Natural Environment (Scotland) Bill: islands and communities impact assessment

The Natural Environment (Scotland) Bill - Island Communities Impact Assessment

Introduction

The Islands (Scotland) Act 2018 places a duty on the Scottish Ministers and other relevant authorities, including a number of public authorities, to have regard to island communities in exercising their functions, and for the Scottish Ministers, this will also include the development of legislation.

Testing a policy for how it could impact on island communities should be an ongoing process. This is the case for the proposals in the Natural Environment (Scotland) Bill. The purpose of this Island Communities Impact Assessment is to highlight this testing in relation to the proposals’ effects on island communities which might be significantly different from the effect on other communities.

For the purpose of this Island Community Impact Assessment “island” means a naturally formed area of land which is:

• surrounded on all sides by the sea (ignoring artificial structures such as bridges), and
• above water at high tide.

An “inhabited island” means an island permanently inhabited by at least one individual.

An “island community” means a community which—

• consists of two or more individuals, all of whom permanently inhabit an island

(whether or not the same island), and

• is based on common interest, identity or geography (including in relation to any uninhabited island whose natural environment and terrestrial, marine and associated ecosystems contribute to the natural or cultural heritage or economy of an inhabited island).

Background

As we are now facing a global climate and nature emergency, it is essential that we take action to tackle these crises by putting in place measures that will help to deliver a nature positive vision for Scotland.

The overarching aim of the Natural Environment (Scotland) Bill (“the Bill”) is to support the Scottish Government’s objectives in restoring biodiversity and tackling climate change by putting in place measures that will help to deliver a nature positive vision for Scotland. There are four main strands of work included in the Bill:

• Establishing a framework for statutory targets for improving biodiversity

• Providing the Scottish Ministers with a new delegated power to modify or restate Environmental Impact Assessment (“EIA”) legislation and the Conservation (Natural Habitats, &c.) Regulations 1994 (“the Habitats Regulations”)

• Modernisation of the aims and powers of National Parks and providing the Scottish Ministers with a power to set up a fixed penalty notice regime by secondary legislation for contravention of national park byelaws

• Reforming legislation relating to deer management

The Bill contributes to delivering the Scottish Government’s priority of tackling the twin crises of climate change and biodiversity loss. It will help to deliver the Scottish Government’s purpose, as set out in the National Performance Framework, through increasing the wellbeing of people in Scotland as a consequence of restoring Scotland’s natural environment.

The Bill also contributes to the following national outcome: ‘value, enjoy, protect and enhance their environment.’

In the 2024-25 Programme for Government, the Scottish Government committed to:

“Bring forward a Natural Environment Bill to establish the framework for statutory targets to restore and protect nature. It will also include provisions to modernise the way in which national parks and deer are managed and provide powers to update environmental impact assessment and habitats legislation to support delivery of our net zero and biodiversity goals.”

Objectives

Establishing a Framework for statutory targets for improving biodiversity.

The Bill places a statutory duty on the Scottish Ministers to set nature restoration targets. The development of nature restoration targets form a key part of the Scottish Government’s Strategic Framework for Biodiversity, which includes the Scottish Biodiversity Strategy and the underpinning Delivery Plans.

Scotland published its first Biodiversity Strategy in 2004. Although there is evidence of localised positive outcomes for nature, as the most recent 2024 Strategy notes, the ongoing decline of biodiversity demonstrates that we must do a great deal more and at scale to ‘bend the curve’ of biodiversity loss.

The target provisions in the Bill include high level topics against which specific targets will be set. Future legislation made under the Bill (secondary legislation) will set out more details of the actual targets and how the Scottish Government will monitor its progress to achieve them. This approach allows for the target topics to be adaptable to changing circumstances and ensures that parliamentary scrutiny is maintained.

The actions taken to deliver and meet the targets will be carried out via the Scottish Biodiversity Delivery Plan where any currently unforeseen impacts on island communities will also be considered.

The proposals put forward in the Bill for statutory nature restoration targets do not differ between mainland Scotland, the islands or between islands.

New delegated power for future amendments to Environmental Impact Assessment (EIA) legislation and the Conservation (Natural Habitats, &c.) Regulations 1994

The Conservation (Natural Habitat, &c.) Regulations 1994 (“the Habitats Regulations) and the Environmental Impact Assessment (“EIA”) regime are key legal frameworks underpinning environmental protection and assessment processes in Scotland, on land and at sea.

Section 2(2) of the European Communities Act 1972 provided enabling powers for Scottish Ministers to make and amend this legislation for the purpose of implementing EU obligations.

However, following the UK’s exit from the EU, and repeal of the 1972 Act the power in section 2(2) of the 1972 Act has been lost in this legislative area, which significantly limits the Scottish Government’s ability to amend these key pieces of legislation, if needed, to respond to evolving circumstances, or to address existing issues and inefficiencies.

The Scottish Government considers it vital that we have the ability to ensure that the Habitats Regulations and the EIA regimes remain fit for purpose over time. The purpose of the enabling power is to allow for future amendments to the relevant legislation to adapt to changing circumstances, or to address existing issues or inefficiencies. This would provide the flexibility to adapt to future requirements, while ensuring these legislative frameworks continue to effectively underpin environmental protection and assessment processes in Scotland.

The proposals put forward for the enabling power for Scotland’s EIA regime and Habitat Regulations in the Bill do not differ between mainland Scotland and Scottish islands, or between islands.

Modernisation of the aims and powers of National Parks

There are currently two National Parks operating in Scotland: Cairngorms National Park; and Loch Lomond and the Trossachs National Park. 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.

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.

In its Programme for Government 2023-24 the Scottish Government committed to consulting on the modernisation of National Parks legislation. The analysis of the consultations carried out are detailed further below.

The changes in the Bill strengthen the focus of National Parks in restoring biodiversity and tackling climate change whilst supporting their local economies and communities. This will help to strengthen the leadership role of National Parks in tackling the interlinked crises of climate and biodiversity as well as National Park authorities’ role in promoting the understanding and enjoyment of National Parks by everyone, including through their work to manage visitors, enforce park byelaws and promote sustainable tourism and recreation.

Those who live within the boundaries of National Parks, the parks’ surrounding areas and park visitors will be the most likely to be affected by these proposed changes.

Although there are islands in Loch Lomond and the Trossachs National Park they do not fall under the Islands (Scotland) Act 2018 for the purposes of the Island Communities Impact Assessment as these islands are surrounded by freshwater. Islands, and therefore the island communities inhabiting those islands, for the purposes of assessment are those surrounded on all sides by the sea.

The provisions in the Bill are not expected to have any differential impacts on islands communities as those on the mainland.

Reforming legislation relating to deer management

Adult deer have no natural predators in Scotland and the effective management of wild deer has been seen as a vital component of land management in Scotland for more than 80 years. More recently, it has also been recognised that achieving sustainable deer populations is fundamental to Scotland’s ability to meet its climate and biodiversity goals.

The Deer Working Group (“DWG”), which was established in 2017 to review the existing statutory and non-statutory arrangements for the management of wild deer in Scotland, made ninety-nine recommendations to modernise Scotland’s systems of deer management, approximately half of which are legislative in nature.

The Scottish Governments 2021 response to the DWG Report set out our commitment to implement the majority of the legislative recommendations during this parliamentary term.

The purpose of the deer management elements of the Natural Environment (Scotland) Bill is to ensure that the legislative framework is capable of supporting the delivery of sustainable deer populations in the context of twin biodiversity and climate crises.

Managing wild deer is a complex issue and the proposed changes will ensure that land managers are able to manage deer for a variety of purposes, including for environmental reasons, more readily. The Bill will also widen certain regulatory powers for NatureScot in relation to deer management, including changes to grounds for intervention, through providing a new ground for which NatureScot can intervene in deer management for nature restoration purposes. This goes beyond the current powers which are limited to preventing, mitigating against and remedying damage occurring to an already poor environment.

There is no difference to how the deer management provisions in the Natural Environment (Scotland) Bill will apply between island communities and mainland Scotland.