The Future of the Habitats Regulations – by David Tyldesley FCIEEM and Dr Caroline Chapman FCIEEM

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Around the UK and Ireland, and in the terrestrial and marine environments, the ‘Habitats Regulations [1]’, in their various forms, are one of the most important measures for protecting wildlife habitats and species and sites designated for their protection. In respect of European protected species and European sites, the Regulations require a considerable contribution from CIEEM members working in consultancy and in the statutory and voluntary nature conservation bodies.  However, as part of the UK Government’s agenda to deregulate and diminish or nullify the influence of European Union legislation, the requirements of the Regulations are under serious threat of being weakened. Ministers say that they will not reduce the current level of protection, but it will be the Secretary of State who makes this judgement when promoting reform [2], following years of ministerial hostility to the EU derived legislation.

Apart from what the Government may see as the ghost of the EU Nature Directives in their provisions, this determined attempt to spoil what the Regulations have achieved and continue to deliver, has been fuelled by a vociferous and persistent, though relatively small, campaign of misinformation and ill-informed assertion.  Critics have often been parties with a narrow interest and limited experience of the application of the Regulations. They claim that the Regulations are excessive in their requirements and misapplied by statutory nature conservation bodies and other decision-makers. They argue that the courts have handed down judgments with overly restrictive and impracticable interpretations of the law.

In May 2021, the then Secretary of State, George Eustice, gave what has become known as the ‘Delaware Forest speech’ entitled ‘Restoring Nature and Building Back Greener’ [3]. Whilst generally positive in its announcements of some new or refreshed initiatives in England, it contained a highly critical analysis of the Habitats Regulations, which lacked any evidential basis, but echoed the language used by those who sought to persuade Government to disengage the Habitats Regulations from decision-making processes. There was little recognition as to how effective the Regulations have been in ensuring that the use, development and management of land and sea are sustainable and comply with the UK’s international nature conservation obligations.

In this speech the Secretary of State also announced his appointment of a Defra working group to “consider changes that might be appropriate”. The findings of the working group, in summary form only, were published on 16 March 2022 [4].

Unsurprisingly, the speech gave succour to other interest groups, such as those related to game shooting and moorland management, under the umbrella name of ‘Aim to Sustain’. In October 2021, this body issued a particularly misleading report entitled ‘Shooting for a Level Playing Field [5]’. This inaccurate paper was criticised by practitioners in the legal profession as well as those in nature conservation, but it influenced ministers.

The Green Paper ‘Nature Recovery: Protected Sites and Species’ [6] of March 2022 increased the pressure on the Regulations and made further ill-founded and exaggerated attacks on the how the Regulations are being applied in law and practice, again without any convincing evidence. These criticisms belied a fundamental misunderstanding of the importance of legal interpretation and the purpose and effectiveness of site designation procedures and protection. The Habitats Regulations/Directive had previously been rigorously reviewed three times and had been found to be effective and fit for purpose on each occasion [7]. The Green Paper proposed a redesignation of wildlife sites, seemingly unaware of the phenomenal scale of the task that Natural England would have to undertake. We await the outcome of the consultations on the paper, which closed almost a year ago.

The Government secured new provisions in the Environment Act 2021 giving the Secretary of State powers to make regulations amending the Habitats Regulations: first relating to the general duties of public bodies to comply with the requirements of the Nature Directives; and secondly, Part 6 of the Regulations relating to the critically important and effective Habitats Regulations Assessment process. The United Kingdom Environmental Law Association (UKELA) said “These amendments are significant as they would: formally decouple English law from the Habitats Directive and Wild Birds Directive and linking them instead to new targets under the Environment Act 2021; and potentially undo the Directives’ hard procedural edges [8].”

The Government is now going further. The provisions of the Retained EU Law (Revocation and Reform) Bill [9], currently at report stage in the House of Lords, are intended to revoke certain ‘retained EU law’ (comprising statutory provisions and case law), change the way that retained EU law can be interpreted by the UK courts and give Ministers sweeping powers to revoke or modify retained EU law or to replace or update it.

These provisions have been widely criticised by environmental bodies, e.g. in a comprehensive briefing paper ‘What Price Deregulation’ by Wildlife and Countryside Link [10]. The Bill has been criticised by MPs and Lords, including several in the Conservative Party, who believe that Ministers (amongst other things) are:

  • travelling down the road of deregulation too quickly and at a pace that cannot be supported by the Civil Service;
  • proceeding in an ill-conceived and misdirected way that could lead to widespread confusion and uncertainty about compliance with a considerable body of legislation, which would have a destabilising and confusing effect on the economy and environmental protection;
  • trying to give themselves excessive powers to change or cancel the provisions of environmental and other secondary legislation (including the Habitats Regulations) without proper scrutiny by Parliament or consultation with the public.

These voices are growing louder, with a real possibility that cross-party opposition could force the government to withdraw, delay or reshape the Bill [11]. The Welsh Senedd has recently joined the Scottish Parliament in voting to withhold consent for the REUL Bill, which introduces further confusion and the prospect of significant divergence of devolved administrations [12]. It will be interesting to see how a government, which is bent on deregulation and wiping away the hand of Europe in domestic legislation, will handle this scale of opposition.

As we understand it, Defra is working on amendments to the Habitats Regulations and along with other Government departments, no doubt other statutory instruments including those relating to Environmental Impact Assessment [13], another area where ecologists and environmental managers make a vital contribution. We await the proposed amendments to the Habitats Regulations. Will they be influenced by the opposition to reform? Will they preserve the existing level of protection, whilst meeting the Ministers’ declared intentions? It will be a difficult circle to square.

Notes

  1. For example, in England and Wales, the Conservation of Habitats and Species Regulations 2017
  2. Section 112(7) and (8) of the Environment Act 2021.
  3. https://www.gov.uk/government/speeches/environment-secretary-speech-at-delamere-forest-on-restoring-nature-and-building-back-greener
  4. https://consult.defra.gov.uk/nature-recovery-green-paper/nature-recovery-green-paper/supporting_documents/Background%20Doc%201%20%20HRA%20Review%20Working%20Group%20%20Summary%20of%20Findings.pdf
  5. https://aimtosustain.org.uk/wp-content/uploads/2021/11/AIM-TO-SUSTAIN-HRA-WP.pdf
  6. https://consult.defra.gov.uk/nature-recovery-green-paper/nature-recovery-green-paper/
  7. The 2012 Defra review of the Habitats Regulations and the Government Red Tape Initiative of 2018, and the EU’s REFIT review of the Nature Directives in 2016.
  8. UKELA Nature Conservation Working Party, 2021
  9. https://bills.parliament.uk/bills/3340
  10. https://www.wcl.org.uk/docs/What_price_deregulation_Link_briefing_12_12_22.pdf
  11. https://www.theguardian.com/politics/2023/apr/09/tories-in-retreat-from-brexit-bill-to-scrap-thousands-of-eu-laws
  12. https://www.gov.wales/senedd-votes-to-refuse-consent-for-retained-eu-law-bill
  13. Under Part 6 of the Levelling Up and Regeneration Bill, Environmental Impact Assessment reports will be replaced by Environmental Outcomes Reports which will replace the requirements of the EU EIA and SEA Directives and on which the Government (Department for Levelling Up, Housing and Communities) is consulting until 19 June 2023.

David Tyldesley FRTPI FCIEEM FRSA, Principal, David Tyldesley and Associates

Dr Caroline Chapman FCIEEM, Director, DTA Ecology

DTA Ecology Ltd is the consultancy arm of the DTA brand whose reputation in the field of the Habitats Regulations is firmly established through the award-winning Habitats Regulations Assessment Handbook and accompanying Journal, published and maintained through DTA Publications Ltd. DTA Ecology Ltd was established in April 2015 to continue the work of David Tyldesley and Associates. The DTA brand is associated with an exceptional reputation in the interpretation and practical application of the Conservation of Habitats and Species Regulations (commonly referred to as the Habitats Regulations).

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