Seòmar agus comataidhean

We acknowledge that the bill’s provisions are not a replacement for the power in the European Communities Act 1972. The EIA and habitats legislation originated in EU law, which means that, as a result of our having exited the EU, we have lost that power. That has created a legislative gap that we think needs to be filled, and we do not believe that regulation 9D does that. As I said, using it would mean that we would end up with legislation that was frozen in time from the date of our EU exit.

If we required primary legislation every time that an amendment to EIA or habitats legislation was needed, however minor that change might be, that would be disproportionate and unworkable, and it is not an agile or responsive way to respond to critical and dynamically changing situations. That is why we want to be able to fill that legislative gap. We do not think that regulation 9D does that, and we think that the provision in part 2 of the bill does.

We do the consents aspect of that, but the regulation associated with it is reserved to the UK.

It depends on which waters we are talking about.

We have responsibilities for inshore waters.

Yes, but, again, the issue is to do with the interoperability of the two regimes. At the moment, we are in a bit of a sweet spot with regard to alignment, because of the UK Government’s ambitions in that area. In addition, both Parliaments have net zero targets—ours is 2045 and the UK’s is 2050—so there has to be interoperability when it comes to how we achieve those.

Certain elements of what Mercedes Villalba talks about, such as the release of non-native game birds, are not covered in the bill. We wanted to keep the targets and the habitats regulations as the main part of the bill, and we do not have any plans to do anything on the release of non-native game birds. However, the target topics allow us the capacity to deal with invasive non-native species more generally, both at the moment and in the future, as the targets are set.

The bill is not prescriptive to that level of detail on actions. It provides the ability to set targets, which can be quite broad in nature and under which actions can sit. Invasive non-native species will have an impact on the health of a habitat or an ecosystem. That is why the PAG advised us to have those broad target topics. What you ask about is not ruled out; it is just not specified in the legislation.

The Orkney situation concerns the stoat population. Let me take that away and look at it.

The “Scottish Biodiversity Strategy Delivery Plan 2024-2030” includes a duty to

“implement the Scottish Plan for Invasive Non-Native Species ... Surveillance, Prevention and Control, and secure wider support measures to enable ... removal at scale.”

Therefore, that duty already exists. I am aware of the Orkney issue, but I need to take that away and look at whether it needs to be addressed in the bill or whether we already have the legal mechanisms to do that.

First, biodiversity loss and climate change are inextricably linked and we must have protections and mitigations for them both. In every situation, decisions have to be made that take into account various pieces of evidence on environmental impact. The consent application processes are robust for offshore and onshore wind, but I think that we will be making them even more robust, particularly when there are consultations about things such as community engagement and the benefits that are associated with developments. Those consultations will become stronger as time goes on, because we need to be able to see that developments of any sort will not damage the environment and also that they put things back into the environment. For example, developers have taken action to restore peatland, and offshore wind developers are helping us with data collection on seabirds and fish species. Much of that is voluntary at the moment, but much more will become mandatory in that space—that is the trajectory.

One of the interesting things in relation to my portfolio is the restriction on how money that is associated with developments can be used for nature restoration. As a hypothetical example, let us say that funding has come from a wind farm as a result of its impact on the seabed. I cannot necessarily use that money for other mitigations in nature that would have a material impact on sea health, so it is very restrictive. However, things are adapting and changing, and I think that they are getting stronger.

You mentioned energy, so I will talk about what is happening in that space. The Scottish ministers have the power to amend the Habitats (Scotland) Regulations 1994 within the parameters that are set out in the UK Energy Act 2003 in respect of offshore wind activities only. However, that power does not allow for amendments to the regulations in respect of emerging technologies. A number of colleagues who represent the islands are at the committee today, including those who represent the Orkney Islands. The UK legislation does not allow for any flexibility with respect to the roll-out of our nascent wind and tidal energy technologies. That is because those technologies are not yet on the horizon for the UK Government—they are being developed in Orkney and in the waters off the Highlands of Scotland. We are aiming to plug a gap and give parity to other nascent technologies so that we can have flexibility. Rather than having flexibility in respect of one power generation sector, it is agnostic in respect of the means of power generation.

As a particular example, let us take wave technology. Scotland could lead on that once it becomes commercially viable, so I would not want to stymie it at all. At the same time, the protections in the bill, which are robust, will ensure that flexibility is not given for anyone to do anything that they want in our marine environment. We have to do something to reduce our impact on climate change, which is the biggest impact to our biodiversity.

We can have a look at that.

I will say a couple of things on that. The targets themselves are very robust—there will be legally binding targets associated with the goals that feed into the biodiversity strategy. The high-level purpose is to align with the biodiversity strategy, but that informs the secondary legislation and the targets, so they would be binding.

None of us has control over who forms the next Government; the people of Scotland do. You would hope that biodiversity is so important to the people of Scotland that they would not elect anyone for whom biodiversity was not a consideration. We cannot future proof any legislation against future Governments coming in and overturning it or bringing in new legislation that rescinds some of the goals of the previous legislation.

I think that we are going about this in a robust way. The biodiversity strategy has been laid out. It informs the target setting, as does the advice that we have from the PAG, and the targets are set in secondary legislation. It is up to the Parliament to decide what goes through. A future Government that wants to rip up this bill or the biodiversity strategy would be scrutinised and held to account in doing that. That is parliamentary democracy—that would be my answer to that.

If there are suggestions on strengthening the language, that is what stages 2 and 3 are for, and I am happy to consider anything. However, I do not think that there is a particular risk with this bill in comparison with any other piece of legislation that we have ever passed in the Parliament. Legislation is always subject to change based on who is next in government.