Facilitating marine nature restoration through legislation: analysis of consultation responses and Scottish Government response

High level overview

We asked, you said, we did

Overall there was a degree of support for both sets of proposals. Respondents highlighted the benefits restoration can bring to the marine environment and that the proposals in principle could have positive effects. However, although there was overall support for the outcomes the proposals would deliver, respondents were concerned about the approaches set out in the consultation to achieve these outcomes.

There was also lack of consensus around the scope of these powers, in particular around the definitions of marine nature restoration; for example some respondents felt definitions should be restricted to ‘active’ restoration, where others expressed concerns at omitting ‘passive’ restoration within the definitions.

Another recurring theme was the need for a framework and better understanding of where restoration can best take place around Scotland.

This suggests there would be merit in changing the order of action: rather than developing legislation first ahead of implementing the plan, we will first set out the restoration plan and then as part of its development consider what legislative action is most appropriate to best realise the environmental and economic potential of marine restoration activities. The first Delivery Plan under the Scottish Biodiversity Strategy has an action to publish a restoration plan for marine and coastal areas in Scotland by 2025. The Restoration Plan will focus on identifying key actions needed to facilitate and prioritise locations, habitats and species for restoration. We anticipate the Plan will be structured around a number of themes, including the regulatory environment. A stakeholder advisory group will be formed to aid in the development of the Restoration Plan.

As a result, and in line with the views expressed in the consultation responses, we think it is appropriate, to take more time to consider the legislative proposals as part of the development of the Restoration Plan. This means we will not be taking these proposals forward for the time being.

Registration process for restoration projects

Generally there was support for the principle of enabling Scottish Ministers to develop a registration process for nature restoration projects. There were differing opinions on such a process reducing administrative burden, with some indicating it could facilitate a reduction, but only for larger projects. However, even among respondents who were supportive of a registration process, there was indication that the proposals set out in the consultation needed further development.

There was also significant divergence of opinion in response to questions on what a registration process should look like; whether it should be a self-assessment style process or follow an applications and approval procedure. This is clearly a fundamental issue which requires further consideration and development to find the best model.

Similarly there were varying views on the scope of and definitions associated with the proposals, particularly around the definition of marine nature restoration, and which types of activity should be eligible for a registration process. A range of factors and complexities were also raised in relation to setting meaningful thresholds for environmental impact, for example; who would be involved in setting thresholds, the need for adaptability, consistency with other marine activities, accountability and the need to balance facilitating restoration while mitigating potential risk of environmental harm. These are all fundamental issues that merit further consideration. There was broad agreement that it would be beneficial to allow registration at the project level, rather than at the level of individual activities (the latter being the case for marine licensing). However, it was again highlighted that this would require clarity of definitions to prevent misuse. Similarly, a majority of respondents agreed that certain specific activities that could pose navigational risks should be excluded from any registration process and remain subject to marine licensing conditions. There was however some suggestion that this could be assessed on a case by case basis.

Marine Conservation Orders

There was support for the principle of using Marine Conservation Orders to protect habitats and species under restoration, although some marine sectors were concerned about the potential for restrictions on other activities. Similarly there was uncertainty about the process by which Scottish Ministers would decide which habitats and species merited protection. Given these uncertainties - and the general points respondents made about the need a framework and better understanding of where restoration can best take place - we think it is important to make sure any potential amendments to the current MCO provisions are considered further.

There was strong support for including a statutory review period for any MCOs introduced for the protection of habitats and species under restoration.

On the other proposed amendments, relating to European Marine Sites and simplifying a technical element of the MCO consultation process there was broadly support. However, these proposed amendments were identified as suitable to be part of a package of measures and are not substantial enough to justify taking them forward as standalone legislation.