Chapter 3: Legislation and regulation
In Chapter 3 the consultation paper explains that the Scottish Government intends to introduce primary legislation in the Scottish Parliament and make appropriate administrative arrangements to complete the devolution of forestry. This will include repealing the Forestry Act 1967 (and related forestry enactments) and replacing it with a new and updated statutory framework for the regulation of forestry in Scotland. Under section 1 of the Forestry Act 1967, the Forestry Commissioners are charged with a general duty of promoting:
- the interests of forestry;
- the development of afforestation;
- the production and supply of timber and other forest products;
- the establishment and maintenance of adequate reserves of growing trees; and
- using land in Scotland placed at their disposal by the Scottish Ministers in the way best calculated to contribute to the delivery of the targets set out in or under Part 1 of the Climate Change (Scotland) Act 2009.
The Scottish Government proposed to include in the new legislation a similar duty for the Scottish Ministers to promote forestry.
A duty placed on Ministers
Question 8: Should the Scottish Ministers be placed under a duty to promote forestry? Y/N
Around 11 in 20 respondents agreed with the proposal to place the Scottish Ministers under a duty to promote forestry, while around 2 in 20 disagreed, and around 7 in 20 did not answer the question. The was some difference in the balance of opinion between individual respondents (of whom 10 in 20 agreed, 2 in 10 disagreed, and 8 in 20 did not answer) and organisational respondents (of whom 14 in 20 agreed, 1 in 20 disagreed, and 4 in 20 did not answer  ). Further details of responses to Question 8 by respondent type may be found in Annex 2.
Question 9: What specifically should be included in such a general duty?
In total, 324 respondents answered Question 9. Of these, 39 were respondents who had answered No at Question 8, and 8 were respondents who had not answered the question.
A small number of respondents listed specific elements to be included in a public duty (Ind, O, Th) with very similar wording often used. Suggested duties included:
- To support the management of the forest land of Scotland, including expansion, in line with the key principles of sustainable forest management outlined in the UKFS and as determined from time to time by the Scottish Forestry Strategy ( SFS).
- To help manage the NFE as an exemplar of sustainable forest management, giving due weight to each of the social, environmental and economic imperatives, and delivering benefits as defined from time to time by the SFS.
- To help protect the forest from catastrophic damage such as disease, fire, deforestation and unsustainable practices/inappropriate management.
- To optimise the benefits derived from forestry for the benefit of the people of Scotland and beyond.
- To ensure forestry activity is undertaken in such a way as to support other Scottish Government objectives (including conservation, landscape and amenity, economic development, climate change, health and well-being).
- To foster a partnership approach between public, community and private stakeholders (including Non Governmental Organisations).
- To support the forestry sector and associated interests through the provision of advice, research, sound governance and, where appropriate, financial incentives to help deliver the SFS.
- To promote forestry education and the highest professional standards of forestry management.
- To develop afforestation with specific targets e.g. based on the Woodland Expansion Advisory Group's recommendations and the establishment and maintenance of adequate reserves of growing trees.
- To establish and maintain adequate reserves of growing trees; and using land in Scotland in the way best calculated to contribute to the delivery of the targets set out in or under Part 1 of the Climate Change (Scotland) Act 2009.
Many respondents noted their broad support for the transfer of the duties currently held under section 1 of the Forestry Act 1967 (Ind, O, Pr, Pu, Th). In particular, the text concerning achieving a reasonable balance between the development of afforestation, the management of forests and the production and supply of timber, and the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest was noted (Ind, Pr).
Some respondents also noted additions or modifications they thought appropriate. For example:
- The production and supply of timber and other forest products should be caveated with the requirement that this is achieved at commercial rates, perhaps supported by a target rate of return (Th).
- The general duty could also be to promote the expansion and management of native woodland cover in Scotland (Pu).
- The list should be expanded to include: interests of sustainable land use (not just interests of forestry) and the adoption of the principles of the Land Use Strategy; interests in recreation and social health and wellbeing; nature conservation (both woodland and non-woodland interests); water quality and regulation; interests in communities; ownership and engagement (Th).
- There should be duties to ensure that land is utilised sustainably and productively for the benefit and in the interests of the public (Pu).
The importance of sustainable forest management ( SFM) was a key theme of many responses (Ind, O, Th). Suggestions made included that:
- The current range of duties should be updated to include the contribution forestry can make to sustainable development - economic, environmental and social (O, Th).
- There should be a duty on ministers to promote sustainable forests and woodlands, and an associated thriving timber industry, and to seek a constant improvement in the quality and diversity of Scotland's forests and the timber they produce, including by working closely with local communities (Th).
- The promotion of forestry should be in the context of all land uses, and with the ecosystem services with which it interacts (Ac).
- Wording similar to that of the Norwegian Forestry Act might be included in the new legislation (Ind, O Pr, Th).
A number of respondents made specific reference to the Land Use Strategy (Ind, O, Pu, Th). In particular, it was argued that a simple duty to promote forestry is not sufficient and that Scottish Ministers should have a duty to promote forestry that meets the aims of communities, the environment and the economy (Pu). It was also suggested that promotion of the forestry industry should be linked directly to the 10 principles of the Land Use Strategy and that objectives of the Land Use Strategy should also feature strongly in the duties.
A small number of other respondents pointed to the importance of forestry education, including associating this particularly with a suggestion that the Scottish Ministers should take a role in promoting the benefits of forestry, raising the public profile of the industry and supporting forestry-related further education (Ind, O, Th).
Other subjects suggested for inclusion in duties to promote forestry included: promoting forest research activities; promoting urban forestry; creating woodland on farms and estates; and promoting the non-timber benefits of forestry, including leisure and recreational activities (Ind, Pu).
A small number of respondents noted their view that expansion of the commercial forest area must be the primary duty of ministers. It was argued that well managed commercial forests also provide a wide range of environmental and social benefits without compromising the economic imperative, and the primary duty and purpose of Scottish Ministers with regard to forestry should be the production of timber (Ac, Ind). It was also suggested that the duty should include a commitment to promote the use of home grown timber (Pu).
Comments by those disagreeing with there being a public duty
Among those who had said No or did not answer Question 8, comments made at Question 9 were often brief, but included:
- That any duty to promote forestry should rest with the organisation charged with managing forestry rather than with the Scottish Ministers (Ind, O).
- That exactly what is meant by 'forestry' needs to be defined (Ind, Th).
Otherwise, many of the comments focused on what should be included within any duty and very much reflected the range of issues raised by those respondents who had agreed at Question 8.
Principles for a new legislative framework
Question 10: Recognising the need to balance economic, environmental and social benefits of forestry, what are your views of the principles set out above?
In total, 296 respondents answered Question 10. Respondents made both general points about the proposals in Chapter 3 and also specific remarks about the five principles set out in the consultation paper. General comments included that:
- There could be an opportunity to identify how forestry, and its governance, can contribute to the Rural Land Use Partnerships envisaged in the Land Use Strategy 2016-21 (Ac).
- Reference should also be made to the United Nations Forest Instrument, adopted by the UN General Assembly in 2007 (Ind).
- The principles should recognise that there needs to be co-operation between forestry and other land uses (O).
- Tourism and recreation should be incorporated (Pr).
- There should be provision for community engagement, encouraging local land tenure, creating local employment and rural development (Ind, Th).
- Sporting/recreational activity should be given a greater level of importance when weighing up the benefits of forestry (Th).
- Overall levels of regulation and enforcement should be considered. A lighter touch where appropriate would help reduce unnecessary financial burdens and help support the achievement of the desired targets (Pr).
With regard to achieving the balance between the economic, environmental and social benefits of forestry referenced in Question 10, respondents making specific comments tended to the view that the balance should be moved in one direction or the other. For example, several respondents suggested more attention should be paid to social and environmental considerations (O, Th). However, other respondents suggested that the importance of the economic element has sometimes been overlooked (Pr) and that a commitment to enhancing productive woodlands through restocking and forest creation will provide the wealth necessary to support the environmental and social benefits (Pr).
Duty of ministers to promote forestry
Other than to note approval, few respondents made specific reference to the duty to promote forestry. This might reflect the fact that the proposed duty was the subject of Question 9.
Commitment to maintain international standards of good forestry, termed sustainable forest management
Respondents who mentioned this principle specifically tended to offer their support. For example, it was suggested that SFM focuses on the sustained delivery of economic, social and environmental benefits and that it is essential that the NFE continues to be managed in accordance with internationally recognised standards of SFM (Pr). Other points made included that there should be a further commitment to offer access to forest and forest land for activities including shooting, grazing and equine-related recreational use (O).
The consultation paper notes that the Scottish Government is minded to retain the obligation in section 1(3A) of the Forestry Act 1967 to achieve a reasonable balance between the development of afforestation, the management of forests, the production and supply of timber and the delivery of climate change targets and the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest.
When specifically referenced, there tended to be support for inclusion of the principle of reasonable balance (O, Pr, Pu). However, it was suggested that it is not appropriate to simply 'copy and paste' the obligation under section 1(3A) and that a new set of principles should put greater emphasis on achieving healthy forest ecosystems and the goods and services that could be derived from them (Th).
Other points made on the reasonable balance principle included:
- The term needs to be defined, measured and monitored (O, Pr). The definition could reflect the content of a statement from a Ministerial Conference on the Protection of Forests in Europe in 1993 (Th).
- There should be an obligation to extend and enhance the health and wellbeing benefits that forests can offer to a greater proportion of the population (Ac).
- A specific focus is required on creating and maintaining forests as set out in the UKFS and as envisaged in the national and regional forestry strategies (Pu).
- The principles of management, timber supply, carbon sequestration, and conservation should be expanded to cover more of the wider benefits of woodlands, such as substituting timber in place of more carbon-intensive building materials (Ind).
- The features of 'special interest' cannot be restricted to National Parks. The new forestry organisation will have a duty to further the conservation of biodiversity, as defined in the Nature Conservation (Scotland) Act 2004, and such sites should be part of that duty (Pu).
Felling and restocking
A small number of respondents commented on felling. These were generally supportive but included that:
- Felling should be carried out according to an agreed international standard and not one defined by government (Ind).
- There is currently a lack of clarity over responsibility for approving tree felling carried out as part of a development that requires local authority planning permission (Ind, O).
- Obligations in relation to felling and re-stocking should focus on the UKFS (Pu).
Comments on restocking were more frequent and included the following:
- There should be a presumption against deforestation and this should apply particularly to the NFE (O, Pr).
- Compensatory planting should be required when development involves woodland removal (Pr, Pu).
- There should be a requirement to replant commercial species where commercial species have been removed (Pr).
- An effective grant scheme should be available to encourage woodland owners to follow best practice when re-establishing felled areas (Pu).
- There are concerns regarding management and restocking of trees where this occurs adjacent to the operational railway. Any restocking should be carried out at a sufficiently safe distance from the railway (Pr).
- The systems currently in place to approve and monitor the status of Forest Management Units are an unnecessary burden to both Woodland Officers and Land Owners, and consideration should be given to providing oversight in a more efficient fashion (Pr).
Although comments on restocking tended to focus on its positives, a small number of respondents raised notes of caution, including that:
- Restocking should be based on a good scientific understanding of the potential short and long term impacts on the full range of ecosystem services (Th).
- Any restocking obligation might contradict the Land Use Strategy and the aim to introduce more flexibility in the management of NFE land (Pu).
- There are situations where the public good would be better served by alternatives, such as the restoration of peatland habitats for carbon sequestration (Th).
Flexibility to use NFE land for a variety of purposes in line with Ministerial objectives.
The consultation paper notes that the Scottish Government proposes to remove the current restriction in the Forestry Act 1967, that all activities on NFE land must be tree-related, in order to give this flexibility. This was the principle most likely to attract comment at Question 10.
Respondents from all respondent groups agreed with the proposal. Comments in support of the proposal included:
- Using NFE land for a variety of purposes, such as outdoor recreation and commerce, should be incorporated within the legislation (Pu, Th) and that this may strengthen the case for infrastructure improvement (O).
- Work in this area should be informed by the outcomes and objectives of the SFS as they relate to the historic environment (Pu).
However, other respondents expressed some caution in relation to the proposal, raising queries about how the proposed flexibility would align with other duties and targets, how net loss of capacity would be avoided, and how accountability and transparency would be assured (O, Pr, Pu). Other issues identified as requiring consideration included the management of wild lands (Th) and whether using land for other purposes may impinge on SFM (Pr), the delivery of climate change targets (Pr) or productive capacity (O, Pr). It was suggested that:
- There should be a duty on Ministers to prevent the disposal or sale of the NFE (Th).
- When productive forests are sold, the purchaser should be required to manage those forests to produce future supplies of wood (O, Pr).
- If NFE land is put to a different use, other ground should be planted to maintain the area of stocked forest land (Pr).
- Ministerial objectives should be informed by the forestry sector and other stakeholder organisations (Ind, Pr).
- To provide the necessary checks and balances, there should be non-forestry stakeholders represented on the new Forestry and Land Scotland body (O).