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Petitioner submission of 22 January 2022

PE1895/D - Mandatory accountability for NatureScot’s decision making procedures

The Court Judgement- McMorn v Natural England states- "The (EU) Directive provides a broad and general protection, sufficiently broad to require derogations in a wide variety of interests so as to create the desired balance between wildlife and human interests. There is no warrant for requiring the principal derogations to be construed narrowly; they should be construed with proportionality and the balance of the objectives in the Directive in mind."

The above clearly supports sustainable use of natural resources, with the focus on the Directive, that being maintaining the favourable conservation status of the species. This judicial review goes into some detail on proportionality, discrimination between species being unlawful and the fact that public opinion should not be a part of licensing decisions. However, in my experience, NatureScot ignore all of this, and more in favour of an alternative that doesn't address the need, without a clear conservation objective. In ten years of license applications, I haven't seen any consideration of the "positive", the focus is looking for a "negative".

NatureScot highlight the EU Commission guidance when they themselves reject license applications for actions the Commission have never challenged while monitoring Article-9 derogation reports from other countries for the same actions. The EU Birds Directive, Article-9.4, requires the Commission to challenge derogations they believe are contrary to the objectives of the Directive, usually in the European Court of Justice. So when they don't challenge derogations, it would be reasonable to assume they don't see them as unlawful, something NatureScot appear to ignore.

The primary focus of regulation is "other satisfactory solutions" and "alternatives" can be considered in that context, with a conservation objective in mind, as I have previously shown in stated case law. The Commission guidance, referred to by NatureScot, states-

"3-56) The process to ascertain whether another alternative is unsatisfactory should be based on a well-documented assessment of all possible available options, including in terms of their effectiveness, based on the best available facts and data. The assessment of alternatives must be balanced in light of the overall objective of maintaining or restoring the favourable conservation status of the species of Community interest concerned". In my experience, NatureScot ignore this.

"Natural Heritage (Scotland) Act" details NatureScot's "general aims and purposes", which confines its powers to securing the conservation and enhancement of the natural heritage of Scotland, to foster understanding and facilitate the enjoyment of such. In doing so, have regard to the desirability that it is undertaken in a manner that is sustainable. Surely, any objective should be confined within this mandate, so it should be clear.

Scottish Governments guidance on decision making, "Right First Time", reviews "proportionality" and explains the courts will look at what the decision is trying to "achieve", i.e. the objective ! It also refers to establishing whether a decision is within the powers given to the authority by law and explains the meaning of "ultra vires". By stating a conservation "objective" it can prevent an "ultra vires" situation occurring. "Accountability" is especially important given the high degree of autonomy NatureScot are privileged with.

So, what happens when an arm's length authority appears to ignore government policy, case law and international convention? My experience is that it's the citizen who's left to challenge it, with very little support. I'm trying to address that by providing clarity, this will also help Government in making sure their policies are implemented and case law on decision making, in the form of the "Wednesbury principle" (you must not make a decision that's so unreasonable that no reasonable person acting properly could have taken it) is upheld.

NatureScot's Strategic Code of Practice requires them to recognise a commitment to five principles of better regulation: "regulation should be transparent, accountable, consistent, proportionate and targeted only where needed." Stating a conservation objective gives clarity to whether these principles have been recognised or not. In my experience, I believe they're ignored.

Scottish Governments Biodiversity Strategy for its 2030 vision highlights the importance of "objectives". In my experience, NatureScot don't believe they need an objective to refuse a license application and ignore the fundamental benefits associated with sustainable use of natural resources, in that it's beneficial to sustainable development and positive to conservation. Scottish Government recognise that "proportionality" is one of the foundations of regulation and yet in ten years of license refusals it has never been explained to me what factors have been considered in relation to "proportionality", even the license application form focuses on the negative and FoI shows the same approach but for no conservation benefit.

I've tried to use 50 years of experience for the benefit of mine, and Scotland's cultural heritage, and the conservation of species, which is supported by government policy, case law and international convention. This is rejected, even though there would be no negative effect on the conservation status of species, on the basis of an alternative that doesn't address the issue.

I've been to the Ombudsman, 3 MSP's and 2 Ministers, and yet NatureScot always have the final word. If this is to be the case, then at least a citizen should be able to expect clarity in what the conservation objective is in refusing a license.