This is the second in a series of blogs looking at the Natural Environment Bill. Part 1 is available here.
In what is overall a positive piece of legislation, Part 2 of the Natural Environment Bill has raised considerable concerns within the environmental sector.
The Bill as introduced would give Ministers the power to amend two significant parts of environmental protection – Environmental Impact Assessment legislation and the habitats regulations.
Why this matters
Together, EIA legislation and the habitats regulations act as vital pieces of environmental protection.
EIA legislation requires that the environmental impacts of major developments are understood and scrutinised. This allows decision makers to understand how the negative impact of a development can be mitigated, and to block developments where the impact would be unacceptable.
The habitats regulations refer to protections for the conservation of natural habitats, wildlife and wild plants. The regulations required the designation of a network of protected areas (Special Areas of Conservation and Special Protection Areas) which encompass our most important sites for nature: including ancient woodlands, peatbogs, rivers and lochs, and more.
Background
Both EIA legislation and the habitats regulations are domestic law which have their origins in European Union directives and were initially implemented as a result of our EU membership.
The Bill’s policy memorandum explains that, as a result of Brexit and the repeal of the European Communities Act, Scottish Ministers have lost powers to amend EIA legislation and the habitats regulations that were previously used.
But the powers under the European Communities Act allowed Ministers to modify regulations in line with European law. This flexibility was necessary so that changes to the law at a European level could be implemented domestically. But Ministers could not radically change or undermine the level of protection for nature.
If the Bill is implemented as is currently drafted, there would be no such European backstop preventing the weakening of these vital environmental protections.
Henry VIII powers
Usually, existing law can only be amended by the passage of new primary legislation (an Act). In some cases, Ministers can use so-called “Henry VIII powers” to amend the law by secondary legislation
Secondary legislation has nowhere near the same level of scrutiny and oversight as primary legislation. Unlike Bills, parliament cannot amend secondary legislation, and can simply approve or reject government proposals. The use of Henry VIII powers is at times controversial, and is not appropriate for significant changes in the law.
Purposes for modification
As introduced the Bill includes six purposes for which Ministers could use their Henry VIII powers to modify existing regulations. These six purposes include allowing regulation “to improve and simplify the law” or “to take account of changes in technology”. The Bill does not include a non-regression clause which would prevent these powers from being used to weaken environmental protection.
When consulted on prior to the introduction of the Bill, concerns were raised over a lack of detail on how these powers would be used. The policy memorandum provides some examples, though argues that it is not possible to anticipate all uses of the power with the legislation needing to be “future-proof”.
The examples cited include minor technical changes to EIA operation in forestry and allowing a move away from requiring physical paper copies of EIA reports. It also includes examples implying materially significant changes to the operation of the regulations, including facilitating the development of renewable energy at pace and scale, and taking a more flexible approach to the management of protected sites. These examples may be significantly more controversial than ending hard copies of documents.
There is however a bigger picture. The current intentions of policymakers, whether Ministers or civil servants, might be entirely benign. But this legislation could stand for decades, and the enabling powers could be used in future to deliberately undermine environmental protections unless the Bill protects against this. It is essential that the Bill – introduced to drive the restoration of nature – does not unintentionally undermine it.