Part 5 – General
Section 53 Orders and regulations: general
427.This section makes procedural provision for orders and regulations made under the Act.
428.Subsection (1) specifies that orders and regulations are to be made as statutory instruments. This does not, however, apply to NCOs, LMOs, or orders amending or revoking NCOs and LMOs. These orders are subject to their own detailed procedures which are set out in Part 2 of the Act and in Schedules 2 and 3.
429.Subsection (2) allows such statutory instruments to make such incidental, supplemental, consequential, transitional, transitory or saving provision as is considered necessary or expedient by the Scottish Ministers and can make different provisions for different purposes in different areas.
430.Subsection (3) supplements the powers conferred on the Scottish Ministers by section 56 by providing that an order under that section can modify any enactment, instrument or document. The power in section 56 allows the Scottish Ministers to make an order specifying such incidental, supplemental, consequential, transitional, transitory or saving provisions as they consider necessary expedient of the purposes or in consequence of the Act.
431.Subsection (4) provides that the majority of statutory instruments made under the Act are to be subject to annulment in pursuance of a resolution of the Parliament (i.e. they will take effect unless the Scottish Parliament specifically votes to annul them). An exception to this general rule applies in relation to orders under section 56 (where the order contains provisions which add to, replace or omit any part of the text of an Act). In this particular case, an order may not be made unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament (i.e. the order will not take effect unless specifically approved by the Scottish Parliament).
432.An exception is also made in sub-section (4) in relation to Commencement Orders made under section 59. Commencement Orders are not subject to Parliamentary procedure. They take effect without any requirement for parliamentary approval.
Section 54 Guidance
433.Subsection (1) empowers the Scottish Ministers to issue guidance (or to approve guidance issued by others) in connection with the new biodiversity duty in section 1 and the SSSI system established in Part 2 of the Act.
434.Such guidance may contain recommendations, advice and information for the assistance of public bodies in general (in relation to the biodiversity duty), SNH in particular (in relation to the SSSI system) and any other persons affected by the functions exercised by SNH in connection with the SSSI system. The guidance may be revised and re-issued by Ministers as appropriate and revisions made to guidance issued by others may also be approved.
435.Subsection (2) provides particular examples of the types of information guidance prepared or adopted under subsection (1)(b) (i.e. in relation to the exercise by SNH of functions in connection with the SSSI system) may contain. Such guidance may contain information about:
the circumstances in which SNH should consider land to be of special interest (for the purposes of notifying, enlarging or denotifying SSSIs). Such guidance may set out statutory selection and deselection criteria which must be considered by SNH when considering whether or not to notify or denotify land as an SSSIs. The existing selection criteria are currently published by the Joint Nature Conservation Committee (“JNCC”) on behalf of SNH, English Nature and the Countryside Council for Wales on an administrative, rather than a statutory, basis. Further information can be found on the JNCC website. See both: http://www.jncc.gov.uk/Publications/sssi/sssi_content.htm (for biological SSSIs) and http://www.jncc.gov.uk/earthheritage/gcr/content.htm (for geological SSSIs);
the circumstances in which SNH should offer to enter to enter into a management agreement, as well as the terms and conditions on which it should do so. This guidance will be published in the form of the Financial Guidelines already referred to at paragraph 18 above; and
the amounts which SNH should pay to anyone carrying out operations specified in an LMO.
436.Subsection (3) requires the Scottish Ministers, before issuing guidance, to consult SNH and any other persons who appear to the Scottish Ministers to have an interest in the subject matter of the guidance.
437.Subsection (4) requires the Scottish Ministers to publish guidance issued under this section. Publication may be in such a manner as the Scottish Ministers see fit and this may include publication by means of the internet or other electronic means.
Section 55: Crown application
438.This section deals with the application of the Act to the Crown.
439.Subsections (1) and (2) provide for the provisions on biodiversity (Part 1), SSSIs (Part 2) and the general provisions in Part 5 to bind the Crown. The provisions inserted by Part 3 (and Schedule 6) into the 1981 Act and the Protection of Badgers Act 1992 (c.51) will be governed, in so far as they apply to the Crown, by the provisions of those Acts. Neither currently binds the Crown. The amendments and repeals to other legislation made in Schedule 7 reflect that same principle and bind the Crown only to the same extent as did the enactments which are being repealed or amended.
440.It should be noted that, by virtue of subsection (1), Her Majesty is bound by Parts 1, 2 and 5 of the Act in her private as well as her public capacity. The principal practical effect of this is to extend the SSSI system to land (in particular the Balmoral Estate) which is owned by Her Majesty as a private individual. For the purposes of the Act, Her Majesty’s private estate is treated as private land and the provisions of the Act apply to it in the same way as they apply to the land of any other private landowner.
441.Subsections (3) to (11) apply the SSSI provisions in Part 2 of the Act to Crown land with appropriate modifications.
442.“Crown land” is defined in subsection (9) for the purposes of this section as land which belongs to Her Majesty in right of the Crown, to an office-holder in the Scottish Administration or to a government department, or which is held in trust for Her Majesty for the purposes of the Scottish Administration or a government department. Crown land therefore equates, for the purposes of the Act, to what might be thought of as Her Majesty’s “public” estate. Her Majesty’s private property (such as Balmoral Estate) is not Crown land within the definition used in this Act.
443.Byelaws, NCOs and LMOs can only be made in relation to Crown land with the consent of the appropriate authority responsible for the land in question. An interest in land may only be purchased compulsorily where the appropriate authority consents. This permits action to be taken, for example, in relation to the activities of a tenant who occupies Crown land, or in relation (in the case of byelaws or NCOs) to the activities of third parties (including members of the general public) on Crown land. Such action does however require the agreement of the appropriate authority, as defined in subsection (10).
444.The Crown itself is exempt, under subsection (7) from criminal prosecution, but its acts or omissions may be declared illegal on application to the Court of Session if they contravene Part 2 of the Act. By virtue of subsection (8) Crown servants remain liable to prosecution on the same basis as any other person, if they contravene the provisions of Part 2 of the Act.
445.Subsection (10) provides a definition of the term “appropriate authority” used in section 55. Where land forms part of the Crown Estate, the appropriate authority will be the Crown Estate Commissioners. In the case of other land belonging to the Crown (e.g. land managed by the Scottish Administration or a government department) the appropriate authority will be the responsible office holder in the Administration or the relevant department. The Scottish Ministers are, by virtue of subsection (11), empowered to determine any dispute in relation to who is the appropriate authority in relation to any particular area of land. Their decision on the matter is final.
Section 56: Ancillary provision
446.This section allows the Scottish Ministers to make ancillary provisions by order. Such provisions can be of an incidental, supplemental, consequential, transitional, transitory or saving nature, as the Scottish Ministers think fit. Any such order which amends or repeals the text of an Act may be made only if a draft of the order is approved by the Scottish Parliament.
Section 57: Minor and consequential amendments and repeals
447.This section provides for the amendments and repeals set out in Schedule 7 to have effect.
