Seòmar agus comataidhean

It is important that we recognise that a defence of carrying out a permitted activity is not a licence to commit ecocide. However, acting outwith the terms of the authority could expose someone to prosecution for ecocide.

If the activity is permitted, there are already provisions in the application for the permit and in the decision to give the permit that a person must meet. If someone acts outwith the permit, they are acting outwith the permit. They could be wilfully committing severe environmental damage.

That has to be a defence.

Yes, we do.

As I said, we already intended to lodge an amendment on a defence of acting under permit. We received the letters from which you read only last night, and we will look at them thoroughly. I would be happy to work with any member who thinks that we can lodge amendments to the bill that would protect against the scenarios that Mr Stewart has just outlined.

I got the submissions from the local authorities last night, and we are looking at the issue in case there are any other unintended consequences. I am happy to work with any members to test their amendments on the matter.

Of course, this is not my bill. I am giving evidence on someone else’s bill.

I will start by expressing my agreement with Dr Allan’s earlier remarks and urging the committee to support his amendments, which we worked on together.

Dr Allan’s amendments 115 to 117 are designed to alleviate concerns by including an environmental protection requirement in part 2 of the bill and narrowing the scope of the purpose set out in section 3(c). His amendment 121 seeks to narrow the scope of the purpose set out in section 3(f).

I put on record—I think that I also reflected this in the evidence at stage 1—that I agree that we need to ensure that any legislation is not vulnerable to being misused by any future Government that does not have biodiversity or climate goals in its sights or that does not agree with them. I am happy to see that a lot of work has been done by various members on that. I do not agree with deleting part 2 of the bill, but I am absolutely convinced that Dr Allan’s amendments are a significant step towards having a safeguard put in place, and Scottish Environment LINK has expressed that they are a significant step forward.

I will now turn to other amendments in the group. Although I recognise the attempts that members have made to introduce non-regression clauses and agree with the intention behind that, the amendments that Dr Allan has lodged are those that I feel achieve the objectives in a way that I can stand beside.

Ms Boyack’s amendments 5 and 6, Ms Wishart’s amendment 196 and Mr Eagle’s amendment 313 all seek to introduce a non-regression provision to part 2 of the bill. They respond directly to the understandable concerns that stakeholders and the committee raised about the need for a non-regression provision. Of course, we need to decide which non-regression provision members might want to get behind and support.

The breadth of the power and the absence of safeguards in part 2 of the bill were mentioned in the stage 1 debate. We need safeguards—I hope that members recognise that I agree with everyone on that. The Government shares the ambition to uphold high environmental standards. However, a non-regression provision amendment needs to offer a clearer, more workable safeguard that supports our ambitions for both nature restoration and climate change. I do not agree that one has priority over the other—they are inextricably linked and have parity, as far as I am concerned.

As a non-regression provision would introduce legal obligation, the Government believes that any provision needs to be proportionate and a workable safeguard that strikes a balance between maintaining flexibility and ensuring accountability.

The example that you have just given is a substantive change—a quite hefty substantive change—and, of course, you would expect the Parliament to have the affirmative procedure in place to scrutinise anything in relation to criminality.

On Mark Ruskell’s amendments 1 to 3, as I said, part 2 introduces a bespoke power to modify the 1994 habitats regulations and the legislation that forms the environmental impact assessment regime, and it plugs the legislative gap arising from EU exit. The powers are essential in order for Scotland to continue to meet its environmental obligations in a way that is fit for purpose, particularly in the context of our nature restoration and net zero targets. Removing part 2 of the bill entirely would undermine our ability to take a fast and flexible approach to tackling the twin crises of climate change and nature loss in the face of evolving circumstances. It is appropriate to put in safeguards, but it would be a misstep to remove the ability to adapt flexibly and to be fleet of foot in changing circumstances.

I recognise and accept the concerns that have been raised by the committee and a range of stakeholders. The power in part 2 of the bill is too broad—I accept that—and it could potentially be used to dilute environmental protection, which I want to avoid. Such is the beauty of parliamentary scrutiny and the committee process that concerns can be raised and the Government can reflect on them and work with members to put in safeguards. That is exactly what we have done.

We are unequivocally committed to protecting the environment. The bill has not been designed to dilute environmental protection, but I fully accept that, without the changes in the amendments that have been lodged by Dr Allan and Emma Harper, it could be misused by future Governments. We all want to avoid that happening.

Amendments 58 and 60 seek to place a hard limit on triggering an EIA for the creation of any new conifer woodland schemes. Ariane Burgess has said that those amendments are a continuation of amendments that were lodged but not agreed to for the Agriculture and Rural Communities (Scotland) Bill.

My colleague Mairi Gougeon explained then why such a limit would not be appropriate. However, I will reiterate some of the reasoning now in relation to this bill. All new planting schemes in Scotland that exceed 20 hectares are already subject to a screening assessment under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017. There are also strict thresholds in regulations that set out where, in particularly sensitive areas, EIA screening is always required. If the outcome of a screening assessment is that a project is likely to have a significant effect on the environment, it should be subject to an EIA.

For comparison—Mairi Gougeon alluded to this in her response to the member—Ireland introduced a mandatory 50 hectare limit back in 2001. What has happened since then provides a sobering reality. In the past 22 years, there has not been a single forestry application in Ireland to establish a forest that is greater than 50 hectares in size, because it would be too administratively onerous to do so.

We have tree-planting targets, and the climate change plan has tree-planting targets in it for the sequestration of carbon. As everyone around this table knows, tree planting is particularly important in protecting and enhancing biodiversity and providing habitats for species that would otherwise be under threat. I am sticking with Ms Gougeon’s approach to this issue.

I am not entirely sure that I understand the question. I have just set out how regulation 9D does not give us the flexibility to adapt to situations that require that flexibility and fleet-of-foot reaction. I am confident that the adoption of Alasdair Allan’s amendments would allay any concerns about not having non-regression safeguards in the bill.

I set out at stage 1 many of the reasons why we could not have a static situation. For example, we could have protected areas that no longer protect the species that they were originally set up to protect, because of the effects of climate change on that species. We need to have a more fleet-of-foot response available. I also point to Emma Harper’s amendment in relation to the affirmative procedure being used for substantive amendments and changes, which is also right.

The suite of amendments from Alasdair Allan and Emma Harper should allay a lot of the difficulties that people had at stage 1.

Sarah Boyack has set out why the affirmative procedure is extremely important for the parliamentary scrutiny of anything that future ministers might want to do that entails substantive changes. That is proportionate.

Of course, if we were to have affirmative procedures for all the minor and technical things that might be put through, which do not entail particular policy or material changes, that would be disproportionate. That is why I am supportive of what Emma Harper came to discuss with me.

I will move on and talk about the other amendments.

I do not agree with the phraseology of sledgehammers and nuts. I have explained the reasoning behind the provisions in part 2, which was to do with closing the gap that was caused by EU exit and giving Scottish ministers the power to act in an adaptive and swift way, should they have to, without waiting for an agreement with the UK Government. It has not, and has never been, the policy of this Government to dismantle Scotland’s environmental protections, but one area on which I agree with members is that, if we did not include safeguards, we would leave that possibility open to future Governments. Convener, you and I are not going to agree on this, because, as you made very clear at stage 1, you have already made up your mind that you want part 2 to be removed—the same goes for Mark Ruskell.

I have worked with Alasdair Allan and Emma Harper to allay stakeholders’ concerns so that, we hope, people will be able to support part 2 in its entirety, as amended. Part 2 introduces the bespoke power to modify the 1994 habitats regulations and legislation on the environmental impact assessment regime. It plugs the legislative gap that exists as a result of EU exit. The power is essential to ensure that we continue to meet our environmental obligations in a way that is fit for purpose, particularly in the context of net zero and nature restoration ambitions.

I understand that, as drafted, part 2 does not include safeguards. Having worked with Dr Allan and Emma Harper, I am confident that we have allayed those concerns and that, if their amendments are agreed to, we will have a much stronger part 2 that will protect against future Governments being able to abuse the provisions. If the amendments are agreed to, future Governments will simply not be able to do that.

I recognise that amendment 7 was lodged due to the concerns that we have heard from other committee members, and from stakeholders in their evidence, about the scope of the proposed powers to modify the environmental impact assessment legislation and habitats regulations. I recognise the concerns, but I cannot support amendment 7, because there is already a duty on Scottish ministers to manage and, where necessary, adapt the UK site network, as is specified in regulation 9D of the habitats regulations. That is where regulation 9D is strong. Therefore, when considering the use of the power to amend the habitats regulations, ministers must already have regard to regulation 9D and any potential implications for the UK site network. I ask the member not to move amendment 7, failing which, I ask the committee to reject it.

Amendment 8 would introduce the affirmative procedure to cover the power provided in part 2. I absolutely recognise the concerns that were raised in the stage 1 debate about the lack of clarity as to when the affirmative procedure should apply. I have always been clear that, if the power were to be used to make significant changes, the affirmative procedure should apply. Ms Boyack’s amendment 8 reflects the desire for stronger safeguards, but I would argue that a blanket requirement for the affirmative procedure is not proportionate and would not be an efficient use of the public resource of the Parliament’s time, as that would also cover all the minor and technical changes that might be made over time.

There is a judgment call to be made. Emma Harper’s amendment 57 offers a more balanced approach, but both amendments have the affirmative procedure in their sights; it is just a case of whether the committee wants to have the affirmative procedure for every minor and technical amendment that we might make. It is the committee’s judgment call.