The Conservation (Natural Habitats, &c.) (EU Exit) (Scotland) (Amendment) Regulations 2019

Interpretation: the Directives2A

1

The Habitats Directive is to be construed for the purposes of these Regulations as if—

a

any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom;

b

any reference to “Member State” or “Member States” included a reference to the United Kingdom;

c

any reference to “of Community interest” included, in relation to the United Kingdom, a reference to “of national interest”;

d

in Article 1(d) and (h), references to “the Community” were references to “the European Union or the United Kingdom”; and

e

in Article 1(l), the reference to “a site of Community importance designated by the Member States” included, in relation to the United Kingdom, a reference to a site of national importance designated under any of the retained transposing regulations.

2

The Wild Birds Directive is to be construed for the purposes of these Regulations as if—

a

any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom; and

b

any reference to “Member State” or “Member States” included a reference to the United Kingdom.

3

Any reference in these Regulations to “the requirements of the Directives” is to be construed as if the objectives of the Directives included the objectives referred to in regulation 9D(2).

4

The Scottish Ministers may, after consultation with the appropriate nature conservation body and such other bodies or persons as they consider appropriate, issue guidance as to the interpretation of the requirements of the Directives.

5

Any guidance issued under paragraph (4) must be published by the Scottish Ministers in such manner as they consider appropriate.

4

In complying with their duties under paragraphs (1) and (3), the Scottish Ministers, the appropriate nature conservation body and a competent authority must have regard to any guidance issued under regulation 2A(4).

Reports3ZA

1

Within six years from exit day, and at least every six years thereafter, the Scottish Ministers must publish, in such form as they see fit, a report on the implementation of the measures taken for the purpose of giving effect to the provisions of the Directives, and the achievement of the objectives set out in Article 2 of the Habitats Directive and Articles 2 and 3 of the Wild Birds Directive.

2

The report under paragraph (1) must include in particular—

a

information concerning conservation measures taken under Article 6(1) of the Habitats Directive;

b

information on provisions mentioned in Article 12 of the Wild Birds Directive;

c

an evaluation of the impact of those conservation measures on the conservation status of—

i

the natural habitat types listed in Annex I of the Habitats Directive, and

ii

the species listed in Annex II of that Directive; and

d

the main results of the surveillance and monitoring undertaken under regulations 37A and 41A.

Duty to designate special areas of conservation7

1

The Scottish Ministers must, having regard to the priorities established under regulation 8, designate as special areas of conservation such sites in Scotland as they consider to be of national importance.

2

Sites of national importance are sites which contribute significantly to the objective in paragraph (3)(a) or the objective in paragraph (3)(b).

3

The objectives referred to in paragraph (2) are—

a

the maintenance, or restoration, at favourable conservation status in their natural range of the natural habitat types listed in Annex I to the Habitats Directive or the species listed in Annex II to that Directive; and

b

the maintenance of biological diversity within the Atlantic biogeographic region.

4

For animal species which range over wide areas, those sites determined to be of national importance must correspond to places within the natural range of such species, which is distinct in providing the physical or biological factors essential to their life and reproduction.

5

For aquatic species which range over wide areas, such sites are to be determined to be of national importance only where there is a clearly identifiable area which is distinct in providing the physical and biological factors essential to their life and reproduction.

6

In determining which sites are of national importance for the purposes of paragraph (1), the Scottish Ministers must—

a

apply the Annex III criteria;

b

make their determination only on the basis of relevant scientific information; and

c

have regard to the importance of the population of a species or area of a habitat found in the United Kingdom for the purpose of meeting the objectives in paragraph (3).

7

For the purposes of paragraph (6)(a), the Annex III criteria are to be construed as if—

a

for “Community importance” there were substituted “national importance”;

b

a reference to a “Member State” is to be taken to be a reference to the Scottish Ministers;

c

for “continuous ecosystem situated on both sides of one or more internal Community frontiers” there were substituted “continuous ecosystem extending beyond the borders of the United Kingdom”; and

d

for “the biogeographical regions concerned and/or for the whole of the territory referred to in Article 2” there were substituted “the Atlantic biogeographical region”;

8

In applying the Annex III criteria, the Scottish Ministers must—

a

in relation to the application of stage 1 of those criteria, have regard to the advice of the appropriate nature conservation body; and

b

in relation to the application of stage 2 of those criteria, have regard to the advice of the Joint Nature Conservation Committee.

9

In this regulation, “the Annex III criteria” means the criteria set out in Annex III to the Habitats Directive.

Priorities for designating special areas of conservation8

1

The Scottish Ministers must, in accordance with paragraph (2), establish priorities for designating as special areas of conservation such sites as they have determined to be sites of national importance.

2

Priorities for the purpose of paragraph (1) must be established in the light of—

a

the importance of the sites for the maintenance at, or restoration to, a favourable conservation status of—

i

a natural habitat type specified in Annex I to the Habitats Directive; or

ii

a species specified in Annex II to the Habitats Directive;

b

the importance of such sites for the coherence of the UK site network; and

c

the threats of degradation or destruction to which the sites are exposed.

Management objectives of the UK site network9D

1

The Scottish Ministers must, in co-operation with any other authority having a corresponding responsibility, manage, and where necessary adapt, the UK site network, so far as it consists of European sites in Scotland, with a view to contributing to the achievement of the management objectives of the UK site network.

2

The management objectives of the UK site network are—

a

to maintain at or, where appropriate, restore to a favourable conservation status in their natural range (so far as it lies in the United Kingdom’s territory, and so far as is proportionate)—

i

the natural habitat types listed in Annex I to the Habitats Directive; and

ii

the species listed in Annex II to that Directive whose natural range includes any part of the United Kingdom’s territory; and

b

to contribute, in their area of distribution, to ensuring the survival and reproduction, and securing compliance with the requirements of Article 2 of the Wild Birds Directive for the purposes of the duty in regulation 3(1), of—

i

species of birds listed in Annex I to the Wild Birds Directive which naturally occur in the United Kingdom’s territory; and

ii

regularly occurring migratory species of birds not listed in that Annex which naturally occur in the United Kingdom’s territory.

3

In complying with the obligation in paragraph (1), the Scottish Ministers must have regard —

a

in relation to any European site which is not of a kind mentioned in regulation 10(1)(d), to the considerations mentioned in paragraph (4); and

b

in relation to European sites of a kind mentioned in regulation 10(1)(d), to the considerations mentioned in paragraph (5).

4

The considerations referred to in paragraph (3)(a) are—

a

the importance of the sites for the maintenance at, or restoration to, a favourable conservation status, throughout their natural range, of the natural habitat types and species mentioned in paragraph (2)(a);

b

the importance of the sites for the coherence of the UK site network; and

c

the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed.

5

The considerations referred to in paragraph (3)(b) are—

a

the importance of the sites for ensuring the survival and reproduction of, and securing compliance with the requirements of Article 2 of the Wild Birds Directive for the purposes of the duty in regulation 3(1) in relation to, the species of birds mentioned in paragraph (2)(b), in their area of distribution;

b

in the case of migratory species, the importance of their breeding, moulting and wintering areas and staging points along their migration routes;

c

the importance of the sites for the coherence of UK site network; and

d

the threats of degradation or destruction (including deterioration and disturbance of protected features) to which the sites are exposed.

6

In paragraph (2)(a), “proportionate” means proportionate to the relative importance of—

a

the part of the natural range lying in the United Kingdom’s territory; and

b

the part of the natural range lying outside the United Kingdom’s territory,

for achieving a favourable conservation status.

aa

it was taken from the wild in the United Kingdom, without contravention of the law and before 10th June 1994;

aa

it was taken from the wild in the United Kingdom, without contravention of the law and before 10th June 1994;

7

Within two years from exit day, and thereafter within two years of the publication of the last such report, the Scottish Ministers must publish, in such form as they see fit, a report on licences granted under regulation 44 in the preceding two years.

8

The reports made under paragraph (7) must specify—

a

the species which are subject to the licence and the reason for granting it, including the nature of the risk, with, if appropriate, a reference to alternatives rejected and scientific data used;

b

in relation to any animal species, any means authorised for the capture or killing of the species and the reasons for the use of that means;

c

when and where the licence was granted; and

d

the supervisory measures taken to check that the required conditions of the licence have been complied with, any monitoring that has been carried out of compliance with the conditions of the licence, and the results of that monitoring.

Transitional provisions: EU exit112

1

Where before exit day a site in Scotland has been adopted in accordance with the procedure set out in Article 4(2) of the Habitats Directive (list of sites of Community importance), the Scottish Ministers must designate that site as a special area of conservation as soon as possible and no later than six years from the date of adoption of that site.

2

Paragraph (3) applies where a site in Scotland—

a

has before exit day been proposed, in a list of sites transmitted to the European Commission, as eligible for identification as of Community importance in accordance with the procedure laid out in Article 4(2) of the Habitats Directive (list of sites of Community importance); and

b

has not yet been so identified as being of Community importance.

3

Where this paragraph applies, the Scottish Ministers must within six years of exit day designate the site as a special area of conservation or give notice of their intention not to designate the site as such and in that case must publish, in such form as they see fit, their reasons for not designating it.

Amendment of Schedules113

1

The Scottish Ministers may by regulations amend schedule 2 or 4 for the purpose of adding, to schedule 2 or 4, any species listed in Annex IV(a) or (b) to the Habitats Directive, where they are satisfied that the natural range of that species includes any area in Scotland.

2

The Scottish Ministers may by regulations make such other amendments as they consider necessary for adapting schedules 2 to 4 to technical and scientific progress.

3

Regulation 115 applies in relation to any amendment made under paragraph (1) or (2).

Amendment of the Annexes to the Directives114

1

Paragraph (2) applies for the purposes of the application of the Annexes so far as they are relevant to any reference in these Regulations to—

a

the Directives;

b

the Annexes; or

c

any provisions of the Directives to which the Annexes relate.

2

The Scottish Ministers may by regulations make such amendments to the Annexes as they consider necessary for the purpose of adapting them to technical and scientific progress.

3

Regulation 115 applies in relation to any amendment made under paragraph (2).

4

In this regulation, “the Annexes” means—

a

Annexes I to IV to the Habitats Directive; and

b

Annexes I to V to the Wild Birds Directive.

Regulations115

1

Regulations made under regulation 113(2) amending schedule 2, or under regulation 114 amending Annex IV to the Habitats Directive, are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).

2

Regulations made in any other case are subject to the negative procedure.