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Chamber and committees

Citizen Participation and Public Petitions Committee

Petitioner submission of 26 October 2021

 PE1895/B: Mandatory accountability for NatureScot's decision making procedures 

Section 16.(1A) of the Wildlife & Countryside Act 1981 states -

"The appropriate authority - (a) shall not grant a license for any purpose mentioned in subsection (1) unless it is satisfied that, as regards that purpose, there is no other satisfactory SOLUTION;"

Scottish Governments statement to my petition states - "Test 2, there must be no satisfactory ALTERNATIVE"

This statement in "Test 2" is INCORRECT, and conflicts with case law. These are two statements taken from European Court of Justice judgements (C-78/08) that refer to the issue - 

38 "......... the lack of any other satisfactory solution does not refer to the lack of any alternative solution, but to the lack of any acceptable and sufficiently appropriate solution in relation to the objective pursued,"

56." The Community legislature, by using the expression 'other satisfactory solution', did not intend to prevent use of the derogation laid down in Article 9(1)(c) of the Directive where any opportunity whatsoever exists "

To determine what constitutes a "satisfactory SOLUTION" the authority must take into account the "objective" of the legislation and understand the case law that defines it. Our legislation is the implementation of EU Directives, the objective of the EU Birds Directive is to maintain the "favourable conservation status" of the species and when this isn't threatened, caters for sustainable use. Authority must understand and confine their objective within this parameter and be able to convey that to the applicant. There has to be a clear objective to support a decision otherwise it's unclear how they have applied the "principle of proportionality". The foundation of the latter originates from Article 5 of the EU Treaty, in that, regulation should be the minimum required to achieve the objective. NatureScot have refused my license applications in favour of an alternative which isn't a "solution" to the purpose of the application without explaining their objective. 

I've tried holding NatureScot to account by using all what's detailed in Scottish Governments statement, and failed. There is no appeal process, only complaints but NatureScot avoid addressing case law. I complained to the SPSO, it was rejected with no explanation so I complained to the Ombudsman and their response was they could see how Nature Scot had NOT explicitly answered my questions but they couldn't change their decision, it would require judicial review.

Three MSP's have been unwilling to challenge NatureScot's position on policy, the Board wouldn't address the problems I've encountered and the Chairman refused to meet me. I wrote to the Minister about the conflict between licensing decisions and government policy. They haven't addressed it but FoI shows their office obtained a "suggested response" from NatureScot to send to me. So, don't Scottish Government have an opinion when an authority, who have a statutory duty to implement their policies, don't comply?

In my experience NatureScot ignore their Statutory Code of Practice, they ignore "Right First Time", both editions, they ignore government policies such as the GB Invasive Non-Native Species Strategy and they also ignore international conventions that Scottish Government support such as the UN's Convention in Biodiversity, its related Aachi targets 13 & 18, and the Covenant on Social, Economic and Cultural Rights, they ignore all this, and more, in favour of an single "alternative" that isn't a "solution" ! The result of me trying to address these issues was two notifications of unacceptable behaviour for persistence which included two periods of cessation of communication, all for trying to get them to address policy and procedures that Scottish Government have highlighted in their statement. I feel my human rights are being abused.

It was made clear to me by NatureScot staff that they do not routinely take qualified legal advice on case law that may affect licensing decisions unless the issue is directly from a solicitor. So, biologists with little understanding of case law are interpreting the law with no qualified advice. I don't believe this is acceptable, if nothing else they are discriminating against citizens such as myself, who have taken the time and trouble to research case law, in favour of solicitors. 

It's impossible for a citizen to hold NatureScot to account but if it was made mandatory that they have to explain their "objective" for decisions in the context of the aims of legislation, especially for refusals, it would go some way to explain how they have applied "proportionality" and narrow the field of conflict. 

My objective is to utilise, sustainably, a native species which will reduce the use of non-native ones. NatureScots alternative is use non-native species obtained through commercial means but won't explain their objective, other than "to follow the law". I am not challenging a decision, my petition is an attempt to make NatureScot accountable for them.

It's also difficult to explain all these issues in detail in 800 words 

Related correspondences

Citizen Participation and Public Petitions Committee

Scottish Government submission of 22 October 2021

PE1895/A: Mandatory accountability for Naturescot’s decision making procedures