Official Report 241KB pdf
Item 4 is our consideration of the Nature Conservation (Scotland) Bill. This is the third of our five planned evidence-taking sessions at stage 1. Our task is to examine and report to the Parliament on the general principles of the bill.
I declare membership of WWF and Friends of the Earth Scotland, if that counts as an interest.
I declare membership of the Scottish Crofting Foundation.
Similarly.
Right. We move to questions from members.
Welcome, everybody. I was interested in what you said in your submissions about wildlife crime. You said that you were anxious that landlords might use prohibition of wildlife crime to prevent access. Am I right in saying that that statement came from Scottish Environment LINK?
Yes.
It was to do with recklessness and so on. Is such action a real possibility, and how would we guard against it?
The concern was expressed by our member bodies, which are interested in access to the countryside. As an umbrella body, we are very supportive of the access policies that are being implemented under the Land Reform (Scotland) Act 2003. We are working with Scottish Natural Heritage to comment on the development of the code.
Should some guidance to that effect be attached to the bill?
That might help, although a clear commitment from the Executive in the debate that it would work with the local access forums to cover that issue would be sufficient.
So, if we can get the minister to say on the record that the recklessness provision should not prevent access—
Yes—it should not prevent access that is compatible with the code.
That would be sufficient. Thank you.
I have a follow-up question. Responses to questions about signage and so on can be varied. The exchange that we have just heard shows that different interpretations could be made by different landowners. Should a range of phrases that are allowed to be used in those circumstances be set out under the provisions of the bill?
The matter relates less to the bill than it does to implementation of the Land Reform (Scotland) Act 2003, which contains the access legislation and the code. Implementation of the code is a matter for Scottish Natural Heritage and the local authorities through the local access forums. In implementing the provisions, they should take into account the legislation that we are discussing today.
You have all mentioned how part 1 of the bill might dovetail with the Scottish biodiversity strategy and how it might be improved. Would you like to amplify that a little?
A number of improvements could be made to part 1. We welcome the duty to further biodiversity that is put on public bodies but we feel that, for that to work, a lot of detail is needed in section 2 of part 1, which deals with the Scottish biodiversity strategy. The priorities and actions that need to be taken as part of the strategy need to be outlined and a duty must be placed on public bodies to act in accordance with it. As is the situation with the standard planning cycle, if we are to achieve our goals using a strategy that needs action to be taken across all public bodies, there must be clear guidelines. For example, the strategy must contain a species list, specific actions to be taken and details of monitoring mechanisms.
Do you think that there should be much more of a "must" rather than a "may" in relation to the duties of public bodies?
Yes. Public bodies should be required to fulfil the duties in the strategy.
The use of the word "may" is a little bit vague and we would like it to be changed to "must".
You mention the related issues of priority habitats and species that would come under the Scottish biodiversity strategy. You talk about reporting on states and trends in relation to species—whether they are growing or reducing in number, essentially. How comprehensive would that reporting be?
The process has already begun in relation to preparation of the draft strategy and through the UK biodiversity action plan in relation to the implementation of the Rio convention.
Much work has been done under the auspices of the UK biodiversity action plan and local biodiversity action plans. I believe that they will continue to provide a valuable framework for the prioritisation of species and habitats work. The Scottish biodiversity strategy is not simply a list of habitats and species; it takes a more integrated approach that tries to tie biodiversity in to other areas of public policy. If the strategy is doing its job, it will provide an overall steer in relation to where and how nature conservation is implemented in Scotland. It will therefore sit above the UK and local biodiversity action planning processes, which would be vehicles for the prioritisation of work.
I have been working on the freshwater implementation plan of the Scottish biodiversity strategy. We see the Scottish biodiversity strategy as a key means of dealing with some of the policy blocks that are preventing the local biodiversity action plans from being implemented on the ground. There are seven priority freshwater habitats and 20 priority freshwater species. Local biodiversity action plan offices have been surveyed and they consider that some of the major blocks to achieving those plans include agricultural pollution, inappropriate management of water courses, habitat destruction and invasive species.
Your comment that 45 per cent of sites of special scientific interest are not in a favourable condition, and the Woodland Trust's argument that
It is heartening that you mention whitebeams, because they are one of my interests. I could not agree more. The mechanism for such working is probably through local biodiversity action plan partnerships. As I said, a lot of work has already been carried out throughout the country. In some ways, the local biodiversity action plan partnerships demonstrate well the groundswell of public support for nature conservation initiatives. An awful lot of people are involved in the local biodiversity action planning process. It is almost as much about people as it is about wildlife. The case of the Arran whitebeams is a perfect example of a situation where the stakeholders could get together to achieve better action on the ground.
So we should look for that in the bill.
I think that the mechanism in the bill is to use the implementation plans and the biodiversity strategy. Clearly, as Lisa Schneidau said, important gaps have been identified in the UK and local biodiversity planning processes, which the strategy is trying to tackle.
Do the other two witnesses have any comments on the matter? We need to be more specific when we think about the principles of the bill.
I will comment on the 45 per cent issue and how that might relate to the kind of partnerships that you talk about. The figure of 45 per cent of SSSIs not being in favourable status came from a survey of a sample of about 10 per cent of sites in Scotland that we organised as a group of the six non-governmental organisations that are listed. We used SNH's criteria to conclude that 45 per cent of the sites were not in a favourable condition. However, it is important to note that that lack of favourable condition was, in most cases, because of issues such as the absence of positive management or neglect and damage by third parties. Those issues are addressed by the bill through the changes in the management regime and in the types of offences relating to SSSIs. That is one of the reasons why we warmly welcome the bill.
Thank you. I will note that for future explanation.
I go back to the issue of signage. One of the other submissions suggested that there is nothing on the ground to indicate the location of an SSSI. It suggested that some discreet signage would be helpful. Would that be desirable?
Issues relating to the management of an SSSI would vary on a case-by-case basis. If an SSSI were damaged by a third party, as in the case of fly-tipping—[Interruption.]
Sorry. That was Alasdair Morrison's pager. Please continue.
Let us take a case where an SSSI suffers damage such as fly-tipping by third parties. One of the new provisions in the bill is that it would be an offence to damage an SSSI if one knew that it was an SSSI. That would be a case for having a clear sign that said, "This is an SSSI and damage here would be an offence beyond the normal environmental offence". Signage in such a case could be beneficial for SNH and the owner-occupier. It might not be necessary in other cases where there are no access or third-party issues; we would be cluttering the countryside with unnecessary signs.
I agree with Lloyd Austin completely. Many SSSIs in Scotland have excellent access and we can attract people to them to show off our wonderful natural heritage. There are others, however, that are more sensitive. There are also some large SSSIs where signage might be inappropriate. I reiterate what Lloyd Austin said about dealing with the matter case by case.
That is helpful. I move on to a separate topic. You all mention non-native species. Will you elaborate on what you see as the threats and the possible remedies?
A number of issues relate to how non-native species such as those that are already established in the countryside can be controlled. Those vary from species such as giant hogweed and Japanese knotweed to the ruddy duck. The matter can be contentious; equally, such species can cause a lot of damage to native biodiversity.
That is almost like putting a bell on a cat. How is such a risk prevented?
That is achieved through a combination of legislation, policy and incentives. As I said, the Executive and SNH were involved in the production of the DEFRA report, which considered the matter in detail. The task with plants involves bringing plant experts together to identify the species that are most likely to pose a risk. The issue is one of risk assessment.
The minister wrote to me about the issue. Perhaps that letter has been circulated to members before, but we will recirculate it to give members a sense of what the minister was thinking about legislating on. That will give people a chance to do useful background thinking about the matter before stage 2, rather than get stuck into drafting amendments immediately.
I will ask about wildlife crime. RSPB Scotland is concerned that the protection of birds is insufficient. It wants nest protection for some rarer birds and lekking protection and short-term provision for capercaillie. Will you expand on that?
I know that the committee will receive further evidence on wildlife crime next week, so I will be brief. We welcome and support the changes that the 2003 act introduced, which we hope will increase deterrence. We also welcome the proposal in the bill on the possession of pesticides, which are the most widely abused chemicals in poisoned baits. We hope that that will enable the Scottish Executive Environment and Rural Affairs Department and the police to crack down on the use of those chemicals.
That is fine, thank you.
Okay. You have logged those points. Are you happy with that, Maureen?
Yes. If Lloyd Austin feels that the Criminal Justice (Scotland) Act 2003 and the proposal in the bill on the possession of pesticides are sufficient to protect against the use of poisoned bait, I am happy.
Yes, they go a long way towards that. Equally, the other measures in the bill on increasing the ability of the police to carry out searches are important.
So you are happy that the provisions are quite tight.
Yes—I think that we are getting there.
Good morning. I am sorry that I was late.
I shall say something very general about the statutory purpose. Both the Woodland Trust Scotland and Scottish Environment LINK welcome the proposal on the statutory purpose for SSSIs. However, we are concerned about the scope of that measure, as it is restricted to SNH's specific duties regarding notification, enlargement and denotification. We would like there to be a broader statutory purpose that would cover conservation enhancement of the series of SSSIs. That would be required to provide a statutory underpinning to SSSI management. Lloyd Austin can probably expand on that.
I underline what Jonathan Hughes has said. The purpose of SSSIs is twofold. First, it is to find out and label the places of most importance; secondly, it is to look after and manage those places. Because of the way in which the purpose is drafted, it appears that only the notification—the labelling process—is part of the purpose. Therefore, we would like the purpose to be expanded to encompass the long-term management and care of the sites.
I will pick up a point in the Woodland Trust's submission about how SSSIs are defined. You suggest that the potentially irreplaceable nature of sites should be taken into account. Can you say more about what would be achieved by adding the word "irreplaceable" to the definition of SSSIs?
Lloyd Austin touched on the issue. Section 3(2)(a) refers only to the development of a series of SSSIs in Scotland that are
The SSSI series is only representative. There are a number of sites out there that are of SSSI quality but which are not designated as SSSIs. A number of them come under the local site systems that we have mentioned. We would like a commitment from the Executive that the development of local site systems will be progressed so we can ensure that such sites are prioritised through the biodiversity process, that there are common standards throughout Scotland and that local authorities and others get guidance to ensure that those sites are protected.
I think that we will get evidence from other witnesses about the big omission in the bill, which is a strategy for marine conservation. I know that we will hear evidence from others who want to see that brought into the bill. Do you want to comment on that issue? That is a huge element of potential conservation measures, but it is not addressed in the bill.
Marine conservation is covered by the biodiversity aspect of the bill, in that there is a marine section in the implementation strategies of the Scottish biodiversity strategy. The Scottish Environment LINK marine task force feels strongly that there should not be an attempt to add marine conservation on to the rest of the bill. It feels strongly that there should be a separate effort to introduce new, comprehensive legislation to address marine nature conservation in respect of the identification of sites, spatial planning and the wider issues involved in sustainable development and sustainable management of the seas.
The issue might be one of timetabling. It is unlikely that an extensive piece of legislation such as that would be possible in this session of Parliament, given the priorities that the Scottish Executive has already set out for the session. Are you content that such legislation might well not happen for another four or five years?
We are not privy to the legislative timetable that lies ahead but, whether it happens in two to three years or in four to five years, it is important that any marine conservation legislation results from a proper review and overhaul of what we have described as the hotch-potch of different acts that affect the marine environment. If we were to add on to the Nature Conservation (Scotland) Bill some provision for nationally important sites in the marine environment, we would increase the number of different acts that affect the marine environment from 80 to 81, rather than address the issue of the complexity of existing legislation.
It is useful to have clarification of that point. One of the things that struck me in the introduction to your paper is the acknowledgement of the engagement with stakeholders in the development of the bill, which does not rule out amendments and discussions between the different stakeholders. The point is well made about the complexity in the different acts that are in force. I commend the way in which the bill has been produced and suggest that those principles be taken on board in future marine legislation. The question will be important in relation to our discussions with the minister when we hear his evidence.
I was interested in what Lisa Schneidau said about how sites that are not SSSIs are often of the same value as an SSSI. It struck me that I do not know how SNH chooses its sites, which is a really basic point. Have you any insight into why one site is chosen over another?
SNH and the UK statutory conservation organisations have designated guidelines for the selection of SSSIs, whether they are biological or geological, and those guidelines have been followed. Some SSSIs were designated decades ago and some were reassessed against the guidelines after the 1981 act. The statutory purpose sets it in stone that those sites are the representative series. Of course, the situation is always changing a little bit.
The biological guidelines and their geological equivalents are the basis on which SNH selects sites. What we have said about rarity and irreplaceability is important in that, in the context of selection criteria, sites that are so rare or irreplaceable will be SSSIs. SSSIs that are a representative sample of particular habitats will be selected on an area-of-search basis, so that there is a geographic spread. SNH chooses two or three sites within each area of search across the countryside. That does not mean that those sites are the only examples of a particular habitat type in the area of search; SNH chooses those that are most representative. Those that are not chosen are the types that Lisa Schneidau was talking about, which we feel should be protected under some sort of system of local sites. On the need to include management of the sites, if one of the sites that is chosen is damaged or destroyed in some overriding national interest, the statutory purpose should require SNH to review what is in the area of search and say, "This site is no longer in our network, so the network as a whole is now deficient." Then SNH would look again at the area of search to see whether any of the other sites should be brought into the network to bring the network as a whole back up to scratch.
It all comes back to the idea that SSSIs are essential, as the representative series is the best that we have. We do not consider that that will be enough in itself. On a local or regional basis, the SSSIs plus the series of local sites are the best that is left. That is a good structure, but wider biodiversity work is needed to hold it together.
I do not disagree with anything that has been said. Some 12.8 per cent of Scotland's land area is covered by SSSIs, of which approximately 45 per cent are in an unfavourable condition. Only 25 per cent of our ancient woodland sites, which are our most biodiverse habitat—they hold more species than does any other habitat in Scotland—are protected by SSSI designation. It is crucial that we take the dual approach to wider biodiversity conservation in association with site designation. The way to tackle wider biodiversity conservation is through mechanisms such as local sites and the Scottish biodiversity strategy. That is why it is crucial that there is a strong link between the strategy and the duty and that the strategy is well defined.
Thank you. That was helpful.
This is a good point at which to finish this part of the evidence taking. I thank the witnesses for their written evidence and for being prepared to answer all sorts of questions this morning.
Meeting suspended.
On resuming—
We move to our second panel. I welcome Professor Roger Crofts, Professor John McManus and Professor Charles Gimingham. Thank you all for attending this morning and for giving us your written evidence in advance; that was most helpful. As with our previous witness sessions, we will not ask you to make opening statements, because we have all read your written submissions. I am keen to go straight to questions. I ask members and witnesses to keep their questions and answers as focused and brief as possible.
I have a question for Professor Crofts. You describe the Scottish biodiversity strategy as "remarkably deficient", which is fairly strong language. How do you think that the strategy could be improved and how could the bill ensure that it is effective? Do you agree with the comments about species lists, targets and actions and the duty to take those actions?
I believe that the strategy is deficient because it starts at the wrong end of the business; it starts with species. We have hundreds of species action plans, relatively few habitat action plans and no ecosystem plans at all. If we are trying to protect species we have to consider the health of the systems in which they live. I would much prefer to see more emphasis on a Caledonian pine ecosystem plan than on a plan just for capercaillie or the Scottish crossbill.
My question will allow me to move on from that, although I apologise to the other two witnesses, because it is another question for Professor Crofts.
I looked to see whether the media were in the gallery.
They may be watching.
Sorry?
The meeting is all on the record.
It is all on the record—thank you.
I am bothered by your suggestion to take out the minister and put in the Land Court. Surely that muddies the waters of the Scottish Land Court as the court of appeal? If the Land Court is seen as the final court of appeal, should not it be left in that pure state rather than become involved at other levels? Is that a valid argument against the one that you have just made?
It is a valid argument. However, there is confusion and lack of clarity in the bill. In some cases, the Land Court will be the court of appeal against a ministerial decision, but in other cases it will be the court of appeal against an SNH decision. The Land Court is either the court of appeal in all cases and all cases would have to go to it via the minister, or it is a court of appeal to which objectors and those who feel that they have been done down by the system can go straight away.
Both Professor Crofts and Professor Gimingham comment on the lack of real direction in the bill with regard to the marine or maritime environment. Do you wish to comment on that issue on the record? Do you believe that the bill should have been extended to encompass the marine environment? If not, could the bill be amended in such as way as to begin to make some kind of inroad in that direction?
Because deterioration is taking place so widely, the matter is extremely urgent. As a direct answer to the question, I would say that the marine environment merits thorough consideration in the form of a new bill. Merely to amend or extend the provisions of the present bill would be unsatisfactory and hurried. I will come down on the side of a request for recognition of the matter, which should be progressed with the minimum possible delay in the form of a new bill.
I would have liked to have seen a bill that was much more embracing. I would have liked a natural heritage bill that covered activities outside SSSIs and below the low water mark and which also covered landscape and so forth. Although that is not in the bill, the Minister for Environment and Rural Development said in the foreword to the consultation version of the bill that was published earlier this year that the matter is in the Executive's mind. I hope that the committee will take the minister to task and get something on the record that is rather more definitive than the words that are to be found in that foreword.
But not in the bill.
I do not think that we have time to deal with them in the bill, but I would like the minister to commit to a firm timetable sooner rather than later. I would like to see a consultation paper that the committee could have a look at well ahead of the end of this parliamentary session, even though that is not in the partnership for government programme. I think that it is important to press for that.
The first question that I was going to ask, relating to the marine environment, has just been answered by Professor Crofts. My second question relates to paragraph 7 of your submission and the concerns that you raise about decision making slowing down and costs rising. What should the Executive do during the process of the bill to ensure that that does not happen?
The first thing that the Executive should do is give a level of devolved responsibility to SNH. In the past, there have been struggles to get a level of delegation delivered by the Scottish Executive—under the formal documentation that is called the financial memorandum—to give SNH the authority to negotiate deals without having to refer back to the Executive. Having such devolved responsibility has the advantage for your constituents, for instance, of enabling SNH to do deals much more quickly and to resolve problems before they arise.
I was absolutely delighted to read in Professor McManus's submission about his concerns about Achanarras quarry and depredation of the fossils there. People who live in the area regularly contact me about that. I tried to get some protective measures into the Criminal Justice (Scotland) Act 2003, but was told that the Nature Conservation (Scotland) Bill would possibly be the right place do to that. However, it has been hinted to me that the bill is not the right place to protect fossils and that perhaps the forthcoming planning bill will be.
Fossils, along with minerals and other rock types, are seen, I am glad to say, as part of the natural heritage. The problem with a fossil is that it does not reproduce—it used to, but does so no longer—so once it is gone there is no replacement. That fact can be overlooked. Fossils are like screws and nails to the geologist—we find plenty of them around, but some are distinctly rare and unusual. I am in a quandary about how we can protect them. It is possible to designate a site as an SSSI and find for some reason or other that the fossil seams have run out. They often exist only in specific horizons. I can think of one example of an SSSI where the seam was literally quarried out. The specimens are now in museums worldwide and there are no longer any to be seen on the site. The site has actually been de-designated, which is mentioned in the papers that we are discussing.
I am aware of that.
My particular worry is that once sites are noted in geological literature as having something really exciting, people literally turn up with James Bond-type diamond saws to cut out the fossils and take them away. There have been moves recently to get some of the fossils back for the Achanarras collections, some of which disappeared into various—am I allowed to say this?—German museums. The fossils are not just being moved to British museums. Many of the specimens that do not go on display in museums go into private collections and nobody sees them—there is no access to them. I do not know how we can protect the fossils. It is an issue that I have worried about greatly and discussed with SNH boards, but I cannot give a definitive answer to the question, although I wish that I could.
I presume that we could protect fossils by imposing swingeing fines on people who steal them. That would mean keeping an eye on specific quarries, in the same way that we keep an eye on the nests of rare birds to ensure that egg collectors do not steal the eggs.
Yes, but the difficulty is that whereas you can look after nests during the nesting season, you would have to look after the fossils all the time. One of the techniques that was used for a while to protect many of the fish fossils in the north-east was to flood the quarry, so that anybody who wished to get at the fossils would have to pump out the water, which was not trivial. That measure, which could be done for good scientific purposes, was perfectly acceptable to the geological community.
We are still left with the puzzle of how to address the problem.
I am afraid so.
May I comment, convener?
Yes, if you have a thought on how we might legislate on this issue.
The role of local people has been extremely successful in bird protection. I look at Mull, where the view is, "How dare people come in and steal our eagles' eggs?" That is a wonderful turnaround, because that community realises that there are various economic benefits. I wonder whether we should also be thinking about local custodians of the sorts of facilities Maureen Macmillan describes.
It would be wonderful if someone opened an interpretive centre at Achanarras so that local people could take pride in the site; a lot of them probably do not know that it exists. It would be a great tourist attraction. I believe that such things happen in Australia, where the fossils are not a patch on the ones that we have.
That is something that we may want to follow up with the minister.
It is important that we follow it up.
There is another point, convener. The geological conservation review series, when it is complete, will consist of 51 volumes—an introductory volume, which has already been produced, and thematic volumes of various types, which will identify sites. Not all the sites that are in the volumes that have been published already, or those that are in gestation, have been designated as SSSIs; there has been an issue as to whether they should be so that they have proper statutory protection. That is something that you might want to ask SNH about. In the past, we did not regard those sites as a priority compared with some of the other, much more endangered sites. SNH's policy position on that would, I think, be useful evidence for your committee.
We shall ask the SNH representatives whether they have read the 51 volumes, or whether they intend to.
I have two questions, one of which is specific and detailed and one of which is more general. Both Professor Crofts and Professor McManus have spoken about how we select SSSIs, the area of search and the technicalities of the process. That is one thing that I would like you all to comment on. I also get a sense from all three submissions that perhaps the bill is too focused on SSSIs and does not do enough to set them in the context of other designations. Some of that is picked up in the duties on other bodies to do things and we hope that some of it will be picked up through the Scottish biodiversity strategy, but do you think that the bill should look at the wider picture as well as focusing on SSSIs?
The areas of search for geological SSSIs were defined some years ago as national, which meant United Kingdom national. Any site that was designated had to be of top quality in a UK sense; I do not need to expand on that too much. That contrasts with the areas of search that we have for many of the biological SSSIs, which include good examples of an area, a region or a district—whatever administrative body you wish to use to define them. The result is that quite a lot of bogs may be preserved in Scotland, whereas only one form of igneous intrusion might be protected, although there may be lots of them in Scotland. There is a big difference.
On how we select SSSIs, the bill has got itself in a real muddle about the geographical framework. It cannot make up its mind whether it refers to Scotland, Great Britain—England, Scotland and Wales—or the European Union, but it has to get that right. The SSSI series applies traditionally to Great Britain. Northern Ireland has always had a separate system, which is right, because that allows us to deal with the whole of Ireland together as a geographic entity. I would much prefer the bill to say that the Scottish sites are seen within a context and within a series representing the best of natural heritage in Great Britain as a whole. It is superfluous to include the European dimension. Why not include the world dimension? We have already covered the European dimension in the Natura suite.
We will cover those points.
We were asked whether too much emphasis is placed on SSSIs. The biodiversity duty and duties in connection with SSSIs are directed towards ministers on the one hand and public bodies and officers on the other. However, specific mention should be made of local authorities. They should have a specific duty to consider not only the SSSIs in their area, but the importance of conserving and enhancing biodiversity throughout their territory. Sympathetic consideration at least needs to be given to local wildlife sites. A specific duty should be placed on local authorities, because they have control of planning and development and all the other functions that can affect these issues. I am thinking in particular about biodiversity and important wildlife sites. I ask the committee to ascertain whether specific mention of the role of local authorities could be made in this context.
It might be an idea to look back over the Official Report to check the responses that were made by representatives of the Convention of Scottish Local Authorities to questions that we raised about biodiversity, the extent to which duties should be applied to local authorities and what local authorities should do. Thank you for that useful comment.
I have another brief question.
If it is brief, you may ask it. I want to keep us moving at this point.
My question is about the area of search and spatial units. Would there be merit in tying those into river basins in the context of the water framework directive? Is this an opportunity for a bit of joined-up thinking?
No. Just remember that mountains are units as well and that river basins divide mountains.
That was very brief, thank you.
Professor Crofts suggested that the bill does not take account of spatial units for the selection of SSSIs. I suspect that we will need to lodge amendments to deal with that issue, so do you have any final points that you wish to make on it? I am terribly concerned that the definitions were drawn up in a British context for small areas of land in the south of England and that the view is that those definitions should remain sacrosanct. That view is illogical, of course, because we are now dealing with large areas of land with different biogeographic units within them, if your definitions of mountains and river systems are taken into account. Could you clarify the issue of spatial units and say whether the bill needs to be amended?
The bill should refer to a definition of a spatial unit for the biological sites, which would be a biogeographic definition, and a definition for the geological and geomorphological sites that follows the GCR. I think that that would be relatively simple. However, I offer one word of warning, which SNH may be a bit nervous about. If you suddenly change the spatial unit, potentially you will have to review the whole series. Some sites might become redundant, but other sites may need to be added. I offer that word of caution, but I agree that there needs to be clarification in the bill.
You think that it is unnecessary for ministers to have powers to issue guidance on technical definition matters and that the Advisory Committee on Sites of Special Scientific Interest would be in a much better position to do that. Would matters relating to designation—for example, the designation of national parks—be better dealt with by the advisory committee than by ministers, because of the buffer zones and so on that you talked about?
Not at all. There is a significant distinction. We are talking about detailed technical guidance on the selection of SSSIs. As we all know well, there is a broad-based approach to national parks, which is laid out in the National Parks (Scotland) Act 2000. Ultimately, the Parliament decides on designation. Why are areas national parks if the Parliament does not decide on them?
Perhaps we missed some points on the first question from the other two witnesses.
On the designation and selection of SSSIs, I remind the committee that we are talking about sites of special scientific interest—I emphasise the word "scientific". Maintenance of the sites' scientific value is among their various functions. Therefore, we can overdo the concept of representativeness. If you are seeking representativeness for its own sake, one such site may do for a whole area of search, but that goes against the conservation of biodiversity, because it ignores a number of other sites that may have equal scientific value. Therefore, we should bring into play the science base and the importance of a scientific review of sites, not just their representativeness. The explanatory notes do not take enough account of the scientific foundation of SSSIs and the biodiversity problem. Specific mention should be made of the science base and the importance of maintaining it and, indeed, of financing it, although that is another question.
I have a couple of points that I want to clarify in relation to Professor Crofts's paper. The first is an issue that has not come up this morning. You say that there should be a new section on sustainable development. What would that add to the bill and how should it be structured?
I realise that you are going to investigate sustainable development. My concern is that SSSIs are seen in isolation, as has been clear from some of the questioning. My concern is also that biodiversity is seen in isolation. However, SSSIs may be of some benefit in that context, although the issue is not well connected in the Scottish Executive's strategy. Biodiversity, after all, is one of the key components of sustainable development. I would like to see that linkage.
My other point is on the definition of biodiversity. Previous witnesses talked about the need to cross-reference a definition to the Convention on Biological Diversity and to include such a definition in the bill. How should we do that? Should we define biodiversity differently in the bill or should we cross-refer to the Convention on Biological Diversity?
I would much prefer the definition to be in the bill, as that would make the bill a comprehensive document. However, we should use the definition that has been agreed by the 160-odd signatories to the convention, which include the UK Government and therefore, by implication, Scotland.
I support the need for a definition of biodiversity in the bill. It would be very useful to have it there.
If there are no further questions, I thank the three witnesses. The questions that we asked you were technical and we appreciated being able to pick your brains on these important issues. We will take a few minutes to allow the next panel of witnesses to come in.
Meeting suspended.
On resuming—
Moving on to our third panel of witnesses, I welcome to the meeting Dr Bob McIntosh, director of Forestry Commission Scotland; Nick Reiter, director of the Deer Commission for Scotland; and Professor Donald Davidson, who is the chair of the Advisory Committee on Sites of Special Scientific Interest.
I want to provide an early opportunity for us to move on from the previous discussion about the definition of sites of special scientific interest and the areas where we should consider such sites. Professor Davidson, do you have any views on the comments made by previous witnesses? I hope that you were able to hear them.
Yes, I was very interested to hear the witnesses' comments on areas of search. Our committee has examined the issue very carefully, because when we are asked to judge the scientific quality of a particular site with regard to notification we have to do so within a wider geographical frame. We have certainly come across instances in which the areas of search seem rather arbitrary and are based on old administrative units. I support in principle Professor Crofts's comments that there needs to be a more environmentally based system for areas of search.
Professor Crofts was also keen to retain the UK-wide context in that respect. Do you agree with his approach? Do you feel that his negative comments about a Europe-wide search were appropriate or might we need to consider Scotland in a northern European as well as a UK context?
We must judge the importance of sites very much on scientific criteria and within a much wider context than a Scottish one. I also strongly support the view that judging SSSIs within a UK and European context is fundamental to our approach. As SSSIs are used as the basis for European designations such as special areas of conservation and special protection areas, we are inevitably linked in with the European approach. As a result, we must establish a wider framework.
I want to turn to the issue of deer. In your submission, Mr Reiter, you suggest:
That comment was based on the fact that the Deer (Scotland) Act 1996 gives the Deer Commission for Scotland some powers. In particular, section 8 of that act confers a power that has some procedural parallels with the proposed land management orders. Moreover, the section 8 power also involves a process similar to LMOs that can lead to a body taking a certain amount of compulsory action. We have come close to using section 8 powers on several occasions, but have not yet done so, mostly because we managed to resolve the issue before we went down that road. We also feel that section 8 is a rather difficult and convoluted piece of legislation that is not designed to be used easily. Indeed, that was probably the intention behind its wording.
I want to follow up that response. Earlier, I cited an example of a national nature reserve on the Isle of Arran that is being downgraded and where the main problem is that deer are damaging rare whitebeams. Do we need more than "co-operation and protocol" in that respect? Perhaps we need clarification of the Deer Commission's powers specifically built into the bill to deal with the matter.
There are two key triggers for the use of section 8 powers. First, that is triggered when an agreement process under section 7 of the 1996 act either has not been possible or has failed.
Voles are another possibility.
We have to be very clear about the situation because, if we ever use section 8 of the 1996 act, the chances are that we will be using it against someone who can easily afford to use some of the best Queen's counsel in the land to challenge us. There is a very high burden of proof on the Deer Commission in relation to the use of section 8. Although I am not a lawyer, it strikes me from my reading of the bill that the burden of proof on SNH for showing that an LMO is required is perhaps slightly lighter than the equivalent burden on the Deer Commission for the use of section 8 of the 1996 act. There might be cases in which we have trouble proving beyond doubt that deer are the main cause of the problem, but SNH might be able to move a bit more quickly, because it has to show only that there is a problem that needs to be tackled. At the moment, it is tricky for us to meet the requirements for triggering the use of section 8 powers.
Thank you for that. It would be very large voles indeed that could break off branches 4ft above the ground.
In the bill as drafted, is it your understanding that failure to control deer, to prevent damage by them and to control their numbers, if that is what is required, would count as recklessness and therefore be a crime under the section on wildlife crime?
No, my understanding is quite the opposite. I am not a lawyer but, in my view, the bill's definition of recklessness seems to apply to things that people have done, rather than to things that people have failed to do. That is a constant issue. In many cases, the issue with deer is not that people are doing things that are leading to damage to the natural heritage, to forestry or to agriculture, but that they are failing to do things—more specifically, that they are failing to cull adequately. My understanding of recklessness as it is defined in the bill and elsewhere is that it applies to doing something that one should not be doing rather than not doing something that one should be doing.
That is interesting. Do you have another question, Eleanor?
I did, but it has been dealt with.
I would like to ask Dr McIntosh about the importance of woodland in promoting biodiversity. I notice from your evidence that you are perfectly happy with the SSSI proposals as they relate to forestry. The last panel of witnesses talked about the ripple effect, whereby the SSSI receives paramount protection but, as one moves from the wild parts into settlements, the protection decreases. It was felt that there should be a gradation of protection.
The protection should be there. We have a statutory duty to balance social, economic and environmental issues in everything that we do, not just in relation to SSSIs. In devising our incentives and regulatory schemes, we are continually trying to build in the biodiversity component.
Those pieces of legislation are patently not preventing such situations from arising.
People are going ahead in spite of the legislation. The legislation is not deficient; it is simply the case that people are prepared to risk infringing it and to take their chances in court. There is perhaps an issue around the size of fines in such situations, but the legislation should be sufficient.
I would like to move on to the role that the Advisory Committee on Sites of Special Scientific Interest will play. I turn to the end of the submission that we received from the advisory committee. The issue of duplication of effort and bureaucracy is raised, and it was teased out when we were talking to the previous panel. I draw your attention to paragraph 12 of your submission, Professor Davidson. You have already had discussions about how the bill could be made clearer with regard to how the process would work in practice. Could you say a little more about that? Having read paragraph 12, I found myself wondering exactly how the system would work. Is there a way to make the process simpler or more effective than you hint that you fear it might be?
Our committee feels that there is a need for far greater transparency on the precise procedures by which the bill would be implemented. We make a number of suggestions in that regard. Paragraph 12, to which you refer, raises the issue of the Scottish Land Court. Under the bill, the Land Court will operate when a landowner refuses a request from SNH to carry out an operation requiring consent—an ORC. The landowner has the right to appeal to the Land Court in that instance
The matter has been raised by a few witnesses, and we might want to tease out from the minister how all the different bits of the process will hang together in a way that we—never mind anybody else—can understand when we scrutinise the bill.
There is obviously an issue to be addressed there. The Advisory Committee on Sites of Special Scientific Interest is set up to evaluate the science. We have a range of scientific expertise relevant to SSSI cases, and we make use of independent advisers. We also hire consultants to provide further advice in particular cases. A lot of background work is done by the advisory committee when it deals with cases, and over quite a short time. The expertise is there, and it looks to me as though the Land Court might well need access to the same sort of expertise. We would highlight the importance of a lack of duplication.
So we are talking not necessarily about membership of the Land Court, but about the ability of the Land Court to draw on that expert evidence.
That is correct.
I will put to you two suggestions that have been made to us in evidence. The first is that your committee might function as a court of appeal. Can I assume that you dismiss that and that you think that the appropriate route for any appeals process would involve your committee working in conjunction with the Land Court?
The advisory committee's view is clear: we are scientists who deal with subjects that are relevant to SSSIs. Our expertise is in those matters, which should be the main thrust of our committee's work. I detect no strong wish among committee members to take on a wider role that would change the committee's function substantially. We are concerned primarily with judging the quality of the science, which is essential.
The second point was made by a previous witness who was extremely complimentary about your committee, to the extent of suggesting that your role as an advisory committee needed to be beefed up so that SNH was required to accept, rather than simply take into consideration, your committee's advice. Do you have any views on that?
That suggestion is interesting. We certainly believe that our advice is good advice, but any committee believes that, of course. We want SNH to take our advice on board seriously, which it does in the vast bulk of cases.
Your submission points out the lack of clarity about what the committee can be expected to give advice on—that concerns particularly the measures that follow designations, such as ORCs and site management statements. Why is it important that it is clear that your advice should be sought on those matters?
I am glad that you have raised that issue, because we are concerned about it, as our submission says. The bill defines what the notification consists of and our committee has the remit to judge scientific issues and the quality of the notification. The question is what precisely the notification includes. I suggest that clarification is needed on that. For example, the list of operations requiring consent concerns operations that landowners require permission from SNH to perform. Whether that is part of the notification is slightly ambiguous, so I make the strong plea to the committee that that needs to be sorted out and made clear.
That might address a point that one or two witnesses have made to us about the transparency of the process for land managers—their knowing why a site was designated and understanding what is meant to be precious about it when they continue to look after it. We will want to ask the minister how the process may be made more transparent.
How do we determine what should or should not be referred to the advisory committee for advice? Do you tell SNH that you should be advising the minister, or is it entirely for SNH to decide whether to approach you for advice?
The ball is entirely in SNH's court. It refers to us questions that landowners raise. We respond to those by conducting investigations within short time spans and providing advice to SNH. We are in responsive mode and are an advisory body to SNH.
In your submission you express concern about time scales.
Yes. In recent years, we have had to operate within very short time spans. In our submission, we make a specific recommendation that would ease our situation considerably and would be fairer to landowners, as the operation would not be compressed into such a short period. I emphasise the importance of the recommendation for a slight change in the timings.
I have a question for Dr McIntosh. I would like to explore the role of the Forestry Commission in partnership with SNH. I am thinking of situations in which woodland may be degraded. I do not know whether you have much practical experience of helping to regenerate woodland, but your submission indicates that, under the Wildlife and Countryside (Amendment) Act 1985, one aim of the Forestry Commission is
We work extremely closely with SNH on a number of such issues. We are most concerned with the enhancement and restoration of native woodlands, which is a big issue for both organisations throughout Scotland. The Scottish biodiversity strategy will set some new targets for the restoration and enhancement of native woodlands. That is probably the best document to use to quantify what we want to achieve in that area.
You are talking about enhancement in the sense of extension.
The extension of native woodlands, the creation of new native woodlands and the restoration of native woodlands on degraded sites are all high priorities for both organisations.
I have a brief question for Nick Reiter. In your submission, you say that you work closely with SNH. However, you are also concerned that the bill might require you to consult SNH when exercising any function that would affect an SSSI. How might that cause you problems?
The problem is in the drafting of the bill. Section 12(1) says:
So you think that it is simply a drafting issue.
We would like a redrafting or simply a reassurance that we could deal with such matters in a protocol. That protocol would say that, if all we were doing was going on to an SSSI to count deer, we would not have to consult SNH on each occasion. We would simply have an agreement. We would be aware that an area was an SSSI and, if there was going to be a particular issue on a particular day, we would consult SNH.
You spoke earlier about your current powers under section 8 of the Deer (Scotland) Act 1996 and about the difficulty in implementing those powers. Does the bill not beef up your powers in the way that you would have liked? For example, would you have liked to have more effective ways of compelling people to reduce deer numbers?
That is a huge question, which asks whether we would like new legislation. There is no immediate prospect of a review of the deer legislation, so we will have to use the tools that we have. There are some things in this bill that may well make the partnership between DCS and SNH more effective in these sorts of cases. The proof of the pudding will be in the eating. There is a long way to go before we know how the new bill will work, assuming that it becomes law. Eventually, there will be a case for reconsidering the deer legislation. I am not sure how much can be piggy-backed on to this bill—on the deer issue anyway, although there are one or two other issues, such as exotic species, that we mention in our submission and feel could be taken on in this bill.
Running through our discussions this morning has been the issue of further guidance, after the bill becomes an act, to clarify to people the intent of the bill and how they are meant to implement it. All the organisations that will have to take ownership of the bill will have to consider what it means for them. It is interesting that, at the moment, Forestry Commission Scotland does not foresee any changes in the way in which it will work. However, there are clearly issues that it will have to take on board. When we speak to SNH and the minister, we will be able to discuss the guidance that they think will be important. We can also discuss the points on transparency that the panel has helpfully raised.
Meeting continued in private until 12:04.
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