2000 network prior to exit day), and any sites designated under the Habitats Regulations after exit day. European sites continue to contribute to delivering the UK's domestic and international biodiversity objectives, and still form the UK's contribution to the Emerald Network of the Bern Convention. The UK also remains a contracting party to other international conventions such as the Convention on Biological Diversity, and the United Nations Convention on the Law of the Sea.
• Management objectives are established for the UK site network^[14]. For such sites in Scotland (including those in Scotland's inshore and offshore waters), the Scottish Ministers must work in cooperation with the other UK administrations to manage, and where necessary, adapt the UK site network to contribute to the achievement of these objectives.
• The objectives in relation to the UK site network are to:

i. maintain or restore certain habitats and species listed in the Habitats Directive to favourable conservation status (FCS)

ii. contribute to ensuring the survival and reproduction of certain species of wild bird in their area of distribution and to maintaining their populations at levels which correspond to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements.

• The Scottish Ministers must also have regard to the importance of the protected sites for achieving the aims of the Directives; to the coherence of the UK site network, as well as to the threats of degradation or destruction to which protected sites may be exposed. They must also have regard to the importance of breeding, moulting and wintering areas and staging points along the migration routes of migratory species.
• The collective responsibility of the four UK administrations to manage the UK site network to contribute to achieving FCS for habitats and species applies only to those parts of their natural range that lie within the UK, and recognises that action to achieve FCS should be proportionate relative to the extent of the natural range occurring in the UK. This means that disproportionate effort is not required to contribute to FCS for species and habitats whose natural range largely lies outside this area where the UK has no control and the opposite applies for habitats and species whose natural range largely falls within the UK.
• The Nature Conservation (Scotland) Act 2004 provides for the notification, management and protection of Sites of Special Scientific Interest (SSSI). This designation underpins the majority of terrestrial SACs and SPAs, with the site protection provisions from SSSIs forming appropriate steps to comply with article 6.2 of the Habitats Directive.
• European marine sites and European offshore marine sites continue to contribute to Scotland's MPA network. The network also includes Marine Protected Areas (MPAs), Sites of Special Scientific Interest (SSSIs) and Ramsar sites.
• Before the UK left the EU, the European Commission played a role in the designation process for SACs in the UK. Following identification by the relevant UK administration as "candidate" SAC (at which point the Habitats Regulations applied), site proposals were sent to the European Commission for review and adoption as Sites of Community Importance (SCIs), and ultimately designated as SACs by the relevant UK administration within six years of adoption. Now that the UK has left the EU, the Scottish Ministers will designate as SACs sites in Scotland that they consider to contribute significantly to the achievement of favourable conservation status in their natural range of habitats listed in Annex I or species listed in Annex II of the Habitats Directive, and to the maintenance of biological diversity within the Atlantic biogeographic region. SACs will still be determined on the basis of criteria in Annex III of the Habitats Directive and SPAs on the basis of the UK SPA Selection Guidelines. The relevant conservation bodies advising the Scottish Ministers will be Scottish Natural Heritage (SNH) and/or the Joint Nature Conservation Committee (JNCC).
• The general provisions for the protection of European sites under the Habitats Regulations, including the procedural requirements to be undertaken by competent authorities to assess the implications of plans or projects for European sites and only grant consent if certain tests are met – known as Habitats Regulation Appraisal (HRA) – are unchanged.
• Before the UK left the EU, the UK was required to seek the European Commission's opinion in certain circumstances on whether there were imperative reasons of overriding public interest for granting consent for a plan or project despite a competent authority being unable (following completion of an HRA) to ascertain no adverse effect on site integrity. It will now fall to the Scottish Ministers to give this opinion in relation to sites in Scotland and Scotland's inshore and offshore waters. Ministers will need to take account of the national interest and to consult the other UK administrations, the JNCC and any other person they consider appropriate.
• The UK will continue to publish reports on the conservation status of habitats and species that occur in European sites and on the conservation measures implemented. Reports under the 1994 Regulations will be published by Scottish Ministers every six years (from exit day), and a composite UK report published by the Secretary of State within two years of this. Reports under the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species 2017 will be published by the Secretary of State. These arrangements will ensure transparency and allow for parliamentary and public scrutiny.
• The UK will also continue to publish reports on licences granted for activities which might affect a European protected species or wild birds, such as for research purposes and to prevent the spread of disease. Reports will be published by the appropriate authorities every two years (from exit day) and will ensure transparency and allow for parliamentary and public scrutiny.
• The relevant habitats and species, criteria for the selection of SACs, and prohibited methods of taking or killing wild animals are listed in the annexes to the Habitats Directive and schedules of the Habitats Regulations. References in the Habitats Regulations to the annexes to the Habitats and Wild Birds Directives are references to those annexes as at exit day.
• The Habitats Regulations now include powers to amend the annexes to the Habitats and Wild Birds Directives (to the extent that they apply to the Habitats Regulations) and schedules of the Habitats Regulations. In relation to the 1994 Regulations, these powers are for the Scottish Ministers, and, in relation to the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species 2017, the Secretary of State. Such amendments would add species listed in Annex IV of the Habitats Directive where their natural range includes any area in Scotland (on land and in inshore and offshore waters) and reflect advances in technology and scientific understanding. This provides equivalent powers to those held by the European Commission.
• For the avoidance of doubt, any amendments adopted by the European Council to the Habitats or Wild Birds Directives after exit day will not apply in the UK. Introducing these new powers means the lists will remain fit for purpose in future, for example if the range of species changes as a result of climate change to include Scotland, or to make sure that new technologies are included on the list of prohibited methods. The appropriate authorities will seek advice from statutory nature conservation advisors before making any such amendments and will work with the other UK administrations to ensure a consistent approach is taken across the UK, where appropriate to do so. As was the case before EU exit, there may be instances where it is appropriate to take a different approach in Scotland.
• The Habitats Regulations still contain references to the Habitats and Wild Birds Directives. Where the provisions of the Directives being referred to contain references that do not make sense for the purposes of the Habitats Regulations now that the UK is no longer a Member State, the amendments set out how the provisions are to be read in order for it to make sense. For example, references to "Member States" in certain provisions of the Nature Directives are to be read as if the UK were a Member State.
• There are new powers for the Scottish Ministers (in relation to the 1994 Regulations) and the Secretary of State (in relation to the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species 2017) to issue guidance on interpreting the requirements of the Nature Directives. The guidance will be prepared in consultation with the appropriate nature conservation body.