Chamber and committees

I am trying to avoid doing things in primary legislation, which would be onerous for the Parliament, that could be done using secondary legislation. If ESS’s structure or functions were to change—I am not saying that it would not exist—or if another body were to be established in future that could more appropriately fulfil its role, we would not be required to introduce primary legislation to give that body that responsibility.

Anyone in the world?

The broadness of the terms of Alasdair Allan’s amendment is obvious, but he might want to speak to that himself.

When it comes to any infrastructure, there is a potential impact on biodiversity and the environment. That is why we have rigorous environmental impact assessments, whether they be for energy infrastructure, house building, road building or any infrastructure that requires planning permission. I do not doubt Douglas Lumsden’s right to lodge amendments, but I merely point out that energy infrastructure is not a part of the Natural Environment (Scotland) Bill. I also point out that the powers to do anything on electricity infrastructure, which is the purpose of the amendments, lie with the UK Government. It is legitimate for me to make that point.

As I set out earlier, we have followed a robust, science-led approach to developing statutory nature targets. Amendments 172, 185, 193 and 194 all appear to try to insert requirements that relate to energy infrastructure into the biodiversity targets framework, which risks confusing and diluting the important provisions that are aimed at tackling the nature crisis.

Amendment 172 seeks to add an additional topic to section 2C(1). The three target topics that are already included have been recommended by the experts in the programme advisory group based on careful scientific consideration. The amendment, which addresses the impact of electricity infrastructure on biodiversity, falls outside the scope of statutory biodiversity targets for the purposes of conservation. The target topic—enhancing environmental conditions for nature—will look at the pressures that inhibit thriving biodiversity so that nature has the best conditions to recover.

You are bringing up a letter that I have not written—that Mr Fairlie has written. He will be looking at the meeting, and we will pass back to him your wish for him to engage with the committee on the substance of that letter.

I was talking about Mr Fairlie’s amendment 35. Mr Ruskell’s amendment 31 seeks to achieve a similar outcome, so I appreciate that he will probably not move it. He seems satisfied with Mr Fairlie’s amendment closing the loophole, as it has been put.

Amendment 35A, which seeks to amend Mr Fairlie’s amendment, removing the express power for NatureScot to propose an alternative licence area, would lead to confusion. Section 16AA of the Wildlife and Countryside Act 1981 will still require applicants to “describe”, as opposed to “identify”, the proposed area of land to which the licence is to relate and thereafter to set out that, if it is unable to reach agreement with the applicant as to what is an appropriate area of land, NatureScot can refuse the application. Therefore, there may still be some back and forth between the applicant and NatureScot to seek to agree the area. Not having express provisions setting that out could lead to confusion as to the process.

I will need to come back to the member on that, as it will depend on what is in the final bill. I will be able to give her an answer after the bill has been passed, once I have the timescales.

I turn to amendment 168, which seeks to recognise the role that the reintroduction of native species can play in nature restoration. As some members have indicated, there must be significant consultation on any proposed reintroduction to ensure that the views of those who would be most affected by any species reintroduction are fully taken into account. The Scottish Government does not intend to reintroduce lynx or any other large carnivorous species in Scotland because of the potential for negative impacts on agriculture and rural communities. We support the targeted reintroduction of other native species where appropriate, but we always consult on that.

In response to amendments 45 and 46, I reassure Ms Burgess that targets relating to marine habitats can be set under the current target topics. As I said, the biodiversity programme advisory group will explore that as part of the process for setting quantifiable targets. Amendments 45 and 46 duplicate what is already in the bill. Splitting targets by creating separate targets for offshore and inshore habitats fails to recognise the distribution of those habitats. Our aim is to manage our marine environment in a holistic manner, which is reflected in our current approach under the United Kingdom marine strategy.

Anything that is within the legal competence of the Scottish Parliament can be considered for the development of targets and indicators. For the marine environment, there is a complex mix of legislatively devolved, executively devolved and reserved powers across our inshore and offshore waters, which must be considered and taken into account when developing specific targets.

Amendments 107, 108, 173 and 175 deal with assessing or protecting inshore habitats from fishing pressures, and they include a proposed blanket ban on mobile gear in 30 per cent of the inshore areas.

Special protection from pressures is already provided by the marine protected areas network. Some members have alluded to the fact that there is already a great deal of work going on in that area. Each site is assessed individually, based on its protected features. Appropriate measures are supported by evidence, including from our statutory advisers. Therefore, I urge the committee to resist amendments 107, 108, 173 and 175. Any proposal that singles out mobile trawl gear over static gear is not evidence based and could lead to significant socioeconomic impacts on large parts of the Scottish fishing fleet. All fishing gear has an impact on the marine environment, but we must take an evidenced-based approach to fisheries management.

The proposal to introduce a target of banning bottom trawling in 30 per cent of inshore waters pays no regard to the work that is under way to introduce proportionate fisheries management measures in inshore MPAs. I appreciate that some members have already alluded to the fact that measures must be evidence based and that there is a great deal of work going on in that area.

I thank the member for allowing me to intervene to provide clarification. A draft statutory instrument containing regulations setting a target for a matter relating to each of the topics must be laid before the Scottish Parliament within 12 months of section 1 coming into force. I just wanted to clarify that, because I did not have the detail in front of me earlier. That must be done within 12 months, but, obviously, I could not give the member a definitive time within that 12-month period.

Sarah Boyack makes an important point. There is already provision in law for environmental impact assessments to be done, which will include detail on biodiversity loss or any other kind of environmental impact from any infrastructure. She helpfully supported my earlier point that it is not just electricity infrastructure for which there has to be an environmental impact assessment; it is any planning decision. Whether it is about something that happens in the sea, underground, overground or in the air, any planning decision has to have environmental impact assessments associated with it. I thank Sarah Boyack for pointing that out.

Amendment 172, which would address the impacts of electricity infrastructure on biodiversity, falls outside the scope of statutory biodiversity targets for the purposes of conservation. The target topic, enhancing environmental conditions for nature, will look at the pressures that inhibit biodiversity from thriving so that nature has the best conditions to recover.

Amendment 185 would add a new and specific reporting requirement in relation to energy choices. That would risk distracting from the purpose and focus of the important reporting requirement, which is to ensure that ministers are being appropriately held to account in meeting our biodiversity targets.

Amendment 193 is particularly unclear. It seems inappropriate for the targets that will be set under the new section 2C(1) to make any provision in relation to infrastructure. The biodiversity targets are intended to be entirely unrelated to any decision making on overhead electricity transmission lines. Infrastructure obviously interacts with biodiversity in a lot of ways, whether that be in the marine environment, underground or above ground. However, by focusing on specific planning and engineering considerations rather than taking a holistic approach to biodiversity, the amendment risks distracting from improving the natural environment as a whole.

Amendment 194 would impose a corresponding obligation on Environmental Standards Scotland to report on whether the requirements that are set out in the new part that would be inserted by Mr Lumsden’s amendment 306 have been met for any target that relates to energy infrastructure. For the same reasons that I gave for amendment 193, I cannot support amendment 194.

I turn to amendments 197, 200, 198 and 199. Section 3 sets out the purposes for which the Scottish ministers may exercise the power to make regulations under section 2. Those purposes are essential to ensure that our environmental assessment frameworks will remain robust, aligned with obligations and adaptable to future needs.

Amendments 198 and 199 seek to extend the purposes in relation to energy infrastructure consenting, and they are linked to amendments 197 and 200.

Amendment 197 seeks to add a specific alternative test as a duty at an inappropriate stage and it is duplicative of existing environmental impact assessment requirements. That relates to the point that Sarah Boyack has just highlighted with me. Furthermore, amendments 197 and 200 seek to introduce a new requirement for the Scottish ministers to publish additional information in relation to electricity infrastructure assessments and to show proof of compliance before granting consent.

Amendment 197, once again, includes reserved matters over which the Scottish ministers do not have legislative competence but, instead, exercise executively devolved functions. It remains unclear whether the consent that is referenced in Mr Lumsden’s amendments refers to ministers’ approval of regulations under part 2 of the bill or to consent under the Electricity Act 1989 relating to the Scottish ministers’ devolved functions. That ambiguity highlights the complexity of the electricity infrastructure regime. Any changes to that intricate regime, where there is a mix of reserved and devolved functions, must be carefully considered by both Parliaments, rather than being introduced in a bill relating to biodiversity. There are reserved implications that have not been considered.

It should also be noted that the relevant regulations, including the Electricity Act 1989 and the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017, are outwith the scope of part 2 as they are not relevant environmental impact assessment regulations for the purposes of section 4. Furthermore, they relate to reserved matters and they cannot be amended by the bill. We only have the power—through the recent Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2025—to amend the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 in making regulations for environmental outcomes reports. That is a fact that anyone who is involved in energy policy would know.

The habitats regulations that apply to the applications and electricity infrastructure that are covered by amendments 197 to 200—specifically, the UK-level Conservation of Habitats and Species Regulations 2017—also relate to reserved matters and they are not within the scope of part 2 of the bill. They cannot be subject to the powers in part 2, as that would be outside legislative competence. The purpose of part 2 is not to amend the complex legal regime that underpins the Scottish ministers’ consenting functions in relation to energy generation and associated infrastructure, which are largely underpinned by UK Government laws and regulations.

Amendment 305 seeks to require the Scottish ministers to prepare an alternative assessments code for electricity infrastructure, which would set out how underground and subsea alternatives to overhead transmission lines and related above-ground infrastructure are to be assessed against cost, biodiversity net impact, resilience and landscape.

Amendment 306 seeks to introduce community consent requirements and comprehensive assessment obligations for major energy infrastructure, alongside enhanced safety measures for battery storage and a statutory compensation fund for affected communities.

As I have noted, the legislative framework that covers energy infrastructure is complex, with a mixture of UK Government and Scottish Government legislation. Stage 2 of the bill is not the right place to address those matters and the amendments are therefore not competent. Notably, the generation, transmission, distribution and supply of electricity are reserved matters to the UK Government and cannot be amended by this bill or, indeed, any other bill that is laid in the Scottish Parliament.

Amendment 205 seeks to amend section 5, which modifies the aims of national parks. The effects of that amendment would be to add an additional aim of national parks for

“prohibiting ... new overhead lines or large-scale battery ... storage systems in ... or adjacent to, a National Park, unless underground or sub-sea installation is not ... feasible”

in the devolved context. The generation, transmission, distribution and supply of electricity are reserved matters to the UK Government and cannot be amended by this or any other bill in the Scottish Parliament. We would need UK legislation or for those powers to be wholly devolved to the Scottish Parliament in order to make the provision that amendment 205 proposes.

Amendment 210 seeks to amend sections 11 and 12 of the National Parks (Scotland) Act 2000, which set out the procedure for developing national park plans. The amendment appears to have the intention of giving elements of national park plans statutory weight by requiring planning authorities to refuse permission for overhead lines in areas designated by those plans as no-go corridors,

“unless there is an exceptional justification for doing so.”

As I have said in relation to other amendments, the generation, transmission, distribution and supply of electricity are reserved matters to the UK Government and cannot be amended by this or any other bill in the Scottish Parliament.

That question is probably best put to Mr Fairlie. I imagine that he will be able to furnish Mr Carson with a range of measures that he has taken to allow the livestock sector to thrive.

Decisions on livestock numbers are for individual farm businesses to make, driven by a range of factors, including market returns. The biggest threat to the sector comes from reserved policy areas such as free trade deals, which expose our Scottish livestock sector to unfair competition. It is vital that any targets that are introduced are workable and have been subject to engagement and consultation to ensure that there are no unintended consequences, including for the agricultural sector and our wider economy. I appreciate the sentiment behind Tim Eagle’s amendment 312 and his reasons for lodging it, but I would ask him not to move it.

That is not how these things work—I had meetings with Sarah Boyack ahead of stage 2. I apologise to Mercedes Villalba and will look into why she was not offered an earlier meeting, because meeting members is very important to me. Anyone who knows me will know that, since becoming a minister in this Government, I have made every effort to meet members who want to get in touch with me and talk about their amendments. If members ask to meet me, I do not give any preference to members of my own party. I absolutely would have made time to discuss these amendments with Mercedes Villalba, and I am sorry that that did not happen in this case. After this meeting, I will find out why that did not happen, and I will meet her ahead of stage 3.

I turn to amendments 42, 43 and 44, which seek to add something to the bill that is already there. Targets relating to the restoration of natural processes, the condition of marine and terrestrial ecosystems and the status of keystone species can all be set under the target topics that are already listed in the bill. Amendment 43 refers to

“the condition of marine and terrestrial ecosystems”,

which can adequately be captured in the broad and high-level definition of the target topic of

“the condition or extent of any habitat”.

Amendment 44 refers to

“the status of keystone species”,

which can adequately be captured in the broad and high-level definition of the target topic of

“the status of threatened species”.

Amendment 42 refers to

“the restoration of natural processes”,

which can adequately be captured in the broad and high-level definition of the target topic of enhancing

“environmental conditions for nature regeneration”.

Amendments 42, 43 and 44 are therefore unnecessary, so I ask members not to support them, as there is no need to do so.

On amendment 22, the target topics in the bill have been carefully selected through a robust, science-led approach and on the basis of advice from the biodiversity programme advisory group and NatureScot. The target topics included in the bill are meant to be wide and overarching and, as I have said, to allow a variety of targets to be set under each topic. We already have a target topic that will help to support the ecosystem connectivity for which amendment 22 seeks to provide.

We are not waiting for targets to be in place to take action. Connectivity is being addressed through existing commitments, such as nature networks and national planning framework 4. Although ecological connectivity was considered, it was ranked as a low priority due to the limited quality and robustness of the available indicators. However, it sits under the three broad topics.

Amendment 34 seeks to add something to the bill that is already there. The first target topic is

“the condition or extent of any habitat”.

I reassure Ms Boyack that targets relating to the condition of designated natural features on protected sites and marine protected sites can be set under the first target topic. The programme advisory group will explore that as part of its four-step process of setting quantifiable targets.