Biological diversity – or biodiversity – is the variety of life on earth. It includes diversity within species and variation between species and ecosystems. Scotland's biodiversity includes a huge variety of marine and land-based ecosystems and an estimated 90,000 species.

Biodiversity and natural systems underpin life on earth. Nature is crucial to human life, health and wellbeing, supporting it in complex and interlinking ways. 'Ecosystem services' provided by healthy, functioning ecosystems include, for example:

• Insect pollination and healthy soils supporting food production

• Flood risk management and water quality improvements from functioning ecosystems such as native woodlands, wetlands and restored peatlands

• Public health benefits of access to greenspace

• Coastal protection via ecosystems like salt marshes and kelp forests

• Climate regulation benefits of ecosystems which sequester and store carbon.

The global nature crisis (and key reviews - IPBES and Dasgupta)

Globally accelerating rates of biodiversity loss since the Industrial Revolution now exceed limits considered safe for humanity. A landmark global UN review of biodiversity trends in 2019 found that nature is declining globally at rates unprecedented in human history. This is now often termed the "nature", "ecological" or "biodiversity" crisis or emergency.

In terms of what is driving nature loss globally, the report set out:

The direct drivers of change in nature with the largest global impact have been (starting with those with most impact): changes in land and sea use; direct exploitation of organisms; climate change; pollution; and invasion of alien species. Those five direct drivers result from an array of underlying causes – the indirect drivers of change – which are in turn underpinned by societal values and behaviours that include production and consumption patterns, human population dynamics and trends, trade, technological innovations and local through global governance.

The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) review - a structure similar to Intergovernmental Panel on Climate Change (IPCC) reporting - found that it is not too late to make a difference, but that to do so, "transformative change" was needed, meaning "a fundamental, system-wide reorganization across technological, economic and social factors, including paradigms, goals and values.”

The IPBES review was followed in 2021 by an independent, global review on the Economics of Biodiversity led by Professor Sir Partha Dasgupta ('the Dasgupta review'), commissioned by the UK Government. The review sought to understand how ecosystems are affected by economic activity, and how we should account for nature in economics and decision-making. It found that:

Our unsustainable engagement with Nature is endangering the prosperity of current and future generations. Biodiversity is declining faster than at any time in human history. Current extinction rates, for example, are around 100 to 1,000 times higher than the baseline rate, and they are increasing. Such declines are undermining Nature’s productivity, resilience and adaptability, and are in turn fuelling extreme risk and uncertainty for our economies and well-being.

Dasgupta recommended urgent action to reverse trends of biodiversity loss, stating:

To do so would be significantly less costly than delay, and would help us to achieve wider societal goals, including addressing climate change (itself a major driver of biodiversity loss) and alleviating poverty.

Biodiversity in Scotland - the state of nature

Scotland’s level of ‘biodiversity intactness’ is amongst the lowest in the world, meaning Scotland is one of the world’s most nature-depleted countries (ranking in the lowest 15%).  

Since systematic monitoring of 407 species began in 1994, the abundance of those species has declined on average by 15%. While some of these species have seen increases, in the last decade alone 43% have declined. One in nine (11%) Scottish species are thought to be threatened with extinction.

More background on the nature crisis in Scotland can be found in the Scottish Biodiversity Strategy (published 2024) and the 2023 State of Nature Report for Scotland.

Global and domestic evidence of the nature crisis led the Scottish Government to commit in 2019 to a ‘step change’ in efforts to tackle biodiversity loss.  

Sources: IPBES review, State of Nature Scotland, NatureScot

The Global Biodiversity Framework for 2030

At a global level, the overarching issue of biodiversity loss is principally governed by the UN Convention on Biological Diversity (CBD). Global progress towards previous targets agreed under the UN CBD framework has been very limited (with Scotland failing to meet most of the 2020 'Aichi' targets). More detail on this can be found in a 2021 SPICe briefing on biodiversity. 

The 15th Conference of the Parties (COP15) on biodiversity led to the adoption of the Kunming-Montreal Global Biodiversity Framework (GBF). The GBF sets out a global target to halt biodiversity loss by 2030 and a global vision of a world living in harmony with nature by 2050.  The GBF also includes 23 individual 2030 targets (set out in the Annex).

Scottish Biodiversity Framework and consultation 

 In 2023 the Scottish Government published Tackling the Nature Emergency - strategic framework for biodiversity for consultation. The framework seeks to incorporate targets in the GBF as described above.  

The Scottish Biodiversity Strategic Framework includes the following elements: 

• A Scottish Biodiversity Strategy (published 27 November 2024) with a vision to halt biodiversity loss and be Nature Positive by 2030 and to have restored and regenerated biodiversity across Scotland by 2045. The Strategy also sets out six high-level objectives to: 

  • Accelerate restoration and regeneration

  • Protect nature on land and at sea, across and beyond protected areas  

  • Embed nature-friendly farming, fishing and forestry  

  • Recover and protect vulnerable and important species

  • Invest in nature 

  • Take action on the indirect drivers of biodiversity loss. 

• Six-year Delivery Plans – the 2024-2030 Biodiversity Delivery Plan (also published 27 November 2024) includes various actions and commitments aimed at delivering the goals in the Strategy. 

• The Natural Environment (Scotland) Bill – providing the legislative framework for setting and monitoring legal targets, to support meeting objectives in the strategy and its overall goals. 

The draft Biodiversity Strategy and Delivery Plan, and the COP15 outcomes, were scrutinised in the Scottish Parliament's Net Zero, Energy and Transport (NZET) Committee at various points in 2022-2024.

Section 1 of the Bill introduces a legislative framework for the setting, monitoring and reviewing of legally binding targets for improving biodiversity in Scotland.

It does so by amending the Nature Conservation (Scotland) Act 2004 ('the 2004 Act'). The 2004 Act set out a series of measures aimed at conserving biodiversity, including requirements for a Scottish Biodiversity Strategy and a duty on public bodies to further the conservation of biodiversity in exercising their functions (with an associated three-yearly reporting duty).

Section 1 of the Bill adds new sections 2B-2G to Part 1 of the 2004 Act under a new sub-heading 'Duties in respect of biodiversity targets':

• Purpose of setting targets: Section 2B provides that any targets set under that Part are to "provide a means of supporting and measuring the progress being made in respect of" (a) the implementation of the biodiversity strategy , and (b) generally, the duty under section 1 of the 2004 Act to further the conservation of biodiversity.

• Duty to set targets: Section 2C places a duty on Scottish Ministers to introduce biodiversity targets and gives them powers to do so by regulations. Section 2C requires that draft regulations (or a set of regulations) must be laid within 12 months of the section coming into force. Regulations will be subject to the affirmative procedure.

• Topic areas for targets: Section 2C gives Scottish Ministers the powers to introduce legal targets relating to any of the following three topics, or "any other matter relating to the restoration or regeneration of biodiversity as they consider appropriate":

  • the condition or extent of any habitat;

  • the status of threatened species;

  • the environmental conditions for nature regeneration.

The Scottish Ministers must set at least one target in respect of each of these topics. Section 2E gives Scottish Ministers powers to add to or amend the topic areas described above by regulations, subject to the affirmative procedure. Scottish Ministers must seek and have regard to independent scientific advice if adding to or amending the topic areas.

• Indicators for monitoring: Section 2C also requires Scottish Ministers to, when setting targets, "specify the manner in which, or indicators against which, progress toward and achievement of the target being set is to be measured."

• Duties in relation to meeting targets: Section 2D places a duty on Scottish Ministers to ensure that each target set is met. If a target is not met, or Scottish Ministers believe that this is no longer possible, they must lay a statement before the Scottish Parliament setting out:

  • their view as to why;

  • the steps that they intend to take as a consequence; and

  • as soon as reasonably practicable, lay draft regulations which revoke the target and set a new one.

This is one basis upon which the Scottish Ministers may make regulations which either revoke or diminish a target. Section 2F provides that they may also do so by regulations if: they are satisfied that meeting the existing target would have "no significant benefit compared with not meeting it or with meeting a diminished target", or, changes in circumstances or scientific knowledge since the target was set mean that the target is no longer appropriate.

• Duty to review targets and report on progress: Section 2E requires Scottish Ministers to report on progress towards the targets at least every three years and to review the targets "as they consider appropriate". It also requires Scottish Ministers to, at least once every ten years, review and report on the targets set under, and the topics described in, section 2C. Scottish Ministers must seek and have regard to independent scientific advice in conducting this review. Reports under this section must be laid before the Scottish Parliament and Scottish Ministers must make a statement in relation to the report.

• Requirement to seek scientific advice: Section 2F requires Scottish Ministers, before making regulations to set targets, to seek and have regard to scientific advice "from such persons as the Scottish Ministers consider to be independent and to have relevant expertise". The requirement to seek this advice does not apply if the regulations are being made in consequence of a review under subsection 2E (which itself must be informed by scientific advice) and the Scottish Ministers are satisfied that this advice is sufficient.

• Independent review: Section 2G provides that Environmental Standards Scotland (ESS) must (a) review each report prepared by the Scottish Ministers mentioned above under section 2E (reviewing progress towards targets at least every 3 years and reviewing the targets at least every 10 years), and (b) assess the manner in which the Scottish Ministers seek independent advice in compliance with their duties. ESS is to submit to the Scottish Ministers a report on the outcome of each of those reviews or assessments. Regulations subject to the affirmative procedure can designate someone other than ESS to carry out this role.

In the Policy Memorandum, the Scottish Government recognises that whilst biodiversity conservation policies in Scotland have had some localised success, the ongoing decline of biodiversity demonstrates that both the public sector and the private sector must do a great deal more, strategically and at scale, and there is a need to:

• Focus on ecosystem health and landscape scale regeneration as well as species management

• Mainstream biodiversity across sectors and the wider policy landscape

• Ensure sufficient investment

• Strengthen accountability for delivery.

The introduction of statutory targets is described as being part of the wider strategic framework for tackling the nature emergency, described above. The 2023 Tackling the Nature Emergency - strategic framework for biodiversity consultation stated that:

Successful targets will be ones which incentivise and drive actions to address these critical shortcomings: incentivising transformative change; ensuring that biodiversity is factored into policy development at all levels of government (often referred to as 'mainstreaming biodiversity'); providing a clear signal of the Scottish Government's long-term commitment to addressing the biodiversity crisis; and putting accountability for achieving goals onto a legislative footing.

Statutory targets will nest within a wider monitoring framework, to monitor progress against our domestic and international obligations and commitments, including primarily the Kunming/Montreal Global Biodiversity Framework (GBF).

Process for establishing a framework for targets

Measuring biodiversity and defining appropriate metrics (which are in turn able to indicate wider biodiversity trends) is a complex area, which makes the process for selecting targets and indicators an important part of establishing a legal framework. As well as being made up of components such as a given number of different species, having healthy ecosystems also relates to how species and habitats connect and interact, and function as a whole.

The Policy Memorandum describes a four-step process the Scottish Government established to develop a statutory framework for biodiversity targets:

1. Define the Policy Framework – define how the targets will be selected, using what criteria and within what parameters, and what form targets will take.

2. Define high-level 'target topics' - define the scope of targets by articulating high-level topics, against which the quantifiable detail will be set in secondary legislation.

3. Assign indicators to the proposed suite of targets – ensure that any targets can be measured using appropriate indicators for measurement.

4. Set the quantifiable values to targets – ensure targets meet the Specific, Measurable, Achievable, Realistic, Time-bound (SMART) criteria.

Scottish Government officials explained to the RAI Committee on 5 March 2025 that the next step will be step 3, looking at the indicators that are available.

Scientific advice from Programme Advisory Group

The Scottish Government also established a Biodiversity Programme Advisory Group (PAG), made up of external experts, to advise the Scottish Government on the development of the Strategic Framework for Biodiversity. This includes advising on the issue of statutory targets. A sub-group of NatureScot’s Scientific Advisory Committee has provided "a peer review function" of advice provided by the PAG.

Target topics recommended by the PAG but not included in the Bill

The Policy Memorandum states that four suggested target topics recommended by the PAG were not included in the Bill (in addition to the topic areas that were included - see above). These are:

• Investment in nature

• Positive outcomes for biodiversity in public sector and government policy

• Ecosystem health and integrity

• Citizens and society understanding, benefiting from and contribution to nature (i.e. people's understanding of and connection to nature, the benefits they derive from regenerating nature and how they contribute to a nature positive future).

For the first two suggested target areas above - the Scottish Government assessed these to be "unsuitable to be taken forward as statutory targets", although recognising their significance to successfully implementing the Scottish Biodiversity Strategy.

For the latter two suggested target areas - the Policy Memorandum states that the PAG acknowledged that "there is not currently an established approach to assessing how targets made under these topics could be measured". However, the Scottish Government states that it is working with the PAG and NatureScot to explore options for measurement and that "If these are deemed appropriate for statutory targets, these topics will be considered for inclusion within the target topics set out in the Bill in due course".

Scottish Government officials elaborated on some of reasons for not taking forward these target topic areas on the Bill in giving evidence to the RAI Committee on 5 March 2025:

• Regarding investment in nature: Officials said that whilst investment was incredibly important, including this as a legal target might have "perverse outcomes" or risk actions being taken in order to meet a target rather than pursuing biodiversity outcomes. Officials also referred to a large amount of work in relation to investment in natural capital e.g. the natural capital market framework (published 2024).

• Regarding positive outcomes in the public sector: Officials said this was essentially about mainstreaming, which is being pursued through the Biodiversity Strategy and Delivery Plan, and having a target could create unnecessary reporting bureaucracy, noting that public bodies have an existing statutory duty to further the conservation of biodiversity under the 2004 Act.

As set out above, the GBF sets out a global target to halt biodiversity loss by 2030 and a vision of a world living in harmony with nature by 2050. The Scottish Government has incorporated these into the Scottish Biodiversity Strategy, which sets out an aim to halt biodiversity loss by 2030 and a (more stringent) aim to reverse decline by 2045.

In the RAI Committee on 5 March 2025, Members explored with Scottish Government officials to what extent statutory targets would be able to have an impact on meeting the overall 2030 aim to halt the loss of biodiversity (NB/ There is nothing in the Bill that would dictate the time period for any target dates e.g. targets for 2030 etc).

Officials said:

The bill is not the only thing that Government is doing. As I said, we have had a biodiversity strategy for many years. Last year, we published the strategy and delivery plan, which set out some of the key actions that are being taken across Government. A lot is already being done; the targets are just another piece in that jigsaw. They are an important way to encourage the pace and scale of action to increase.

In the same session, Members also asked about the timeframe for commencing section 1 of the Bill (assuming it becomes an Act), given the urgency of the 2030 aim. Officials said:

I assume that commencement will be a decision for the next Administration, given the bill timelines that we are working to. We hope that commencement would happen as soon as was practically possible.

....we continue to work hard on what the detail of the targets will look like, so that we will be best placed to move as quickly as possible when that section is commenced.

As set out above, Part 1 of the Bill establishes Environmental Standards Scotland (ESS) as the Independent Review Body for legal biodiversity targets.

ESS is Scotland’s environmental watchdog. It is a Non-Ministerial Office, accountable to the Parliament, and established by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (the Continuity Act). Its principal function is to monitor public authorities’ (including Scottish Ministers’) compliance with environmental law, the effectiveness of environmental law and how environmental law is applied. The body was created to fill ‘governance gaps’ in relation to compliance with environmental law as a result of EU exit. It may take appropriate action to secure a public authority’s compliance with environmental law, or to secure improvement in the effectiveness of environmental law.

The Policy Memorandum sets out that the Scottish Government considers ESS as the most appropriate body to undertake the functions of the Independent Review Body. It states that consideration was given to the Climate Change Committee (CCC) but ESS is the preferred option given its existing role and alignment with equivalent bodies. NB/ The Bill allows for a different body to be made the Independent Review Body in future, by Regulations.

ESS gave some initial views on the Bill and its proposed new functions in the NZET Committee on 25 March 2025. It welcomed the introduction of statutory targets and its proposed scrutiny role, saying "this seems to be taking the nature emergency seriously".

In relation to fulfilling the review functions, ESS emphasised that it will need adequate resources to build its capacity so it can carry out the new role in a way that is compatible with its existing duties, and will protect its independence as an environmental watchdog and its accountability to the Scottish Parliament.

The Financial Memorandum sets out cost estimations for ESS taking up this role, which is expected to be the most significant direct cost associated with setting statutory biodiversity targets. ESS estimates that to fulfil the functions in the Bill, it will require 5.5 - 10 FTE staff plus resources for wider corporate functions, and a budget to procure specialist advice if needed. The total estimate of annual costs is provided as a range of £664,406 - £1,079,071.

This estimate, and its range, was also discussed in the NZET Committee on 25 March 2025 with ESS explaining that the lower number is the "absolute bottom line in terms of the number of staff members that we would need, and the upper figure is what we would need to have everything that we wished for and to be able to do a very broad range of work on what is a very important subject".

Consultation analysis

The Scottish Government consulted on nature targets as part of its strategic framework for biodiversity: consultation in 2023 and published a consultation analysis on 12 November 2024. The consultation analysis set out that:

• Overall, respondents agreed with the proposed approach to placing targets on a statutory footing. This included the criteria for selecting targets, the forms of targets, examples of potential target topics, the number of targets, and the timescale of delivering on targets

• Respondents were broadly positive about the proposed approach to reviewing targets, highlighting that it was important that targets remain relevant and an adaptive management approach be adopted

• Uncertainty surrounding the approach was predominantly due to a lack of detail or concern that the potential to review targets should not affect government ambition to act

• There was agreement with the proposed approach of aligning reporting timescales for targets with existing reporting requirements (for the biodiversity strategy), with some suggesting that more frequent reporting was needed to ensure public scrutiny

• Overall, the sentiment relating to an independent review body was positive, with many respondents highlighting the need for both independent and impartial accountability.

Scottish Environment LINK report

In 2023, Scottish Environment LINK (a network organisation of environmental NGOs) published a report, Nature recovery targets: Statutory targets to drive the recovery of nature in Scotland. The organisation had previously campaigned for the introduction of a Natural Environment Bill including the framework for targets through the Scotland Loves Nature campaign.

The report set out LINK's view that statutory biodiversity targets should:

• Incorporate a clear date for achievement, and milestones leading to that date

• Achieve both a reversal of current negative trends and an effective regeneration of biodiversity in relation to past and historic losses

• Be relevant and specific to the outcome to be achieved

• Be measurable – to allow clear monitoring and reporting of progress and

• Be achievable and realistic – especially in relation to means/interim targets.

The report sets out a view that a key weakness in the existing legislative approach to biodiversity is that legislation to date has largely focused on protecting remaining nature, rather than on reversing declines, and on restoration. It also sets out that a key difference between climate targets and the appropriate approach to nature targets is that "nature recovery targets require a wide range of interlinked targets (as opposed to one simple metric)" in order to achieve adequate "coverage" of targets.

Scottish Environment LINK has published a blog with its initial views of the Bill, which in relation to Part 1 states that "while there are points of difference", the Bill "broadly follows" its recommendations.

Biodiversity targets in other parts of the UK

• England (statutory targets set)

In England the UK Environment Act 2021 set out the framework for a suite of environmental targets, requiring the UK Secretary of State to set at least one long-term (at least 15 years from when set) target in relation to each of biodiversity, air quality, water and resource efficiency and waste reduction.

The same Act also requires the UK Secretary of State to set a 2030 "species abundance target", designed specifically to "halt a decline in the abundance of species". It also sets out associated requirements around review and reporting, and in what circumstances targets may be revised.

Subsequent regulations, the Environmental Targets (Biodiversity) (England) Regulations 2023 set the following targets for England:

• to reduce the risk of species going extinct in 2042, compared with 2022

• to create or restore "in excess of" 500,000 hectares of wildlife-rich habitats by 2042

• to ensure overall species abundance is increasing rather than decreasing by 2030, and increases by 10% by 2042, compared with 2030.

Those Regulations also set out detailed measurement arrangements to indicate progress and reporting requirements. A number of (non-statutory) interim targets are also set out in the UK Government's Environment Improvement Plan, which cover habitat restoration and creation, and the condition of protected sites.

The Office of Environmental Protection ('OEP', the environmental watchdog for England and Northern Ireland) has a statutory role to monitor both the targets and environmental improvement plans introduced under the UK Environment Act 2021. An OEP progress review published in January 2025 raised concerns about limited progress and made a number of recommendations.

• Wales (Bill expected in 2025)

The Welsh Government has committed to setting legally binding biodiversity targets, and published a White Paper consulting on proposals for legislation in 2024. A Bill is expected to be introduced in 2025 (which is also expected to include arrangements for environmental governance).

In the White Paper, the Welsh Government sets out that the introduction of targets is proposed as part of a wider "strategic nature recovery framework", and will involve setting "a headline nature positive target in the Bill and a suite of supporting biodiversity targets to be set by the Welsh Ministers in secondary legislation", as well as effective monitoring, reporting and scrutiny requirements.

The White Paper also sets out relevant existing legislation to biodiversity, including the Well-being of Future Generations (Wales) Act 2015, which required Welsh Ministers to set "milestones" against national indicators to assist in measuring overall wellbeing. A number of these milestones relate to the natural environment and include "Areas of healthy ecosystems in Wales" and "Status of Biological diversity in Wales".

The Senedd's Climate Change, Environment and Infrastructure Committee has conducted an inquiry on halting nature loss and published a report in January 2025 which includes a suite of recommendations about the forthcoming Bill in Wales. Recommendations include that the Welsh Government should commit to a ‘headline target’ aligned with the GBF commitments to halt and reverse the loss of nature by 2030 and achieve recovery by 2050, and that 'headline targets' should be set as a matter of priority given the urgency of the nature crisis (within 12 months of Royal Assent).

• Northern Ireland (non-statutory biodiversity indicators)

The UK Environment Act 2021 requires the Department of Agriculture, Environment and Rural Affairs in Northern Ireland to prepare an environmental improvement plan, defined as "a plan for significantly improving the natural environment", but does not explicitly require the setting of statutory targets. The Northern Ireland Environmental Improvement Plan (published in 2024) sets out a range of non-statutory biodiversity targets alongside policy commitments, including a commitment to "Publish a suite of annual biodiversity indicators to report on progress against biodiversity targets", aligned with the GBF targets.

EU Nature Restoration Regulation

The Scottish Government has said it wants to align with EU environmental standards where appropriate.

The EU adopted a Nature Restoration Regulation in 2024 which sets binding targets to restore degraded ecosystems, recognising that Europe’s nature is in significant decline, with more than 80% of habitats in poor condition. Specific targets are set across a range of detailed areas including in relation to:

• The restoration of habitats on a large scale

• Pollinating insects: reversing declines by 2030, and achieving an increasing trend

• Forest ecosystems: including forest connectivity, abundance of birds and carbon stocks

• Urban ecosystems: including no net loss of urban green space and an increase from 2031

• Agricultural ecosystems: including increasing grassland butterflies and farmland birds

• Marine ecosystems: including restoring habitats such as seagrass beds or bottom sediments

• River connectivity: including identifying and removing barriers to connectivity.

Regarding alignment with EU law, the Policy Memorandum states that EU policies and Scottish policy intentions are aligned to meet the same strategic vision, and states:

Given the international context, and the set of nature targets that the EU have developed, there is a good degree of confidence that the policies developed will have strategic alignment.

It also notes that the Scottish Government's policy intention is to work to a 2045 target for Scotland, whereas the EU regulation aligns with the later GBF 2050 target.

One of the priority actions in the Scottish Biodiversity Delivery Plan is to "ensure that at least 30% of land, freshwater and sea is protected or conserved and effectively managed to support nature in good health by 2030 (30 by 30)".

This '30 by 30' target stems from Target 3 in the Global Biodiversity Framework which is to:

Ensure and enable that by 2030 at least 30 per cent of terrestrial, inland water, and of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem functions and services, are effectively conserved and managed through ecologically representative, well-connected and equitably governed systems of protected areas and other effective area-based conservation measures, recognizing indigenous and traditional territories, where applicable, and integrated into wider landscapes, seascapes and the ocean, while ensuring that any sustainable use, where appropriate in such areas, is fully consistent with conservation outcomes, recognizing and respecting the rights of indigenous peoples and local communities, including over their traditional territories.

NatureScot has published a 30 by 30 framework setting out Scotland's approach to pursuing this goal including what sites will contribute towards 30 by 30.

For Scotland, the 30 by 30 network will be made up of existing Protected Areas and Other Effective Area-based Conservation Measures (OECMs), a new mechanism in Scotland for recognising sites where management is beneficial for nature in the long term.

On land, existing 'Protected Areas', for the purpose of the framework, means Sites of Special Scientific Interest (SSSIs), Special Protection Areas and Special Areas of Conservation (SPAs and SACs, collectively known as European sites), Ramsar sites and National Nature Reserves (NNRs).

At the moment, existing Protected Areas cover 18.2% of Scotland's land. The area commitment has already been achieved in the marine environment, with 37% of Scottish waters lying within Marine Protected Areas (MPAs). The focus in the marine environment is now primarily on the condition and effectiveness of management within MPAs.

The Scottish Government published a consultation on 2 April 2024, Meeting our '30 by 30' biodiversity commitment on terrestrial and freshwater sites: consultation on legislative proposals. The consultation proposed two broad changes with the overall aim to support progress towards the 30 by 30 target:

• To create more flexibility in how protected areas for biodiversity are designated, by enabling that sites should be able to be designated on the basis of important ecosystems on land or interactions between habitats (rather than component habitats and species populations within a landscape).

• To encourage more "proactive management" of protected areas, by amending existing provisions for Land Management and Nature Conservation Orders to clarify their purpose - and if necessary strengthen them through clarifying their role in addressing slow deterioration over long periods, such as addressing the threat of invasive non-native species spreading over native habitats such as woodlands.

These have not been taken forward in the Bill. The Policy Memorandum states that whilst there were "generally positive responses to the consultation proposals to make minor amendments to the framework for protected areas", the Scottish Government decided not to take forward the proposed amendments.

This was principally because the legislative framework for nature conservation generally, and protected areas in particular is complex, spread across several pieces of legislation, and the benefits to the proposed changes "would be undermined by increasing the complexity of the legislative framework" and would not address wider underlying weaknesses which have been identified by NatureScot.

A consultation analysis was published by the Scottish Government in February 2025. It set out that out of 64 respondents:

• 84% of respondents supported the proposal that the Scottish Government should allow protected areas to also be designated on the basis of important ecosystems in addition to individual natural features.

• 86% of respondents supported the Scottish Government clarifying the existing powers that require management and restoration of protected areas, making it clear that this requirement also covers protected areas that are experiencing slow deterioration.

Powers to modify EIA legislation and the Habitats Regulations

Section 2 of the Bill gives Scottish Ministers the power to, by regulations, modify (i.e. amend, revoke or repeal) or restate all or any of "the relevant EIA legislation" and the Habitats Regulations.

The Policy Memorandum describes the regulations covered by these section 2 powers as "key aspects of the legal frameworks which underpin the environmental protection and assessment processes in Scotland, on land and at sea (out to 12 nautical miles("nm"))."

The Habitats Regulations mean the Conservation (Natural Habitats, &c.) Regulations 1994, or "the 1994 Habitats Regulations".

"Relevant EIA legislation" is defined in section 4 as:

• the provisions of the Harbours Act 1964 which relate to the environmental assessment of projects concerning ports and harbours

• the provisions of the Roads (Scotland) Act 1984 which relate to the environmental assessment of projects concerning roads for which the Scottish Ministers are the roads authority (within the meaning of section 151 of that Act)

• the provisions of the Transport and Works (Scotland) Act 2007 which relate to the environmental assessment of the construction or operation of transport systems of the kinds set out in section 1 of that Act and inland waterways

• the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007

• the Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Regulations 2010

• the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017

• the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017

• the Agriculture, Land Drainage and Irrigation Projects (Environmental Impact Assessment) (Scotland) Regulations 2017

• the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017

• the Masterplan Consent Area Scheme (Environmental Impact Assessment) (Scotland) Regulations 2024.

Purposes for which the power may be used

Scottish Ministers may only exercise the power to modify or restate the above-mentioned regulations for one or more of the purposes described in section 3 of the Bill. Those purposes are:

• (a) 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,

• (b) to facilitate progress toward any statutory target relating to the environment, climate or biodiversity that applies in Scotland (including, in particular, the net zero emissions target set by section A1 of the Climate Change (Scotland) Act 2009)

• (c) to ensure consistency or compatibility with other legal regimes (either domestic or international)

• (d) to take account of changes in technology or developments in scientific understanding

• (e) to resolve ambiguity, remove doubt or anomaly, facilitate improvement in the clarity or accessibility of the law (including by omitting or repealing anything which is legally unnecessary), or

• (f) to improve or simplify the operation of the law.

Duty to consult: Before making regulations under section 3, the Scottish Ministers must consult such persons as they consider may have an interest in, or otherwise be affected by, the regulations (section 2(5) of the Bill).

Procedure: Regulations using the power in section 3 must be made using the affirmative procedure where that use of powers:

• (a) creates an offence

• (b) amends an existing offence in a manner that increases the range of activity that is to constitute a criminal offence,

• (c) confers a power to— (i) arrest a person, (ii) search a person, (iii) enter and search a vehicle, premises or land, (iv) inspect, seize or detain any thing possessed by a person or found in or on a vehicle, premises or land

• (d) amends an existing power of a type listed in paragraph (c) in a manner that extends the circumstances in which such a power may be exercised

• (e) imposes, or confers on a Scottish public authority the power to impose, a fee or charge

• (f) amends the amount of a fee or charge (other than an amendment to reflect a change in the value of money), or

• (g) textually amends an Act.

Otherwise, section 2(7) of the Bill states that Regulations would be made under the negative procedure "if they have not been subject to the affirmative procedure".

This means that Scottish Ministers would have the ability to decide, on a case by case basis, whether to use the affirmative or negative procedure, unless the specific circumstances above (in bullets) apply, in which case the affirmative procedure must be used. The Delegated Powers Memorandum states that "Allowing for a choice of procedure represents a sensible, pragmatic and efficient approach".

The EIA regime and Habitats Regulations are key legislation relating to the protection of the environment in Scotland including biodiversity. This section summarises, broadly, how they both work.

NB/ While both regimes provide for assessment of the impacts of a project or proposal, the Habitats Regulations affects the ultimate decision-making process in a significantly different way to EIA requirements.  The EIA regime takes a procedural approach, ensuring that the decision-maker will have information on the environmental effects of the proposal, to inform its decision. By contrast, the Habitats Regulations require the decision-maker to refuse permission for a proposal in certain circumstances, set out in more detail below, as they seek to provide a level of protection for sites designated for important habitats and species.

Strategic Environmental Assessment

The Bill does not amend legislation for Strategic Environmental Assessment (SEA) in Scotland.  Also derived from an EU Directive, SEA generally mirrors the EIA process, but for plans and programmes rather than individual projects. 

When the SEA Directive was implemented in Scotland, the decision was taken by the Scottish Government to extend this process to a broader range of plans and programmes than what was specified in the Directive, therefore this required primary legislation, rather than using the regulation-making powers under the European Communities Act 1972 which were limited to implementing EU law as it stood.  Accordingly the Environmental Assessment (Scotland) Act 2005 was passed and will continue to govern SEA, and it does not contain a power to make amendments by way of regulations.

Why does the Scottish Government consider a new power is needed?

The Policy Memorandum states that "The overarching policy intention 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".

It also states that "This power will provide the flexibility to adapt to future requirements, while ensuring that the legislative frameworks continue to effectively underpin environmental protection and assessment processes in Scotland."

How might the power be used?

The Policy Memorandum sets out some more context on the potential circumstances where the powers may be used, whilst noting that not all future uses of the powers can be predicted, and that the aim is to provide flexibility for the long-term.

Notably the Policy Memorandum sets out:

• In relation to 'flexibility’ around site designations: the Policy Memorandum sets out that at the moment, there is no mechanism to adapt European sites other than to designate additional sites or to add additional protected species or habitats (“features”) to a site, and this limits the ability of the site network to adapt to climate change, for example if the natural range of a “feature” has shifted. Should the Bill become law, it states that "Scottish Ministers could amend the 1994 Habitats Regulations in future to ensure that European protected sites can be adapted to meet changing circumstances".

• In relation to renewable energy and offshore wind in particular: The Policy Memorandum states that offshore wind is intended to play a significant role in achieving Scotland's net zero target, with the 2020 Offshore Wind Policy Statement setting an ambition to achieve up to 8-11GW of offshore wind in Scottish waters by 2030. The UK Energy Act 2023 already allows Scottish Ministers to amend certain parts of the Habitats Regulations (set out in more detail below), which the Scottish Government states is "in recognition of the fact that the current environmental assessment regime under the Regulations will not allow offshore wind development at the pace and scale required to meet Scottish and wider UK renewable energy targets, or the British Energy Security Strategy".

The Policy Memorandum sets out that the powers in the UK Energy Act 2023 alone would not enable Scotland to realise its offshore wind ambitions because they could not be used to amend the Habitat Regulations in respect of associated grid infrastructure requirements on land or port/harbour developments. More generally, the Policy Memorandum states that existing delegated powers “fall short of what is required to realise the ambition set out in the Offshore Wind Statement, and to enable Net Zero targets to be met through future developments in renewable energy technology”.

• In relation to alignment with potential changes across the UK: There is a potential for the UK Government, using powers in the UK Levelling-up and Regeneration Act 2023, to replace the EIA system in England with a new approach using Environmental Outcome Reports (EORs). The Policy Memorandum states that  it may be necessary in future to ensure that EIA regimes in Scotland can interact operationally with this regime (also see further developments to the environmental assessment regime in England discussed below).

What existing powers are there and how do they compare to the power in the Bill?

The Policy Memorandum sets out that there are some existing powers available to amend the EIA regime and 1994 Habitats Regulations, but these powers "can only be exercised for specific, or limited, purposes and do not provide Scottish Ministers with the flexibility that may be required in future to ensure that the legislation remains fit for purpose."

Those existing powers are set out in more detail below. Generally speaking, existing powers of Scottish Ministers to amend the Habitats Regulations and Scottish EIA legislation are:

• Spread across a number of pieces of legislation

• Limited in various ways in relation to e.g. the specific purposes for which they may be used, or by time-limits, and

• Subject to a range of approaches aiming to provide 'environmental safeguards' such as non-regression, requirements to seek to align with certain duties or plans, or to seek scientific advice or consult statutory nature bodies.

Overall, this provides for a complex legal landscape in this area.

The existing powers are:

• Amending powers in the 1994 Habitats Regulations which were added by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (introduced as part of the retained law process). Scottish Ministers have existing powers to amend the 1994 Regulations to:

  • Amend Schedules 2 or 4 for the purpose of adding an animal or plant species in need of strict protection, where they are satisfied that its natural range includes any area in Scotland

  • Amend Schedules 2 to 4 (which relate to protected species and methods of protection) as they consider necessary to adapt to technical and scientific progress

  • Amend Annexes I to IV of the Habitats Directive (which relate to both the features for which sites are designated and protected species) as considered necessary to adapt to technical and scientific progress.

Regulations amending Schedule 2 (European protected species of animal) of the 1994 Regulations or Annex IV of the Habitats Directive (animal and plant species in need of strict protection) for the purpose of adapting to scientific or technical progress, must use the affirmative procedure, otherwise regulations are subject to negative procedure.

NB/ If Scottish Ministers wished to use the powers in the Bill to amend Schedule 2 or Annex IV as above to take into account scientific developments, it would be up to Ministers to decide which scrutiny procedure to apply. There is no requirement to use the affirmative procedure in those circumstances.

• The ‘keeping pace’ power in section 1(1) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (the Continuity Act) which conferred a power on Scottish Ministers to allow them to make regulations with the effect of continuing to keep Scots law aligned with EU law in some areas of devolved policy. This power will 'sunset' i.e. expire on 29 March 2027, unless amended by Scottish Ministers to extend it. Prior to EU exit, Scottish Ministers had a similar power under section 2(2) of the European Communities Act 1972 ('1972 Act'), in order to implement EU law where that new EU law was not directly applicable. Regulations are subject to the affirmative procedure in certain circumstances, otherwise Scottish Ministers can choose to apply the affirmative or negative procedure.

• UK Energy Act 2023 powers to amend the Habitats Regulations in relation to offshore wind: Section 293 of that Act conferred powers on Scottish Ministers to make regulations in connection with the assessment of the environmental effects of offshore wind in relation to protected sites in the Scottish inshore region. Powers were also conferred to make provision about how public authorities secure compensatory measures for any adverse environmental effects of offshore wind on protected sites. Regulations are subject to the affirmative procedure and before making regulations, Scottish Ministers must consult NatureScot, other UK nature agencies in certain circumstances, and "such other persons as they consider appropriate".

The Policy Memorandum states that this is "a broad power which enables potentially significant changes to the 1994 Habitats Regulations". However, the power is not unfettered - it may not be used to "disapply or otherwise modify, or make provision which could undermine or circumvent" regulation 49 of the Conservation (Natural Habitats, &c.) Regulations 1994. This refers to the aspect of Habitats Regulations Appraisal set out above - that a competent authority may not authorise a development that has an adverse effect on a site unless they are satisfied that, there are "no alternative solutions", and the plan or project "must be carried out for imperative reasons of overriding public interest" ('IROPI test') with compensatory action being taken.

NB/ By comparison, if Scottish Ministers wished to use the powers in the Bill to amend the 1994 Habitats Regulations for any of the allowable purposes (rather than using these powers in the UK Energy Act 2023), this "environmental safeguard" in the 2023 Act would not apply i.e. Scottish Ministers would have the power to amend regulation 49 of the 1994 Habitats Regulations under the Bill.

The UK Secretary of State may also make provision under section 292 of the UK Energy Act 2023 to establish a 'marine recovery fund', which offshore wind developers would pay into and which would be used to fund compensation activities for adverse environmental effects of relevant offshore wind activities. The powers in the UK Energy Act 2023 to amend the relevant habitats regimes were developed as part of the UK Government's Offshore Wind Environmental Improvement Package (OWEIP) which aims to facilitate the consenting of offshore wind. One aspect of this is to allow developers to pay into a Marine Recovery Fund to discharge environmental compensation obligations. The UK Government and Scottish Government are in the process of finalising polices in this area with a view to introducing Regulations using these powers.

• UK Levelling up and Regeneration Act (LURA) 2023 powers to amend the Habitats Regulations and EIA regime: Section 152 of this Act gives Scottish Ministers (and the Secretary of State, with consent from Scottish Ministers in section 157) powers to make regulations for Environmental Outcome Reports (EORs) in Scotland and, by virtue of section 164 of the LURA, includes powers to amend, repeal or revoke all Scottish EIA legislation or the Habitats Regulations (importantly - only in relation to the interaction of those regimes with EOR Regulations). Any regulations would be subject to the affirmative procedure.

The concept of EORs was introduced by the previous UK Government as an alternative to EIA with an aim to simplify processes. The UK Government confirmed in December 2024 that it would seek to introduce EORs and amend EIA and Habitats Regulations as part of this. Detailed proposals have been consulted on by the UK Government in a planning reform white paper (for England) and further changes are proposed in this area via the UK Planning and Infrastructure Bill (see more information below).

The powers in the LURA are subject to environmental safeguards including a non-regression provision. Under section 156 of the LURA, an appropriate authority "may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed". An appropriate authority must also seek to ensure that the new system enables "adequate public engagement" in relation to a proposed plan or consent.

Scottish Ministers would also be required, if using these powers, to "have regard to" the environmental policy strategy which the Scottish Government is required to produce under the Continuity Act (NB/ This strategy has not yet been published by the Scottish Government). This echoes the requirement that the UK Secretary of State is required to have regard to the Environmental Improvement Plan for England.

NB/ By comparison, if Scottish Ministers were to use the power in the Bill to amend the Habitats Regulations or EIA legislation for the purpose, for example, of achieving compatibility or consistency with any (future) EOR Regulations, these environmental safeguards would not apply. There is no non-regression provision in the Bill (discussed further below) or equivalent duty to have regard to the as yet unpublished environmental policy strategy.

• UK Retained EU Law (Revocation and Reform) Act 2023 (REUL Act): Section 14 of the REUL Act gives Scottish Ministers powers to revoke and replace assimilated EU law in secondary legislation. These are limited powers which will largely sunset (expire) on 23 June 2026.

• Town and Country Planning (Scotland) Act 1997: Section 40 gives Scottish Ministers powers to make regulations "about the consideration to be given, before planning permission for development of any class specified in the regulations is granted, to the likely environmental effects, including effects on biodiversity" of a proposed development. The Policy Memorandum describes these powers as being limited given they can only apply to EIA processes up to the point a consent is granted (so for example could not be used in relation to EIA aspects post consent such as monitoring regimes).

The UK Planning and Infrastructure Bill

Since the Bill was introduced, the UK Government has introduced the UK Planning and Infrastructure Bill (on 11 March 2025) which seeks to make further significant changes to the environmental assessment regime in England including changes to the applicable Habitats Regulations in England, which would interact with the development of an Environmental Outcomes Report (EOR) regime in England (more on this above).

The changes are summarised in a House of Commons Library briefing. In brief, the changes would allow developments to go ahead where they are likely to have significant adverse impacts on designated sites in England, provided a payment was made into a Nature Restoration Fund in line with an Environmental Development Plan.

The Scottish Government said (in March 2025) in the Legislative Consent Memorandum for the UK Planning and Infrastructure Bill, in relation to forthcoming changes in England regarding development of EOR, that it will consider the detail "before taking a position on the adoption of EOR for Scotland", and "In the meantime, it is the policy of the Scottish Government to retain the environmental protections afforded by the EIA framework".

2024 consultation

The Scottish Government consulted on Enabling powers for Scotland's Environmental Impact Assessment regimes & Habitats Regulations in 2024. The consultation sought views on both whether new powers were needed "to better support future legislative amendments to Scotland's EIA regimes and the Habitats Regulations in Scotland", and also "what limitations should be placed on their purpose or use".

In relation to both the EIA regimes and Habitats Regulations, the Scottish Government said that it wants to "ensure the appropriate balance is achieved between providing flexibility to amend" those regimes, "to make important improvements and/or adapt to future circumstances, whilst ensuring they continue to effectively underpin environmental protection and assessment processes".

The consultation did not set out specific proposals for purposes or environmental safeguards but asked for views generally on how the scope of, or limits on, enabling powers could be set.

Consultation analysis

The Scottish Government published a consultation analysis on 14 November 2024 which set out:

• An overall majority of respondents agreed with the Scottish Government’s rationale for seeking the enabling powers to amend the EIA regimes and Habitats Regulations, but a majority also agreed that there should be limitations on use of those powers

• A common concern related to the level of scrutiny afforded to future amendments. Many respondents expressed that there should be public consultation as well as appropriate Parliamentary scrutiny and impact assessments

• There was significant concern amongst some respondents that the environmental protections offered by the regimes could be weakened. Some suggested limiting the enabling powers in such a way that there could be no reduction in the level of environmental protection. A few respondents specifically suggested that should be achieved through a “non-regression” clause (discussed further below)

• However, there was also some recognition that flexibility was necessary and could provide benefits. Some suggested for example that there is a need to amend the Habitats Regulations to make the legislation fit for purpose in the 21st century

• Some respondents suggested that it would be necessary to conduct a periodic review of the powers in order to ensure they remain fit for purpose

• Some respondents also thought that the enabling powers could allow for legislative changes to be implemented which could have a beneficial impact on businesses.

Consideration of a non-regression clause (not in the Bill)

The power in the Bill for Scottish Ministers to amend EIA legislation and the Habitats Regulations is not subject to an environmental 'non-regression' provision. This means that the power (other than for the purpose of section 3(a), which is specifically about maintaining or increasing environmental standards), could potentially be used in a way that reduces overall levels of environmental protection.

The Policy Memorandum sets out the Scottish Government's reasons for not including a non-regression provision, which had been advocated for by some NGOs. It states that careful consideration was given to this proposal but that "this would significantly limit the flexibility of the power and therefore the Scottish Government’s ability to adapt to changing circumstances" and it "will likely be very difficult to demonstrate a non-regression provision is met in some cases – for example if amendments were proposed for net zero purposes that required a change or reduction in certain aspects of current environmental protections...".

It states that including a non-regression provision could:

• lead to significant delays in making amendments or prevent amendments

• limit the ability to adapt the protected areas network to changing circumstances

• may limit the ability to adapt the regimes to ensure developments which support offshore wind can go ahead, posing a risk to meeting net zero targets.

International obligations potentially relevant to non-regression

International obligations may be relevant to the ability of the Scottish Government to reduce environmental standards in certain areas, where it has a responsibility to implement international law and agreements in devolved areas.

For example, the terms of the EU-UK Trade and Cooperation Agreement could be relevant to the scope the Scottish Government has to amend environmental assessment regimes. Parties i.e. the EU and the UK have committed that they “shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period” (art 391) and that they “reaffirm their respective commitments to procedures for evaluating the likely impact of a proposed activity on the environment, and where specified projects, plans and programmes are likely to have significant environmental, including health, effects, this includes an environmental impact assessment or a strategic environmental assessment, as appropriate” (art 393).

The wider international context is also worth considering, regarding what international obligations are relevant to devolved areas.  As mentioned above, aspects of the EU Habitats Directive were introduced to implement international agreements to which the UK is still a party.

In particular, the 1979 Convention on the Conservation of European Wildlife and Natural Habitats ('Bern Convention') and the 1979 Convention on the Conservation of Migratory Species of Wild Animals ('Bonn Convention') impose obligations the Habitats Regulations seek to deliver in Scotland. 

In relation to EIA, such procedures must be in place for certain activities likely to cause significant adverse transboundary impact in order to meet the obligations under the 1991 Convention on Environmental Impact Assessment in a Transboundary Context ('Espoo Convention').

National Parks in Scotland are created and governed by the National Parks (Scotland) Act 2000 ('the 2000 Act'). Part 3 of the Bill makes a number of amendments to the 2000 Act (and some minor amendments to other legislation).

Section 5 on National Park aims

Section 5 of the Bill replaces section 1 of the 2000 Act in order to amend the statutory aims of National Parks, the changes are summarised in the table below.

As can be seen by comparing the purposes in the Bill to the existing aims, the amended aims in section 5 (a) to (d) of the Bill are very similar but with some changes to language and wording. The new subsections 1(2)(a) to (f) provide more detail on what is included within the aims, without limiting the generality of these aims.

Under section 9(6) of the 2000 Act, in exercising its functions a National Park authority must act with a view to accomplishing the legal aims; but if it appears to the authority that there is a conflict between aims, the authority must give greater weight to the first aim (to conserve and enhance the natural and cultural heritage of the area). This 'weighting' in the 2000 Act is unchanged by the Bill. 

Section 5: Duty to have regard to the National Park aims

Section 5 of the Bill also places a duty on Scottish Ministers, a National Park authority, a local authority and any other public body or office-holder to, in exercising functions so far as affecting a National Park (and only in relation to functions exercisable in or as regards Scotland which do not relate to reserved matters), have regard to the National Park aims set out above.

This is a new duty. At the moment, the 2000 Act includes a duty for the same bodies to have regard to National Park Plans. The Policy Memorandum states that this duty does not displace responsibilities that are the primary remit of a public body and "it is recognised that they would need to be balanced against other duties and considerations".

Section 6: Addition of definition of biodiversity to 2000 Act

Section 6 of the Bill adds a definition of “biodiversity” to section 35 of the 2000 Act (as biodiversity is not previously a term used in the 2000 Act and would be added to the Act by virtue of the Bill's amendments to National Park aims - see above). The definition added is that used in the UN Convention on Biological Diversity i.e. rather than include a specific definition, the provision refers to whatever the current definition is in that international Convention, of which the UK is a signatory. This is the same approach used for defining biodiversity in the Nature Conservation (Scotland) Act 2004.

Section 7: Duty for relevant public bodies to facilitate the implementation of Park Plans

Section 7 of the Bill places a duty on public bodies to "facilitate the implementation of” National Park Plans. The duty applies to the Scottish Ministers, a National Park authority, a local authority and any other public body or office-holder only so far as is consistent with the proper exercise of their other functions (and only in relation to functions exercisable in or as regards Scotland which do not relate to reserved matters).

These same bodies currently have a duty in the 2000 Act to "have regard to" National Park Plans when exercising their functions within a National Park. Section 7 seeks to 'upgrade' this duty by substituting "have regard to" with "facilitate the implementation of" in the wording of the 2000 Act.

Section 8: Meaning of local authority for the purpose of access rights

Section 8 of the Bill amends both the Land Reform (Scotland) Act 2003 and the 2000 Act to allow new National Park authorities to be local authorities for the purposes of land access rights. The Policy Memorandum explains that under the Land Reform (Scotland) Act 2003, the existing two National Park authorities are regarded as local authorities for the purposes of access rights within their national park area. This enables National Park authorities to uphold access rights and manage access in their areas. That Act does not provide for any future National Park to become an access authority for its area. Given that the Scottish Government is proposing to establish a new National Park in Scotland (currently subject to investigation), the changes in the Bill would enable any future National Park to become the access authority for its area, should it be considered appropriate.

Section 9: Powers to introduce a Fixed Penalty Notice regime for National Park byelaws

Section 9 of the Bill gives powers to Scottish Ministers to, by regulations, make provision for and in connection with the issuing of Fixed Penalty Notices (FPNs) for offences against National Park byelaws.

Regulations made using those powers must specify the byelaws in relation to which FPNs may be issued, and the persons who may issue them. Regulations under this section would be subject to the affirmative procedure, unless they were only (i) removing a reference to a byelaw which has been revoked, or (ii) specifying a byelaw which has been made to replace a byelaw which has substantially the same effect.

The maximum penalty that may apply via a Fixed Penalty Notice under this section is set as level 2 on the standard scale (which is currently £500).

There are two National Parks in Scotland: Loch Lomond & The Trossachs National Park (established in 2002) and Cairngorms National Park (established in 2003). A brief history is on the NatureScot website.

The Part 3 provisions in the Bill are broadly described in the Policy Memorandum as "modernising the aims and powers of National Parks". It is also described that the changes are part of a broader process of considering the future of National Parks in Scotland, during which opportunities were identified, "which would strengthen the leadership role of National Parks in tackling the interlinked crises of climate and biodiversity whilst supporting visitor management, recreation, sustainable tourism, access to and within National Parks and the social, economic and cultural development of local communities".

The Scottish Government consultation on the strategic framework for biodiversity included a section on National Parks, in which the Scottish Government set out its view both that more National Parks are needed (which is being investigated separately from the Bill), and on the potential for legislative changes to recognise and support the role of National Parks in tackling the twin crises: 

 It is 20 years since Scotland’s first two National Parks in Loch Lomond & Trossachs and Cairngorms were created. They are home to some of the country’s most outstanding scenery, they host precious habitats such as Atlantic rainforest and high altitude moorland and grassland and they support thousands of rare and internationally important birds, mammals, insects, fungi and plant species.  

 Both National Parks support the communities living within them, they promote local employment and they welcome, educate and manage millions of visitors. For example, Cairngorms National Park attracts over two million visitors each year and tourism is a very important aspect of the local economy, accounting for around 43% of employment in the area. Cairngorms Connect, the UK’s largest habitat restoration project, employs over 60 members of staff and has generated around £3.9 million of investment.  

 Scotland’s National Parks are more important now than ever before. Sadly, the evidence tells us that Scotland, in common with the rest of the UK, has not done enough over the last 20 years to prevent the continuing decline in biodiversity. The 2019 State of Nature Scotland report indicated that 49% of Scottish species have decreased in abundance and 11% of species are threatened.  

Working with partners and their local communities, our National Parks can be exemplars in contributing towards Scotland’s ambitious targets to halt biodiversity loss by 2030 and reverse declines by 2045. Equally, they have a vital role to play in the transition to a net zero economy in a way that is fair and inclusive for local people.   

 National Parks can help drive the adoption of nature-based solutions – such as restoring degraded peatland and expanding woodland – in order to reduce carbon emissions and adapt to the effects of climate change in a way that is fair and inclusive to those living and working in their areas. They can encourage nature friendly farming, forestry and marine use. They can support sustainable tourism and visitor management. They can support their local communities, for example by creating new employment opportunities and promoting green skills and jobs. And they can help to generate and channel inward investment into the precious natural resources in their areas. 

In relation to the specific changes being made:

• Changes to the legal aims of National Parks:, Scottish Government officials told the RAI Committee in evidence on 5 March 2025 that the proposed updates to the legal aims "are a more adequate reflection of what our existing parks are already doing and what they will do in the future", stating that "The parks already provide an important leadership role in tackling the nature and climate crisis, and the changes allow a more adequate reflection of that".

• 'Upgraded' duty on public bodies to "facilitate the implementation" of National Park Plans:, the Policy Memorandum states that "how each public body facilitates the implementation of a National Park Plan will be specific to the body and the circumstances. It may involve the way in which the public body uses its capacity, resources and strategic approach to help execute relevant aspects of the Park Plan".

• Provisions enabling FPNs to be issued for byelaw breaches: the 2000 Act (Schedule 2) already allows National Park Authorities to make byelaws for the National Park for the purposes of:

  (a) protecting the natural and cultural heritage of the National Park,

  (b) preventing damage to the land or anything in, on or under it,

  (c) securing the public’s enjoyment of, and safety in, the National Park.

These might be used for example to regulate the lighting of fires in certain areas, vehicle or recreational access, or leaving of litter. The 2000 Act also contains requirements around how byelaws should be publicised and recorded. The Policy Memorandum sets out that with the exception of littering and fly-tipping offences in Loch Lomond & the Trossachs National Park (where authorised officers can issue FPNs through powers under the Environmental Protection Act 1990), the only way to enforce byelaws in National Parks presently is through reports to the Crown Office and Procurator Fiscal Service (COPFS).

As set out above, the Scottish Government consulted on proposals to amend National Parks legislation as part of the 2023 consultation on the nature emergency. The Bill largely takes forward the proposals in the consultation (apart from proposals relating to the governance of National Parks - more information on that is set out below).

The consultation analysis (published 12 November 2024) set out:

• Overall, there was general agreement with the need to review the legal framework for National Parks. Whilst the majority of respondents agreed with the proposed amendments to the purpose, aims and principles of National Parks, there were several organisational respondents who had specific points of disagreement

• There was a positive sentiment regarding the suggested changes to the role of public bodies operating within National Parks. Clarity was sought as to how these duties would be enforced in practice

• Respondents broadly agreed with the suggested changes to the general powers of National Park Authorities, with challenges noted with regard to implementation and consistency in enforcement.

Views of National Park Authorities

The RAI Committee discussed Part 3 of the Bill with National Park Authorities on 2 April 2025.

• Changes to the legal aims of National Parks: Both National Park Authorities were generally of the view that the revised aims made fairly minor changes which would not materially impact on how they function, but give some helpful clarity on the future direction of National Parks.

• Duty on public bodies to "facilitate the implementation" of National Park Plans: Both authorities welcomed the change in that it might, in some cases, lead to more active engagement or cooperation, giving examples of how that may be of benefit.

• Provisions enabling FPNs to be issued for byelaw breaches: Loch Lomond and the Trossachs National Park Authority set out that it has byelaws in place managing navigation on Loch Lomond and also byelaws that apply to camping management zones, which seek to address local issues around, for example, pressure on the environment, public safety and antisocial behaviour. It said that enabling rangers to issue FPNs should support compliance and be more cost effective.

The Cairngorms National Park Authority said that it currently has no byelaws but has submitted a byelaw proposal to the Scottish Government, following consulting, which relates to fire risk management in the Park e.g. seasonal restrictions on campfires, describing wildfire risk as "a key issue in the Cairngorms". It said that having the ability to issue FPNs will make this system more enforceable.

As set out above, the Bill largely takes forward the legislative proposals in the 2023 consultation. One proposal (or suite of proposals) not taken forward relates to the governance of National Parks.

Scotland's National Parks are governed by a National Park Authority. Its Board has a role to set the strategic direction of the National Park and direct work in line with National Park aims and the National Park Plan. Boards are made up of members that are appointed by the Scottish Ministers, members that are elected locally and members nominated by local authorities in the park area. The size and composition of boards is set out in schedule 1 of the 2000 Act.

The consultation set out that the Cairngorms National Park Authority (as at September 2023) had 19 members whilst Loch Lomond & Trossachs National Park Authority had 17 members, and noted that these boards are much larger than other Scottish public bodies.

The consultation proposed to make a number of changes relating to National Park authority boards "in order to maximise their efficiency, diversity and relevant skillset", for example, that boards should have no fewer than 8 members and no more than 15 members, and other proposed changes to requirements around board composition and appointment.

The Policy Memorandum sets out why these changes were not taken forward in the Bill, stating the response was "very mixed". It set out:

Given (i) the continued importance of local representation on Park authority boards (which is provided for through both directly elected board members and Local Authority nominated board members) and (ii) the fact that the size of Park authority boards can be reduced through changes to the Designation Orders for each park, as long as each board’s composition remains in line with the provisions of the 2000 Act, the Scottish Government has decided not to make changes to the governance of National Park authorities in the Bill.

Wild Deer Populations in Scotland

Within Scotland, there are four types of deer: red, roe, fallow and sika. Red and roe deer are native species. Whereas, fallow and sika are non-native. Red deer are Scotland’s largest land mammal, occurring across most of Scotland but are absent from the Northern Isles and other outlying islands and some parts of the borders. Roe deer are smaller and are widespread across the mainland.

NatureScot report that within Scotland there is no definitive figure for the size of the overall population of wild deer. However, the most recent estimates suggest that there are up to 400,000 red deer on open ground and up to 105,000 in woodlands, as well as up to 300,000 roe deer, 25,000 sika and at least 8,000 fallow deer. The Scottish Government has commented that there are around one million deer in Scotland.

Deer Working Group Report

The Deer Working Group (DWG) was established by the Scottish Government in 2017. This was a consequence of the Scottish Government’s concern at the continuing issues over the standards of deer management in Scotland and the levels of damage to public interests caused by wild deer.

The Group was appointed as an independent working group to review the then statutory and non-statutory arrangements for the management of wild deer in Scotland. They took account of the position of each of the four species of wild deer in combination with the varied landscapes and land ownership models across Scotland.

The Deer Working Group Report was published by the Scottish Government in February 2020, making 99 recommendations. The report includes recommendations for both statutory and non-statutory interventions across areas such as deer welfare, emergency control measures and the regulatory system. The Scottish Government’s response accepted the majority of the recommendations.

The report comprehensively covers all aspects of deer management as well as the impact of deer populations within Scotland. The report states:

However, despite the culls, the evidence discussed in Part Three shows that wild deer are continuing to have damaging impacts on the environment, forestry, agriculture and other land uses. Amongst other damaging impacts, the number of recorded deer vehicle collisions is increasing with consequent human injuries and other costs. Against that background, as Scottish Natural Heritage (SNH) has pointed out, the evidence indicates that reducing deer densities over much of Scotland would reduce many of their damaging impacts and costs, while still allowing the benefits derived from wild deer to be largely maintained.

The Policy Memorandum to the Bill includes a table detailing which recommendations are being implemented by provisions within the Bill or where an alternative approach to a recommendation has been taken.

Scottish Government Vision

In 2021, the Scottish Government established the Deer Management Strategic Board under the Scottish Biodiversity Strategy Programme to drive legislative and non-legislative components of effective deer management. Members of the board include representatives from Scottish Government, the National Parks, Forestry and Land Scotland, NatureScot and Scottish Forestry. The aims of the Board are to ensure an appropriate level of governance, but also bring deer management into consideration alongside biodiversity as the Scottish Biodiversity Strategy progresses.

The Scottish Government vision states:

There are around one million deer in Scotland. We aim to reduce this to a level which habitats and ecosystems can recover and regenerate and deer densities are maintained at sustainable levels by about half by 2030. Our initial focus will be on priority areas, alongside reductions in other herbivore impacts, to encourage natural tree regeneration and protect public investment in tree planting and peatland restoration.

By 2045, we want to see sustainable deer management across Scotland, which will allow deer to be part of a biodiverse and functioning ecosystem.

The vision also comments on the importance of the venison market and the people working in the deer management sector.

Regulatory Framework

NatureScot has a statutory responsibility to further the conservation, control and sustainable management of all wild deer species in Scotland. The Policy Memorandum to the Bill states: “Deer management has long been recognised as a vital contributor to land management. Adult deer have no natural predators in Scotland, and their numbers need to be controlled to safeguard the welfare of wild deer populations and to limit the physical damage that wild deer can cause to public and private interests.”

The Deer Working Group report stated:

The basic character of a country’s system for the management of wild deer tends to be influenced by three main factors in the first instance. Two of these involve aspects of the country’s property law. These are the legal status or ‘ownership’ of the deer and the distribution or ‘ownership’ of deer hunting rights. The third main factor is the extent and character of the statutory framework which regulates how and when deer hunting rights can be exercised and which may also include a range of other measures.

In Scotland, wild deer are free-ranging and do not belong to anybody while they are alive and the right to take or kill them is reserved to the landowner and other people, such as tenants if the landowner has granted them this right. The Deer (Scotland) Act 1996 ("the 1996 Act") sets out when, where, how and by who deer can be shot. So, if you own the land the deer are on, you have a right to take or shoot those deer as long as you comply with the requirements in the 1996 Act. However, red deer may travel large distances in search of food, often covering more than one land ownership.

Managing deer sustainably therefore requires collaboration, which is made possible by voluntary deer management groups. NatureScot works with the Association of Deer Management Groups, Lowland Deer Network Scotland, local deer management groups and a range of public and private partners throughout Scotland to plan and implement deer management.

The Policy Memorandum states:

The vast majority, around 80%, of deer management in Scotland is carried out by the private sector. Deer are also managed on public land by public bodies and agencies. Forestry and Land Scotland manage deer on the national forest estate, while local authorities manage some land within their council areas. Crown Estate Scotland, Scottish Water and NatureScot also all have an interest in deer management on land that they are responsible for. How deer are managed can also vary geographically, for example deer management groups (“DMGs”) operate across upland red deer range, and provide a collaborative forum for deer managers to come together, consider and agree deer management across different landholdings to achieve the same deer management goal.

The 1996 Act also defines the periods of the year when killing of deer is permitted or not permitted. These are known as the open and close seasons respectively, and the dates vary according to the deer species. Following consultation, the Scottish Government removed the close season for male deer of all species in Scotland with effect from 21st October 2023. This change was as a result of recommendation 8 in the Deer Working Group report.

The Act also requires that only certain specifications of firearms and ammunition can be used to kill deer – to help make sure deer are shot as humanely as possible. Changes to this were made in 2023, with a reduction in minimum bullet weight allowing a greater choice of non-lead bullet types, as well as allowing sighting devices for night shooting.

NatureScot issues authorisations to shoot deer in specific circumstances under the Deer (Scotland) Act 1996 if certain conditions are met. For example, to prevent deer damaging the natural heritage of an area. Authorisations are required to shoot deer under some circumstances, such as during the close season.

NatureScot's framework for deer management states:

Landowners in Scotland have a general duty of care for the natural resources on their land. They must comply with relevant legislation and should follow the Code of Practice on Deer Management. The Code sets out how to deliver sustainable deer management. Although not statutory, it applies to all who manage wild deer, or who own or manage land where wild deer roam. But exactly how individuals and organisations manage the deer on their land depends on what they wish to achieve.

While the approach to deer management across Scotland is a voluntary and collaborative one, NatureScot does have statutory powers to intervene in specific circumstances. This is when voluntary efforts to manage deer have failed and serious damage is occurring or likely to occur. For example, when protected areas are being damaged by overgrazing. These are provided for by the 1996 Act. For example, section 8 of the 1996 Act gives NatureScot the power to initiate a compulsory control scheme. This is a legally binding measure that can require landowners and occupiers to carry out specific deer management actions.

Managing deer in the uplands and lowlands

In upland areas, red deer are most common. Due to their ability to cover large distances and freely cross boundaries between farms, landholdings, forests and estates they require a particularly collaborative approach. Deer Management Groups (DMGs) cover most of the Scottish highlands. The Association of Deer Management Groups state that "a number of Lowland Deer Groups have been set up, but these operate to different principles to DMGs covering the red deer range."

The deer in the lowlands and urban areas are predominantly roe, though there are other deer species present in areas. Roe deer are more solitary, secretive and territorial than red deer and land ownership patterns are more fragmented in these areas. Therefore, managing deer in the lowlands is particularly challenging.

Deer management in Scotland is principally regulated by the Deer (Scotland) Act 1996. The Bill amends many aspects of the 1996 Act. Therefore, a copy of the 1996 Act showing those changes has been published with the Bill for ease of reference. Throughout the Natural Environment (Scotland) Bill and the Deer (Scotland) Act 1996 NatureScot is referred to using its formal statutory name, Scottish Natural Heritage (SNH).

Aims and purposes of deer management

Section 10 of the Bill makes changes to NatureScot's aims and purposes of deer management, which are set out in section 1 of the 1996 Act. Under the 1996 Act these aims and purposes included furthering the conservation of deer native to Scotland, the control and sustainable management of deer in Scotland, and to keep under review all matters, including their welfare, relating to deer. Section 10 of the Natural Environment Bill adds a new aim: to safeguard the public interest in so far as it relates to the management and control of deer.

The Bill does not include a definition of public interest. The Explanatory Notes state that the expression “public interest […] is to be understood and applied contextually; what constitutes the public interest in different situations may be different. It may also evolve and change over time.”

Additionally, the term “environment” is added to the following:

“It shall be the duty of SNH, in exercising its deer functions, to take such account as may be appropriate in the circumstances of— (a) the size and density of the deer population and its impact on the natural heritage and environment”

Whilst natural heritage was already included in the 1996 Act it may be construed as specific plants, animals and features on land which already has deer on it.

This is clarified in the Explanatory Notes to the Bill which state: “NatureScot will need to consider and formulate deer management policy taking account of the cumulative impact of deer across Scotland and the impact that the populations may have on, for example, biodiversity and carbon emissions (both regionally and nationally.)”

Advisory panels

The 1996 Act provided that, with the approval of Scottish Ministers, NatureScot may appoint a panel for any locality and refer any matter relating to the exercise of NatureScot’s deer functions to the panel, and the panel is obliged to provide advice. Section 11 of the Natural Environment Bill enables members or staff of NatureScot to be appointed as members of advisory panels. Currently, NatureScot can only sit on panels as an observer.

Codes of practice on deer management

Section 12 of the Bill amends section 5A of the 1996 Act. The 1996 Act requires NatureScot to publish a code of practice for deer management. The Bill amends this section meaning that the code of practice is not only for the purpose of providing practical guidance in respect of deer management but also the circumstances in which it will intervene in the management or control of deer.

NatureScot currently reviews compliance with the deer management code every three years, as well as its effectiveness in promoting sustainable deer management. The Bill changes this so that NatureScot can review it at any time. However, if the Scottish Ministers ask for a review, or if there is a change to the rules, NatureScot must do a review at an appropriate time. There is no strict timeline for when they must carry out a review but they do have to review the rules and effectiveness of the code at least once every 10 years.

Deer management plans, control agreements and control schemes (sections 13-18)

The Policy Memorandum to the Bill states: “At present, NatureScot are able to take action to require deer management in some circumstances. Through the 1996 Act, NatureScot can intervene through a series of powers which begin with voluntary deer management. Under the 1996 Act NatureScot can, if they are satisfied that certain conditions are met, give notice to relevant owners and occupiers of land requiring them to prepare a deer management plan (section 6A). Under section 7, NatureScot can enter into control agreements with relevant owners and occupiers of land. If a landowner is unwilling to agree a control agreement, or fails to deliver the terms of an agreement, NatureScot has the power to make those deer management measures compulsory through a control scheme (section 8). Until 2024, the power to compel a land manager to manage deer via a control scheme had never been used.”

Grounds for intervention

Section 13 of the Bill introduces two new sections (6ZA and 6ZB) into the 1996 Deer (Scotland) Act, replacing the existing provisions. These sections relate to when NatureScot can intervene in deer management through deer management plans, control agreements and control schemes.

• Section 6ZA restates the previous grounds for intervention, which focus on preventing or remedying damage or injury caused by deer (e.g damage to property or public safety concerns).

• Section 6ZB introduces a new ground for intervention related to nature restoration activities. This allows NatureScot to intervene if deer or management actions (or lack of action) are likely to hinder projects aimed at a relevant target, strategy or plan relating to the environment, climate change, or biodiversity restoration. This includes projects such as woodland creation, peatland restoration, or other environmental improvement efforts that are part of public strategies or statutory targets. It will be necessary to show a connection to a statutory duty or a public plan or strategy.

Deer Management Plans

Section 14 of the Bill introduces an amended version of Section 6A into the 1996 Act, which focuses on deer management plans.

The principal change introduced by the new section 6A is the addition of nature restoration (introduced in Section 6ZB) as a valid reason for NatureScot to require the relevant owners or occupiers of a particular area of land to prepare and submit a deer management plan to NatureScot. The existing reasons for intervention remain relevant under Section 6ZA. NatureScot can initiate the process by serving a notice on the owners or occupiers of land. The notice must explain why NatureScot believes a plan is necessary, referring to the grounds in Section 6ZA or 6ZB, and specify what outcomes the plan should achieve (e.g reducing deer numbers or improving biodiversity). The notice will include a deadline for submitting the plan, which cannot be less than three months.

NatureScot may agree to extend the deadline if there are ongoing discussions or changes, such as a change in land ownership. The new Section 6A removes specific requirement for NatureScot to have regard to the Code of Practice on Deer Management when deciding if a deer management plan is necessary. However, NatureScot is still required to consider the Code in its overall functions under the 1996 Act.

Control Agreements

Section 15 of the Bill introduces several changes to Section 7 of the 1996 Act, which governs control agreements between NatureScot and landowners and occupiers. Section 7 of the 1996 Act allows NatureScot to enter into agreements with landowners or occupiers to manage deer. The agreements set out the land area, control measures, responsible parties, timelines and annual actions for the duration of the agreement. A control agreement may involve multiple landowners or occupiers for a single area and represent a significant form of intervention compared to a deer management plan.

Similar to deer management plans, Section 15 of the Bill introduces nature restoration as a new reason for NatureScot to require a control agreement, due to Section 6ZB. This is in addition to the existing grounds for intervention under Section 6ZA.

Section 15 replaces the existing process for how NatureScot engages with landowners regarding control agreements. Previously, NatureScot would first give notice and then consult on the necessary measures. The new process requires NatureScot to prepare a draft agreement before consulting landowners, to provide a structural basis for discussions. NatureScot has flexibility on timing and may send notice and the draft together or separately.

If a review of a control agreement reveals insufficient compliance, NatureScot must either proceed with creating a control scheme (covered in the next part of this briefing) or explain to the Scottish Ministers why it is not appropriate to do so yet. For example, NatureScot might choose to negotiate action from landowners before taking further action.

Section 15 of the Bill also modifies Section 7 of the 1996 Act’s provision about completely excluding deer from an area, removing the requirement for NatureScot to consider the Code of Practice on Deer Management when deciding whether to apply this ground. However, NatureScot must still consider the Code overall when exercising its functions.

Control Schemes

Section 8 of the 1996 Act allows NatureScot to create control schemes for managing deer on specific areas of land. The Explanatory Notes state: “These schemes represent the most significant form of intervention in deer management and they enable NatureScot to impose deer management measures on owners and occupiers of land and, if the owner or occupier does not comply with the scheme, take action itself and recover the costs from the owner or occupier.”

Section 16 of the Bill makes several changes to how control schemes are created, varied, revoked and enforced:

Control schemes, along with any changes or revocations, must be registered against the land title. This ensures that future owners or occupiers are also bound by the scheme. The Bill removes restrictions that previously limited control schemes for nature restoration activities. Now, NatureScot can implement control schemes when voluntary agreements fail or there is non-compliance.

The Bill reiterates that different measures may be taken by different owners or occupiers of land within a control area (e.g fencing by one, culling by another).

The Bill also clarifies that control schemes can target individual landowners or occupiers within a broader control area, particularly when some are not engaging with the management plan. NatureScot can take action against non-compliant individuals and recover costs.

The Bill introduces a new schedule to the 1996 Act (Schedule 2) which outlines the steps for making, varying, and revoking control schemes, including how they must be registered and how objections are handled. ‘Relevant persons (owners or occupiers affected by the scheme) must be notified and can object to proposals within 28 days. Objections are considered by the Scottish Ministers, who may consult experts if necessary. Once objections have been considered, the Scottish Ministers may confirm the proposal as it was originally proposed, confirm the proposal with modifications or reject the proposal.

Part 3 of the schedule requires NatureScot to give notice that a control scheme has been made, varied or revoked to all relevant persons. That notice must also indicate the date by which appeals against the scheme, variation or revocation are to be made. NatureScot must publish the control scheme, the scheme as varied, or as the case may be, a notice that the scheme has been revoked, in such a manner as it thinks fit (which may be on its website). After a scheme is confirmed, it is registered against land titles, and it must be followed by the relevant parties. If they do not comply, NatureScot can enforce the scheme and recover costs.

Affected parties who disagree with a control scheme’s creation, variation, or revocation can appeal to the Scottish Land Court within 28 days of the notice. The court can affirm, revoke, or modify the scheme.

Recovery of costs and expenses

Section 9 of the 1996 Act allows NatureScot to recover expenses incurred in carrying out a control scheme. Section 17 of the Bill introduces a revised Section 9, expanding the types of costs NatureScot can recover.

The main changes are:

• Expansion of Recoverable Costs: NatureScot can now recover costs related to the registration, variation, or revocation of control schemes. This includes registration fees and incidental costs, such as property searches to determine land titles. Costs can be recovered from any landowner or occupier involved in the scheme, especially when non-compliance or refusal to agree to a control agreement by certain individuals necessitates the scheme.

• Process for Recovering Costs:

  1. Before recovering costs, NatureScot must provide a detailed statement to the affected landowner or occupier, outlining the registration fees and other expenses.

  2. If the landowner or occupier disagrees with the statement, they have 28 days to appeal to the Scottish Land Court. The Court can adjust the amount NatureScot is allowed to recover if it considers it fair.

• Waiving of Costs:

  1. NatureScot can waive the excess costs related to duties under the control scheme only with approval from the Scottish Ministers.

  2. However, NatureScot does not need such approval to waive registration fees or to cover the costs related to preventing deer damage.

Limitation of criminal liability

Section 18 of the Bill amends Section 14 of the 1996 Act, which deals with the criminal liability exemptions for actions taken under a control agreement, control scheme, or emergency measures to prevent damage by deer. Generally actions taken in relation to these measures at the direction of NatureScot are exempted from criminal liability. However, this does not extend to some actions that require authorisation. Namely, killing or injuring a deer by a method other than shooting, and killing or injuring a deer at night.

The Bill adds control agreements and control schemes to Section 14(2). The effect of this is to have the same disapplications of the exemption from criminal liability in relation to NatureScot employees which already exist under the original section 14 and are detailed in the paragraph above.

The Bill also introduces a new subsection 14(3A) which clarifies that non-NatureScot employees are not exempt from criminal liability even if they are acting under NatureScot’s direction in relation to a control agreement, control scheme, or Section 10. Specifically, it ensures that a person must have proper authorisation to carry out certain activities (such as killing or injuring a deer) under the relevant sections (e.g Section 5(5), 17(3), 18(1), etc.). If they lack this authorisation, they are still liable for committing an offence, even if acting on direction of a control scheme.

The Explanatory Notes state: “Practically, this means that a person must have an authorisation under the relevant section to carry out the activity, even when acting under a direction pursuant to a control agreement, a control scheme or section 10. This ensures that a person does not escape liability for carrying out an act without authorisation which ordinarily requires authorisation, as a person who is directed to undertake an activity which may only be undertaken with an authorisation in pursuit of a control agreement, a control scheme, or section 10 of the Act will still commit an offence if they do not have the relevant authorisation for that activity.”

Preventing or stopping damage by deer

Section 19 amends section 10(1) of the 1996 Act and repeals section 11 of that Act. This means that NatureScot can take action to prevent damage by deer to the natural heritage or environment following the same process as is set out in section 10 of the 1996 Act.

Section 20 of the Bill introduces a new defence to offences under the 1996 Act for actions taken to prevent or stop a deer from causing harm to a person.

The defence is conditional on meeting several criteria. The harm must be likely and imminent or occurring. The person must reasonably believe that their actions are necessary. The action taken must be appropriate to the situation. Finally, the person must report the action to the police and provide information on the carcass’s location.

NatureScot investigatory powers

Section 21 of the Bill modifies Section 15 of the 1996 Act, which outlines the powers of entry onto land for persons authorised by NatureScot. Many of these changes are connected to the new section 15A being inserted by section 22.

Section 22 of the Bill inserts a new Section 15A into the 1996 Act, which grants NatureScot the authority to require landowners or occupiers, or those NatureScot reasonably believes to be in that position, to provide information related to NatureScot’s deer management functions under control agreements or schemes.

If a person fails to provide the requested information or documents, NatureScot can access the land to gather the required information themselves. This provision also applies in cases where the person served with the notice may not be the actual owner or occupier due to complex ownership structures; they must either provide the information or explain why they cannot.

NatureScot must issue a formal notice specifying the information required and the consequences for non-compliance. The information or document must be provided within 10 working days unless a later date is agreed upon. If the document is not an original, a copy will suffice, and if the information is electronic, it must be legible and accessible.

However, the power does not extend to documents that are legally privileged, such as solicitor-client communications. A person who knowingly or recklessly provides false information commits an offence and may face a fine up to £1,000.

This extends the purposes of entry provided for under section 15 of the 1996 Act which allows NatureScot authorised individuals to enter land for various reasons, including emergency actions to prevent damage by deer, taking a census of deer, determining the need for control measures and checking compliance with legal requirements.

Section 21 reduces the notice period of entry for certain purposes from 14 days to 5 working days. It also introduces a new power allowing entry onto land if a person has been required to produce information under a control agreement or scheme, but has not done so within the specified time (10 working days). This enables NatureScot to ensure compliance.

Section 21 also refines the purpose of deer census-taking from a general census to a more focused task of recording deer numbers and assessing the impact of deer on land.

Section 21(2) allows for the combination of two notices - one related to control measures and the other to the power of entry, streamlining the process.

Finally, section 23 amends section 16 of the 1996 Act to enable all notices that are required under the 1996 Act to be served electronically provided that the person upon whom it is to be served has consented in writing to the receipt of electronic notices of the kind in question.

Authorisation for taking or killing deer during close seasons

Section 24 of the Bill updates Section 5 of the 1996 Act, which makes it an offence to take or kill deer during close season but allows NatureScot to grant permission in certain cases. The new subsection (6) lets NatureScot authorise landowners or their representatives to take or kill deer during close season. However, NatureScot must ensure there is damage by deer or a need for nature restoration and that other control methods are not enough.

The rules no longer mention which types of land you can hunt on during the close season. It’s now about the reason for needing to hunt. Older rules that allowed authorisations to be general or specific are removed. Instead, authorisations will now be managed through a new registration system.

Authorisation for taking or killing deer at night

Section 25 of the Bill modifies Section 18 of the 1996 Act, which makes it an offence to take or kill deer at night but allows NatureScot to authorise it in certain cases.

Subsection (2) broadens the list of people who can be authorised by NatureScot to take or kill deer at night, adding landowners alongside occupiers and nominated individuals. New subsection (3) requires that before using the authorisation, the person must be satisfied that the conditions for intervention (damage by deer or nature restoration) apply. If they carry out the activity without these conditions, it becomes an offence. The provision no longer refers to specific land types for this activity. Subsection (4) ensures that these rules apply regardless of any agreements between landowners and occupiers. Finally, subsection (5) allows NatureScot to authorise anyone to take or kill deer at night for scientific purposes.

Authorisation for use of vehicles to drive deer

Section 26 of the Bill makes some adjustments to section 19 of the 1996 Act, which makes it an offence to use vehicles to drive deer unless NatureScot has granted an authorisation. Subsection (2) makes section 19 consistent with the other authorisation provisions by allowing occupiers to obtain an authorisation. Occupiers were previously not included in this section.

Offence of shooting deer with a shotgun

Section 27 of the Bill creates a new offence for shooting a deer with a shotgun, unless authorised by NatureScot.

NatureScot can grant authorisation to landowners, occupiers, or their nominees, but only if certain conditions are met (e.g if the conditions for intervention, damage by deer or nature restoration apply and other control methods are insufficient). Before granting permission, NatureScot must be sure that shooting with a shotgun is necessary and that other methods to control the deer haven’t worked. NatureScot will check if a person is competent before allowing them to shoot deer with a shotgun. Shotgun" is defined according to the Firearms Act 1968. If someone is allowed to shoot with a shotgun, it does not mean they are allowed to break other regulations about firearms.

The penalty for shooting a deer with a shotgun without authorisation is a fine of level 4 on the standard scale for each deer. This is currently set at £2,500. Section 30 of the Bill makes changes to section 37 of the 1996 Act, which ensures that only people who are "fit and competent" can hold certain authorisations, to include two new authorisations: shooting deer with a shotgun and taking or killing deer at night for scientific purposes.

Register of authorised persons

Section 28 of the Bill amends section 17A of the 1996 Act which creates a power for a register of people authorised to shoot deer to be created by regulations.

The register, which originally listed people who were competent to shoot deer, is now also going to allow people to register as authorised to carry out specific activities related to deer management. Specific activities are any activity that requires authorisation from NatureScot, such as those discussed in the next three sections (e.g shooting deer at night or during close seasons).

People can apply to be on the register for two reasons: to prove they are competent to shoot deer and to get authorisation for specific activities. If someone already has the competence to shoot deer, they can apply to add authorisations for specific activities without needing to prove competence again.

There will still be a way for people to get one-off authorisations outside the register if needed urgently, for example, for specific tasks or short-term needs. This allows flexibility for situations where the registration process might take too long. The Bill also updates terminology, changing the register's name to "Register of authorised persons" to reflect its expanded role.

Section 29 and Section 31 repeal no longer relevant sections of the 1996 Act, given these changes.

Stray farmed deer

Section 32 of the Bill inserts provisions into the 1996 Act which deal with liability for taking or killing stray farmed deer. It introduces an offence of failing to report the taking or killing of a stray farmed deer and a defence to civil liability for taking or killing stray farmed deer.

A "farmed deer" is a deer that is kept on agricultural land within a deer-proof fence. If this deer escapes the fenced land, it becomes a "stray farmed deer." Once it is a stray, it is treated like a wild deer and can be taken or killed legally, but it can also be recaptured and returned to the farm to become a farmed deer again. If someone takes or kills a stray farmed deer, they must report it to the police within 5 working days. If they fail to report, they can be fined. However, they do not have to report if the deer was killed under emergency situations (like to protect human safety).

If someone did not know the deer was a stray farmed deer (for example, if it wasn’t tagged), they can defend themselves by showing they could not have reasonably known. In any civil proceedings against a person for killing or causing injury to a stray farmed deer, it is a defence for the person to prove that the person was exercising a legal right to take or kill deer, and the person complied with the duty to report the taking or killing of the deer.

Licensing of dealing in venison

Section 33 repeals various provisions which impose requirements to be licensed to deal in venison. Under the 1996 Act scheme of provisions, anyone who sold venison is required to hold a licence to deal in venison. Licence holders are required to keep records for a period of 3 years, including purchases and sales of venison. There were rules around how venison could be sold, including reciprocal arrangements between dealers, and penalties for selling venison without a licence.

Section 33 removes the requirement for a licence and the rules that govern them. However, if records were kept before the changes, they still need to be kept for a period of time, as required by the law before these changes take effect.

The Policy Memorandum states: “The Bill also contains provisions to remove the need for Venison Dealers Licences which will support venison entering the food chain. Venison is governed by the same food standards legislation as other meat and wild game, and the Scottish Government sees no reason why there should be an additional monitoring scheme for venison which is acting as an unnecessary barrier in some places. As the role of deer management is recognised in supporting climate and nature aims so too does the Scottish Government want to empower local communities and maximise the benefits that can come from deer management. Venison is a healthy, local food source and the Scottish Government wants to increase its availability while maintaining those high food standards”

• TARGET 1: Plan and Manage all Areas To Reduce Biodiversity Loss

• TARGET 2: Restore 30% of all Degraded Ecosystems

• TARGET 3: Conserve 30% of Land, Waters and Seas

• TARGET 4: Halt Species Extinction, Protect Genetic Diversity, and Manage Human-Wildlife Conflicts

• TARGET 5: Ensure Sustainable, Safe and Legal Harvesting and Trade of Wild Species

• TARGET 6: Reduce the Introduction of Invasive Alien Species by 50% and Minimise Their Impact

• TARGET 7: Reduce Pollution to Levels That Are Not Harmful to Biodiversity

• TARGET 8: Minimize the Impacts of Climate Change on Biodiversity and Build Resilience

• TARGET 9: Manage Wild Species Sustainably To Benefit People

• TARGET 10: Enhance Biodiversity and Sustainability in Agriculture, Aquaculture, Fisheries, and Forestry

• TARGET 11: Restore, Maintain and Enhance Nature’s Contributions to People

• TARGET 12: Enhance Green Spaces and Urban Planning for Human Wellbeing and Biodiversity

• TARGET 13: Increase the Sharing of Benefits From Genetic Resources, Digital Sequence Information and Traditional Knowledge

• TARGET 14: Integrate Biodiversity in Decision-Making at Every Level

• TARGET 15: Businesses Assess, Disclose and Reduce Biodiversity-Related Risks and Negative Impacts

• TARGET 16: Enable Sustainable Consumption Choices To Reduce Waste and Overconsumption

• TARGET 17: Strengthen Biosafety and Distribute the Benefits of Biotechnology

• TARGET 18: Reduce Harmful Incentives by at Least $500 Billion per Year, and Scale Up Positive Incentives for Biodiversity

• TARGET 19: Mobilize $200 Billion per Year for Biodiversity From all Sources, Including $30 Billion Through International Finance

• TARGET 20: Strengthen Capacity-Building, Technology Transfer, and Scientific and Technical Cooperation for Biodiversity

• TARGET 21: Ensure That Knowledge Is Available and Accessible To Guide Biodiversity Action 

• TARGET 22: Ensure Participation in Decision-Making and Access to Justice and Information Related to Biodiversity for all 

• TARGET 23: Ensure Gender Equality and a Gender-Responsive Approach for Biodiversity Action