Chamber and committees

You are right that the developers will put forward their own plans. However, their own plans might not be sufficient, or they might discover, as they are working to put forward their plans, that there are not enough compensatory, like-for-like measures—those at the top of the hierarchy—in order for them to deliver adequate compensation. I will bring in Joel Hankinson on this point; he might have more detail on it, as he has been working heavily on the governance and policy around this. Developers will be able to engage with the marine directorate and also with NatureScot, both of which will have an impact on what the marine recovery fund will deliver, so they will be able to suggest mitigations. Joel will have more detail.

I add that there will also be analysis of the impact of the compensatory measures. The committee will be very familiar with the Scottish marine energy research programme, or ScotMER. The data associated with applications, and the data that goes into ScotMER about the marine environment, biodiversity and the impact on species, will also feed in to the analysis of the impact of all the compensatory measures that have been made, so that that forms part of the wider analysis. We will also share learning across the borders of the four nations.

The policy note is highlighting that there is that potential. We will work to avoid that as much as possible so that all marine industries can co-exist. All the impacts on any part of the marine sector are taken into account by MDLOT as an application goes through the consenting process.

I was not able to see NatureScot’s part of the meeting but I hope that it was able to give you comfort that it is preparing for this work and that it sees it as positive. NatureScot is looking at structuring its operations to ensure that it has in-house expertise, so that it can work with developers and signpost them to the best compensation measures that might be available to them. It has been preparing for this. As I said, the Energy Act 2023 was introduced in the previous UK Parliament, so all the agencies across the UK have been preparing for a few years for the eventuality that we will have this flexibility and new hierarchy.

All the conditions that are associated with compensation from the developer will go in to MDLOT at the Scottish Government. To be honest, I cannot see a situation in which the scenario that you have described would happen, because we have developments of our own for which we need to find compensatory measures.

Regarding our general engagement with the fishing sector, it will have, and already has had, opportunities through that engagement to help to shape the compensation measures that have been structured. We have already been working with it. There will be engagement on the proposed measures, opportunities to provide that detailed knowledge about fishing activity and local marine conditions, and we would work with it on any intelligence and data that it might want to provide on fish species. We need to ensure that all marine industries are able to co-exist, so marine spatial planning will be very important, and the committee knows very well the work that has been done in that area.

The marine stakeholders in general have been involved in the development of the instrument and all the underpinning policy, which was done on a four-nations basis as a result of the Energy Act 2023. They have been able to input into that.

Another aspect of the matter is that, when it comes to any consultation on particular developments, representatives of the fishing industry can also put their submissions in to MDLOT, on a case-by-case basis.

In practice, the governance associated with the process is still the normal consent process, which is about the habitats regulations and the compensatory part of any kind of application for consent. As at the moment, developers will have to produce plans on what they intend to compensate on and the data associated with that, but the difference is that they will be able to include wider measures.

The hierarchy is very important in that process: at the top, developers must consider like-for-like measures wherever possible and applicable, but those measures might be augmented by other measures in tiers 2 and 3 of the hierarchy. The marine directorate consents unit will analyse all the data and plans that are put forward. Developers will be able to get advice on that from the marine directorate and also from NatureScot.

Developers can put forward their own plans, and their application will be judged on those plans, but they can also apply to the Scottish marine recovery fund. There is a strategic recovery fund for the whole of Scotland that will enable large-scale and strategic projects to take place. There will be a range of particular workstreams that might be able to be applied to and funded as part of that.

The decisions, which are made on the habitats regulations and will have due regard to the hierarchy, will still be made by the marine directorate licensing operations team—MDLOT—but will come to ministers, along with all the advice, as is usual.

Biodiversity loss is happening across many parts of the food chain, particularly those associated with seabirds. As data improves and science develops, I imagine that we might be able to take more suites of measures to protect seabirds from the various stresses that they face. That sharing of knowledge will be very important. Also, as I said, we will look every five years at whether the approach is workable, which is really important.

You make an important point. Obviously, there is some work that can be done now on a like-for-like basis. Will those measures be sufficient to stop the decline in the seabird population? Possibly not, but other measures may come through that might have an impact on the seabird population. This is way into the future, but we could even be looking at some strategic stuff around the impacts of avian flu, for example. Predator eradication and invasive species work is very time-consuming and costly and will take decades to keep on top of. Managing and eradicating invasive species will not be fixed in the next five years—it will require constant maintenance. That is like-for-like work.

Moreover, mitigation will not have to happen only in the geographical area where the development is. It could happen across Scotland, in any area in which a particular type of species is nesting, breeding or feeding. There will be quite a lot of scope.

The other thing is that it is about the entire UK marine protected area network. We are further ahead in our marine protected areas in Scotland, but species do not care about borders. Where they are and where they move to could be any part of the UK waters. That is why the strategic approach might yield more ambition in relation to taking away the stressors to marine life.

What you have highlighted is extremely important. Some of the ENGOs might be reticent about the regulations, but they have to be in the room, along with all the stakeholders that are associated with the marine environment. One major advantage of that is that the ENGOs and the associated scientific community will be able to work with us on the compensatory measures.

At the moment, the hierarchy is a proposal. We have not bottomed out all the actions that might be in the hierarchy, but the actions that are associated with all tiers of the hierarchy will be done in consultation with all stakeholders. Where there is an ability in the future to redevelop the hierarchy—the instrument will be reviewed every five years—we will be able to constantly analyse how the compensatory measures are working and whether we can do anything more. We might be able to add additional actions to certain tiers of the hierarchy. Given that there will be a marine recovery fund, the chances are that there will be an awful lot more funding associated with doing some of the bigger interventions. Every stakeholder that is associated with the marine environment needs to be around the table, because we cannot go forward without all that expertise.

I will just respond to that point. The governance framework will be set out after the SSI is approved. The governance framework is not in the instrument. That work is on-going. The compensatory framework and the hierarchy will be developed with stakeholders.

Thank you for the opportunity to speak to the instrument. I will try to be as brief as possible. Under the current habitats regulations, projects that affect protected sites must secure compensatory measures that are targeted specifically at the impacted habitat or species. In practice, only a limited range of measures can be evidenced to that standard, which creates a significant constraint for offshore wind development and puts climate and energy security ambitions at risk.

As a result of the passing of the Energy Act 2023, which was introduced by the former Conservative Government and delivered by the current Labour Government at UK level, we can now lay this Scottish statutory instrument, which introduces a more flexible approach but with strong safeguards. The core habitats regulations assessments remain, but new environmental safeguards will be brought into place and projects with potential adverse effects must still secure robust compensatory measures.

The SSI enables compensatory measures that support the wider UK marine protected area network, not only the impacted feature. Additional safeguards include the establishment of a compensation hierarchy to prioritise like-for-like measures but also enable wider alternatives when they are appropriate and offer enhanced ecological benefits.

We will publish guidance on how to apply the legislation and hierarchy and will review both regularly to ensure that the framework remains robust, transparent and responsive to new evidence. That guidance is being developed collaboratively with the UK Government and key stakeholders to ensure that it is grounded in scientific and industry expertise.

The SSI applies to Scotland’s inshore region, with a corresponding instrument to be introduced by the UK Government for offshore waters. The two instruments have been designed to align closely, and the guidance will apply across both inshore and offshore areas to support a consistent, joined-up approach.