Part 6: Nature and Biodiversity Section 112: Habitats Regulations: power to amend general duties
Regulation 9 of the Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations") sets out duties for relevant public authorities to exercise their nature conservation functions in compliance with the requirements of the Habitats Directive and the Wild Birds Directives ("the Directives") to maintain or restore protected habitats and species.
	This section provides the Secretary of State with the power to amend regulation 9 to support delivery of domestic biodiversity priorities, rather than remaining bound by legacy EU legislation, without reducing the level of environmental protection provided. The power is designed with the aim of conserving and enhancing biodiversity.
	Subsection (1) provides the Secretary of State with the power to amend the Habitats Regulations in England only, for the purposes set out in subsection (2).
	Subsection (2) sets out the purpose of the section. Subsection (2)(a) requires public authorities covered by regulation 9(1) to comply with the requirements imposed and the objectives specified in regulations made under this power. Subsection (2)(b) requires competent authorities covered by regulation 9(3) to have regard to the matters specified by regulations under this power.
	Subsection (3) allows for requirements to be imposed or objectives and matters specified in relation to biodiversity targets set out in Part 1 of the Environment Act and the measures relating to biodiversity in the Environmental Improvement Plan.
	Subsection (4) enables the Secretary of State to impose additional requirements or specify additional objectives or matters if appropriate for the conservation or enhancement of biodiversity. Subsections (3) and (4) enable the Habitats Regulations to be aligned with domestic biodiversity priorities without reducing the level of environmental protection.
	Subsection (5) provides for consequential amendments to be made to any references to requirements, objectives or provisions of the Directives within the Habitats Regulations. The purpose is to ensure consistency within the regulations.
	Subsections (6) to (10) provide a number of requirements which must be met before the power in subsection (1) can be exercised.
	Subsection (6) places a duty on the Secretary of State to have regard to the particular importance of furthering the conservation and enhancement of biodiversity when making amendments to regulation 9.
	Subsection (7) stipulates that the Secretary of State can make amendments using this power only if satisfied that the new regulations do not reduce the level of environmental protection currently provided by the Habitats Regulations.
	Subsection (8) requires the Secretary of State to lay before Parliament and publish a statement prior to making any regulations to explain how the condition in subsection (7) is met.
	Subsection (9) places a duty on the Secretary of State to consult as appropriate prior to using the power under this section to make regulations.
	Subsection (10) stipulates that the power to amend regulation 9 can only be used from the 1 February 2023. This is the date set out in section 7(5) of the Act in relation to "the significant improvement test", and section 10(3) of the Act in relation to when the first review of the Environmental Improvement Plan must be completed.
	Subsection (11) defines the term ‘the Directives’ and the definition is in alignment with the existing use of the term in the Habitats Regulations to ensure consistency. It also sets out the definition for the use of the term ‘England’ as including the territorial sea up to 12 nautical miles, however, it does not include any territorial waters adjacent to (a) Wales or (b) Scotland as the legislation only applies to England. The Habitats Regulations apply to inshore areas up to 12 nautical miles. The offshore area, 12-200 nautical miles, is covered by the Conservation of Offshore Marine Habitats and Species Regulations.
	Subsection (12) establishes that any regulations made under the power to amend regulation 9 must be made through a statutory instrument subject to the affirmative procedure. This means it must be laid before and approved by a resolution of each House of Parliament.