Seòmar agus comataidhean

As I said, that would mean that every amendment that was needed, no matter how minor, would have to be made through primary legislation. The legislative vehicle for that might be a bill that would take a couple of years to implement. We have been talking about this bill for the past few years and only now are we putting it through the Parliament. It is about agility.

We are looking at the unworkability and disproportionality of that—

The power could be used only if Scottish ministers considered that using it would be in accordance with all the purposes that I have mentioned: maintaining and advancing standards in relation to restoring, enhancing or managing the natural environment; facilitating progress towards any statutory target relating to the environment, climate or biodiversity that applies in Scotland; ensuring consistency and compatibility with other legal regimes; and taking account of technologies and changes. Those are the safeguards that are in the bill. The power could not be used in a nefarious way.

They are very compelling, but I am willing to look at whether additional safeguards need to be put in place, because I would not want the power to be used as a loophole by any future Government. I think that those safeguards are robust.

Obviously, the DPLR did its inquiry. I think that I have set out some tangible examples of how the power could be used, both in the policy memorandum and in some of the examples that I have given today. Updating regulations on forestry EIAs could allow for more effective enforcement when breaches of environmental impact assessment consent conditions are discovered, which would allow greater alignment with the Forestry and Land Management (Scotland) Act 2018.

However, we cannot predict every circumstance that will require the use of the power. Having to be agile is in—I was going to say, “the very nature of nature”—the very nature of biodiversity and environmental protection. It is important that, when we develop legislation, we consider future proofing, especially in matters of the climate and nature crises, in which we have to be agile. We could be required to act urgently and decisively to address new and emerging threats. At the moment, every minor change to the EIA regime and habitats regulations can be made only through primary legislation. That does not allow us that flexibility and agility or that dynamic approach.

We are in a critical situation with climate and nature crises. We need the ability to be fleet of foot. I want to ensure that the bill has the correct balance between implementing the policy provisions and having suitable engagement and appropriate parliamentary scrutiny. As I mentioned before, in a parliamentary democracy, Governments cannot just do what they want; they have to be able to put policy through Parliament, like I am doing now.

The uses of the power will have to go through the Parliament. It will have to be scrutinised and the Parliament will say yes or no to the uses of the power. That is an important part of the jigsaw. We are worried—I know that I am—about emerging political discourse around the denial of the nature crisis and the need for net zero. I am very alive to that, and we have seen it in other countries. However, there are safeguards in the bill and there is rationale for taking the power—it is for nature positivity.

I am willing to speak to anybody who thinks that there could be further safeguards in place, but, fundamentally, a parliamentary democracy is the gatekeeper to the use of the power.

You mentioned the pandemic. That was an example of our having to look at some of our legal mechanisms, which were not responsive enough. Obviously, we had quite a lot of things with sunset clauses and so on, but that is just an indication of something that happens very quickly and needs to be responded to very quickly. The word “dynamic” is better than “agile”, because Parliaments and Governments need to be able to respond to things. The very nature of climate change, in particular, means that things happen that we have not seen before. Maybe some species that we have not seen before arrive in Scotland, and some of the species that we had protected are no longer in the protected sites that we created, because nature changes, moves and adapts to environmental circumstances.

It is interesting that you have linked that with human health. We do not talk enough about how biodiversity and nature are inextricably linked to human health. If we do not protect species in Scotland, we put in jeopardy our food systems and the health of the environment that we depend upon if we are to be healthy. That is an interesting analogy.

Obviously, I have already talked about the provision that will allow new topic areas to be included in the legislation in the future.

We decided that we would go for including

“the condition or extent of any habitat”

as a target topic. That resulted from the merging of two separate topics—habitat condition and habitat extent—on the basis that we did not think that condition alone would demonstrate whether the outcomes of the biodiversity strategy would be achieved. Habitat condition and habitat extent were therefore merged to become the single target topic of

“the condition or extent of any habitat”

as recommended by the PAG.

I think that Scottish Environment LINK also mentioned ecological connectivity. We did not include that as a specific target topic because of the need to select and consolidate target topic areas. However, ecosystem integrity was seen as a high-level, scalable topic.

Scottish Environment LINK and other stakeholders have all said that they would like to see various topics in the bill. There are two points to make about that. We have made sure that our topics are broad enough to include some of those suggestions, but we are not ruling out any topics, should we have more robust indicators in future. I hope that that explains that we have chosen the topics based on the independent advice of the PAG and on the topics being broad enough to incorporate many of the concerns of stakeholders—and all of us—about what we need to measure. We also have the flexibility to scale up those topics or to add topics in the future. I hope that I have given the committee the confidence that that is available.

There is no simple answer. I know that you have heard from some stakeholders who would like to see a non-regression clause in the bill. We want to be able to adapt our legislation so that we can meet the challenges ahead of us in a dynamic way and so that we can respond effectively to the twin crises. We do not believe that non-regression is completely and utterly objective.

There are no easy answers when it comes to environmental protection. We believe that decisions should be taken on a case-by-case basis. There can be very complex and competing issues within particular areas, so, in order to make the right decision about what to do, you must look at things case by case, and a non-regression clause would limit the ability to do that.

I would not say that they are incompatible; I would say that we have a changing environment, and having particular protected areas would not allow development. For example, a particular site might have been designated for overwintering geese and, in economic terms, nothing can happen on it, but the protections that are associated with the site are not needed anymore because the geese no longer overwinter there and have gone elsewhere. The issue is not about incompatibility; we are adapting to the reality and taking on board the most up-to-date data and evidence. There is no fundamental incompatibility between net zero and biodiversity, because the two go absolutely hand in hand.

First, I will set out why we do not believe there should be a non-regression clause in the bill. Such a clause would limit the flexibility that is required to operate in a changing climate and it is also difficult to quantify what regression means. It is quite subjective.

Happy days.