• Biodiversity and Ecosystem Resilience
  • 18 March 2024


Scotland’s diverse landscapes and internationally recognised habitats support a wide variety of resident and migratory wild birds. Crucial feeding, roosting and breeding sites for around 250 different bird species are found here, including summer seabird nesting areas, feeding grounds for migratory birds, and wintering sites for wildfowl and shorebirds. Many of these sites host habitats unique to Scotland, and are home to iconic birds including capercaillie, corncrake, sea eagle and osprey.

Despite there being 162 sites in Scotland designated specifically for the protection of wild birds, habitat loss and degradation are serious threats to their conservation. NatureScot’s 2023 State of Nature report shows declining trends of biodiversity for bird species in Scotland, with climate change, intensification of farming and commercial forestry expansion given as drivers for decline.

The Birds Directive is the short name for Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds. It provides for the classification of Special Protection Areas (SPA) across a European network.

The Birds Directive lists 197 European birds requiring special conservation measures. SPAs must be classified for those species, as well as for other migratory birds, paying particular attention to the protection of wetlands of international importance.

Under the Birds Directive, classified habitats must be must preserved, maintained and re-established to ensure a sufficient diversity and area of habitats for all wild bird species. It provides legal protection for all wild birds, their nests, eggs and habitats within the European community.

The requirements of the Birds Directive were transposed into law in Scotland principally through the Conservation (Natural Habitats, &c.) Regulations 1994, as amended (the ‘Habitats Regulations’).[1] SPAs in Scotland are classified by Scottish Ministers, who must decide which sites to classify based on relevant scientific information and the criteria mentioned in Article 4 of the Birds Directive.

The Birds Directive is not prescriptive around the process by which SPAs are classified and there is a degree of discretion around SPA identification and classification. In the UK, this process is coordinated by the Joint Nature Conservation Committee (JNCC). The JNCC is responsible for advising Scottish Ministers (and the UK Government and other devolved administrations) on aspects of the classification and management of SPAs, publishing SPA Selection Guidelines and providing advice to nature conservation bodies, including NatureScot, in connection with their functions. It is also a member of a UK working group (the ‘UK Special Protection Areas and Ramsar Scientific Working Group’) which, along with other agencies and stakeholders, advises government and nature conservation agencies on scientific and technical issues regarding the SPA network.

Environmental Standards Scotland (ESS) received a representation concerning the implementation of the Birds Directive across the UK. The representation alleged that there has been a failure to comply with the Birds Directive in the following respects:

  • the legal listing of qualifying species
  • the adequacy of site boundaries
  • SPA provision for those species for which this is lacking
  • investigation of the causes of declines at specific sites and initiation of remedial management measures
  • basic monitoring and population assessment for those species and sites where this is lacking
  • and most recently, the apparent ‘collapse’ of the national co-ordination process, overseen by the JNCC, to ensure such measures are implemented

Specifically for Scotland the representation alleges that not all qualifying sites were chosen for SPA status meaning that the SPA network remains incomplete.

The scale of habitat loss and associated decline in wild bird biodiversity, the fragility of ecosystems supporting wild birds, and the pace at which change is required to halt biodiversity decline, requires that the authorities responsible for the classification and management of SPAs are clear in their duties and carrying them out effectively.

We have assessed the issues raised in the representation, and given the complex nature of the representation and existing uncertainties, we have determined that progressing to full investigation at this stage is justified.


Grounds of investigation

Our investigation will accordingly focus on the implementation of, and compliance with, environmental law in connection with the classification and adaptation of SPAs in Scotland; and the governance of recommendations made by the JNCC in respect of the classification and adaptation of SPAs.

ESS will provide regular updates on its website during the course of the investigation and will publish the outcome of this work once concluded.


March 2024


[1] While the Birds Directive no longer has direct effect in domestic law following EU Exit, it remains relevant to the obligations arising under the Habitats Regulations in so far as the Regulations make reference to the requirements and obligations contained within the Directive. The Habitats Regulations were amended following EU exit to ensure they remained operable once the UK left the EU. The Habitats Regulations remain in force, including the provisions for the protection of SPAs.  Any additional SPAs will now be designated under the Habitats Regulations.

  • Biodiversity and Ecosystem Resilience
  • 18 March 2024

Frequently asked questions

Who will ESS seek information from during its investigation?

Public authorities are under a duty to co-operate with ESS and we have significant powers to require information from them. Although NatureScot and the Scottish Government are the bodies under investigation, ESS will also obtain relevant information from any public authority which we identify as holding it and it is likely we will seek information from local authorities in this connection. We are also keen for anyone who believes they have relevant information to get in touch with us.


How will you investigate?

The investigation will progress through various stages, from initial planning to devising lines of enquiry and seeking information, after which all of the information we receive will be carefully analysed. We will thereafter draw our conclusions, seeking expert advice should this be considered necessary.


Will you work with other agencies during your investigation?

We are aware of the Office for Environmental Protection and the Interim Environmental Protection Assessor for Wales’ interest in this area in respect of their own jurisdictions and we intend to work closely with them on this matter. This may include sharing information that relates directly to the scope of respective investigations.


How long will the investigation take?

It isn’t possible to fully assess the complexity of this investigation in advance and so providing a general timescale is difficult. Having said this, we will endeavour to work as quickly and efficiently as possible and will provide relevant parties with an estimate of the completion date of each investigation as soon as we can.


Will parties be updated on the progress of the investigation?

Yes – all relevant parties to an investigation will be regularly updated on our progress. A dedicated staff member will also be available should relevant parties have any questions or queries in this regard.


Will you issue a report of your findings?

Yes – ESS intends to work openly and transparently. At the conclusion of our investigations we will issue draft reports to relevant parties for comment, after which we will finalise and publish on our website.


What are the possible outcomes of your investigation?

Our governing legislation requires us to set out how we intend to engage with the public authorities we investigate with a view to swiftly resolving matters without recourse to our formal powers (what we call ‘informal resolution’). As informal resolution can be a relatively quick and efficient way of securing appropriate outcomes, we will actively consider this option throughout the life of an investigation. ESS also has significant formal enforcement powers and, where we find a public authority has not complied with environmental law, we can issue a compliance notice which the public authority must implement. We can also issue improvement reports which must be acted upon through the submission of an improvement plan to Parliament.


March 2024

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