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The Habitats Regulations: risks on four fronts

The Habitats Regulations are the UK’s most important nature conservation laws and multiple reviews have found them to be effective. However, the Habitats Regulations are at risk as the Government collects multiple powers to amend these Regulations freely - Link's CEO Richard Benwell explains.

January 2023

The Habitats Regulations are the UK’s most important nature conservation laws. They give important habitats and species the highest level of legal protection from development, unsustainable land management and other harmful activities.

The Regulations have been repeatedly reviewed and found to be effective, proportionate and good value for money. However, the Government’s view of the Habitats Regulations has been to characterise them as nothing more than an EU-derived legal impediment. This can be seen in the flippant references to nuisance newts as well as in policy proposals like the Nature Recovery Green Paper.

Of course, the Habitats Regulations are not perfect. They could be improved through a considered process of reform, focused on strengthening protection in ways that also improves legal certainty.

Unfortunately, the Government seems instead to be determined to give itself powers to amend the Regulations freely. Not content with a single power to meddle with these vital laws, the Government is collecting four separate powers for Ministers to amend the Habitats Regulations through delegated legislation, without the chance for proper Parliamentary scrutiny.

Threat 1: The Retained EU Law (Revocation and Reform) Bill

The REUL Bill would create a cliff edge for all EU-derived law, including the Habitats Regulations. If any individual law has not been specifically saved by Ministers, it will cease to have effect on 1 January 2024.

Perhaps even worse, Clause 15 of the Bill gives almost unprecedented powers for Ministers to meddle with the law. They can swap out legislation for voluntary schemes. They can amend and adjust the law with almost no chance for Parliament to scrutinise or improve their plans. The one thing they cannot do is make the law stronger, because the bill explicitly excludes any measures that would entail a cost—even an administrative cost—for business.

We oppose the bill and the hugely wide-ranging powers it would give to Ministers to weaken environmental law.

Threat 2: The Levelling Up and Regeneration Bill

Part 6 of the Levelling Up Bill creates a new system of Environmental Outcome Reports (EORs). In principle, a flexible way of setting new environmental goals could be constructive. The problem is that Clause 149 allows Ministers to use new EOR processes in place of Habitats Regulations Assessment, with no guarantee they will be as robust. Clause 149(3) lets Ministers “amend, repeal or revoke existing environmental assessment legislation”, including the Habitats Regulations.

Sir John Randall has tabled an amendment, with cross-party and crossbench support, which would restrict the use of these powers to removing duplication with the Habitats Regulations.

Threat 3: The Energy Bill

The Energy Bill introduces important provisions to enable offshore wind developments to be deployed while minimising the effects on nature. We welcome Government efforts to enable strategic mitigation of the impacts of renewable energy development, ensuring climate change mitigation and nature restoration can go hand-in-hand.

Unfortunately, in doing so, the Government is again proposing to take powers to amend the Habitats Regulations that go far beyond what is needed to support these proposals.

This kind of “just in case we need it” aggregation of powers is inappropriate for such fundamental laws as the Habitats Regulations. The Government should not spoil its positive plans for offshore wind with a wider power grab.

Threat 4: The Environment Act 2021

Sections 112 and 113 of the Environment Act already give expansive powers to Ministers to amend important elements of the Habitats Regulations. These powers could, for example, be used to amend the way that the Habitats Regulations Assessment takes place.

There is an important caveat in Section 113(3), won during passage of the Bill, that Ministers may only use the powers “if satisfied that the regulations do not reduce the level of environmental protection”. This restriction should be included with any delegated powers that could be used to change the Habitats Regulations.

The Habitats Regulations are not the same as SSSIs

Taken together, these threats surely suggest a concerted and determined intention to follow through on the Nature Recovery Green Paper proposal to undertake “fundamental reform” of the Habitats Regulations.

The Government has suggested that “home grown” designations like Sites of Special Scientific Interest (SSSIs) could do the same job as SACs and SPAs under the Habitats Regulations. But there are important differences:

  • Strict legal protection: protection for SSSIs depends on planning rules, which allow potentially harmful development to proceed if the benefits are considered to outweigh the adverse effects. By contrast, SAC and SPA sites enjoy a stronger level of legal protection. No harmful development may take place without “imperative reasons of overriding public interest” and only then when adequate compensation is in place.
  • Assessment of off-site and cumulative effects: the Habitats Regulations Assessment can cast its net wider than other impact assessments, taking account of off-site and cumulative developments and activities where they might affect protected ecosystems.

Simply relying on SSSI designation alone would represent a huge downgrading of nature protection in England, and invite unsustainable development in vital wildlife habitats.

Improving the law

Instead, the Government should focus on strengthening the law and completing the protected site network. Improving and expanding the network of protected sites will be vital for achieving “30 by 30” (the promise to protect 30% of land and sea for nature) in a meaningful way.

There are definitely areas for improvement. More sites should be designated. More action and investment are needed to improve existing sites. And the law can be improved too. In particular:

  • there could be huge benefits for nature and business by clarifying what really constitutes imperative reasons of overriding public interest;
  • many unsustainable land use choices slip through the net of Habitats Regulations Assessment because of a weak definition of “projects and plans” that could affect protected sites. Adjusting thresholds and definitions (for example to take in intensive agriculture, or big projects like HS2) could make a real positive difference.
  • management requirements for the site network could be modernised to improve adaptability for climate change.

These opportunities are waiting for a green-minded government, and could allow Westminster to improve on EU-derived protection.

But the Government’s current plans are far from the consultative, progressive ideas needed to strengthen our most important wildlife sites. The direction of travel set out in the Nature Recovery Green Paper ignores the evidence of the efficacy of the Habitats Regulations and threatens a deregulatory approach. The four-way Parliamentary power-grab to amend the Regulations represents a looming legislative threat.

The Government has made positive promises for the future of a Nature Recovery Network. Rather than set itself back by taking powers that could weaken these fundamental laws, it should focus instead on expanding and strengthening protection for the wonderful but dwindling wildlife that remains on these shores.

Richard Benwell is CEO of Link. You can find Richard on Twitter at @RSBenwell and Link at @WCL_News.

Not all views expressed in this blog represent the views of all Link members. 

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