Chamber and committees

I will speak to that fundamental point. As you have rightly said, there are already habitats regulations that contain minor amending powers, but they are very limited. They allow Scottish ministers to amend only the list of protected species, the additional list of wild animals that cannot be lawfully taken or killed and the prohibited methods of taking or killing animals. Beyond that, they do not have the flexibility that is needed to adapt to future circumstances of the sort that we mentioned in relation to part 1.

The bill provides a bespoke power that is tailored for Scotland to modify the habitats regulations and the legislation that forms the EIA regime, and, critically, it plugs a legislative gap that exists as a result of EU exit. The bill will allow the Scottish Government to respond to evolving circumstances; to be dynamic and agile in response to particular changes, needs, trends and impacts; and to maintain and advance environmental standards, responding to decisions that have been made in the past that are no longer relevant.

It is really important to note that the bill also provides protections. The power may be used only when Scottish ministers consider that doing so would be in accordance with certain purposes, which I will set out for the committee.

First, the power may be used

“to maintain or advance standards in relation to—

(i) restoring, enhancing or managing the natural environment,

(ii) preserving, protecting or restoring biodiversity,

(iii) environmental assessments”.

It may also be used

“to facilitate progress toward any statutory target relating to the environment, climate or biodiversity that applies in Scotland”,

“to ensure consistency or compatibility with other ... Regimes”

or

“to take account of changes in technology or developments in scientific understanding”.

That brings me back to the point about data and evidence as well as the point about the technology associated with assessing impacts on the environment.

The power may be used

“to resolve ambiguity, remove doubt or anomaly, facilitate improvement in the clarity or accessibility of the law”.

That goes back to Mercedes Villalba’s earlier point about the ability to resolve things that are not ambiguous in the law but which are not actually working. Finally, the power may be used

“to improve or simplify the operation of the law.”

The existing powers do not allow us to do any of that. I am proposing the power, because we need that agility, particularly to respond to the impacts of climate change. If we consider habitats in general, is primary legislation required to put in place special protection areas? I look to my officials for an answer.

Right. However, if we can use the proposed power, we will be able to be agile. We could have a situation in which a particular designation is out of date, because the circumstances on the ground have—literally—changed. Maybe the designation was there to protect a particular species or ecosystem where there was a threat to the environment, but that has changed. Maybe the species that were associated with the designation have moved further north or to another area as a result of climate change. The power will give us the agility to act in those areas, too.

The purposes that I mentioned are important safeguards, because we could not use the power willy-nilly. The reason will have to accord with one of those purposes.

Let me take that away.

When I was preparing for this, it was put to me that the simplest way to deal with this was to have a bespoke power for Scotland. If we do not have that, the standards and the legislation that we have, which are associated with EU legislation, will, in effect, be frozen at the time of the UK’s exit from the EU, and we will not be able to adapt beyond that. That is why we are looking to the bill to fill that gap. It means that we will be able to adapt to future circumstances and even to some present circumstances, many of which I outlined earlier.

It is not that we have not had those conversations with DEFRA. We have done an analysis of regulation 9D and we do not believe that it gives us the flexibility to respond in an agile way to situations on the ground and in the sea.

As I said, that would mean that every amendment that was needed, no matter how minor, would have to be made through primary legislation. The legislative vehicle for that might be a bill that would take a couple of years to implement. We have been talking about this bill for the past few years and only now are we putting it through the Parliament. It is about agility.

We are looking at the unworkability and disproportionality of that—

The power could be used only if Scottish ministers considered that using it would be in accordance with all the purposes that I have mentioned: maintaining and advancing standards in relation to restoring, enhancing or managing the natural environment; facilitating progress towards any statutory target relating to the environment, climate or biodiversity that applies in Scotland; ensuring consistency and compatibility with other legal regimes; and taking account of technologies and changes. Those are the safeguards that are in the bill. The power could not be used in a nefarious way.

They are very compelling, but I am willing to look at whether additional safeguards need to be put in place, because I would not want the power to be used as a loophole by any future Government. I think that those safeguards are robust.

Obviously, the DPLR did its inquiry. I think that I have set out some tangible examples of how the power could be used, both in the policy memorandum and in some of the examples that I have given today. Updating regulations on forestry EIAs could allow for more effective enforcement when breaches of environmental impact assessment consent conditions are discovered, which would allow greater alignment with the Forestry and Land Management (Scotland) Act 2018.

However, we cannot predict every circumstance that will require the use of the power. Having to be agile is in—I was going to say, “the very nature of nature”—the very nature of biodiversity and environmental protection. It is important that, when we develop legislation, we consider future proofing, especially in matters of the climate and nature crises, in which we have to be agile. We could be required to act urgently and decisively to address new and emerging threats. At the moment, every minor change to the EIA regime and habitats regulations can be made only through primary legislation. That does not allow us that flexibility and agility or that dynamic approach.

We are in a critical situation with climate and nature crises. We need the ability to be fleet of foot. I want to ensure that the bill has the correct balance between implementing the policy provisions and having suitable engagement and appropriate parliamentary scrutiny. As I mentioned before, in a parliamentary democracy, Governments cannot just do what they want; they have to be able to put policy through Parliament, like I am doing now.

The uses of the power will have to go through the Parliament. It will have to be scrutinised and the Parliament will say yes or no to the uses of the power. That is an important part of the jigsaw. We are worried—I know that I am—about emerging political discourse around the denial of the nature crisis and the need for net zero. I am very alive to that, and we have seen it in other countries. However, there are safeguards in the bill and there is rationale for taking the power—it is for nature positivity.

I am willing to speak to anybody who thinks that there could be further safeguards in place, but, fundamentally, a parliamentary democracy is the gatekeeper to the use of the power.

Certain elements of what Mercedes Villalba talks about, such as the release of non-native game birds, are not covered in the bill. We wanted to keep the targets and the habitats regulations as the main part of the bill, and we do not have any plans to do anything on the release of non-native game birds. However, the target topics allow us the capacity to deal with invasive non-native species more generally, both at the moment and in the future, as the targets are set.

The bill is not prescriptive to that level of detail on actions. It provides the ability to set targets, which can be quite broad in nature and under which actions can sit. Invasive non-native species will have an impact on the health of a habitat or an ecosystem. That is why the PAG advised us to have those broad target topics. What you ask about is not ruled out; it is just not specified in the legislation.