New Clause 21: apples and oranges
New Clause 21 would allow the Secretary of State to “swap” the duty on public authorities to satisfy the requirements of the Nature Directives with a duty to satisfy the requirements of the Environment Bill targets and Environmental Improvement Plans.
It is good if existing Regulations can be strengthened to ensure they can help to meet new targets, such as the Government’s positive promise to halt the decline of biodiversity by 2030 (a State of Nature target). EU-derived regulations should not be fossilised forever, but capable of growing to meet new environmental ambition.
However, those new objectives are simply not a substitute for the objectives of the Nature Directives. They serve an entirely different purpose.
The Environment Bill targets aim to ensure overall national improvement in the Natural Environment. To satisfy the expected Environment Bill requirements, habitats and species in general must be on the rise. By contrast, the Nature Directives are all about protecting particular habitats and species—specific sites, populations and even individual wildlife specimens.
Modern conservation must move beyond the old “lines on maps” approach of protecting single sites in favour of overall ecological restoration—that’s exactly what the Lawton Review was all about—but the two are not mutually exclusive. We still need lines on maps to ensure that the species trends (lines on graphs) are going in the right direction and to protect our most precious wildlife.
The risk of the Government’s approach is that it may be possible to create a convincing case that overall the environment is improving, while proceeding to devastate precious species and habitats—it is net gain on steroids.
The answer, of course, is to ensure that the Regulations are required to do both. A simple amendment to New Clause 21 would require public authorities to secure compliance with the requirements of the Nature Directives and with the requirements of the Environment Act.
New Clause 22 is a still wider power to amend Part 6 of the Habitats Regulations, which is the foundation of legal defence for protected sites. These Regulations require appropriate assessment of development plans that would have a significant effect on a wildlife site, ensuring that a damaging project can only go ahead for reasons of overriding public interest.
The justification for this power refers to “future changes to consenting regimes”, which is most likely a reference to the proposals for zonal planning set out in the Planning White Paper. The risk here is that large areas could be earmarked for development, including protected sites, without the site specific searches and safeguards that are currently in place. The Government may point to New Clauses 22(2) and (3) as proof that the power will only be exercised in a positive way, without weakening Habs Regs rules. However, there are a number of weaselly words that enfeeble those safeguards. The Minister need only:
1. “have regard” to the need to enhance biodiversity—a notoriously weak duty;
2. meet levels of protection “provided” by the Regulations—a de facto weakening compared with a duty to match protection “required” by the Regulations, because implementation is often poor; and
3. be “satisfied” that environmental protection is not weakened—leaving the judgement entirely in the hands of the Minister, opening the door to the kind of swap from specifics to generalities described earlier.