Official Report 870KB pdf
Good morning, and welcome to the 16th meeting in 2025 of the Rural Affairs and Islands Committee. Before we begin, please ensure that all electronic devices are switched to silent.
I welcome back to the committee Mercedes Villalba, who will join us for agenda item 1.
The first item is consideration of the Natural Environment (Scotland) Bill at stage 1. At today’s meeting, we will take evidence from a panel of representatives from environmental non-governmental organisations. I welcome to the meeting Rea Cris from Open Seas, Calum Duncan from the Marine Conservation Society, Dr Nick Hesford from the Game and Wildlife Conservation Trust, Dan Paris from Scottish Environmental LINK, Nikki Sinclair from Action to Protect Rural Scotland, Ailis Watt from RSPB Scotland, and Bruce Wilson from the Scottish Wildlife Trust.
We have allocated about two hours for the discussion. That seems like a long time, but we have an awful lot of questions and a lot of witnesses, so I ask everyone to be succinct in their questions and answers. There will be some questions that just warrant a yes or a no response. Please indicate to the clerk or to me if you wish to participate, but there is no expectation that everybody will participate in every question; if they did, two hours would not be adequate. Likewise, if you feel that part of the discussion does not relate to your area of expertise, do not feel that you need to answer.
You will not need to operate your microphones; we have a gentleman here who will do that for you.
We will kick off with a nice, easy question. Do you support the introduction of statutory biodiversity targets? If so, what impact do you expect those legal targets to have in practice, compared with the current approach? Are you satisfied that those targets should be set in secondary legislation?
Thank you for inviting us to the committee to discuss the proposed legislation. Scottish Environment LINK is strongly supportive of the introduction of statutory nature targets. We have been pushing for that as a network for a number of years, and we are delighted to see this bill introduced and to have the opportunity to discuss it today.
It is not targets themselves that will drive change, but the actions that follow and that are already under way. Targets can play a vital role in the restoration of nature and an important part in creating long-term policy certainty and a shared level of ambition across Government and wider society, including not only environmental non-governmental organisations but private landowners and other actors. They can also drive Government action across portfolios and public bodies. Importantly, they can create a cycle of monitoring, reporting and accountability, which will be important as time moves on and we get closer to the meeting of those targets. We want to ensure that Parliament is able to hold Government accountable on progress against the targets.
09:15We can probably discuss the detail of the targets, but we are comfortable with their being set under secondary legislation. In advance of the bill’s publication, we produced a report that recommended a similar structure to what is in the bill, with a compulsory target set in the bill and the metrics and detail set under secondary legislation. That is important, because biodiversity is inherently more complex than climate. With climate, it is easy to create one single metric and have a single target. With biodiversity, it is never going to be as easy to simplify and put something in primary legislation that would stand the test of time, progress and changes to scientific understanding. We are broadly happy with that structure, although I am sure that, later in the discussion, we will come to the detail of what those targets might include.
Open Seas has been publicly critical of past attempts by the Government to stick to legal targets. What is your position on these natural environment targets?
Good morning, committee. Convener, you have stolen my thunder a bit, but you are absolutely right. We agree with Dan Paris that targets are only as good as the actions that follow them.
If the Government had been meeting its marine environment policy commitments and legal obligations, we would not necessarily need targets. The Scottish Government claims that it has a world-leading record on marine protection and that 37 per cent of marine areas have been designated. Those areas were designated 10 years ago, but they still have no fisheries management. Our concern is that less than 5 per cent of Scotland’s coastal seas are protected. We are supportive of the targets, but, having seen the record on the marine environment, where the Scottish Government considers its job done when it really is not—we are rolling on to an 11-year delay—we really want to use the opportunity that the bill presents. As we were saying, targets need to have actions behind them, but we also want to know what the accountability will be if the targets are missed. As we can see from the marine environment, a delay of 10 years is way too long.
In practice, how will there be a difference in the policy approach to legally binding targets?
One of the good things about targets is that they galvanise people, and having legally binding targets—for biodiversity, climate change or marine—ensures that those areas will not be politically deprioritised. We can hold the Government to account on those targets. However, as I said, I would welcome further scrutiny and exploration, either by the Parliament or through the bill, into how that accountability will be rolled out if the targets are missed.
RSPB Scotland takes the same position as Scottish Environment LINK. We are wholly supportive of the introduction of statutory targets. It is important to recognise that, in Scotland, one in nine species is at risk of extinction and that we are among the most nature-depleted countries on the planet. There have been some successes with conservation, but, on the whole, the voluntary approach to reversing biodiversity loss has not been working. You could take the position that the Scottish Government has missed some of its targets and commitments in the past, but that is why it is critical that we have statutory targets that can drive progress towards the ambition of the Scottish biodiversity strategy to halt and reverse nature loss by 2030. We will probably come on to the detail and governance later, but the bill is quite good at building in accountability and oversight, and Environmental Standards Scotland has a role in helping to ensure that targets deliver and that actions underpin them.
I broadly agree with the RSPB and Scottish Environment LINK. GWCT supports the principle of statutory targets and a stronger framework for nature recovery, but we believe that their success will depend strongly on how they are implemented. Statutory targets need to be adaptive and evidence-based, because, as Dan Paris mentioned, unlike things such as carbon emissions, biodiversity is very complex and difficult to quantify. Poorly designed or inflexible targets risk failure or unintended consequences. GWCT believes that statutory targets should be supported by robust monitoring frameworks and adaptive management cycles. They cannot be overly rigid or overly simplified.
I am aware of the time, so I will be quick. The evidence summary in the first draft of the biodiversity strategy nicely identified that, so far, the big failure in biodiversity in Scotland has been a failure to mainstream it. Very simply, the Scottish Wildlife Trust wants to see that mainstreaming being driven, and we think that targets can help with that.
We would like clarity that the bill applies to Scotland’s marine area, notwithstanding many of the concerns that Rea Cris has raised, which we share. About 200 of Scotland’s 233 marine protected areas, which is most of Scotland’s continental shelf, still have no fisheries protection measures in place. Something like 15 or 16 of the inshore sites implemented measures in 2016, and there is some de facto protection from the deep sea access regime beyond the continental shelf limit, which is deeper than 800m, but there is practically nothing in statute that covers the entire continental shelf. We think that targets would help to ensure that the broader ambitions, which are set out in the habitat and main strategy regulations, are met in relation to the condition—and, separately, the extent—of individual habitat types. There needs to be clarity that the bill extends to the purview of the Scottish Parliament, because, as the committee will know, conservation out to 200 nautical miles is an executively devolved matter.
Are there any thoughts about the targets being set in secondary legislation?
I am not a massive fan of framework bills, but secondary legislation will be necessary in this case, because of the massive variability in biodiversity and the complexities with the bill that have already been mentioned. We would choose that option on this occasion.
There should be as much parliamentary scrutiny as possible. I take the point about the complexity of the bill and the fact that we would need secondary legislation, but there are ways of lodging secondary legislation that would still afford the Parliament the opportunity for more scrutiny. If there is not affirmative procedure, as a bare minimum, super-affirmative procedure should be considered in some shape or form.
I will go into a bit more depth about the targets and, in particular, the topic areas that were selected in the bill. Some topic areas, such as ecosystem health and integrity, have been parked, and the Government might come back to them. Other topic areas such as finance and citizen engagement were not explicitly included in the bill. I am interested in your thoughts on the topic areas that are in the bill, what was left out and what the Government might work on at a later date.
Broadly, the bill sets out that the Government must set at least three targets across species, habitat and other environmental conditions, but it empowers the Government to set a much wider range of targets within those topic areas and beyond. We are reasonably comfortable with that, with some caveats. As Calum Duncan mentioned, the target for habitats refers to
“the condition or extent of any habitat”.
I assume that officials will propose targets that will cover the condition of habitats and their extent separately, because both factors are very important and must be measured separately. It would be helpful for the bill to specify that there should be separate targets.
The bill also refers to
“the status of threatened species”.
For many in the conservation sector, that term has a very specific meaning. It is very important that, when setting the targets, we do not draw them so narrowly as to measure only a selection of the natural environment rather than the natural environment as a whole. A cynical reading of the bill is that you could meet the requirement to have a target for the status of threatened species simply by setting a target that covers a small number of charismatic or well-known species that are at risk. It is important that the species targets cover not just those species that are most threatened but those that are widespread but in decline or that could go into decline in the future.
We would be comfortable with the policy memorandum’s definition of “threatened species”, but the policy memorandum is not the legislation, and the language of threatened species could be more encompassing of the wider species targets that we need to include.
How does that relate to ecosystem health and integrity? What is the wider perspective on the target that goes beyond the individual iconic species?
There are additional targets that we would ideally like to see included. We would like a target that covers the reversal of biodiversity loss against a historical baseline, so that we are measuring biodiversity not just against what is happening in 2025 but with a much longer ecological timescale built in.
In particular, we would like a target on ecological connectivity. We think about it in terms of having a national nature network. We do not want a situation in which we are restoring nature but it remains fragmented—we want to bring it across the landscape and into communities across Scotland.
We also think that there is a case for having a specific target on the condition of designated features and protected sites.
There is a catch-all provision that states that the Scottish ministers may make targets for
“any other matter relating to the restoration or regeneration of biodiversity as they consider appropriate.”
Some of the targets that Dan mentioned could be included under that provision. However, if it is not in the bill, there is a risk that we might miss some of the ecosystem health stuff that you were referring to. That is quite important. I listened with interest to the committee’s previous meeting on the bill, when some excellent points were made about why ecosystem health is so important for the broad understanding of biodiversity.
The catch-all provision also gives scope to tie in some other measures that we have. I have had discussions about the possibility of including something like the natural capital asset index, which would give an idea of the relative benefits that ecosystem services are providing to people. That would help not only to add a diverse range of data sets but to make ecosystem services relevant across different Government departments.
Do you then have thoughts on the omission of a finance target?
Yes—
Define good finance.
I have previously noted some concerns about greenwashing, but, without the money to back up the work and a route for it, I would be concerned about our ability to meet some of the targets. On balance, I would probably like to see a target in there.
As members of Scottish Environment LINK, we support everything that Dan Paris said and we sign up to his response on that. I will bring a marine dimension to it. I think that an ecological connectivity target would apply at sea as well, given the way in which the Marine (Scotland) Act 2010 is drafted. We are pleased that there is a range of sites at sea, although we are still awaiting measures for those, as I have said. I am particularly concerned about the delays with the remaining inshore measures.
The 2010 act requires replication of sites and representation of sites, but it does not have a legal connectivity target. That would be a useful element to include in the bill. I ask the committee to think about that connectivity, which is still an issue at sea.
I also underline the point about the historical baseline and bringing a marine dimension to that. We have submitted evidence before on the concern about declines. The health of most of the sea bed is in poor condition. There are declines in kittiwakes, harbour seals, salmon and so on. There is a lot of data out there. I emphasise that because the biodiversity intactness index, which is a useful metric, does not yet have marine data, but there is a lot of marine data available—including data that I have submitted to committees before—that underlines the concerning and poor status of the marine environment.
09:30
The bill would require the Scottish ministers to seek scientific input on the targets when developing regulations, but it does not require wider public consultation. What is your view on that, taking into account the role that your organisations might have in supporting the implementation of the targets?
As a scientific organisation, we very much support the idea that the targets are built on evidence, but the monitoring of that is equally important and it needs to be data led. It is ambitious to do that, and it is important to consider the ability of practitioner-led monitoring to deliver on the targets.
The GWCT has been engaged in that work across Scotland. We see the Natural Environment (Scotland) Bill as an opportunity to empower those who manage our land—70 per cent of Scotland is managed by landowners and farmers—not only to feed into the monitoring process through data gathering but to deliver biodiversity on the ground. If we do not engage with that 70 per cent, those ambitious targets will be unachievable.
We see the bill as an opportunity to introduce funding for facilitation to deliver landscape-scale approaches, including the farmer cluster model. We have seen that through our work in the south, where we have more than 1 million acres of farmland stewardship that delivers for biodiversity in England. That approach in Scotland would be welcome and a useful tool not just to deliver biodiversity at scale but to ensure that we monitor that biodiversity and our progress towards those targets.
It is absolutely right that there is a requirement
“to seek and have regard to scientific advice”
in the development of targets. The policy memorandum outlines that that is to be fulfilled, at least in part, by the biodiversity programme advisory group.
On public participation and transparency, there should be transparency in relation to the advice that comes out of that process, so that there can be public confidence and insight into how that advice is being given and how the targets are being developed.
Should there be a requirement in the bill for the Government not just to seek scientific advice but to look to practitioners and the public to respond to some of that advice?
Broadly, I would say yes. Without engaging with practitioners—the people who are delivering for biodiversity on the ground—it would not be possible to meet those targets.
The bill refers to
“such persons as the Scottish Ministers consider to be independent and to have relevant expertise.”
That wording could be tightened up. I appreciate that you do not want to be too prescriptive, but if you look at the Climate Change (Scotland) Act 2009, you will see that it has tighter wording on who should and should not be involved in such work.
I fully support what everyone else on the panel has said about scientific advice and there being transparency on where that advice is coming from. The current wording leaves things in the gift of the Scottish ministers—it is up to them who they consider to be appropriate to consult with. The wording can definitely be tightened up to make things clearer.
I have a question for Rea Cris; I am sure that others will also want to jump in. There are quite a few parallels between biodiversity targets and current climate targets. Do you have any thoughts about what lessons should be learned straight off when building the framework for the biodiversity targets?
Proposed new section 2C(2)(b) of the Nature Conservation (Scotland) Act 2004 says that the Scottish ministers must
“specify the manner in which, or indicators against which, progress toward and achievement of the target being set is to be measured.”
That reads like someone marking their own homework. Again, we could learn from the Climate Change (Scotland) Act 2009. You could include in the bill something akin to section 2B of the 2009 act, which sets out target-setting criteria.
I hear what my colleagues are saying about not being too prescriptive in relation to the targets and leaving some flexibility to secondary legislation, but I think that a bit more frame could be put into this framework bill. There could be more indicators of the direction that things should or should not be going in. That is one of the biggest things. It is also really important that climate change targets are not inevitably pitted against biodiversity targets; they need to work together and, when aligned, they will both achieve what they want to achieve.
How would you achieve that, given that, presumably, there will be times where there is conflict? How should the Government and other bodies react to that?
One thing that I would like to see in the bill, and which Open Seas would like to see, is an equivalent of the citizens panels. It goes back to what everyone else was saying about scientific evidence and hearing from a broader range of people. Such panels allow for a wider range of voices and views to be heard transparently in public. I would like to see something akin to a citizens panel or a short-term task group that could bring in expertise and advice to bottom out an issue and advise the Government on how to move forward. I am keen to hear what others have to say.
In taking that forward, how could we better mainstream those common goals and get different Government departments to work together towards them, whether informed by a group or by someone else?
One of Open Seas’ concerns—this comment relates to the marine directorate in particular, but it probably happens in other Government departments—is that there are a lot of strategies and plans at the moment, and sometimes they are at cross-purposes or are siloed from one another. Therefore, there might be a duplication of effort or missed opportunities for a holistic approach. To give an illustration, for the marine environment, there is the future fisheries management strategy, the national marine plan, the inshore fisheries management improvement programme, the 21 fisheries management plans, the biodiversity strategy, the seabird conservation action plan and the planned marine and coastal restoration plan.
We would like to see an amendment to the bill about a concerted effort, possibly led by Environmental Standards Scotland, to review all those plans and their efficiency and to maybe streamline things a bit and encourage more holistic working between departments, whether it is a case of them needing to be resourced or to be a bit creative, or whether departments need to be mixed up a bit rather than being siloed. I think that the policy landscape is getting very complex and confusing and is not transparent. Even for those within it who are trying to navigate it, it is very hard to achieve what we are trying to achieve.
Ultimately, the climate targets have been successful in delivering a kind of paradigm shift from where Scotland was on climate to where we are now. I would like to see something similar happen with nature. To my mind, a lot of the processes for considering multiple options already exist. Take the land use strategy, which is maybe a parallel to what Rea Cris was talking about at sea. It does not have any teeth. No one is really interested in it. It has no real impact on the agricultural reform process or on any land use planning decisions. It just kind of sits there. It is a very useful tool, but it does not have any hierarchy. My hope is that something like the targets would reinvigorate interest in that and help drive consideration of multiple land uses at scale or embed an ecosystems approach such as that used for the marine environment. The lesson that I take from the climate targets is that they have the power to give things a boost and ensure that mainstreaming.
I completely agree about the need for climate and nature goals to align. That is what good planning should deliver.
For full transparency, I note that we were among those expressing concerns about the Berwick Bank offshore wind farm, for example. However, if there is a good consenting process, you can unlock other opportunities for offshore wind by getting it in the right place.
The fact that 152 million tonnes of carbon is estimated to be stored in the top 10cm of Scotland’s sea bed illustrates and underlines the importance of the opportunities for getting good results for climate mitigation as well as biodiversity by having an appropriate area of marine habitat protected. Currently, only something like 2.7 per cent of inorganic carbon and 1.6 per cent of organic marine carbon are protected in the marine protected area network. That is an illustration of the need to view climate and biodiversity side by side.
To point to a specific opportunity to streamline and join up those processes, I suggest that it might also be prudent to amend section 5(3) of the Marine (Scotland) Act 2010, so that policies around the national marine plan are required to meet the primary targets that are set, particularly if we separate extent and condition, and the secondary targets that come out of that. That is what the national marine plan should do: it should deliver the greatest public good from the use of our seas while striving for improvement in the status of nature. There is an opportunity for the bill to improve the national marine plan, which is in the process of being updated.
One of the lessons that we can learn from climate legislation is that we cannot legislate to guarantee good outcomes. It is important that, when we are considering a bill such as this, we take the opportunity to ensure that the framework is as robust as it can be and that we look for opportunities to mainstream the delivery.
One of the things that we could do relates to the biodiversity duty. The bill introduces targets as an amendment to the Nature Conservation (Scotland) Act 2004, which is where the biodiversity duty currently sits, as well as the requirement to produce a Scottish biodiversity strategy. The biodiversity duty—which requires public bodies to “have regard to” the Scottish biodiversity strategy—has clearly not worked, as we are 20 years on from that legislation and we are still sitting here, talking about the need to set targets to restore nature. However, in the national park section of the bill, there is something from which we can take inspiration. In that section, the Government is amending a duty on public bodies to “have regard to” national park plans to a stronger duty, which is to “facilitate the implementation of” national park plans. With regard to the Scottish biodiversity strategy and the delivery of the nature targets overall, there is a strong logic to the suggestion that, if we are doing that on a regional basis for a national park plan, we could strengthen the biodiversity duty in a similar way.
On the duty and how we are setting the targets, I note that progress is paired with the Scottish biodiversity strategy, but I think that it would be better if we pegged it to something a bit more tangible, such as the targets. The previous strategy ended in 2020, so we were in a no-man’s land for a long time. We do not really want that situation with something as important as biodiversity. At the moment, we have legislation that is tied to something that can run out and can be changed.
There were some very explicit suggestions there. Does anyone have an example from elsewhere of where these suggestions have worked before?
No? Okay; that is grand.
I am going to suspend the meeting briefly while we deal with a technical issue.
09:44 Meeting suspended.
Welcome back. Mark Ruskell has a supplementary question.
As Bruce Wilson was talking, I was thinking about the biodiversity strategy and the delivery plans that come out of it. I go back to Rea Cris’s point that, unless action is tied to targets, we will not meet the targets. Is the framework around delivery plans addressed enough in the bill? Is the link to action explicit enough in the bill, or is there an assumption that the targets will drive the delivery plans? I am curious about your thinking on that.
I think that everyone would have preferred a more linear approach to targets, strategy and delivery plans—that would have been better—but we are where we are with the way that this all came about, as we, in essence, ran out of time with the previous strategy.
It would be worth considering whether there is a strong enough tie in the bill. Do we need to review the delivery plans once the targets are in place to make sure that the plans take us in the right direction to achieve the targets in the bill?
I was going to bring in Evelyn Tweed to ask a question, but that response takes us to a question about how the targets would be reviewed and monitored, so I will jump to that. The bill provides for reporting every three years and a review of the targets every 10 years, but we are not sure what would happen if a target was missed. Does anyone have comments on the bill’s review and monitoring provisions?
We are concerned that section 2G(4) provides ministers with the ability to reassign the role of Environmental Standards Scotland as the regulatory body. That line could undermine the strength of ESS’s function, so it should not be in the bill.
Zooming out a bit and looking more broadly at the oversight role of ESS, I think that, given the dynamic nature of biodiversity, it is important that targets can be reviewed. For example, if we were moving towards a target at pace and wanted to increase our ambition, we would not want there to be a completely static system.
In our Scottish Environment LINK response, we recommend that reviews of the targets be treated as improvement reports under the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. That would trigger statutory response mechanisms once the reports were tabled in the Parliament. That is another way to bake in further accountability in the bill.
Are you saying that you do not think that ESS is an appropriate body to do the review, given its current role as an environmental watchdog?
No. I am saying that ESS is the appropriate body, but one line in the bill gives ministers the ability to reassign its role, and there is no explanation for that. We want ESS to fulfil that function, but we do not want the bill to say that that function could be changed at some point.
The bill would be strengthened if it had a more explicit provision that said that ESS could request that Scottish ministers do a review or that they review the targets. Something a bit more proactive on the ESS side should be included so that it is able to react to things as they happen, as opposed to waiting for the review periods. To link back to Emma Roddick’s question, I note that the Climate Change (Scotland) Act 2009 has something similar. Actions are not dependent only on the serving Government; outside bodies can also influence the procedure.
Given that the policy direction is to halt biodiversity decline by 2030, and we will probably not pass the bill until 2026—it will take perhaps another year to get secondary legislation in place—is reporting every three years appropriate? Should we be looking for interim reports or on-going reports? Given that we have a biodiversity crisis, is it reasonable to suggest that three years on would be too far in the future?
We touched on that in our response to the call for evidence. We support there being reports focused on outcomes and progress after every three years, as is set out in the bill, but you are right that we are moving towards 2030 rapidly. Getting an understanding of what progress has been made only every three years might not be enough, so we have recommended an annual sufficiency review, which the Scottish Government would carry out to assess whether its actions were on track. It would involve looking not at changes in species abundance or the actual indicators but at the actions that were being taken in relation to funding and public policy, and it would review whether they were likely to shift the dial in two or three years’ time. Therefore, we would know whether today’s actions are enough without reviewing the outcomes annually.
It is very important that the timeframes are tightened up a bit in the secondary legislation. The 12-month deadline that is set out in the bill must be seen as a maximum if we are to have any hope of meeting the 2030 targets. The biodiversity duty also needs to be tightened up. For example, when a public body submits a report, there is no real requirement to publish it and no central place on the NatureScot website for it to be published. Addressing that issue would help to improve accountability in general.
The other thing that goes hand in hand with that is that the bill as drafted sets out that the provisions will come into force only when the Scottish ministers make that decision, so commencement is a real issue. I wholly agree with Bruce Wilson about the 12-month timeframe, which is really tight if we are to reach the 2030 targets. An amendment should be lodged to say that the provisions will come into force the day after the bill receives royal assent. Given the urgency of what needs to be done, it should not be up to the Scottish ministers to start the stopwatch.
We have touched on the timeframes. The bill does not dictate short-term or long-term timeframes for targets. What are your views on that? Should the bill include specific timeframes for targets? If so, what would the appropriate timeframes be?
I mentioned that a useful first step would be to—I am paraphrasing the bill here—tie the targets to the delivery of the biodiversity strategy. It would be useful to include the 2030 reversal target and the 2045 nature positive targets as a broad starting point.
Let us move on to part 2 of the bill, which sets out powers to modify or restate environmental impact assessment legislation and habitats regulations.
The policy memorandum sets out that the overarching policy intention in taking the delegated power in part 2 is
“to ensure that the legislation remains fit for purpose and could be adapted, if required, to allow effective action in response to the twin climate and biodiversity crises.”
Do you agree that the proposed power is needed to ensure that EIA legislation and habitats regulations remain fit for purpose?
To provide some context, I note that RSPB Scotland has a real interest in EIA legislation and habitats regulations, not only from a conservation practitioner perspective but as an organisation that would make comments on planning applications and would make planning applications in relation to our reserves. We engage with the legislation from all angles. Together, EIA legislation and habitats regulations are the bedrock of environmental protection in Scotland.
It is our strong view that the proposed power is not needed and that there is sufficient flexibility in the habitats regulations to adapt to climate change. That has been rigorously tested in case law. Ten years ago, there was a comprehensive review of habitats regulations, which looked specifically at their operation in the context of climate change. The review was clear in its view that the regulations were fit for purpose from a legal perspective and that what was holding back important work on the ground—this is where some of the frustrations that the committee might hear about from practitioners come from—was a lack of implementation and a lack of clear policy guidance on how they should operate in the context of a changing climate, rather than it being the case that the legislation itself was not fit for purpose.
That was brilliantly put—I completely agree with that, from the perspective of a practitioner on our reserves and in relation to dealing with planning applications.
I think that this is much more a guidance issue. We should adopt the precautionary principle and take the far less costly approach of looking at and refining the guidance first. Even if we went down the route of amending the regulations, we would still have to create guidance. Let us go down the route of dealing with the guidance first, to clarify what can and cannot be done. That makes sense for lots of reasons, not least because it would tie up less of our time in creating new legislation when we could be spending our time working for the good of the biodiversity crisis.
Our members are concerned about part 2 of the bill as it currently stands. Ailis Watt and Bruce Wilson have outlined some of the problems with it. Fundamentally, the bill will hand an extremely broad enabling power to ministers. The legislation could be on the statute books for decades, and future ministers could use the power to modify crucial parts of environmental protection for, in essence, any purpose that they wanted to. Although any modifications would need to follow the six purposes that are outlined in section 3 of the bill, those purposes are extremely broadly drafted. Purpose (f) is
“to improve or simplify the operation of the law.”
Whether something improves or simplifies the operation of the law is a very subjective judgment. However, if a future Government thought that radically weakening the effect of the habitats regulations would improve the operation of the law, it would be able to do so under the bill as it is currently drafted.
The policy memorandum says that the proposed power is needed because, as a result of Brexit, we have lost powers that we previously had under the European Communities Act 1972. However, there is a really important distinction to make. When we were a member of the EU, ministers had the power, through regulation, to amend the protections, but they could do so only in line with European law. The power existed because, if the European directives changed, the domestic Government needed to have a way of implementing those changes in domestic law, but there was a backstop, whereby the power could never be used to go beyond what was in European law to undermine the protections.
As the bill is currently drafted, there is no such backstop, so there is nothing to prevent future Governments from drastically weakening the level of environmental protection that EIA legislation and habitats regulations, which are important parts of our current law, provide.
I completely agree with everything that Dan Paris said, so I will not repeat it, but, when the cabinet secretary gives evidence, I would welcome the committee scrutinising the policy decision that has been made. The policy memorandum pitches the issue as a legislative and technical one when, in fact, it was a policy decision to draft such broad and sweeping powers. To illustrate that, I note that the policy memorandum says that some technical things need to be done, and it gives the example of changing some applications to an electronic form. The Government could have done that in a schedule to the bill, but it has decided not to. That re-emphasises the point that this was a policy decision as opposed to a technical and legislative one. I would welcome it if the committee were to ask the cabinet secretary to marshal the reasons for that.
10:00
It is also important to consider that the Delegated Powers and Law Reform Committee, which has just reported on the use of framework legislation and Henry VIII powers, concluded that
“powers allowing flexibility ‘just in case’ are unlikely to meet the test for the necessity of the power”
and should be considered inappropriate. In the policy memorandum and the explanatory notes, every use of the power, with the exception of one example relating to digitising environmental impact assessment, is repeatedly framed as something that might be needed just in case in the future, without there being tangible examples of the use of primary legislation to introduce changes in the bill. Even digitising EIA does not require primary legislation; it could be done via guidance. It is really important to note that “just in case” powers have recently been found to be inappropriate, so the committee should think about that when it is considering the extent to which such powers could be used to weaken our environmental protections.
Before I ask Nick Hesford to respond, I will take a question from Tim Eagle, which will tie the issue together and might help Nick to form a response.
In the policy memorandum, the Scottish Government sets out clearly that it feels that there is a massive gap here. However, we had the academics in last week, and I think that they, and pretty much all of you, are saying that you think completely differently. To go back to your point, Dan, what is the Scottish Government suggesting that it needs following our withdrawal from the European Union that you say is not required?
The bill introduces an enabling power that would mean that changes to the habitats regulations or the EIA legislation could be introduced through secondary legislation. Flexibility is already built into the habitats regulations that means that some of the policy objectives that the Government might wish to pursue would not require those new powers. That is an important distinction.
There are various powers in various bits of legislation that some of my colleagues are probably better qualified to talk about, where there is already the power to introduce changes by secondary legislation in particular circumstances. However, the bill as drafted brings in an overarching, broad and sweeping power that has very few limitations on it. There is no non-regression clause and no requirement for changes to be based on scientific advice or even to be consistent with the nature targets that the bill is bringing in. There is a distinction here. The previous powers were necessary in the context of being an EU member, to implement European directives. Those are not currently required.
The policy memorandum highlights things such as forestry and offshore and onshore wind. There is the ability to change specific things within the habitats regulations, such as the broader concept of climate change. I think that I agree with you, but I am just playing devil’s advocate. Is that not what the Scottish Government is trying to do—to give it that power? If it wanted that, what would be the backstop? How could you secure that? Should we remove part 2 in its entirety, or could there be a risk in doing that? What would be the backstop if we were to leave in part 2?
There are a number of ways that the drafting could be improved. Removing part 2 entirely is an option that the committee should consider. I believe that the committee has had previous evidence on the implementation of the habitats regulations and the flexibility that might be needed on the ground to do with climate adaptation or even nature restoration. That could be things such as allowing natural regeneration of woodlands into open ground or the planting of riparian woodlands in protected areas.
We strongly believe that, if the flexibility is used, those are all possible under the current habitats regulations. Regulation 9D requires that ministers must adapt the habitats regulations in line with the UK site network’s management objectives. There is also the ability to add new designations to the protected features. There are flexibilities that could be used, which do not raise the risk of the protections being fairly undermined.
In relation to your wider question, one of the justifications that is provided is about ensuring that the protected areas network is flexible in the face of climate change. We think that we definitely already have the powers to do that.
On making progress towards the net zero targets, it is important that the committee is aware that the Scottish Government has power to alter the habitats regulations through the Energy Act 2023 for offshore wind. The Planning and Infrastructure Bill is also introducing changes to electricity-related environmental impact assessment to facilitate more onshore wind in Scotland. If the issue is about making progress and expanding renewables capacity, that is dealt with in other pieces of legislation.
Scotland has an amazing capacity for renewable energy, which has been expanded rapidly in the past 20 or 30 years within the current regulatory environment, with the habitats regulations in place. It is not that environmental impact assessment or the habitats regulations are mutually exclusive with renewable energy generation; it is just that they help to steer generation towards the right places. We can have both—the regulation and the generation—and Scotland is demonstrating that we do have both. We do not think that the justifications for the proposals stack up.
I completely agree. Alongside regulation 9D, regulation 11 gives the further clarification that we can also delist sites—not that we particularly want to see sites delisted, but the power exists.
I echo all the concerns that have been raised. The Marine Conservation Society is also incredibly concerned about the rationale for the proposals, and we support everything that has been said about them. I highlight that the habitats regulations are the backbone of the marine protected area network. There are 58 special areas of conservation—SACs—with a marine component as well as a number of marine bird SPAs. The regulations have ensured that those areas have played a leading role in demonstrating how the network should be adequately protected. I acknowledge the successful activism in the early 2000s to secure protection for the Firth of Lorn; that protection is as a result of the regulations, so we would be very concerned about them being watered down in this way.
In relation to the marine space, other EU nations are using the regulations to allow other features to be added to marine SACs, such as native oysters. The regulations are already being applied in a flexible way, and there are examples of that happening without having to amend the legislation.
Beatrice Wishart has a brief supplementary, then we will go back to Tim Eagle.
It is a very brief question about Calum Duncan’s point. Do you think that, if there were any change, it could undermine the MPAs?
Yes. For all the reasons that Dan Paris and others have set out, we would be extremely concerned about how the powers might be used in future parliamentary sessions.
Thank you all for your interesting answers—the subject came up significantly in committee last week and I want to be clear in my mind that, by not allowing powers, we are not restricting what we need to do for biodiversity, climate change and so on. I do not think that any of us would want to see that.
My main question was going to be on the purposes for which the regulations could be changed but, to be absolutely clear, do all of you agree that it is not about the purposes that are set out in the policy memorandum but about the fact that, fundamentally, the power should not be there? Does that make sense? Dan, you mentioned the various purposes that the Government sets out in the policy memorandum, such as ensuring consistency or compatibility with other legal regimes or taking account of changes in technology and so on, but you would not add to or amend those purposes?
The Government has not convinced us of the need for the powers in the first instance. We could go through the purposes line by line. Section 3(a) states that the power can be used
“to maintain or advance standards in relation to ... restoring, enhancing or managing the natural environment”.
I would not be concerned about that being in legislation. However, the concern is the power overall as introduced, as it comes without a non-regression provision or the levels of scrutiny that we would expect for such powers. It also has a very broad scope.
We are particularly concerned about the purpose in section 3(b), which is
“to facilitate progress toward any statutory target relating to the environment ... in particular, the net zero emissions target set by ... the Climate Change (Scotland) Act 2009”.
We are, of course, concerned about meeting the net zero targets, but it is really important as a point of principle that, when we introduce legislation that is designed to protect the natural environment, we do not unintentionally play off nature against climate, when we know that meeting net zero can and should be done in conjunction with restoring nature.
We have particular concern about a power that could allow nature protections to be significantly weakened in order to meet net zero.
I do not think that part 2 is needed. To ensure that the protected areas network is flexible in the face of climate change, we have regulation 9D. On making progress towards net zero, that is dealt with in the Planning and Infrastructure Bill and the Energy Act 2023. To restore the powers that were lost after Brexit, even though there was a non-regression provision, the Scottish Government has committed to keeping pace, and we have the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 right up until 2031, if it is extended.
We have looked at the issue in great detail, as you would imagine, and we cannot find any justification in existing regulations or other pieces of legislation that point to the need for the powers in the bill, never mind them being as broad and sweeping as they are, given the list of purposes.
I reiterate that this is a policy choice, not a technical choice. As Ailis Watt just said, the Scottish Government has the powers in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 until 2031. If it was a technical issue, the provision would have been drafted very differently.
On Dan Paris’s comments, as I said earlier, climate change targets should not be in competition with biodiversity targets, and the sweeping powers in the bill could have the unintended consequence that a future Government would do just that.
When the cabinet secretary comes to give evidence, they need to marshal their argument about why they need the power. The easiest thing to do would be to lodge an amendment that would leave out the provisions. However, there is so much more in them that could be questioned. For example, the only thing that is left to affirmative procedure is if an offence is created. Under section 3(f), the power could be used for anything
“to improve or simplify the operation of the law”.
That could either be through the negative or affirmative procedure, and would be based on a future Scottish minister’s decision.
Yes, you need to allow flexibility in secondary legislation, but that can increasingly become an act of faith and a significant blow to scrutiny. The way in which the bill is drafted is based on policy choices. Non-regression is not baked in; most of the possible changes are left to negative, not affirmative procedure; and there could be the unintended consequence of having competing targets, which really should not be the case.
I know that we were slightly repeating ourselves there, but it is an important point. We could go through the purposes line by line, but that is maybe not the point that we should be focusing on. There is a bigger point here.
One of my points last week was about the Kendoon to Tongland power upgrade, which will go through scenic areas. The matter went to the reporter, who recommended that the planning application be turned down because of the unacceptable impact on the environment. The Scottish Government ignored those views, as it thought that the impact was acceptable on the grounds of energy security. That would suggest that the Government already has powers to ignore, if you like, or dismiss concerns when it comes to protecting the environment.
I reiterate that the habitats regulations are amazing at protecting the most important places and species that we have in Scotland. However, the regulations include the imperative reasons of overriding public interest—IROPI—clause. If you need to do something that will negatively impact on a designated site for reasons of human health or if there is a need to construct a road to enable hospital access, there are exceptions baked into the regulations. If the Scottish Government can demonstrate that it needs to do something in a certain area for the public good and for public benefit, that flexibility exists in the regulations, and it has been used to allow access to hospitals or, in some cases, renewable energy projects. There is flexibility in there for lots of reasons.
10:15
Tim Eagle has covered a lot of the questions and points about part 2, so I will go back to one of the specific purposes, which is about ensuring consistency or compatibility with other legal regimes. I am interested in your reflections on that, particularly on what is happening in the rest of the UK, the direction of the habitats regulations and their potential weakening to allow economic growth in some areas.
Ailis, in your written submission, you touched on the relationship with the Electricity Act 1989. I am interested to know whether you think that there is a particular concern about the divergence of regimes between what is there under section 36 and 37 powers, which is well understood by industry—the requirements of EIA, the habitats regulations and everything else—and what we have at the moment for other development that is protected by habitats regulations and EIA procedures.
One of the purposes that we are most concerned about is ensuring consistency and compatibility with domestic or international legal regimes, regardless of whether those regimes are strengthening or weakening. We have the commitment to keep pace, and we should therefore be able to improve habitats regulations and EIA, if that is appropriate.
However, as you said, we are seeing changes to habitats regulations for planning down south. We do not want the Scottish Government to put something in the bill that would allow our most important protections to be dragged down by progress stalling in other places, rather than being pulled up to work towards best practice where we can, which is what we should look to do in maintaining or advancing standards.
Can you spell out what the concern is with the legal regime in other parts of the UK?
It could be anything, really. It could be any legal regime, here or abroad, that we could look to align with. There could be a number of examples of anything that could be done to EIAs or the habitats regulations, which we know are often perceived to be blockers to development, even though it is our strong view that they steer development to the right places and that the IROPI clause allows development when there is a good enough reason.
There are a number of examples. The issue with the purposes is that they are so broad, so it could be any reason. Without a non-regression clause, you can make any sort of restatement or amendment to the habitats regulations or to EIA.
It is not just this Government that we are talking about; it is any Government at any point in the future. If the Government changed down south, would we race to the bottom with it? That is the thing that we are really concerned about.
I want to understand what a race to the bottom might look like practically. Where do you see the potential erosion in protections for the environment in other regimes?
We have recently seen a lot of comment from down south about newts versus development. There is obviously a strong lobby for getting rid of some of those protections. We do not want to be in a situation in which we are playing those two things off against each other. It is like net zero and nature positive—we cannot play those things off against each other. If we want a sustainable future, we will have to make them work together. There could be any number of impacts on EIA or habitats regulations that would have negative environmental outcomes.
Would that include the regulations on European protected species, not just on sites and habitats, but on the marine environment and the disturbance of EPS? I am trying to understand what the threat is from alignment with other legal regimes. What is underneath that?
I will give an example. In England, consideration is being given to measures that could be put in place to compensate for any damage to nature that is caused by rolling out offshore wind. Part of that is looking at potentially de-designating bits of sites or finding other sites. That sort of thing is a concern.
That goes back to the point that I made about the SACs being the internationally important spine or bedrock of the MPA network. We would not want anything that would put them at risk. That may not be the policy intent at all but, as we have said multiple times, the concern is that there would be nothing stopping future Governments from using the powers to potentially weaken those areas. That is the big concern for us.
Because the powers are so broad and sweeping, we would be held hostage to fortune in relation to a future Government. For example, at the moment, the national marine plan is meant to set out planning at sea and should take a holistic approach, in the spirit of the Marine (Scotland) Act 2010. As we have mentioned already, the powers in section 3(f) on
“the operation of the law”
could be used by someone who will say, “We really need to meet our climate change targets, so we need to de-designate this or push this out of the way or completely bypass whole sectors.” However, the sectors all need to work together. The national marine plan should have sectoral targets and we should hear from everyone—not only offshore wind, fisheries and marine protected areas but coastal communities as well.
The concern with the bill—as we said on the point about regression—is that a future Government could come in and say, “We are going to sweep that all away and it is all about this or that industry because we have to meet this target.” That is an extreme example, but I guess that that is what you were asking for—it was about how far the policy could be pushed.
I have a quick comment on that point. That highlights what is sorely lacking in the marine space, which is a proper spatial management framework to enable assessment of the cumulative impacts and prioritisation of effective and appropriate use of different parts of the marine environment, different sea bed types and so on. We are calling for that right across the UK. There needs to be a proper ecosystem base framework that starts from the premise of what the space looks like and what the appropriate use is for each type of sea bed. The bedrock of protection is the MPA network, but the question is what other measures are required beyond that.
The first part of my question is about your views on the Scottish Government’s decision not to include a non-regression clause in part 2, but we have already heard your views on that quite clearly. Are there alternative approaches to framing the powers that you would like to see in the bill? For example, would you like things such as protection for certain aspects of the core aims of the regimes or a requirement for additional consultation, scientific input or, indeed, parliamentary scrutiny of changes that could arise? In the absence of a non-regression clause, would there be other ways to consider the powers in the round and to start to curtail where the powers could go? Alternatively, you could just come back and tell me your views on the absence of a non-regression clause.
As everyone in the room will probably now be aware, putting aside the fact that we do not think that part 2 is justified, we think that, if it has to be included, it is essential that it be strengthened in a number of ways. The power is to “modify or restate” EIA legislation and habitats regulations, but we want to change that to “amend”. We ideally want there to be a non-regression clause but, if that cannot be in the bill, there at least needs to be a public explanation of and justification for the use of powers before they are ever employed.
There should also be a requirement that, before using the powers, the Scottish Government would have to seek independent expert advice, either from NatureScot or Environmental Standards Scotland. All regulations should definitely be subject to the affirmative or super-affirmative procedure, rather than the negative procedure. Public consultation would also be welcome.
It is clear from the policy memorandum that the Scottish Government decided not to include a non-regression clause because it feels that that would limit the flexibility of the powers too much. That goes back to the just-in-case side of things that we take issue with. One of the purposes for the use of the powers is
“to maintain or advance standards in relation to ... the natural environment”.
Were that to have primacy, and should it have to be achieved before the purpose to
“improve or simplify the operation of the law”,
that would be a means of including non-regression in the bill without calling it that.
That is all in our response to the call for evidence. If part 2 must be included in the bill—we would like it not to be—there are a number of essential safeguards that must be baked in.
I concur with everything that Ailis Watt has just said, but I would go a step further. An amendment could be lodged to require that the provisions in paragraphs (b) to (f) of section 3 can be used only in pursuit of the purpose in paragraph (a), which would be primary. That would strengthen how the powers would be intended to be used.
I fully agree with Ailis Watt’s summary of the ways in which that part of the bill could be improved. The Scottish Parliament information centre briefing on the bill also has a useful analysis of the other bits of legislation that already give ministers some of these powers in particular circumstances. The briefing highlights the fact that, in those cases, environmental safeguards have been built into those bits of legislation. As drafted, the bill stands out from those other bits of legislation through the absence of such environmental safeguards.
To save us an awful lot of work, grief and concern, we should just dump part 2 of the bill altogether. Does anybody disagree with that? I see people shaking their heads. I like to keep things simple.
We are about to move on to part 3, which is on national parks. We will have a brief suspension for a comfort break for five minutes.
10:27 Meeting suspended.
Welcome back. We will now ask some questions on part 3 of the bill, which is on national parks.
Good morning. Nikki Sinclair, I will come to you first with this question. Part 3 of the bill proposes to broaden the purposes of national parks to include stronger emphasis on supporting biodiversity and nature recovery in addressing the climate crisis. Earlier, Dan Paris mentioned biodiversity targets in relation to national park strategies. What are your views on the changes to the statutory purposes of national parks in the bill, and what will the practical impact be of implementing those changes?
The proposed changes to the four aims of the national parks are really modernising. They are fairly modest, but they perhaps reflect 20 years of experience of what the parks are now focusing on. It is good to see the addition of the list in the proposed new section 1(2) of the National Parks (Scotland) Act 2000, which includes aims relating to biodiversity and climate, among other things. That will focus minds on what the parks are about and on what is a main focus for them.
The current aims are quite broad, so you could argue that biodiversity and climate are within scope already, but it is good to see them highlighted in the bill.
The change to the duty on public bodies to “have regard to” the aims might be the most important change in that section.
You mentioned modest changes. We were at Cairngorms national park on Sunday and Monday, when we talked about the language used. Instead of saying,
“sustainable use of ... natural resources”,
the bill says,
“sustainable management and use of ... natural resources”.
What is the impact of adding that one word?
It probably better reflects natural capital approaches to land management and thinking about biodiversity and climate in those terms, rather than just about the sustainable use of resources—for example, in relation to the extraction of minerals.
We also discussed the use of the language of restoration and whether that means restoring biodiversity to what it was in Victorian times or to what it was 200 years ago or 300 years ago. Referring to enhancement is perhaps more objective than referring to restoring. Do you have any thoughts on altering any of the language in the bill?
Are you referring to subsection (2)(a) of the proposed new section 1 and the provision on
“restoring and regenerating biodiversity in the area”?
Yes.
I take your point about what we would be restoring to, but you could be minded to think of it as restoring to good ecosystem health.
The word “enhancing” might also be open to interpretation, but it is used in national planning framework 4, for instance, in relation to biodiversity, so it might be equally good.
Does anyone else wants to come in before I move on to byelaws?
The Game and Wildlife Conservation Trust is broadly supportive of the progress to clarify the aims of national parks, but we are also concerned that, here and elsewhere in the bill as currently drafted, there is a risk of placing increasing obligation on landowners and public bodies. People would be delivering for biodiversity without being provided with adequate support, resource or clear routes for implementation. We are concerned that that would create a culture of compliance rather than one of ecological improvement.
It would be great if we could see in the bill a mechanism to allow us to build on collaboration with and support for land managers to allow them to meet those biodiversity targets, particularly through clustering. With the national parks, that provides an opportunity for us to achieve a landscape-scale delivery for biodiversity. We know that such a clustering approach, from our experience in the south, works incredibly well in delivering tangible biodiversity benefits.
We are broadly supportive of the aims of the bill in relation to national parks, but there are opportunities that we need to capitalise on.
To slightly turn the issue on its head, what is so wrong with the national parks aims, as they stand, that they need to be amended by the bill? What is being prevented? I remember that the aims were hard fought for at the time, and the right balance seemed to have been created. If it ain’t broke, why fix it?
Perhaps nothing is particularly wrong with the aims, but the legislation is more than 20 years old. We are now in a different place due to the urgent threats to climate and biodiversity, and it helps to see those words in the legislation. The bill is proposing a modernisation of the words used rather than major changes.
In section 1 of the National Parks (Scotland) Act 2000, the aims are listed in subsections (a), (b), (c) and (d). Was there a hierarchy in the aims? Was it a case of there being priority 1, priority 2, priority 3 and so on? Does that approach roll into the proposed updates in the bill?
National park authorities’ main job is to collectively achieve those national parks aims. Section 9(6) of the 2000 act comes into play only if there is a perceived conflict between the four aims. That is the Sandford principle, or the national park principle as it is sometimes called. It means that national park authorities have to give more weight to the first aim, which is the aim to conserve natural and cultural heritage.
The bill includes a list under the proposed new section 1(2) of the 2000 act. I do not particularly like lists, because they often suggest that something is being missed out. It starts by saying:
“Without limit to the generality of”
the above aims,
“those aims include—”.
It does not exclude anything, but the fact that it includes paragraphs (a) to (f) means that it is a list.
Is there a risk that the aims become far more stringent when it comes to investment or development in a national park? Are those proposed aims listed in order of priority? An objective to promote sustainable development might be overtaken by the need to restore and regenerate biodiversity in the area. Is it your understanding that those aims are also listed in order of priority?
No. I do not see any order of priority being implied. The only priority is set out in section 9(6) of the 2000 act.
Therefore, is there any benefit to having such a list in the bill? Surely, it could just be part of the guidance.
It is extra information that perhaps gives the wider world an understanding of the breadth of what national parks are doing. You could probably argue that the parks could already do everything that is included in the list, but it is perhaps clearer to have those things included in that.
You stated that we now have 20 years’ experience of the aims, so the bill is only updating them. Surely, at some point over those 20 years, we should have had an independent review of how national parks are performing.
Currently, we have annual reports, but they are produced by the national park boards. We have heard the argument that boards are, in effect, marking their own homework. Given that the 2000 act is more than 20 years old now and we are making amendments that are supposed to improve how national parks function, is it not time to have an independent review, to see what national parks are delivering, in order to have confidence in their aims?
10:45
We need to keep things under review, but the climate and biodiversity issues, in particular, are urgent. There is a concern that if we had a review and then legislated, it might be a decade before the legislation was changed. The United Kingdom national parks review panel—the Edwards review—published in 1991 its report “Fit for the future”, in which it recommended that there should be a duty on public bodies to further the aims of national parks. That duty came into play in England only in 2023, so it took a long time. We need to get on with making public bodies and national parks more effective now, instead of waiting for another decade.
Without the evidence from an independent review on what could be most effective, how do we know that what is done is right?
We have just finished considering parts 1 and 2 of the bill, and a lot of the discussion was on review reporting targets, but it appears that national parks do not have to undertake reviews on an independent basis—again, they are marking their own homework. Another area in Scotland is potentially being designated as a national park, and one of the big issues that we see there is a lack of confidence that national parks are actually delivering. If an independent review had been undertaken at some point, the benefits, or otherwise, would be clear and transparent.
Yes—there has been a lot of public consultation about the national parks’ activities and the legislation over the past three or four years. Three separate consultations have looked at aspects of their operation. I appreciate that that is not the same as a review, but some things have come out very clearly from that process. It is clear that the public wants parks to do more for biodiversity. That came out very strongly in the responses to the latest consultation.
Yes, we should keep things under review—I am perfectly happy with that, and we would not be against it—but there is a need to move things on and to try to improve them now, rather than in a decade’s time.
It is useful to hear that. I know that there have been calls for an independent review, especially if we are going to establish a new national park—for instance, in Galloway.
My other thoughts relate to tackling the climate and nature emergency and promoting biodiversity. Loch Lomond and the Trossachs National Park Authority already has the power to issue fixed-penalty notices, and the bill introduces new powers to enable Scottish ministers to set out in regulations how fixed-penalty notices could be used for enforcing national park byelaws.
I am interested in how you think that the power to introduce regulations in relation to fixed-penalty notices will be effective in supporting national parks in tackling the climate and nature emergency. I am thinking about their potential for dealing with wildfires such as we have seen—that is one example of how byelaws could help to support nature.
It is understandable that the parks are looking at byelaws for tackling wildfires; I know that the Cairngorms National Park Authority has put a byelaw before ministers. The current process for enforcing byelaws seems to be quite slow and onerous on both the authority and the court system, so it is quite difficult for the national park authorities to use the backstop of enforcement in that way. I can see that introducing fixed-penalty notices would make enforcement more active and perhaps more real to people on the ground. It seems to be a practical, and perhaps a more proportionate, response to dealing with those issues.
I imagine that it would still be quite difficult for people on the ground to do that job. Our concern is, first, that it might slightly change the perception of rangers, who may be seen as more of an enforcement service than an education service.
Secondly, if it is easier to enforce a byelaw, does that mean a shift in culture to enforcement first, rather than engaging, educating and encouraging before you get to the backstop of enforcement? It would be good to have it confirmed that it is the backstop position rather than a shift in culture. The public probably understands a fixed-penalty notice and the implications of that more clearly than the alternative that we have just now, so it might well help.
We use the language of carrot and stick. Education is one of the first things that the rangers would be doing, so would you be in favour of continuing that approach, with the backstop being the of issuing a fixed-penalty notice, for instance?
Absolutely. If there is education and provision of alternative facilities for fires in certain places or controlled ways, that might remove some of the issues.
We are wholly supportive of the introduction of fixed-penalty notices elsewhere in national parks, learning the lessons from Loch Lomond and the Trossachs, provided that that is coupled with education and partnership, which are absolutely crucial.
I have a question that goes back to the central purpose of national parks. We now have the expanded list and we have the Sandford principle whereby, where there is conflict, we can prioritise nature. What are your thoughts on making nature the central overriding purpose? I think that the Government consulted on that. The designation is based on nature and the environment. What are your thoughts on that?
The designation is based on natural and cultural heritage. There might be a bit of concern if that was lost completely. Natural and cultural heritage contribute to landscape quality, but there is certainly public support for the parks doing much more on biodiversity. That was reflected in the consultation responses.
From memory, I note that the Government consulted on a raft of changes including biodiversity and climate being introduced to the overall purpose of national parks. It also changed the aims, and then there was a change in the wording of the aims from “natural heritage” to “natural assets”. It was not entirely clear to us what the outcome of all those changes together would be, which is a concern.
What is your view on the proposed change to make the purpose focused on nature and climate?
There is nothing to prevent parks from doing a lot on climate and nature. The breadth of the aims allows them to be an exemplar in that regard while still involving people who live in the area and those who visit. The recreational and access aspects of national parks have always been really important. It would be a big shift for them to focus solely on biodiversity. However, as they stand, the parks have an amazing role in mainstreaming biodiversity, which colleagues have talked about today, and showing how it can be restored, enhanced or whatever in a working landscape.
Because of constraints on our capacity, we have focused on parts 1 and 2 of the bill. Unfortunately, we have not had a lot of time to focus on part 3, on the national parks. In general, however, we would like to see an ecosystems approach being taken across all land use, and we think that national parks could be exemplars of that. Of course the Scottish Wildlife Trust wants nature, biodiversity and climate to be prioritised, but we are very aware that there has to be a place-based approach that is led by local people. That is important even with regard to how national parks are described. If climate and nature were the only focus, significant numbers of stakeholders might be disengaged from the outset.
Mark Ruskell hit on the good point that the proposed redrafting of the aims has its roots in the Government’s initial proposal to bring in an overarching purpose for national parks.
As a sector, we want national parks, under our public bodies, to prioritise nature and climate, as Bruce Wilson said. It is not entirely obvious how that overarching purpose would differ in practice from the Sandford principle. I understand the convener’s hesitation about adding lists of everything to the bill, but I welcome the fact that biodiversity and climate have been added to the list of aims, which could help with the interpretation of the first aim when it comes to the application of the Sandford principle.
I back up the points that Dan Paris and Bruce Wilson have made. If the focus is solely on nature and climate, we risk disincentivising other practical uses of land within the national parks that are actually delivering for biodiversity and climate, even though that might not be their primary objective.
On the point about the Sandford principle, we wonder whether the committee might consider whether it should also apply to any other public bodies, including the Scottish ministers, on which there is a duty to have regard to the aims, although the duty could perhaps be strengthened to make it more active. The principle may not come into play very often in that regard, but it might matter sometimes.
Do you mean that a local authority that covers the same area as a national park should also have to apply the Sandford principle?
Only in respect of activities that affect the park particularly.
That leads us on to the next question, which will be asked by Tim Eagle.
Are there any prior examples of the Sandford principle being put in place?
A similar principle exists in English national parks.
Let us go back to the points that Bruce Wilson and Nick Hesford made. My worry—which the convener picked up on, too—is that the aspect that we are discussing is listed in subsection (2)(f), which talks about the local community and the economic development of national parks. One of the early criticisms when the bill was published was about the fact that a national park is surely at its best when we recognise the people who live and work within it and the fact that, although the aims are not listed in order of priority, when people see a list, they automatically think, “We’re down at the bottom, so all the other stuff is more important.”
Are you concerned about that at all? You mentioned the Sandford principle. I may not know it well enough, but the principle is that conservation will take priority over public enjoyment of the park, is it not?
Only if there is a conflict.
Where a conflict exists.
On your point about people appearing only in subsection (2)(f), they are also listed in one of the four main aims of the national parks.
They are in the first four.
Yes. Admittedly, they are in the fourth aim, but the aims are not ranked at all, apart from in relation to the Sandford principle.
If they are not ranked, it would not matter if we moved them around a bit.
I do not think that anyone would object to shuffling them around.
Fair enough—very good. That point was picked up by a lot of local people, and I would have thought that, if you are going to drive forward your climate and biodiversity aims, you will have to do that with local people in mind.
The bill seeks to upgrade the duty on relevant public bodies with a change in the wording from “have regard to” to “facilitate the implementation of”. As a former councillor, I am aware that councils—there are other public bodies, of course—such as Moray Council and Aberdeenshire Council, in the Cairngorms national park, would fall within that, and they would have huge responsibilities even though there is a massive lack of funding and not a lot of staff resource to put into such things. How do you see that change working? What is your initial feeling about it? What would it really mean in practice?
The upgrade refers to the substitution of the duty to “have regard to” the park plans with a duty to “facilitate the implementation” of them. That is seen as a more active duty that could promote more engagement with the development of the plans. There is already a lot of collaboration, but we hope that the proposed change would focus minds a bit more and help the whole thing to become slightly more effective.
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What was not there previously? You are right that any council or local person could have fed into a national park plan through a consultation process, so why is the change necessary?
I think that the phrase “have regard to” means that it is considered to be quite a weak duty.
Fair enough.
It is quite hard to hold anyone to account on it unless they say that they have not had regard to something. They might say, “We’ve had regard to it, but we’ve ignored it.” The phrase “duty to facilitate implementation” implies that the person will have to take the park plan seriously. If, during the consultation process, they commit to something or agree that it will be in the park plan, they will at least do their best to see that it happens.
Do you see how that could be quite scary for some public bodies? What does it mean in practice? Would a financial contribution or a time commitment be required? How would they do that, given the possible competing priorities?
I see that it is a shift in thinking, but, if we are serious about making national parks more effective, a shift from the wording “have regard to” to something that is more powerful will be a useful tool to ensure that the park plans that have been agreed through a consultative and collaborative process are not just plonked on a public body’s desk. We will not just be saying to them, “Here you go—this is what you have to do. Sorry we didn’t consult you.” Instead, they will have been involved during the process.
It is interesting that, as a former councillor, you defaulted to thinking about how the proposed change would impact local authorities, which are significant public bodies and might face particular resource challenges if they were expected to take significant actions as a result. When I read about the proposed change, my first thought was about national agencies such as NatureScot, Forestry and Land Scotland and Scottish Forestry. Ultimately, national parks are designated because they are deemed to be of national importance. It is important that the public sector delivers against national objectives, which is exactly what we discussed in the first part of the meeting when we spoke about mainstreaming biodiversity progress across the public sector.
My first thought was about councils. You are probably right that there are broader organisations, although I can imagine that local authorities been particularly affected.
Another example might be deer management and how NatureScot aligns its work with the national parks. It might also apply to how Transport Scotland considers road building; to woodland grants and whether they are used for natural regeneration, which is the parks’ preferred method of woodland expansion; and to where fences are placed with respect to endangered species. It would cover a whole load of things and not just councils.
Yes—absolutely.
Before we move away from the subject of national parks, I want to touch on what is not in the bill in that regard. Everyone will be aware of the controversy about the potential designation of a national park in Galloway. There is concern about how the decision that Galloway would be the sole contender for that designation was arrived at, and the lack of transparency about or understanding of how we got to that point. There is nothing in the legislation that sets out the route for an area to be identified as a candidate for a national park.
Whichever side of the argument people are on—whether they are pro or anti national parks—I do not think that there is any doubt that the process has been a car crash that has caused a lot of division. There are many polarised views. Ultimately, the process has totally derailed what should have been a very positive experience and one that was similar to the experience 25 years ago, when the first designations took place. At the weekend, we heard from stakeholders that 300 or 400 businesses got very actively involved in setting up the Cairngorms national park, and we heard how businesses, individuals and communities played a massive part in that. With the proposed Galloway national park, that has been completely absent.
There has not been a clear indication of what the proposed national park would be. Should there be something in legislation to make clearer the Government’s obligations to ensure that the process to designate new national parks is more engaging and contains more information? One of the problems is that there is a massive vacuum in relation to how the new national park might look. We are always told that Galloway is an area of intensive forestry, intensive farming and intensive renewables, which is unlike any other national park in the world. We are told that it will be different, but not in what way. Should the legislation on national parks have contained more direction on future policy on the designation of parks, given the mess that the current process is in?
The 2000 act clearly sets out the requirements for designation. The Government chose a different process in the lead-up to the designation with the nominations process. That was publicly consulted on and laid out, and the nominations process seemed to be carried out according to the process that had been developed. Two other areas of Scotland were considered to have met, through the nominations process, the requirements to be a national park, and Galloway was one of the possibilities that the minister chose to take forward.
That non-statutory process does not have to be repeated by a future Government that wants more national parks. The approach could be varied. I do not know whether setting out a process that appeared to be appropriate now would stand the test of time.
We will move on to our final question, from Evelyn Tweed.
You have been saving the best until last, convener.
Are there any areas that we have not covered that you would have liked to see addressed in the bill?
The Scottish Sentencing Council’s latest strategy indicates that it is going to consider and report on wildlife sentencing. We do not want to prejudge that report, and we really hope that the report aligns with when stage 2 amendments can be lodged. We would like the Scottish Sentencing Council to consider sentencing for marine crimes—particularly whether the current low penalties are creating an effective deterrent and whether the level of sanction is proportionate to the harm caused. Again, we do not want to prejudge what the Scottish Sentencing Council is doing, but we would love it if, should it find that the penalties are not enough of a deterrent and the fixed penalty notices are too low, especially in relation to England, that aligned with the time in which amendments can be lodged.
I reiterate that, at the moment, the issue of the marine environment is not dealt with explicitly in the bill—it is kind of implicit but not explicit. However, Scotland has significant responsibility and a leadership role to play, since it holds 60 per cent of UK seas and 13 per cent of Europe’s marine area. If the legislation is to deliver any support for our marine ecosystems, we would welcome more explicit amendments regarding the issue of the marine environment.
I absolutely support that point. It should be clear that the legislation applies to the extent of the exclusive economic zone.
With regard to our suggestions, we would like section 5 of the Marine (Scotland) Act 2010 to be amended so that the national marine plan is required to deliver nature recovery targets. We often talk about the three-pillar approach to nature conservation, which recognises site-specific measures, species-specific measures and wider seas measures. That approach was very much in mind in the drafting of the Marine (Scotland) Act 2010, which recognises that delivery for nature involves not just the MPA network and other sites, but also wider species and seas measures, such as marine planning and fisheries management. We have made some suggestions in our written evidence that could help to tighten up further those connections in law.
For example, section 68(7) of the 2010 act says that Scottish ministers must have regard to “mitigation of climate change” when setting up MPA networks, but it could be amended to require them to have regard to climate adaptation. Section 68(9) says that the purposes of MPAs could include protecting essential fish habitats and juvenile congregation areas. There is often quite a siloed approach between fisheries management and MPAs, and it would be great if the law could reflect the benefits that designations can provide for improving fisheries management.
Section 68 could also be amended to introduce a duty to support ecosystem recovery in the development of the site network and a duty to review MPA site selection guidance and publish updated guidance by a specified date.
We have also suggested that section 2A(3) of the Inshore Fishing (Scotland) Act 1984 could be amended to add to “marine environmental purposes”, mitigation and adaptation to climate change and supporting ecosystem recovery.
Tweaks to those acts would help to emphasise the fisheries benefits of protecting nature and the role of improved fisheries management in contributing to ecosystem recovery and climate change adaptation and mitigation.
I will go round the table, because I am quite sure that you will all have something to say on this.
I think that our points have already been made, but we would like to see more focus on collaborative, landscape-scale approaches to delivering biodiversity. That is not explicitly delivered by the bill, although it may come through secondary legislation.
We have made a number of suggestions in our written submission, and I will go through them briefly. In addition to the marine points that Calum Duncan has covered, we think that the legislative basis for the land use strategy could be updated to include the nature recovery targets as part of the land use strategy’s required objectives. We also think that the strategy should include ecological connectivity through nature networks.
On nature networks more broadly, we are calling for a duty on ministers to report regularly on progress on nature networks. We think that the bill is a good opportunity to introduce powers to ban the use of peat in horticulture. That is a long-standing commitment that there is no other legislative opportunity to take forward.
We have made suggestions in our written submission on a number of areas related to invasive non-native species, which are a significant driver of biodiversity loss.
Finally, we have suggested that the Government undertake a review of community participation and decision making. The community aspect has come up a number of times today. It is inseparable from the achievement of nature recovery targets, and we think that communities of interest and communities of place are the most effective way to input into policy making across nature recovery.
There is a bit of part 3 that is to do with access rights and tidying up the Land Reform (Scotland) Act 2003. We think that it might be useful to include legislative provision that would strengthen powers for national parks with respect to securing access to core paths, and rights of way in particular. We have put some information in our written evidence, too.
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I can give you a quick overview of the invasive non-native species provision. There are three key asks that we, at RSPB Scotland and Scottish Environment LINK, are really keen to focus on: first, better access powers for NatureScot in carrying out species eradication and programmes involving highly mobile species such as stoats; secondly, a polluter-pays principle for commercial forestry, given that Sitka spruce is invasively seeding across peatlands and into native woodland and, as a result, is consuming conservation budgets of public bodies and the likes of the environmental organisations around the table; and, thirdly, better regulation of the release of non-native game birds, particularly in the context of highly pathogenic avian influenza.
I strongly agree with all of that. The particular issue for us is the land use strategy and nature network provisions that Dan Paris mentioned, as they will provide balance for some of the difficult discussions that need to happen. A real sense of urgency is needed, and giving a boost to the land use strategy will really help.
Thank you. I call Mercedes Villalba.
Thanks, everyone, for such a great evidence session.
In evidence given to the committee on 5 March, Lisa McCann, head of the Scottish Government’s biodiversity unit, stated that the Scottish Government takes
“the view that targets are a key way to drive action”—[Official Report, Rural Affairs and Islands Committee, 5 March 2025; c 2.]
I think that, from what we have heard today, every member of the panel will agree with that statement—I am just checking for any shaking of heads. No—I see that everyone agrees.
In the same session, Ms McCann also stated that
“There is no simple way to measure biodiversity ... There is not one apex target”.—[Official Report, Rural Affairs and Islands Committee, 5 March 2025; c 3.]
We have heard agreement from witnesses on that point, too.
We have also heard that, of the seven target topics identified by the programme advisory group, only three are being taken forward in the bill. There was a bit of discussion about the target topics at the start of today’s evidence session, and I just wanted to circle back to that on the basis that we are all in agreement of the importance of statutory targets and the need to tackle biodiversity from multiple angles.
Ms McCann explained the reasons for not taking forward two of the targets. On investment, she said that the Scottish Government believed that
“there was a risk of potentially perverse outcomes”
such as the
“risk of potential greenwashing”,—[Official Report, Rural Affairs and Islands Committee, 5 March 2025; c 5.]
which is an issue that came up earlier. She added:
“There is already quite a lot of work going on across Government to develop responsible private investment in natural capital.”—[Official Report, Rural Affairs and Islands Committee, 5 March 2025; c 6.]
Do the witnesses believe that the Scottish Government can support the protection and restoration of Scotland’s natural environment without public investment? How likely do they believe public investment in nature to be without a statutory target?
In my opinion, the funding landscape of the future will be blended, as there cannot be a reliance on purely private or purely public funding. What we cannot see is any idea that this is just a write-off—in other words, that investing in biodiversity and nature is pure expenditure for the public purse. According to the most recent estimates that I have seen, any return on investment on nature comes back 9:1. It is a very complicated picture.
If we include all the different sources—that is, if you add together all the agri-environment and biodiversity-specific funding—the fact is that over the years there have been real-terms declines in environmental funding across the board. Therefore, I do not think that, without specific measures in the bill, we will see the funding levels that are necessary. Moreover, I do not think that we will get to a place where private sector funding is able to support key biodiversity aims without public money.
We need something such as the land use strategy to act as a framework to allow that at-scale investment. We know that the private sector is not really interested in investments of a few million pounds. The investment needs to be on a scale that makes it worth it. There needs to be both private and public investment.
It is a really good question. The issue is one that we are very keen to explore. I completely agree with Bruce Wilson on the need for blended finance. I will give a marine flavour to the discussion. Only 1 per cent of global climate finance is spent on the ocean, and the World Economic Forum has estimated that $175 billion of blue finance will be needed each year up until 2030 in order to fulfil sustainable development goal 14. Between 2015 and 2019, a total of only $10 billion was invested. I do not have the Scottish figures, but I imagine that they are analogous.
One of the things that our natural capital specialist is looking at is blue bonds. That is not my area of expertise, but we would encourage the Scottish Government to explore the use of those to help to get some private investment in the scale of ocean recovery that is needed. We would be happy to have a conversation about that and to provide supplementary information.
That comes back to the point about accountability and transparency. Regardless of whether the funding is a blend of private and public money, if public subsidies are being given to private bodies, information about what is being done with that money and what the outcomes are needs to be publicly available. There needs to be accountability.
A comparable example is the marine fund Scotland. That is a public fund that is given to private individuals, who might say, for example, “We want to try out new gear in order to test whether it helps with climate mitigation or bycatch.” At the moment, there is no requirement to report back, which means that that information is not publicly available.
Therefore, whatever funding mechanisms are put in place, there needs to be accountability, public availability and transparency. If the purpose of the funding is to enable people to look into the science of something, the information needs to be available so that other people can build on that science and move forward. I am again ringing the bell for accountability and transparency.
I thank Mercedes Villalba for what was an interesting question. I agree with Bruce Wilson. The reality is that we will need to have a blend of public and private finance, but public finance should lead the way. The success of the nature restoration fund is a strong example of how far public money can go. Although that was a relatively modest fund, the gains that it delivered for nature and for people far outweighed the investment in it. If more such funding can be provided at a greater scale and administered in the right way, we can make a lot of progress towards the targets and on the other parts of the bill that we support.
Do I have time to ask another question?
If it is brief, although Tim Eagle has a supplementary.
I intended to move on to a different area.
In that case, we will go to Tim Eagle first.
It is an interesting question. As the convener mentioned, we visited Cairngorm national park earlier this week, and the subject of biodiversity credits came up. I struggle to get my head around carbon credits, let alone biodiversity credits. What impact will biodiversity credits have? That vehicle could be a significant driver of private investment, could it not? How does the idea of biodiversity credits work alongside the setting of statutory biodiversity targets?
It has large potential. I emphasise that public funding cannot go away, but biodiversity credits have a role to play. There are questions about whether we would have compliance-based markets, which might involve something to do with biodiversity net gain, or voluntary markets. There are all sorts of questions around that. The idea is in its infancy in Scotland, and the best thing that we can do at the moment is to build the infrastructure so that we are ready.
I will give a quick example. At the moment, under the national planning framework 4, planning authorities require EIA-level developments to show positive effects for biodiversity. Developers are approaching non-governmental organisations, local authorities and private landowners to ask where they can find positive effects for biodiversity. There is no slate of projects that can be invested in. Through nature networks and regional land use partnerships, we should have been developing a bunch of projects that were ready to be invested in. We need to get that infrastructure up to scratch, and quickly.
In her evidence to the committee, Ms McCann also stated that the Scottish Government
“had not envisaged doing any formal public consultation on the regulations for the targets”—[Official Report, Rural Affairs and Islands Committee, 5 March 2025; c 8.]
due to the technical nature of what is in the targets. Do any of you have a view on whether there is a need for public consultation on the regulations for the targets?
There is a balance to be struck between expediency—getting this done—and involving others in the process, but there definitely needs to be input. So far, co-design has not gone fantastically well on some elements of the biodiversity framework, so that needs to be well considered at the next stage.
I would say that there needs to be public consultation, and it is incumbent on a serving Government to make that consultation as accessible as possible, because it will impact people’s lives. Things are happening in the marine environment that fisher folk and coastal communities were not even aware had been consulted on and the impact of which they did not understand. It is incumbent on Governments to consult. If they are setting up a procedure, it is up to them to make that procedure available to everybody.
We absolutely support that.
If I can quickly add something in response to the previous question, we would like other industries that benefit from the public good of the marine environment to contribute to the Scottish marine environmental enhancement fund.
We have run out of time. I thank you all for your very valued contributions this morning.
We will have a brief suspension before moving on to the next item. We will resume at 11:35.
11:26 Meeting suspended.Previous
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