Chamber and committees

First, I will set out why we do not believe there should be a non-regression clause in the bill. Such a clause would limit the flexibility that is required to operate in a changing climate and it is also difficult to quantify what regression means. It is quite subjective.

I am sorry if it took me a wee while to get there.

You mentioned the pandemic. That was an example of our having to look at some of our legal mechanisms, which were not responsive enough. Obviously, we had quite a lot of things with sunset clauses and so on, but that is just an indication of something that happens very quickly and needs to be responded to very quickly. The word “dynamic” is better than “agile”, because Parliaments and Governments need to be able to respond to things. The very nature of climate change, in particular, means that things happen that we have not seen before. Maybe some species that we have not seen before arrive in Scotland, and some of the species that we had protected are no longer in the protected sites that we created, because nature changes, moves and adapts to environmental circumstances.

It is interesting that you have linked that with human health. We do not talk enough about how biodiversity and nature are inextricably linked to human health. If we do not protect species in Scotland, we put in jeopardy our food systems and the health of the environment that we depend upon if we are to be healthy. That is an interesting analogy.

Obviously, I have already talked about the provision that will allow new topic areas to be included in the legislation in the future.

We decided that we would go for including

“the condition or extent of any habitat”

as a target topic. That resulted from the merging of two separate topics—habitat condition and habitat extent—on the basis that we did not think that condition alone would demonstrate whether the outcomes of the biodiversity strategy would be achieved. Habitat condition and habitat extent were therefore merged to become the single target topic of

“the condition or extent of any habitat”,

as recommended by the PAG.

I think that Scottish Environment LINK also mentioned ecological connectivity. We did not include that as a specific target topic because of the need to select and consolidate target topic areas. However, ecosystem integrity was seen as a high-level, scalable topic.

Scottish Environment LINK and other stakeholders have all said that they would like to see various topics in the bill. There are two points to make about that. We have made sure that our topics are broad enough to include some of those suggestions, but we are not ruling out any topics, should we have more robust indicators in future. I hope that that explains that we have chosen the topics based on the independent advice of the PAG and on the topics being broad enough to incorporate many of the concerns of stakeholders—and all of us—about what we need to measure. We also have the flexibility to scale up those topics or to add topics in the future. I hope that I have given the committee the confidence that that is available.

That is something that I want to discuss with them. I will work with stakeholders on their understanding of what we are trying to do.

I have laid out the protections that exist in relation to how the power could be used. The intention behind the power is in no way to dilute environmental protections; it is to enable us to adapt and improve environmental protections in a changing landscape and environment, and to ensure that we are not frozen in time.

I set out the restrictions that exist in relation to the 1994 habitats regulations. We need to be responsive and adaptive to new data, new evidence and changed circumstances—for example, by modifying the boundaries of protected sites or taking away protected site status where it is no longer needed and applying it to another area where it is needed. We need to be able to be fleet of foot in that respect. I think that I have perhaps not communicated the importance of that well enough to the environmental NGOs, and I want to have those conversations with them and give them assurances.

In response to your point about future Governments, I go back to what I said to Mercedes Villalba: Parliament holds Governments to account. The areas in which a Government would be allowed to use the power in question are quite limited. The power is binding in that regard. It would not allow future Governments to dilute anything.

The purpose of the provisions in part 2 is to get us to our goal of halting biodiversity loss as soon as possible and regenerating nature by 2045. I would not put anything in the bill that does not help us to do that.

Can I give you an example? I am in the same position—I am starting to get to grips with what is in the bill and what it does. I have been thinking about real-world examples of what the power would allow us to do and how nature restoration would be inhibited if it were not there.

Let me give you a hypothetical example of an area that had been designated as a special area of conservation, because it included a Caledonian pinewood forest. Over time, because of climate change and changes in nature, oak trees begin to sprout at the warmer end of that forest. Despite the climatic conditions favouring oak rather than pine, we would have to strip out that oak if we did not have the power to amend the habitats regulations; we would have to do so even though the oak was naturally occurring, was sequestering carbon and was part of the changing nature of that site. We would have to get rid of trees because the area had been designated primarily for its Caledonian pine habitat.

I want to take the committee back in the bill to the first purpose of using this power, which is

“to maintain or advance standards in relation to ... restoring, enhancing or managing the natural environment ... preserving, protecting or restoring biodiversity”.

The bill says that the power can be used only in that area and in certain other areas, which I will not go through again—they are on the record. None of the purposes are about stripping out and removing environmental protections from an area that needs them. If an area needs those protections, the Government will not be allowed to strip them out, given that purpose in the bill.

I fundamentally disagree with the word “gut”—the bill will absolutely not give anyone the power to do that. In order to change the regulations, a Government would need to have legitimate reasons that were grounded in enhancing and managing the natural environment. The power is focused on improving biodiversity and managing the environment in a way that is nature positive; it is not about stripping, gutting or anything like that. As I said, maybe our communication on this has not been strong enough. That is the reason that the power is in the bill.

Last week, you heard from Brendan Callaghan of Scottish Forestry on that point. He said:

“If there is no power for ministers to amend regulations, any minor amendment has to be made through primary legislation. The opportunities for doing that are quite limited, given the parliamentary schedule”

and how long it takes to get legislation through. He said:

“It is about good administration.”—[Official Report, Rural Affairs and Islands Committee, 28 May 2025; c 37.]

It is about agility, responsiveness, working with changing conditions in a way that reacts to them and working with the data and the evidence that are put in front of us, so that it will not take years for us to take action.

I would say the opposite. The very fact that the powers originated in EU law means that there is a gap now. The parent act was the European Communities Act 1972. That was a moment in time. We left the EU in 2021, or whenever it was, and we now have a fundamental gap. The purpose of part 2 of the bill is to fill that gap, which we do not believe has been addressed, in order to give us the flexibility that we used to have to respond to a changing climate and changing situations in nature and the environment.

You and I have worked closely together on other bills and we have been able to discuss amendments that you might want to lodge. My overall point is that the bill allows future flexibility by providing a power to add to the list of target topics. What is in the bill is what we were advised by the PAG to include. However, once the bill is passed, the door is not closed; there is the ability to add other topics. Indeed, there were some topics about which the PAG said that it did not have the necessary evidence base or information, so it asked for those not to be put in until it had more information. Maybe Lisa McCann can flesh out a little of the detail of that.

Do you mean the trigger of a certain date or a certain circumstance? The bill’s proposed new section 2E(5) of the Nature Conservation (Scotland) Act 2004 already allows ministers to add to the target topics. A time trigger, for example, would not be the right way to do it, because, as Lisa McCann has just said, the addition will be based on the development of the indicators. The advice that the PAG has given us is to develop those indicators. Then, at a point at which it is satisfied, the target can be added. There is not much point in having a target on which we cannot measure progress. There is no resistance to putting more targets in. It is just a case of wanting to put in targets for which we have the evidence base, the indicators and the prospect of being able to measure our success or otherwise.