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11th Report, 2009 (Session 3)

Stage 1 Report on the Marine (Scotland) Bill

CONTENTS

Remit and membership

Report
Summary of conclusions and recommendations
Introduction

Lead Committee
Overall aim of Bill
Devolution, the “Scottish marine area”, and the international dimension
Outline of Stage 1 scrutiny
Policy memorandum

Key themes emerging from stage 1 evidence

Overall views on the Bill
The state of Scotland’s seas, the availability of data, and the precautionary principle
Part 1 of the Bill: the Scottish marine area and the meaning of “sea”
Part 2 of the Bill: Marine planning
Key themes arising from scrutiny of Part 2
Part 3 of the Bill: marine licensing
Part 4: marine protected areas
Part 5 – Conservation of seals
Part 6 – enforcement powers

Financial matters

Annexe A: Subordinate Legislation Committee Report

Annexe B: Finance Committee Report

Annexe C: Extracts From Minutes of the Rural Affairs and Environment Committee

Volume 2: Evidence

Remit and membership

Remit:

To consider and report on agriculture, fisheries and rural development and other matters falling within the responsibility of the Cabinet Secretary for Rural Affairs and the Environment.

Membership:
Karen Gillon
Liam McArthur
Alasdair Morgan
Elaine Murray
Peter Peacock
John Scott (Deputy Convener)
Maureen Watt (Convener)
Bill Wilson

Committee Clerking Team:

Clerk to the Committee
Peter McGrath

Senior Assistant Clerk
Roz Wheeler

Assistant Clerk
Lori Gray

Committee Assistant
Iain Weston

Stage 1 Report on the Marine (Scotland) Bill

summary of conclusions and recommendations

The Committee reports to the Parliament as follows—

General principles of the Bill

The Committee welcomes the general principles of the Bill as we consider that it will, if implemented following adequate consultation and resourcing, help improve the governance and sustainability of Scotland’s seas. (Paragraph 41)

Marine Scotland

The Committee invites the Cabinet Secretary to clarify the reasons for establishing Marine Scotland as a Scottish Government directorate rather than proposing in the Bill to establish it as a statutory body, at arms length from the Scottish Government. The Committee also invites the Minister to explain what governance arrangements he proposes to put in place in order to ensure the independence of scientific advice provided to the Scottish Ministers as to the exercise of their functions under the Bill. (Paragraph 14)

Policy memorandum

The Committee invites the Cabinet Secretary to note our observations on the lack of detail or proper discussion in parts of the policy memorandum. (Paragraph 37)

The state of Scotland’s seas

The Committee invites the Cabinet Secretary to clarify whether he considers current enforcement provisions on marine littering are sufficiently robust, and whether he considers there are sufficient resources for them to be applied effectively. (Paragraph 50)

The Committee recommends that the Bill place a duty on the Scottish Ministers and all relevant public bodies, when exercising functions, to have regard to the need to maintain and improve the health of the Scottish marine area. We recognise that, were this duty to be inserted into the Bill, there would be a need to provide indicators, whether in subordinate legislation or through guidance, as to the factors that constitute a healthy marine environment. The Marine Strategy Framework Directive, which sets out indicators of “good environmental status”, may provide some pointers. (Paragraph 55)

Shellfish industry concerns

The Committee invites the Cabinet Secretary to note industry concerns as to the status of the pacific oyster in the course of preparing the forthcoming Bill on wildlife and the natural environment. (Paragraph 57)

The Committee would encourage the Cabinet Secretary and SEPA to continue to engage in dialogue with the Scottish shellfish growers’ industry as to the latter’s concerns over the replacement of the Shellfish Waters Directive in 2013. We invite the Cabinet Secretary to press for clarification from the European Commission as to whether there will be any diminution in the legal protection afforded to growers once the new regime under the Water Framework Directive is in place, and to indicate whether he would do so before Stage 2. (Paragraph 63)

The Scottish marine area and the meaning of “sea”

The Committee is content with the definitions used in Part 1. (Paragraph 65)

The national marine plan

The Committee suggests that it would reflect the national, and indeed international, importance of climate change mitigation and adaptation if it were expressly included in the list of objectives in section3(3) that a national marine plan may set out. (Paragraph 80)

The Committee recommends that the Bill expressly sets out a minimum time period for Parliamentary consideration of a draft national marine plan. The Committee proposes that this be set at 40 sitting days. (Paragraph 82)

Marine planning partnerships

The Committee largely supports the flexible approach to the membership and governance of marine planning partnerships proposed in the Bill. (Paragraph 104)

The Committee considers that MPPs should be diverse bodies, drawing their membership from a wide selection of local stakeholders, and should not be dominated by narrow sectoral interests. It follows that we find it almost impossible to envisage circumstances where a single public authority would be an appropriate “partnership” and suggest that the provision enabling this to happen be removed from the Bill. (Paragraph 105)

On the other hand, the Committee would make the practical observation that any policy-determining body with too large a membership risks being unwieldy and may lack the momentum to drive through timeous agreement of a marine plan. As this may mean that not every local stakeholder group that wants to be on an MPP will end up being on one, Marine Scotland should consider drawing up good practice guidelines on ensuring that views can be fed in to MPPs in other ways. The forums held by advisory groups for river basin management planning appear to be one possible approach to follow. (Paragraph 106)

The Committee supports each individual MPP having discretion to determine its own working practices. However approaches should not be so flexible as to lead to national objectives being unrealised or good practice not being shared. To that end, the Committee considers that Marine Scotland’s experience and expertise will be crucial for the effective running of all MPPs. The Committee would expect that Marine Scotland would take the lead role in administering MPPs. (Paragraph 107)

The Committee also expects that it would be a Marine Scotland representative who would chair most MPPs, although there may be instances where it would be more appropriate for the representative of a locally-based organisation (most obviously a local authority) to take the chair. In all cases, however, the Committee considers that it should be for the Cabinet Secretary to appoint the chair of an MPP. (Paragraph 108)

Conformity between the national marine plan and regional plans

The Committee invites the Cabinet Secretary to consider concerns that the requirement in section 3(5) that regional marine plans conform to the national plan “unless relevant considerations indicate otherwise” is broad, and that “relevant considerations” should be defined in the Bill or explained in guidelines. (Paragraph 109)

Marine region boundaries

The Committee expects that the Scottish Ministers will consult widely, including with the Parliament, before designating Scottish marine regions under section 3(4). (Paragraph 115)

The Committee supports the principle of taking an ecosystem-based approach to designation but recognises that the waters surrounding Scotland cannot be broken down into discrete clearly-defined ecosystems, and that accordingly it is legitimate to take other considerations into account. (Paragraph 116)

We consider that there is a reasonably clear-cut case for the major firths and for the seas surrounding Orkney, Shetland and the Western Isles to be considered discrete marine regions. Making the major firths marine regions would also have the advantage of enabling a partial integration of river basin management plans and regional marine plans. (Paragraph 117)

The Committee considers that the case for treating the Solway Firth, as much as is practicable, as a single area for marine planning purposes is clear. Major planning decisions about matters such as sites for renewable energy projects should always be taken having regard to stakeholder views on both sides of the Firth, and the necessary legal or administrative arrangements should be in place to ensure that this is the case. (Paragraph 123)

The Committee recognises that the Marine (Scotland) Bill cannot, of itself, produce a solution. There should be action at a UK level too and we hope that the UK Bill will not be enacted in such a way as to place obstacles in the way of effective cross-border working in the Solway area. The Committee seeks assurances from the Cabinet Secretary that he has made representations to his UK counterpart to this effect. (Paragraph 124)

Appeals against marine plans

The Committee notes that, whilst a marine plan will be an important document, it will not impose justiciable rights or duties on persons. In particular, the Bill will enable public authorities, exceptionally, to depart from marine plans in making decisions affecting the marine environment. The Committee is therefore reasonably satisfied with the restriction of appeals against a marine plan to technical objections to the plan. This does however underline the importance of plans being properly consulted upon, with all stakeholders, including the Scottish Parliament, having adequate opportunity to consider proposals before the Scottish Ministers sign any plan off. (Paragraph 130)

Marine planning and the complexity of the current law

The Committee notes that the Bill will not create a hierarchy of legal rights and duties, but hopes that the marine planning process will put legal rights and duties within a particular marine area in context enabling stakeholders to make more informed decisions about the use of the marine environment. (Paragraph 141)

However, the Committee invites the Cabinet Secretary to note witnesses’ concerns that the law of the sea has become too complex, and to investigate whether this can be addressed, for instance through consolidation or codification of legal rights and duties, or through instructing Marine Scotland to provide guidance on the lawful use of the sea tailored to particular stakeholder groups. In doing so, the Committee recognises that much of the law emanates from international sources over which the Scottish Government has no direct control. (Paragraph 142)

Marine planning, integrated coastal zone management, and inshore fisheries groups

The Committee supports the application of relevant principles of integrated coastal zone management to marine planning and notes that the role of ICZM groups will evolve and possibly reduce following implementation of the Bill and the establishment of marine planning partnerships. (Paragraph 149)

The Committee recognises the need for effective local management of inshore fisheries. We note that inshore fisheries groups are new bodies that need more time to settle into their role. However, the Committee considers that there is a strong case for re-examining the role, membership, or indeed existence of IFGs in around three or four years’ time, once the Bill, if enacted, is being implemented and marine planning partnerships have been set up, and once any reforms arising from the European Commission’s green paper on reform of the common fisheries policy have become clear. Until this re-examination takes place, it is vital that there be effective co-operation between IFGs and MPPs. (Paragraph 150)

Relationship between marine planning and decisions by public authorities

The Committee considers that section 11 is one of the key provisions of the Bill since it is the link between marine planning and the taking of decisions by public authorities. It is therefore important that its meaning is properly understood. The Committee does not object in principle to a policy of allowing public authorities – exceptionally – to take a decision that is not in accordance with a marine plan. However more clarity and certainty is needed as to the circumstances where this would be permissible than is provided by the phrase “unless relevant considerations indicate otherwise”. The Committee recommends that the Bill make provision for the Scottish Ministers to issue guidance as to what would amount to “relevant considerations” permitting a public authority to depart from a marine plan. (Paragraph 153)

Marine licensing and simplification

The Committee notes that a number of stakeholders are not persuaded that the Bill will lead to a simplification of the marine licensing system. Whether the problem has simply been a failure to communicate the effect of Part 3 clearly is not apparent. If the Government considers that the Bill will enable an integrated approach to marine licensing, including the likelihood of a “one stop shop”, there is a need for the Cabinet Secretary to state the case more clearly. (Paragraph 165)

The Committee also seeks clarification that the combined effect of sections 16 and 17 will neither create a legal overlap, where both Marine Scotland and another body have the right to authorise the same type of marine activity, nor create uncertainty as to the legal status of pre-existing authorisation powers apparently superseded by sections 16 and 17 but not expressly repealed. (Paragraph 166)

Marine licensing and decommissioning

The Committee considers that a rigorous approach to decommissioning based on leaving the sea bed in as close to its original state as possible should continue to be the norm. However, Marine Scotland should avoid taking an inflexible approach, if that were, for example, to prevent research into the effect of artificial reefs on marine biodiversity. In particular, the Committee notes that the creation of a Demonstration and Research Marine Protected Area around a marine structure could amount to a potential “win-win” situation for industry, science, and conservation. In this connection, the Committee notes section 23 of the Bill which would enable the Scottish Ministers to vary an existing marine license because of increased scientific knowledge relating to the environment, and invites the Cabinet Secretary to clarify whether this power would be available on the application of the licensee. (Paragraph 171)

The Committee invites the Cabinet Secretary to clarify whether a decommissioning arrangement that would allow all or part of a marine structure to be laid on the sea bed would be dealt with under the Bill as a condition of the original license or as a marine activity requiring a further license application. (Paragraph 172)

The Committee invites both the Cabinet Secretary and the Crown Estate to note concerns that the Bill should not lead to the creation of a new decommissioning regime running in parallel with that already imposed by the Crown Estate under leasing arrangements, without serving any additional purpose. The Committee invites Marine Scotland and the Estate to work jointly to address these concerns in their future work. (Paragraph 174)

Provision to modify marine licensing requirements

The Committee agrees with the Subordinate Legislation Committee that the power to vary the list of licensable activities in section 17(1) should specify more clearly the criteria the Scottish Government may use to determine whether a particular activity should be added to or removed from the list. (Paragraph 178)

Activities not requiring a marine license

The Committee notes the lack of clarity currently as to what the minimum environmental threshold will be for registering, rather than licensing, marine activity. As this will be of considerable practical concern to stakeholders, the Committee considers that the Cabinet Secretary should outline his preliminary thinking on this issue during the passage of the Bill, giving an indication of what this would mean in practice to stakeholders. (Paragraph 181)

Marine licensing: appeals process

The Committee recommends that the Bill be amended to set out the fundamental elements of an appeals procedure against a marine licensing decision and against the issuing of a notice concerning a marine license. (Paragraph 183)

Marine licensing and aquaculture

The Committee acknowledges the vital importance of there being local input to decisions about whether, where, and under what circumstances to authorise a marine fish farm. The Committee1 considers that adequate provision could be made for this, at a strategic level, by ensuring local input into decisions made by MPPs about what areas should be deemed appropriate for fish farming. We propose that the Bill should allow local authorities to apply to the Scottish Ministers to handle applications for licenses. The Scottish Ministers should be empowered to allow any such application on cause shown, subject to their reaching a service level agreement with the authority on how license applications are to be dealt with. (Paragraph 195)

Where this happens, the Committee proposes2 that the Cabinet Secretary should seek to ensure that there is a consistency of approach towards licensing aquaculture within each marine region, for instance by providing that, in a region bordering two or more local authority areas, only one authority will handle applications. (Paragraph 196)

Dredging and marine licensing

The Committee is reassured to note the Cabinet Secretary’s comments that accepted forms of dredging with recognised minimal environmental impacts are likely to be exempted. Clearly stakeholders in shipping and ports would appreciate having sight of the detail of any proposed exemptions well in advance of the Bill’s implementation. The Committee also invites the Cabinet Secretary to consider the merits of three-year rather than one-year dredging licenses, which would apparently bring Scotland into line with the rest of the UK. (Paragraph 202)

Remediation and marine licensing

The Committee notes the Cabinet Secretary’s intention to introduce an amendment clarifying that a remediation notice may require restoration of a damaged site. We call on the Cabinet Secretary to ensure that shipping and port interests, as well as environmentalist groups, have the opportunity to consider the proposed approach. (Paragraph 206)

Designation of marine protected areas

The Committee notes that Scotland is under international obligations to create an ecologically coherent and representative network of marine protected areas and therefore has some concerns that the power to create MPAs under the Bill is discretionary. The Committee considers that the Bill should impose a duty on the Scottish Ministers to create such a network, as this would both help ensure compliance with our international obligations and guarantee further protection of the marine ecosystem. (Paragraph 217)

The Committee is not persuaded that there is a need for a formal process in the Bill entitling communities to propose an MPA, especially if the process is to be predominantly scientifically driven. However, it is vital that there are open channels within Government to enable communities to propose MPAs for consideration, and that this is well known at a local level, so that communities feel engaged in the process. Marine Scotland should have a clear advocacy role in this regard. MPAs will work best where local communities feel that have enjoyed ownership over the process of helping create them. (Paragraph 220)

Relevance of socioeconomic factors etc in relation to marine protected areas

The Committee agrees with the Scottish Government that the process for designating Nature Conservation MPAs should be mainly science driven. However, the Committee recommends that provision be inserted into the Bill requiring the Scottish Ministers, when drawing up a marine conservation order for an MPA under section 74 to have regard (a) to social and economic factors, and (b) the desirability of mitigating climate change. (Paragraph 237)

Relationship between marine protected areas and national marine plan

The Committee invites the Cabinet Secretary to clarify the extent to which, under the Bill, there is sufficient linkage between the marine planning process and the process of designating MPAs, and whether there is any risk of national objectives set out in the national plan (for instance on economic activity or climate change) failing to integrate with the designation of a network of MPAs under Part 4. (Paragraph 238)

Monitoring of marine protected areas

The Committee recommends that the Cabinet Secretary consider the merits of the Bill requiring MPAs to be regularly monitored and reviewed following designation. (Paragraph 242)

Fisheries and marine protected areas

The Committee notes the discussion at Scottish and UK Governmental level on the question of whether fishing activity in MPAs requires additional protection under the Bill, and looks forward to being notified of the outcome. However the Committee is not convinced that this additional protection is necessary. (Paragraph 248)

Seal management plans

The Committee recommends that the Cabinet Secretary consider putting into the Bill a requirement to set up seal management plans in all areas of Scotland where there is a perceived difficulty in the interaction between seals, angling, and fish farms. (Paragraph 269)

Offence of harassing seals

The Committee invites the Cabinet Secretary to consider including on the face of the Bill an offence of intentionally or recklessly harassing seals, whilst recognising that careful drafting would be required to address the complexities surrounding the issue, including the risk of unintended consequences. (Paragraph 277)

Seal licenses: group applications

The Committee supports the licensing system being sufficiently flexible to allow for the issuing of licenses on a group or individual basis as appropriate, recognising that there are some practical issues that may need to be ironed out where a group license is issued. This approach should go hand in hand with the setting up of regional seal management groups, so as to encourage an open and cooperative approach to seal management within a particular area. (Paragraph 290)

Seal licenses: marksmanship etc

The Committee considers that the list of conditions that may be specified in a license (as set out in section 100(3)) should include the skill of the marksman, the type of firearm used, and the marksman’s proximity to the target. Committee members consider that there is a case to be made for some or all of these conditions being mandatory for any license. (Paragraph 294)

Seal licenses: “no satisfactory alternative”

The Committee sees no reason in principle why the requirement that the Scottish Ministers may only issue a license to kill or take a seal if there is “no satisfactory alternative” to doing so should not apply in all areas, rather than just in seal conservation areas as the Bill presently provides. At the same time, the Committee seeks clarification from the Government as to what deterrent or combination of deterrents could be used to satisfy Ministers that there is ‘no satisfactory alternative’ to issuing a licence. (Paragraph 307)

The Committee recommends that the Scottish Government consider making it a condition of granting a licence to shoot a seal that, if the farm is not fitted with anti-predator nets, the applicant provide an explanation of why this is so. (Paragraph 308)

Reporting on licensed seal kills

The Committee recommends that the Cabinet Secretary set out reporting standards in guidance. The Committee suggests that there should be a requirement on a licensee to report the taking or killing of a seal at least quarterly. (Paragraph 314)

General enforcement powers

The Committee seeks clarification as to whether it is intended that port authorities should be compensated for the exercise of the power to direct a ship to port set out in section 135 in a manner which has caused them financial loss. (Paragraph 329)

Financial issues

The Committee notes and agrees with the views of the Finance Committee and invites the Cabinet Secretary to respond to them, whilst recognising that costs falling on the Scottish Government as a result of the UK Marine and Coastal Access Bill are not directly a matter for consideration in respect of the Marine (Scotland) Bill. (Paragraph 335)

Concerns have been raised as to the adequacy of data-gathering on the marine environment, especially in view of the huge marine planning responsibility that will be placed on public authorities, Marine Scotland in particular. The Committee is considering this issue separately through its scrutiny of the 2010-11 budget. (Paragraph 336)

introduction

Lead Committee

1. The Marine (Scotland) Bill3 was introduced to the Parliament on 29 April 2009. The Rural Affairs and Environment Committee was designated the lead Committee on the Bill. No secondary committees were designated to report to the lead Committee.

Overall aim of Bill

2. The Bill’s policy memorandum explains the backdrop to the Bill, and its main policy aims—

“Increasingly there are competing demands on Scotland’s marine environment from fisheries, aquaculture, shipping, ports and harbours, recreational activity, conservation, dredging, oil and gas extraction and renewable energy. Some of these activities are controlled through licensing while fisheries are managed through the EU Common Fisheries Policy. However, there is little strategic overview of the use of the marine environment: licensing is designed to control the environmental impact of certain activities but it does not and cannot address conflicts that may arise between marine activities. The provisions in this Bill create a framework to manage the growing and competing demands for the use of marine resources in the seas around Scotland, integrating environmental and socio-economic considerations to maximise economic growth within sustainable environmental limits.”4

3. In other words, most of the Bill is intended to fill something of a policy vacuum in the governance of the Scottish marine area, rather than to replace existing law. Existing legal obligations in respect of the marine environment, whether they arise from international convention, EU law, domestic legislation, or common law, will continue to apply, although the intention is that the planning system provided for under the Bill will enable these obligations to be managed more effectively, thus reducing conflict or confusion, and maximising sustainable development.

4. The Bill is the product of an extensive and iterative process of policy-making involving the Scottish Parliament, the current and previous administrations, and the many stakeholders in the Scottish marine environment. In 2007, this Committee’s predecessor in the last session of Parliament, the Environment and Rural Development Committee (ERDC), published its report5 on the marine environment. The report called for more effective management of Scotland’s seas, recommending a new system of marine planning, a more integrated regulatory system for marine activities, the creation of marine protected areas, and an expansion of research. The report also called for a marine management organisation to simplify governance and not add to bureaucracy. It is interesting to note the extent to which the Bill now seeks to put into place those recommendations.

5. The previous Scottish administration also appointed the Advisory Group on Marine and Coastal Strategy (AGMACS), a marine stakeholder group, to report to them6 on the application of sustainable development principles in a coastal and marine context. Then, in January 2008, the Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, convened the Sustainable Seas Task Force, representing a diversity of marine interests including fishing, aquaculture, conservation, industry, shipping and leisure, to build on this work, in order to develop policy on a future marine Bill. The Task Force published its consultation paper, Sustainable Seas for All7, in July 2008. Responses received fed into Government deliberations on the content of the Bill as introduced.

6. The Bill has been introduced at around the same time as the introduction of the Marine and Coastal Access Bill8 in the UK Parliament. What is proposed under the two Bills working together is a three-tiered system for managing the marine environment. The highest tier would be the UK Marine Policy Statement, as provided for in the UK Bill. The UK Bill gives the governments of the devolved administrations the option of signing up to the statement.

7. In evidence to the Committee, the Cabinet Secretary stated that “the objective is that we will agree that” [ie the Marine Policy Statement], and that he was “hopeful”9 that this would be the case. If there were to be failure to reach agreement, Mr Lochhead explained that the Scottish Government’s policy for the wider seas around Scotland would be set out in the policy statement within the national marine plan (for which see below).

8. The Marine (Scotland) Bill sets out the remaining two layers. First, it empowers the Scottish Ministers to prepare a national marine plan, which is to “state the Scottish Ministers’ policies … for and in connection with the sustainable development of [the Scottish marine area].”10

9. Additionally, the Bill empowers the Scottish Ministers to prepare regional marine plans, the third and most local tier of management being proposed. They are further empowered to delegate any aspect of the preparation of such plans to others, and it is the current administration’s policy that this is what should happen in practice. The current administration intends that this role should be taken on by Marine Planning Partnerships (MPPs); bodies created to draw up plans for particular parts of the Scottish marine area. As discussed later, the membership and governance structures of MPPs, as well as the boundaries of the areas they should cover, are still be being considered at Governmental level, but the intention is that they should be bodies that bring together a wide range of stakeholders in the management of Scotland’s marine resources – cultural, environmental and economic – and that they should closely involve in their work the communities living around the coast of the area they manage.

10. Under the Bill, regional marine plans must conform with the national plan, and it is also intended that the national marine plan should not be in conflict with any UK Marine Planning Statement in force at the time that the Scottish Government has signed up to, thus helping to ensure that all three tiers of planning dovetail. As discussed later, one of the recurring themes of evidence-taking at Stage 1 has been the question of the extent to which local plans should be a mechanism for implementing national priorities identified by the Scottish Ministers.

11. Two other main aims of the Bill are to reform the marine licensing and consents system, the underlying aim being to streamline the regulatory burden, and to establish a new regime for designation of marine protected areas (MPAs) under more flexible circumstances than the law currently allows for. In tandem with these proposals, the Bill provides for the appointment of “marine enforcement officers”, empowered to ensure compliance with the new marine licensing regime and the protection of the marine environment. The underlying intention is to harmonise enforcement powers within the Scottish marine area (see definition below) with enforcement powers elsewhere in UK waters.

12. Finally, the Bill reforms current legislation on the protection and management of seals.

Marine Scotland

13. Under the UK Marine and Coastal Access Bill, a new statutory body is to be set up to deal with most of the new governance arrangements created under that Bill. Sustainable Seas for All proposed the establishment of a new structure, Marine Scotland, to “deliver sustainable seas” and invited views on the proposition that this body “should form part of Scottish Government with appropriate safeguards for science and the appeals process.” Responses split almost exactly 50:50 for and against Marine Scotland existing within Government. The Scottish Government then decided to establish Marine Scotland as a Directorate within Government, and to do so, on 1 April, ahead of the Bill’s introduction. Marine Scotland brings together various bodies exercising operational responsibilities in respect of the Scottish marine area within one corporate structure. As the creation of Marine Scotland was an administrative exercise, there is no mention of the body in the Bill. However, the current Scottish administration intends that Marine Scotland should have everyday operational responsibility for most of the powers and functions that the Bill confers on the Scottish Ministers, although the power to delegate responsibilities to a more local level (discussed below) is likely to be exercised in some key areas. The Bill’s policy memorandum briefly discusses Marine Scotland11 but does not elaborate on the “appropriate safeguards” the Scottish Ministers envisaged putting in place to ensure the integrity of scientific advice.

14. The Committee invites the Cabinet Secretary to clarify the reasons for establishing Marine Scotland as a Scottish Government directorate rather than proposing in the Bill to establish it as a statutory body, at arms length from the Scottish Government. The Committee also invites the Minister to explain what governance arrangements he proposes to put in place in order to ensure the independence of scientific advice provided to the Scottish Ministers as to the exercise of their functions under the Bill.

Devolution, the “Scottish marine area”, and the international dimension

15. The Bill applies to the area of sea, including the bed and subsoil of the sea, within the Scottish marine area. Under the Bill, the “Scottish marine area” is deemed to be that part of the territorial sea adjacent to Scotland, which, in line with international convention,12 means the sea out to 12 nautical miles from the Scottish coast, except in waters less than 24 miles from Northern Ireland, the Isle of Man, and England (ie around the North Channel and Solway Firth), where the median line between Scotland and those jurisdictions is followed.

16. “Sea” is defined as including any area submerged at mean high water spring tide and any estuarial waters so far as the tide flows at mean high spring water tide, except in relation to the provisions of the Bill on marine protected areas, where a slightly more restricted definition is applied in relation to estuarial waters.

17. As discussed in more detail elsewhere,13 the seas around Scotland are subject to a complex mix of reserved and devolved regulatory powers and rights. In general, the Scottish Parliament enjoys competence in relation to waters out to the 12 nautical mile limit. However, the UK Government continues to hold reserve powers in relation to matters such as defence, shipping, border control, and oil and gas.

18. The Scottish Ministers have recently been given devolved administrative responsibility for waters between 12 miles and 200 miles from the Scottish coast in relation to matters such as fisheries and the licensing of renewable energy, although the Scottish Parliament has no corresponding legislative competence over these matters.

The Crown Estate

19. The Crown Estate owns most of the seabed out to 12 nautical miles. Anyone wishing to make use of the seabed, or place a structure on or over it, must usually enter into a leasing arrangement with the Estate. (There are instances of a body such as a port authority having purchased the seabed from the Estate but these are relatively rare). The Estate also has the right to license marine renewable projects out to 200 miles, and has historic rights in relation to various discrete matters (eg ownership of native mussel beds). The Crown Estate’s marine property ownership means that it exercises an important and sensitive role in communities around Scotland’s coastline. Previous work undertaken by the Committee14 has underlined that the Estate has had lessons to learn about effective local engagement when managing some of its Scottish assets, both terrestrial and maritime. We also noted, and welcomed, some recent improvements in its methods of communication, partly in response to increased scrutiny. It is to be hoped that this encouraging trend will continue, particularly in the context of marine regional planning, which requires effective partnership between the key players if it is to be successful.

European law and international conventions

20. European law has become increasingly important in a maritime context.15 Since 1983, Scotland, along with the rest of the UK, has been subject to the common fisheries policy, which determines how most commercial fisheries within EU territorial waters are to be managed. There is also the Water Framework Directive,16 which applies to water in the natural environment, including estuaries and coastal waters, and requires member states to protect, enhance and restore all bodies of surface and ground water, with the aim of achieving good surface water status by 2015. In addition, since 2007 there has been an Integrated Maritime Policy for the European Union, which aims to deliver sustainable development for Europe’s seas. The policy is at an early stage but can be increasingly expected to influence matters such as maritime transport, climate change and pollution, and maritime research. There is also the EU Marine Strategy Framework Directive,17 which member states must have transposed into domestic law by 2010. This requires member states to maintain “good environmental status” for their seas, or to have achieved it by 2020.

21. The UK has also, since 1972, been a signatory to the OSPAR Convention, an international accord on the protection of the marine environment of the north-east Atlantic. Decisions of OSPAR are legally binding on the contracting parties. Amongst the most important agreements reached by member states was that of July 1998 “to promote the establishment of a network of marine protected areas to ensure the sustainable use and protection and conservation of marine biological diversity and its ecosystems”18. This agreement, and the work that followed it, lie behind Part 4 of the Bill.

22. Over and above international law and policy, there is the simple fact that neither marine ecosystems nor ocean currents sit neatly within notional boundaries. Nor does pollution. Cooperation at both the UK and international level is vital to ensure that Scotland has a healthy marine environment.

Inshore fisheries groups

23. Inshore fisheries groups’ role is to improvement the management of commercial fisheries within the twelve mile limit.19 IFGs are in the process of being set up all around Scotland’s inshore waters. According to the Scottish Government, the bodies “aim to improve the management of Scotland's inshore fisheries and to give commercial inshore fishermen a strong voice in wider marine management developments.”20 The membership of IFGs, which are non-statutory bodies, are entirely composed of commercial fishing interests.

24. Under the UK Marine and Coastal Access Bill, IFGs’ English equivalents are being reconstituted as statutory bodies named “inshore fisheries and conservation groups”, and will be required to ensure that their membership includes representatives from outside the fishing industry. This approach is not being taken in Scotland. The Scottish Government has no immediate plans either to reform or abolish IFGs following the enactment of the Marine (Scotland) Bill and the creation of MPPs.

Integration of marine plans with coastal zone and terrestrial land management

25. Marine ecosystems within the twelve mile limit not only border each other; they also border the coast. A key consideration of any proposal for the governance of the marine environment is to consider how well it coheres with governance arrangements for the coast and for land where it abuts the coast.

26. Integrated coastal zone management is a process for the management of the coast, using a coherent approach that has regard to all aspects of the coastal zone in an effort to achieve sustainability. The principles of ICZM were agreed at the Earth Summit in Rio de Janeiro in 1992. The Scottish Government has been pursuing an approach based overtly on ICZM principles since 1996, with the setting up of the Scottish Coastal Forum. A further development was the publication of a national strategy for ICZM strategy in 2004.21 Local partnerships dedicated to putting ICZM into practice now cover most of Scotland’s coastline.

27. The Scottish Government intends that ICZM should itself integrate with marine planning, but that the two processes should remain separate. A similar approach is proposed for terrestrial planning, which is of course a statutory process.

Outline of Stage 1 scrutiny

28. The Committee issued a call for views on the general principles of the Bill and received 63 responses.22 Two public petitions23 were also treated as evidence on the Bill. Evidence at Stage 1 was taken at five meetings, the last including evidence-taking from the Cabinet Secretary for Rural Affairs and the Environment.24 All of these meetings took place at the Parliament, except the 22 June meeting, which was held in Kirkcudbright.

29. In addition to taking formal evidence, committee members made three fact-finding visits on the Bill:

  • on 18 and 19 May, members went to Aberdeenshire, visiting Peterhead Port Authority and Marine Scotland’s laboratories at Torry, as well as taking part in a conference on European maritime matters at Boddam organised by Aberdeenshire Council and the European Commission in Scotland;

  • on 1 June, members visited the Firth of Lorne, where they made a journey by boat to inspect an SSSI25 for the conservation of Harbour Seals and an area subject to a pilot marine spatial plan. Members then alighted at the Scottish Association of Marine Science at Dunstaffnage, where they took part in a discussion on issues of local concern such as seal management (to address predation of fish farms); marine conservation, and bio-energy projects;

  • finally, on 22 June, on the morning of their meeting in Kirkcudbright, members made a visit to the nearby Mersehead RSPB reserve, where local stakeholders discussed the marine management challenges facing the Solway Firth, including cross-border issues.

30. On 2 September at the Parliament, members of the Clyde Scottish Sustainable Marine Environment Initiative made an informal presentation to some Committee members on their work piloting the preparation of a marine plan for the Firth of Clyde.

31. The Committee is grateful to all those who gave of their time to provide evidence to the Committee or to brief members on our visits.

32. The Finance Committee has reported26 to the Committee on the Bill’s financial memorandum, while the Subordinate Legislation Committee27 reported on delegated power provisions found in the Bill. Comments and recommendations of those reports are noted at appropriate points in this one.

Policy memorandum

33. Under Rule 9.6.3 of the Scottish Parliament’s Standing Orders, the lead committee must consider and report on the policy memorandum accompanying any Government Bill, as part of its Stage 1 scrutiny.

34. The Committee’s view is that, for a Bill of this length and importance, the policy memorandum was at times lacking in detail first as to how the Bill had come to take the form that it did, and secondly as to how it would be implemented.

35. In the former case, there is, for example, no discussion as to the decision that led to Marine Scotland being established as a Government Directorate rather than as a statutory body. Nor is there any discussion of the decision not to include provisions pertaining to science and research, which had been suggested in Sustainable Seas for All.

36. In the latter case, the Committee fully appreciates that much of the detail of implementation requires to be worked out. However, the memorandum could usefully have said more about matters such as how decommissioning would be handled under the Bill or how the licensing appeals process is expected to work, which might have helped address concerns or misconceptions that arose at Stage1.

37. The Committee invites the Cabinet Secretary to note our observations on the lack of detail or proper discussion in parts of the policy memorandum.

Key themes emerging from stage 1 evidence

Overall views on the Bill

38. The Bill has been broadly welcomed. In general, witnesses agreed that Scotland’s seas would benefit from more coherent marine governance, from both an environmental and an economic perspective. However, most also expressed some concerns with the Bill. Most of these have arisen from uncertainty as to how it would be implemented. For the most part, the Bill creates a framework, enabling the Scottish Ministers to set up management processes, but leaving the detail of policy to future subordinate legislation, to guidance, or to the content of marine plans that may not be finalised for some years. On a number of significant matters, such as the membership of marine planning partnerships or the details of marine licensing, the Scottish Government has candidly stated that it has not yet come to a concluded view. Whilst this candour is to be welcomed, it has given rise to uncertainties as to the future direction of policy, with one respondent to the Committee’s call for views remarking that “the lack of detail makes it genuinely difficult for consultees to analyse and comment on the proposals in many areas that could be of critical importance.”28 This has been the Committee’s experience as well, which, at times, has limited our ability to analyse the Bill’s likely impact.

39. Other concerns relate to the financing of commitments imposed by the Bill, to uncertainty as to how conflicts between national and local priorities will be managed, to a perceived lack of data and as to how the precautionary principle should therefore be applied, and to the possibility of the Bill increasing rather than reducing bureaucracy, for instance in relation to licensing matters.

40. Finally, in relation to seal conservation and management – relatively speaking a small part of the Bill but a matter on which strong views are understandably held – a considerable number of witnesses considered that the Bill did not go far enough in seeking to safeguard seals’ welfare by ensuring that culling is a last resort.

41. Notwithstanding these concerns, it is important to commence detailed scrutiny of the Bill’s provisions by noting once again that witnesses have generally welcomed the Bill, a view with which the Committee concurs. In doing so, the Committee notes that the Bill builds on the work undertaken by our predecessor Committee and by successive administrations. The Committee welcomes the general principles of the Bill as we consider that it will, if implemented following adequate consultation and resourcing, help improve the governance and sustainability of Scotland’s seas.

The state of Scotland’s seas, the availability of data, and the precautionary principle

42. An issue not addressed directly in the Bill, but hugely germane to its subject matter, and therefore much discussed both in the Government’s pre-introductory consultation and at Stage 1, has been the level of scientific knowledge about the seas around Scotland, and what effect this knowledge – or the absence of it – should have on decisions on the use of the sea. A consensus emerged both from evidence-taking and from more informal information gathering that, notwithstanding ground-breaking work being carried out at Scottish institutions, which we observed on some of our visits, there is still a dearth of data in many important areas of marine research, whether that relates to ecology, geology or archaeology. As one witness with experience of working on both sides of the border argued, England is well ahead in gathering data relating to coastal issues such as sea-level rises, and Scotland needed to “catch up” 29, whilst an archaeologist specialising in submerged historic sites cautioned that in this area Scotland “lags behind the rest of the UK, Europe and the world.”30

43. Another over-arching issue at Stage 1 has been the state of Scotland’s seas. Several witnesses expressed concerns about there being a degree of complacency about this issue. For instance, written evidence from the Community of Arran Seabed Trust (COAST) argued that the Bill failed to acknowledge “the dire state of Scotland’s seas”, and described the environmental recovery provisions in the Bill as “poor, with no ambition to improve or recover the ecological status of Scotland’s seas beyond the boundaries of marine protected areas.” Ian Burrett of the Scottish Sea Angling Conservation Network argued that the Bill—

“should be a new opportunity for our oceans. Its starting premise is that the environmental status of most seas around Scotland is currently good or excellent, but that is not what we find. The UK Government's consultation on a marine bill said that the seas are generally healthy and biologically diverse. Our members find that that is not true either: on the west coast of Scotland, 20 species either have disappeared or are now found only as juveniles.”31

44. Mr Burrett argued that the degraded state of the marine environment, combined with a relative lack of data, meant that the precautionary principle32 should be set out in the Bill33.

45. Lloyd Austin of Scottish Environment Link expanded on this point, arguing that since a paucity of data had not prevented commercial exploitation of the seas, in matters such as energy, fisheries, and aquaculture, from going ahead, then by the same token, an insufficiency of data should not preclude decisions being made on conservation grounds.34

46. Others disagreed, with Patrick Stewart of the Scottish Fishermen’s Federation arguing that the term “precautionary principle” lacked an objective meaning.35 Professor Phil Thomas of the Scottish Salmon Producers’ Organisation argued that the principle was much misunderstood; it did not mean doing nothing because of a lack of data, but proceeding with caution. He argued that there was no need to make express reference to the principle in the Bill because the Marine Strategy Framework Directive would provide sufficient protection in that regard36.

47. Representatives of the marine renewables industry pointed out the dangers, as they saw it, of applying the precautionary principle too rigorously. Jeremy Sainsbury of Scottish Renewables conceded that the burden of proof in assessing the environmental impact of a major marine project should lie with the developer, but also argued—

“Pressure will arise because we need renewable energy now. We have extremely challenging targets for 2020. The Bill will involve the setting up of marine protected areas, but the science that will enable us to do that comprehensively will not be available for between six and 10 years. We cannot afford to wait six to 10 years.”37

Marine littering

48. The problem of marine littering was also noted during evidence-taking. Pam Taylor of the Solway Firth Partnership described it as—

“a massive problem that needs to be tackled on several levels, from the amount of packaging that is used for everyday items to discards from fly-tipping of industrial or public waste. A tremendous amount can be done to tackle the problem at local level. We work with community groups, which are keen to go out and get involved on their own beaches. The issue needs resourcing, and an organisation needs to be prepared to take responsibility. Marine Scotland and the UK marine management organisation might want to take that up.38

49. Ms Taylor went on to suggest that there was potential to address the problem through regional planning, as that would “provide a way, in which local communities can actively engage, of managing the area”.

50. The Committee invites the Cabinet Secretary to clarify whether he considers current enforcement provisions on marine littering are sufficiently robust, and whether he considers there are sufficient resources for them to be applied effectively.

51. Given this evidence, the Cabinet Secretary was invited to comment on whether there was merit in the Bill placing an over-riding duty on the Scottish Ministers to have regard to the health of the seas as the primary objective in all activity carried out in the marine environment. He remarked that this question went “to the core of the issue”—

“The role of the Government in this, as well as that of everyone else who uses our seas, is to ensure that we have healthy seas for the future. We are already committed to that and we are already signed up to obligations under European legislation to achieve that. Those obligations mean that we have to work through established networks of MPAs, through elements in the Marine (Scotland) Bill and through international commitments to achieve a healthy status for our seas in the years ahead. That does not just apply to Scotland—that is European Union policy.”39

52. In subsequent correspondence, Mr Lochhead further clarified that—

“we are in parallel working with the UK Government to transpose the Marine Strategy Framework Directive which will require us to achieve good environmental status in Scottish waters. Also Scottish Ministers are already under a duty to further the conservation of biodiversity at sea under the terms of the Nature Conservation Act 2004. In those circumstances I am not convinced that a specific duty on the health of the marine environment would be very meaningful.”40

53. It is helpful of the Cabinet Secretary to draw the Committee’s attention to the 2004 Act, which requires any public body and officer holder, in exercising its functions, “to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.” A marine environment rich in biodiversity is an extremely important marker of a healthy sea, but it may not be the only one. There might also conceivably be circumstances where there is a short but crucial time-lag between an observable decline in the health of one aspect of the marine environment and a collapse in marine biodiversity.

54. One way to seek to address this would be to make express reference to the precautionary principle on the face of the Bill, as some witnesses have suggested. Given the lack of consensus as to the definition and application of the principle, the Committee does not consider that this is the best way forward.

55. However, the state of Scotland’s seas is a serious concern. Domestic or international obligations imposed in recent years do not appear to have rectified the situation. The Marine (Scotland) Bill provides an opportunity to strengthen the legal position. Accordingly, the Committee recommends that the Bill place a duty on the Scottish Ministers and all relevant public bodies, when exercising functions, to have regard to the need to maintain and improve the health of the Scottish marine area. We recognise that, were this duty to be inserted into the Bill, there would be a need to provide indicators, whether in subordinate legislation or through guidance, as to the factors that constitute a healthy marine environment. The Marine Strategy Framework Directive, which sets out indicators of “good environmental status”, may provide some pointers.41

Non-native species

56. The presence of invasive non-native species in Scottish waters is another indicator of the health of our seas. A number of international and domestic laws and conventions require the control or eradication of invasive non-native species. Perhaps because of stakeholder awareness of a forthcoming Bill on wildlife and the natural environment, this issue, with one exception, did not arise during Stage 1 consideration. The exception was concerns from shellfish growers as to the possibility of the pacific oyster, the mainstay of the commercial oyster industry, being re-designated as an invasive non-native species, as has been proposed by the UK Technical Advisory Group on the Water Framework Directive.42 It is not for the Committee to adjudicate on the science behind this proposal, but it is clearly a matter of concern to the entire oyster industry.

57. The Committee invites the Cabinet Secretary to note industry concerns as to the status of the pacific oyster in the course of preparing the forthcoming Bill on wildlife and the natural environment.

Water quality, shellfish and the Water Framework Directive

58. As noted, one of the most important legal drivers of high environmental standards is the Water Framework Directive. The main focus of the directive relates to river basins and other fresh water, but the requirement to achieve good ecological status for surface waters extends to coastal waters three miles out from the shoreline. The directive is in the process of being implemented across Europe, which will include it superseding another European legal instrument, the Shellfish Waters Directive, by 2013. That directive empowers competent domestic authorities (SEPA in the case of Scotland) to designate areas of water as shellfish growing waters if they are found to meet the requisite high environmental standards.

59. These current arrangements appear to have provided certainty and reassurance to shellfish growers about where they can site their farms. Their replacement in 2013 appears to have raised alarm within the industry as to what consequences this will have.43

60. Both SEPA and the Cabinet Secretary sought to reassure the industry. Andy Rosie of SEPA said that “the requirement to carry on the designation process will carry into the water framework directive and a similar approach will be applied.”44 The Cabinet Secretary pointed out that it is a requirement of the Water Framework Directive that it provide “at least equivalent designated protection to waters currently protected under the Shellfish Waters Directive” and that in Scotland “shellfish growing waters will still be protected, even if not designated as previously.”45 He advised that he had instructed SEPA to make this information more transparent in their draft river basin management plans, to be published this coming December.

61. This does not appear to have been sufficient to have satisfied the industry representative from whom the Committee heard, who argued that the current designation “provides something tangible to protect us”46 and that giving protection equivalent to a designation was not legally the same as providing a designation.

62. It is important to stress that this issue is not directly to do with anything currently in the Bill, but is rather an apparently unintended consequence of the European Union attempting to tidy up its own laws. It should also be made clear that the Committee is in no position in adjudicate on the technical and narrow question of whether the legal protection provided to shellfish growers under the Water Framework Directive will be as good that currently provided under the Shellfish Water Directive, much of which appears to hinge on the meaning of the word “equivalent.” It is clear to us, however, that the Cabinet Secretary has genuinely sought to provide assurances on this issue, but that concerns still remain. As the current designation regime will not come to an end for some time yet, we are hopeful that there is sufficient time for concerns to be addressed.

63. The Committee would encourage the Cabinet Secretary and SEPA to continue to engage in dialogue with the Scottish shellfish growers’ industry as to the latter’s concerns over the replacement of the Shellfish Waters Directive in 2013. We invite the Cabinet Secretary to press for clarification from the European Commission as to whether there will be any diminution in the legal protection afforded to growers once the new regime under the Water Framework Directive is in place, and to indicate whether he would do so before Stage 2.

Part 1 of the Bill: the Scottish marine area and the meaning of “sea”

64. Part 1 of the Bill has the sole purposes of defining the “Scottish marine area” and “sea” (see discussion above). A letter from the Cabinet Secretary explains why a slightly more restricted definition of the sea is applied in Part 4 of the Bill, dealing with marine protected areas—

“The definition in section 57 for the purposes of Part 4 limits “sea” to the fresh water limit of estuarial waters ie it excludes waters upstream of the fresh water limit. The intention is that the Marine Protected Area provisions will not apply up river in fresh water. Sites of Special Scientific Interest powers are available to protect inland areas, including rivers, and it was therefore considered unnecessary to make MPA provisions available for upstream areas. In effect we would wish use of the Marine Protected Area powers to be focused on the marine area as much as possible.”47

65. No major issues with the definitions used arose during Stage 1 scrutiny.48 The Committee is content with the definitions used in Part 1.

Part 2 of the Bill: Marine planning

66. Part 2 of the Bill, together with schedule 1, concerns marine planning, including the power to draw up plans at national and regional levels, the procedure for doing so, and the status of such plans.

67. Section 3 empowers the Scottish Ministers to prepare and adopt a national marine plan and regional marine plans. Either type of plan must state the Scottish Ministers’ policies “for and in connection with the sustainable development of the area to which the plan applies”49 and may also set out “economic, social and marine ecosystem objectives 50” – these presumably being referred to for the avoidance of doubt, since any sustainable development policy for the seas around Scotland could be expected to encompass such matters.

68. Importantly, section 3 also provides that a regional marine plan must conform to the current national marine plan “unless relevant considerations indicate otherwise”.51

69. Schedule 1 sets out the procedure for preparing marine plans before they can be published and come into effect. Key points are that relevant planning authorities (ie local authorities acting in their capacity as terrestrial planners) must be informed of an intention to prepare a marine plan; that the Scottish Ministers must publish a statement of public participation in relation to any proposed plan and a consultation draft of any plan; and that any national plan may not be published unless a final draft has been laid before the Scottish Parliament.

70. Section 8 is the provision that enables the Scottish Ministers to delegate regional planning. The delegate may be a single public authority or a group of persons nominated by the Scottish Ministers or a public authority. As noted, the policy intention of the current administration is that the delegates be so-called marine planning partnerships, comprising groups of stakeholders in the marine environment, but “marine planning partnership” is not a term found anywhere in the Bill.

71. Section 11 provides that a public authority must make any authorisation or enforcement decision in relation to the Scottish marine area in accordance with the appropriate marine plans, “unless relevant considerations indicate otherwise”52, in which case it must state its reasons for so doing. In practice, this means that licensing decisions under Part 3 of the Bill, amongst other things, are expected to be in accordance with a marine plan. Section 11 therefore seeks to ensure a degree of integration between marine planning and marine licensing.

72. Section 12 requires the Scottish Ministers or, as the case may be, the person(s) delegated to prepare a regional marine plan; to keep the effectiveness of the marine plan under review; to report on the plan at least once every five years, and, following such a report, to decide whether to amend or replace the plan. This is intended to help ensure that plans remain fit for purpose in response to environmental changes, including climate change, social changes, and technological advancement.

Key themes arising from scrutiny of Part 2

73. Part 2 is in many respects the core of the Bill, since many operational decisions – such as what activities to license or exempt under part 3 or what areas to declare as marine protected areas under Part 4 – might be expected to flow from the higher-level strategic decisions taken at the marine planning stage. It is no surprise, therefore, that Part 2 was perhaps the most discussed part of the Bill during the Committee’s Stage 1 scrutiny.

What is a marine plan?

74. Perhaps the most fundamental issue considered by the Committee in relation to Part 2 was what form a marine plan would actually take and how it would be used. Would it be a tangible document that could be picked up and read by a layperson? Would it be predominantly a spatial plan or a set of enunciated principles or policies? Is it helpful or misleading to compare the terrestrial planning system with marine planning, both in the form plans take and the way they are to be used?

75. The answer has thus far not been entirely easy to ascertain. In anticipation of the new planning regime to come into force following enactment of the Bill, four pilot projects have been set up around the coast of Scotland – in Berwickshire, Shetland, the Sound of Mull and the Firth of Clyde, with groups of stakeholders in those areas working together to produce marine plans. Members of two of those groups – the Clyde and Sound of Mull Sustainable Marine Environment Initiatives (SSMEIs) – have met with Committee members during Stage 1 to explain their work.

76. Whilst this has been very useful, it is fair to say that this probably taught Members more about the planning process itself, rather than the content and format of marine plans, especially since neither group has yet produced a concluded plan. However we were left with the clear impression that the ultimate aim was to produce a spatial plan that the layperson could be expected to be able to interpret, albeit one augmented by a large number of technical appendices that would be more difficult for the non-expert to interpret.

77. As for the planning process, the main conclusion that can be drawn is that it has the potential to be lengthy and complex, although those who have taken part in the pilots to whom we spoke were convinced that it was ultimately worthwhile and useful and would help make management of the coast and seas more effective

The national marine plan

78. The Scottish Government’s policy is that the national plan should set out key national objectives for the Scottish marine area. In furtherance of this, section 3(3) states that “a national plan may in particular include economic, social and marine ecosystem objectives”.53

79. Some witnesses noted the absence of express reference to climate change mitigation54 anywhere in the Bill as a key objective for the plan. The Cabinet Secretary told the Committee—

“I am not sure whether we need to add "climate change mitigation" to the list, but I am happy to reflect on that and I will wait to hear the committee's view. It is inconceivable that the national marine plan would not refer to the country's climate change objectives in the context of the marine environment. I assure the committee that the issue will be reflected in the national marine plan.”55

80. The Committee suggests that it would reflect the national, and indeed international, importance of climate change mitigation and adaptation if it were expressly included in the list of objectives in section3(3) that a national marine plan may set out.

81. The Cabinet Secretary went on to argue that the emphasis in the provisions on the national marine plan to powers rather than duties, and the comparative absence of references to matters that must be included in the plan, was deliberate, as he considered it imperative to take a flexible approach. He argued that pointers as to what should be included in the national plan, and in regional plans, would emerge through effective consultation.56

82. The Committee broadly accepts the Cabinet Secretary’s view that the Bill should allow the Scottish Ministers to take a flexible approach towards the drawing up of a national plan, in view of the need to respond to stakeholders’ views and changing circumstances. However, it follows from this that there must be a proper opportunity to consider and debate the merits of any proposed national plan, the Scottish Parliament being the most appropriate forum. This is already partly provided for in the Bill, in paragraph 13 of schedule 1, but the Committee is concerned to note that the power to determine the length of the period for Parliamentary consideration lies with the Scottish Ministers. Whilst we would hope that sufficient time would always be provided, the Committee considers that this is too important a matter to be left to the good faith of current and future administrations. Accordingly,the Committee recommends that the Bill expressly sets out a minimum time period for Parliamentary consideration of a draft national marine plan. The Committee proposes that this be set at 40 sitting days.

Membership and governance of marine planning partnerships

83. MPPs look likely to have a vital role in marine planning at regional level. However it was repeatedly stressed at Stage 1 that the Scottish Government has a very open mind as to what form these bodies are likely to take.

84. Professor Phil Thomas of the Scottish Salmon Producers Organisation voiced concerns that the current proposals for the partnerships were “almost casual”—

“We need a clear and identified leadership and, in particular, support function. In some way, the composition of the bodies needs to be balanced and limited in scale, because otherwise they will become totally unmanageable. They must be given a clear remit within the overall framework, otherwise they will not deliver what is required for marine planning, locally or nationally.”57

85. Not all witnesses were quite as concerned as to the lack of detail at this stage. Lloyd Austin of Scottish Environment Link, for instance, stressed the importance of taking a flexible approach depending on local circumstances.58 But there was consensus as to the importance of MPPs being effectively led and their governance arrangements being clear and workable.

86. Evidence was sought as to whether there were any groups currently in existence which could serve as an example to MPPs. Drawing on her experience as a member of the Solway Firth Partnership, which seeks to put integrated coastal zone management into practice, Pam Taylor suggested that MPPs pursue a layered approach to governance, which would minimise the risk of their agreeing plans that lacked sufficient detail to be useful or which fudged controversial issues—

“In practice, the planning partnership will need to be built on several levels. There could be a core group to deal with strategic matters and focus groups to consider particular sectoral or geographical issues. Those levels will have to be meshed together to get the integrated planning system that we want to achieve, but not everything will be done in one forum.”59

87. Lloyd Austin of Scottish Environment Link made parallels with area advisory groups set up under river basin management planning, which were chaired by SEPA, suggesting that these had worked well. Andy Rosie of SEPA argued that these bodies had been able to work effectively with around 25 members, made up of representatives of all of the main stakeholders. If wider input were sought, advisory groups could hold forums in different localities, inviting members of the public and other interested parties to offer their views. He suggested that this approach might minimise the difficulties that could arise if more people wanted to be represented on a partnership than was manageable.60

88. Mr Rosie explained—

“There are opportunities to align—and possibly, to realign—the advisory groups that we have set up with marine planning partnerships, so that both pieces of businesses can be dealt with by the same characters. Forum fatigue is an issue, as the same people are required to sit around many tables. We have an opportunity to simplify the process. The area advisory groups already deal with aspects of the marine environment up to the 3-mile limit, so we are already involved in discussions about coastal waters, setting objectives and identifying what must be done to meet them.”61

Leadership of marine planning partnerships

89. Mr Rosie argued that, if there were such “alignment” between MPPs and area advisory groups under river basin management planning, this would allow SEPA and Marine Scotland to “swap chairs”62 when switching from river basin to marine management. Other witnesses agreed that there would be merit in Marine Scotland chairing or leading MPPs. Patrick Stewart of the Scottish Fishermen’s Federation proposed that—

“thought should perhaps be given to consistency in the leadership of the groups. That could come from central Government rather than locally—there is an argument that that would achieve the consistency that the committee is concerned about.”63

90. Not everyone agreed. For instance, George Hamilton of Highland Council indicated that the council itself might prefer to be the body playing the “lead role”64 in any future MPP encompassing the seaboard of the council. For Gordon Mann of the Solway Firth Partnership, the question of whether Marine Scotland should lead all MPPs was less important than ensuring that MPPs were truly representative65 and that they were adequately resourced66, the latter being a point taken up in a number of written submissions.

91. John Eddie Donnelly of the Clyde SSMEI (one of the four groups currently piloting marine planning around Scotland) told the Committee that—

“The approach that we took is interesting in that there was no lead body. We took a consensual approach; we got agreement around the table from a vast range of different stakeholders [there were 28 bodies on the group], such as RSPB Scotland, the Clyde Fishermen's Association, Scottish Natural Heritage and the Scottish Environment Protection Agency. That was an interesting way of developing a plan, but it is something that we could move forward with within the Firth of Clyde to ensure that most stakeholders have their views put forward and we get the most sustainable way of developing different activities in the Clyde.”67

92. The Cabinet Secretary told the Committee that he proposed—

“to reflect on the comments that have been made to the committee in relation to our future thinking on the composition of marine planning partnerships. […] The sector is diverse—fisheries are diverse, never mind the wider marine environment. There are no simple answers. I am sure that there will be debates in some parts of the country about who should be in marine planning partnerships. […] The question facing the Government is the extent to which membership of local partnerships might be pre-empted. There will certainly be some obvious candidates. Because the marine regions and the planning partnerships will be established by secondary legislation, that will all be consulted on at the time.”68

93. He further clarified that he was open to the idea of providing a clearer framework for the governance of MPPs, whilst leaving some flexibility for local areas to adapt working practices to suit their circumstances.69 He was unwilling to be drawn on how matters such as voting procedures would be drawn up at this stage.

National priorities and regional plans

94. Questions over the governance of MPPs, and in particular whether Marine Scotland should lead or chair them, relate closely to another important issue that arose at Stage 1 – the extent to which regional plans should execute national priorities identified during the preparation of the national plan. For instance, if the national plan identifies tidal energy as a priority, how much discretion should an MPP have to determine that tidal energy generation should not be prioritised within its marine region?

95. Whilst all witnesses would probably agree on the need for a balanced approach, clear differences of emphasis did emerge. On one side, Captain Nigel Mills of Orkney Council argued that—

“surely there must be areas where the regional plan can deviate; otherwise, the regional plan becomes a photocopy of the national plan. Our diverse regions must have the ability to personalise their plans in some way. The marine environment is not geographically consistent, and even water temperature and salinity are diverse. The North Sea and the Atlantic are completely different water bodies. We cannot allow a national plan just to spill out throughout Scotland and say that we will all do the same.”70

96. However, the Scottish Coastal Forum suggested in written evidence that Marine Scotland should be empowered to “drive”71 regional plans. The Forum’s Captain Jim Simpson elaborated that Marine Scotland should “set the parameters”72 within which MPPs should operate to prevent them “going off at a tangent”.73

97. Gordon Mann of the Solway Firth Partnership described provision in the Bill requiring regional plans to conform to the national plan unless (in the language of the Bill) “relevant considerations indicate otherwise” as “a nice fit” and expressed optimism that the requirement for Marine Scotland to approve the plan would ensure that plans could be agreed relatively quickly rather than dragging on through a failure to reach agreement on contentious issues.74

98. Expanding renewable energy, including at sea, has been seen as a national priority by successive Scottish Governments. Yet major projects are inevitably controversial at local level. One of the first such projects was the Robin Rigg windfarm in Solway Firth, now partly operational, which proceeded following Government approval and the passing of an enabling Act by the Scottish Parliament. Mr Mann was asked if anything different would have happened had regional marine planning along the lines envisaged by the Bill been in place. He said that he did not know what the difference would have been but added that—

“It is right and proper that the Government should make such difficult balancing decisions, but local people seem almost to have been excluded from the process when they need to be included.

On the process that the bill envisages for preparation of a marine plan, an area might come forward and say, "Offshore wind farms are not for us." Clearly, that does not fit with national priorities, or with the national need to secure renewable energy targets, so there is an opportunity for the plan to be amended. However, it would be being amended deliberately and positively, and because a democratically-elected Parliament had taken the view that in this circumstance, renewable energy was a higher priority than landscape, and the impact on that landscape of any development.75

99. Mr Mann further clarified that he was comfortable with that hierarchy – it was acceptable that there should be a final say at national level, and he did not consider that it would prevent effective partnership working at local level.76

100. The Cabinet Secretary remarked—

“There will be a close relationship between Marine Scotland and all the marine planning partnerships. Marine Scotland will be the champion of Scotland's seas and the champion of the legislation, so a close relationship is inevitable. It would be nice to think that Marine Scotland will not have to chair some marine planning partnerships to get them going, but I have no fixed view on such suggestions.”77

101. The Scottish Association for Marine Science was amongst the organisations to express some concern as to the drafting of section 3(5) – concerns along very similar lines to those pertaining to the fit between marine planning and marine licensing set out in section 11(1)—

“A regional marine plan must be in conformity with any national marine plan, unless relevant considerations indicate otherwise. What is the definition of “relevant considerations”? This is quite broad and should be clearly defined as it could negatively influence implementation of regional plans and national consistency.”78

Conclusions

102. It is clear from this survey of the evidence, that there is a diversity of views on who should be on MPPs, how they should be run, and who should chair or lead them. If witnesses were agreed on one thing, it was that no two MPPs should be selected and run in exactly the same way. This indicates that the Bill has probably got it right in allowing for a flexible approach. The Committee does not therefore consider that it would be helpful to issue recommendations on MPPs’ membership and governance of an especially specific nature.

103. As regards the fit between regional and national plans, the view of most witnesses, shared by the Committee, is that the Bill has again probably got it broadly right. The key issue is balance between securing national priorities, especially in growing renewable energy and reducing Scotland’s carbon footprint, are ensuring meaningful devolution of decision-making in marine planning. Whilst the arrangements in the Bill are flexible – and concerns over the meaning of “relevant considerations” in section 3(5) do merit further consideration – the Committee notes that, under the Bill, the Scottish Ministers do retain final authority over the content of regional marine plans even where they delegate their preparation to marine planning partnerships.79

104. The Committee largely supports the flexible approach to the membership and governance of marine planning partnerships proposed in the Bill.

105. The Committee considers that MPPs should be diverse bodies, drawing their membership from a wide selection of local stakeholders, and should not be dominated by narrow sectoral interests. It follows that we find it almost impossible to envisage circumstances where a single public authority would be an appropriate “partnership” and suggest that the provision enabling this to happen be removed from the Bill.

106. On the other hand, the Committee would make the practical observation that any policy-determining body with too large a membership risks being unwieldy and may lack the momentum to drive through timeous agreement of a marine plan. As this may mean that not every local stakeholder group that wants to be on an MPP will end up being on one, Marine Scotland should consider drawing up good practice guidelines on ensuring that views can be fed in to MPPs in other ways. The forums held by advisory groups for river basin management planning appear to be one possible approach to follow.

107. The Committee supports each individual MPP having discretion to determine its own working practices. However approaches should not be so flexible as to lead to national objectives being unrealised or good practice not being shared. To that end, the Committee considers that Marine Scotland’s experience and expertise will be crucial for the effective running of all MPPs. The Committee would expect that Marine Scotland would take the lead role in administering MPPs.

108. The Committee also expects that it would be a Marine Scotland representative who would chair most MPPs, although there may be instances where it would be more appropriate for the representative of a locally-based organisation (most obviously a local authority) to take the chair. In all cases, however, the Committee considers that it should be for the Cabinet Secretary to appoint the chair of an MPP.

109. The Committee invites the Cabinet Secretary to consider concerns that the requirement in section 3(5) that regional marine plans conform to the national plan “unless relevant considerations indicate otherwise” is broad, and that “relevant considerations” should be defined in the Bill or explained in guidelines.

Number and size of marine regions

110. Setting the boundaries of marine regions is another important matter on which the Scottish Government has not yet reached a concluded view, with the Cabinet Secretary being drawn no further than indicating that there were likely to be between 5 and 15 regions.80 The Committee has heard informal indications that a marine region of the scale of the Sound of Mull pilot is probably smaller than what the Government now has in mind and that the Firth of Clyde pilot may offer a more likely template.

111. Most witnesses appeared relatively relaxed that, at this stage, there was an absence of detail as to the boundaries of future marine regions, although a joint submission from all three island councils argued that each should be considered as a separate marine region. Some witnesses saw Scotland’s main firths as natural marine regions.81 Otherwise, there was a consensus that there should be a flexible approach tailored to local circumstances.

112. However there was a slight difference of opinion as to the underlying principles that should apply when determining boundaries. Lloyd Austin of Scottish Environment Link argued for an ecosystem-based approach—

“it should be the size of the natural ecosystem that determines the size of the area to be considered. In the firths, a firth-wide approach would be logical; and in the northern isles, an island group approach, whether Shetland or Orkney, would be logical. Around the rest of the coast, there are ways of dividing areas, as has been done with inshore fisheries groups. Indeed, there is logic to having a division along similar lines, so that the two processes can come together and coalesce.

The key thing is to take an ecosystem approach to management. The "Sustainable Seas for All" consultation paper suggested that there would be a duty to take such an approach in planning and in managing protected areas. However, that has not emerged in the bill. We would like there to be a specific requirement on Marine Scotland to take such an approach and to ensure that ecosystem objectives are built into planning processes.”82

113. Mr Austin further argued that this approach should have the advantage of allowing “a kind of zipping of integrated coastal zone management, involving river basin management plans and terrestrial planning systems.”

114. Phil Thomas of the Scottish Salmon Producers’ Organisation cautioned against going too far down the road of taking an ecosystem approach if that were to result in there being too many marine regions, making it difficult for industry to engage with the system. He considered the areas covered by the inshore fisheries groups to be about the right scale. Any smaller and the planning approach risked being “piecemeal.”

115. The Committee expects that the Scottish Ministers will consult widely, including with the Parliament, before designating Scottish marine regions under section 3(4).

116. The Committee supports the principle of taking an ecosystem-based approach to designation but recognises that the waters surrounding Scotland cannot be broken down into discrete clearly-defined ecosystems, and that accordingly it is legitimate to take other considerations into account.

117. We consider that there is a reasonably clear-cut case for the major firths and for the seas surrounding Orkney, Shetland and the Western Isles to be considered discrete marine regions. Making the major firths marine regions would also have the advantage of enabling a partial integration of river basin management plans and regional marine plans.

Cross-border issues

118. In at least one part of the Scottish marine area – the Solway Firth – effective cross-border co-operation is likely to be vital if a success is to be made of marine planning, and indeed licensing. Whilst witnesses could not be expected to be expert on the complex interplay between the UK and Scottish Bills, most seemed to take the view that there was no reason why stakeholders on both sides of the Firth could not make a success of managing it, provided there were effective communication structures and a willingness on both sides to engage. It was crucial, however, that the Bills going through both Parliaments enabled this to happen. Gordon Mann of the Solway Firth Partnership explained—

“Our concern is that the national boundary that is drawn down the middle of the Solway could lead to our work disintegrating rather than integrating. Our argument is that a firth such as the Solway should be the subject of a single plan. […]

The section that allows the delegation of functions relating to a regional plan will allow Marine Scotland to delegate its part of the Solway to a third party. We need the same level of provision in the United Kingdom Marine and Coastal Access Bill to enable one organisation to carry out the stakeholder consultation, the research and other work to prepare a single plan. Each marine organisation can then approve the plan for its own interest and the normal consenting process by the different Administrations can then take place, but that will be based on a single agreed plan.

As we have heard, terrific efforts were made right at the start to ensure that there were single, cross-border management plans for those European marine sites that straddle borders, and the water framework directive is being implemented on a cross-border basis. The idea that we could not have a single plan for the Solway would appal me.83

119. His colleague Pam Taylor agreed with the proposition that it would be useful if the Scottish Bill imposed a duty on an MPP encompassing the Scottish part of the Solway Firth to have regard to any marine plan for the English part—

“We want joint planning. If we cannot get full joint planning, we want well-integrated planning. The legislation to implement the water framework directive places a duty on the Environment Agency and SEPA to work together jointly. Irrespective of any tensions or issues that might come into play, such as pressures on timescales, the organisations are bound to work together to prepare a plan. A guarantee that there would be an integrated process would be helpful.”84

120. Another issue that Mr Mann identified as a possible impediment to effective cross-border working was the differing status of Marine Scotland and the NDPB set up under the UK Bill as its rough equivalent. He said that it had apparently been difficult to arrange discussion about joint working at official to official level because—

“it would be difficult for an NDPB set up under the UK bill to co-operate with Marine Scotland, which is an executive arm of the Scottish Government. That seems to be an artificial and somewhat bureaucratic response. To date, all the evidence suggests that co-operation is going to be very difficult.”85

121. Witnesses from the Solway Firth Partnership also pointed towards the importance of enforcement in a cross-border context so as to prevent the illegal or undesirable activities being displaced to north of the border.86 The aim of harmonising enforcement powers under the Bill as much as possible with those set out in the UK Bill ought to mitigate this, provided resources allocated towards enforcement are roughly equivalent on both sides of the border.

122. The Cabinet Secretary told the Committee—

“Currently, we are taking an administrative approach to the future management of the Solway. It is worth bearing it in mind that the UK Marine and Coastal Access Bill is different from the Marine (Scotland) Bill in a number of ways. For example, our bill will give ministers the opportunity to delegate planning powers to regional marine planning partnerships, whereas there is no such power in the UK bill, so it is difficult to identify a vehicle for setting up a specific plan for the Solway.

The Scottish Government and the UK Government have agreed to work closely to address such issues, in particular in relation to the Solway. I have full confidence that we will get round the issue. It has been suggested to the UK Government that a joint forum should bring together representatives from north and south of the border. That seems to be a sensible approach, but we might find an alternative one.

It is perhaps too early to say what will happen, given that we will consult in Scotland on factors to do with the Scottish marine regions, such as how many regions there should be. No doubt the future management of the Solway will feature in the debate. It will be perfectly possibly to come up with an administrative arrangement with the UK Government that ensures that we have the best possible arrangements for the Solway Firth.”87

123. The Committee considers that the case for treating the Solway Firth, as much as is practicable, as a single area for marine planning purposes is clear. Major planning decisions about matters such as sites for renewable energy projects should always be taken having regard to stakeholder views on both sides of the Firth, and the necessary legal or administrative arrangements should be in place to ensure that this is the case.

124. The Committee recognises that the Marine (Scotland) Bill cannot, of itself, produce a solution. There should be action at a UK level too and we hope that the UK Bill will not be enacted in such a way as to place obstacles in the way of effective cross-border working. The Committee seeks assurances from the Cabinet Secretary that he has made representations to his UK counterpart to this effect.

Appeals against marine plans

125. The Bill allows for a national or regional marine plan to be challenged in the Court of Session on the ground that a procedural requirement has not been complied with, or that the plan is ultra vires, and for the Court to quash the plan or remit it to the Scottish Ministers for remediation if they agree with the challenge.88 However, there is no right of appeal as such against the content of a national or regional plan. Written evidence to the Committee suggested that this might put the Scottish Government in breach of the Aarhus Convention on access to information, etc, in environmental matters, to which the UK is a signatory.

126. Government officials disagreed, arguing that the convention requires only public participation and that this was provided for in the Bill. Stuart Foubister stated—

“Appeals generally have the connotation of an appeal before a court or an independent tribunal. Such appeals would be quite difficult with plans, which do not deal with individuals' rights. Who, for example, would be the appellant in such a situation? At the end of the day, a plan is a statement of policy, not a legal judgment, and it would be quite difficult to present public rights as rights of appeal in connection with it.”89

127. This explanation did not entirely satisfy some witnesses, with Lloyd Austin of Scottish Environment Link saying that the issue was a legal grey area and that it could be argued that the Government would be in breach of the Aarhus Convention. Patrick Stewart of the Scottish Fishermen’s Federation argued that to allow appeals against a marine plan only on procedural grounds was too restrictive in a democratic society.90

128. The Cabinet Secretary, in a letter to the Committee, noted that—

“Discussion on appeals has focused on a need for greater detail and on third party rights of appeal. I accept the need for greater detail and I’m happy to commit to consulting on the fully worked up appeals process in due course. I have difficulties with the proposed third party right of appeal. In my opinion this would prolong the decision making process unnecessarily, open the door to vexatious appeals and damage Scotland’s competitive position. Our proposals already increase the opportunities for stakeholders to be involved in decision making in the marine environment through consultation requirements and inquiries both in terms of planning and licensing. Adding a post decision review would add delay and bureaucracy.”91

129. In the Committee’s view, these comments implicitly acknowledge that the main debate about decision affecting the marine environment is likely to take place at the licensing and authorisation stage, rather than following the publication of a marine plan setting out strategic objectives for a marine region and making proposals as to how particular parts of the region should be used.

130. The Committee notes that, whilst a marine plan will be an important document, it will not impose justiciable rights or duties on persons. In particular, the Bill will enable public authorities, exceptionally, to depart from marine plans in making decisions affecting the marine environment. The Committee is therefore reasonably satisfied with the restriction of appeals against a marine plan to technical objections to the plan. This does however underline the importance of plans being properly consulted upon, with all stakeholders, including the Scottish Parliament, having adequate opportunity to consider proposals before the Scottish Ministers sign any plan off.

Bureaucracy, legal complexity and the “hierarchy” of maritime rights and duties

131. Concerns frequently arose at Stage 1 that the Bill provisions on planning might increase bureaucracy rather than achieving its stated aim of reducing it. Similar concerns also arose in relation to the provisions on licensing. Whilst these concerns overlap – the intention behind the Bill is to have planning and licensing systems that cohere and are not contradictory – there is a separate discussion of whether the licensing system will reduce complexity in the discussion under Part 3 of the Bill.

132. Patrick Stewart of the Scottish Fishermen’s Federation described marine governance as—

“a bit of a jungle at the moment and I see no sign of the rainforest being cleared. We are making a new start and should do so as simply as we can, with one planning authority for the marine environment. Obviously there must be arrangements at the shore, to zip together the terrestrial and marine systems, but everything that can be done within the competence of the Scottish Parliament to plan in the marine environment should be in one body, with one set of rules. I would be interested to hear an argument for making the system more complicated than that, which the bill does. For example, it says that local authorities may retain the terrestrial planning system that applies to marine fish farms. In our view, that is utter nonsense. We are making a new start—let us start as we mean to go on, with a sensible, straightforward system.”92

133. A recurring and related issue was whether or not the Bill would help sort the various rights and duties that can exist over the sea into a “hierarchy” so as to clarify which duties are pre-eminent and which subservient. It is clear that there is a degree of confusion amongst stakeholders on this point, and an appetite for greater clarity as to what rights and duties apply and for the opportunity to be taken to make the legal position far more clear.

134. Rob Hastings of the Crown Estate told the Committee—

“My interpretation is that, with regard to marine matters in Scotland, the Marine (Scotland) Bill has to be the priority. Clearly, other things, which will always be there, have to be considered in the execution of that—in managing and delivering a plan.”93

135. Walter Speirs of the Association of Scottish Shellfish Growers added—

“So many different designations are now being applied to bodies of water. You can have one loch with several different designations, which is protected, governed or regulated by different regulators. This is the opportunity to see whether we can clear all that up. There has to be a system whereby there is a ranking of seniority of legislators or directives; otherwise, there will be continual conflict.”94

136. Orkney and Shetland councils are subject to particular legislation concerning matters such as harbours, planning and certain licenses. For instance, under this legislation, Orkney and Shetland are deemed to be the harbour authority for all of their respective areas, whereas this is not the case on the mainland. The Bill will not repeal this legislation. This too has led to uncertainty. Captain Nigel Mills of Orkney Council explained—

“With regard to the bill, we are concerned to ensure that there will be no conflict between the council, which believes that it has primacy over certain provisions, and NGOs and Marine Scotland, which may effectively take over those provisions.95

137. The Cabinet Secretary was invited to respond to some of these views—

“First, it is worth bearing it in mind that the reason why we have a Marine (Scotland) Bill is that there is in effect no planning at sea. There is cross-party support and support across Scotland for the proposal that we should have plans for our waters and seas. There is a recognised need for planning at sea, so there will be new plans for the sea—that is the purpose of the bill.

We have been careful throughout the process to minimise any new bureaucracy and there are steps within the bill to reduce bureaucracy. The process, particularly for industries that want to apply for consents to carry out activities at sea, will be dramatically streamlined, which will cut the level of bureaucracy for industries that want to carry out such activities.

There will be an opportunity to review the fact that we currently have coastal forums and that all kinds of bodies and forums are in existence. Once the regional marine planning partnerships are up and running we can take stock of what exists and establish whether there is a need for them all because of the new forum and the new focus for marine planning on a regional basis throughout Scotland. An important point is that they are marine planning partnerships; they are bringing existing bodies together and are not creating new bodies. We have been careful to ensure that that is the case.”96

138. Evidence from Scottish Government officials indicated that they did not see any clash between the Acts for Orkney and Shetland and the Bill. Orkney and Shetland would continue to be able to exercise the powers conferred on them within the wider framework of marine planning.97

139. Witnesses’ uncertainties about hierarchies of rights and duties may point to a misunderstanding of the purpose of the Bill and of the current law, with which the Committee sympathises. The Bill seeks to rationalise the marine licensing process (which includes, for instance, repealing parts of the Coast Protection Act 1949 dealing with licensing). However, it is not our understanding of the Bill that it seeks to create any “hierarchy” of rights or duties. Legal rights that currently exist and which are not either repealed or superseded by provisions in the Bill will continue to exist and be binding on those to whom they apply. This means, for instance, that a fisherman taking his boat into a particular area may have to take into account various legal provisions that apply to him – all of them, as it were, equally legal.

140. Where there is potential to move forward within the Bill is to use marine planning to make sense of the legal rules, as well as the environmental or socio-economic factors applying within the Scottish marine area, or a particular marine region, to help stakeholders see through the “jungle”98 described by Mr Stewart. It is to be hoped that this will enable them to go on to make more informed decisions about what actions to take. But this should not be confused with sorting legal rules into a hierarchy of importance.

141. The Committee notes that the Bill will not create a hierarchy of legal rights and duties, but hopes that the marine planning process will put legal rights and duties within a particular marine area in context enabling stakeholders to make more informed decisions about the use of the marine environment.

142. However, the Committee invites the Cabinet Secretary to note witnesses’ concerns that the law of the sea has become too complex, and to investigate whether this can be addressed, for instance through consolidation or codification of legal rights and duties, or through instructing Marine Scotland to provide guidance on the lawful use of the sea tailored to particular stakeholder groups. In doing so, the Committee recognises that much of the law emanates from international sources over which the Scottish Government has no direct control.

De-cluttering the seascape: inshore fisheries groups and integrated coastal zone management groups

143. A related issue is whether the Bill might provide the opportunity to reduce duplication in the administration of the marine environment. This would appear pertinent, given the ongoing and wide-ranging debate as to the “de-cluttering” of the administrative landscape in Scotland. The integration of various agencies and inspectorates into one Scottish Government directorate, Marine Scotland, could be seen as part of that process of de-cluttering, although it will be how efficiently Marine Scotland works in its everyday operational activities that will determine whether genuine simplification has been achieved. Discussion of this process did not arise much at Stage 1,99 although there was some consideration of the future direction of integrated coastal zone management groups and inshore fisheries groups.

144. In relation to IFGs, the discussion related both to their membership and their continuing purpose. In written evidence, the Scottish Sea Angling Conservation Network expressed concerns that conservation would be a far lower priority for IFGs than for their English counterparts now being put on a statutory footing by the UK Bill. This point was picked up by Howard Wood of COAST who argued that Scottish IFGs were totally skewed towards commercial fishing interests.100

145. Pam Taylor of the Solway Firth Partnership commented—

“In England, there is a long history of sea fisheries committees, which were established in the 1800s. In Scotland, we are just starting out with inshore fisheries groups. To get the support of the fishing community, it may be best for the moment if membership of the groups is limited. This morning we discussed the difficulties of finding agreement among different sectors of the fishing community; it can be quite a challenge. Over time, inshore fisheries groups may acquire wider memberships and become more like the inshore fisheries and conservation authorities that are being established in England. The fact that the two systems are different is not necessarily a huge problem, but it is important that they work to similar objectives. That should happen through the wider regional marine plan within which the fisheries plans will sit.”101

146. The Cabinet Secretary acknowledged that there was an ongoing debate about the purpose and membership of inshore fisheries groups, and that a different approach was being taken in the UK Bill. He was reluctant to commit to the proposition that membership might be open to a wider group of stakeholders in the future (sea anglers and charter boats having been cited)—

“We have set up the inshore fisheries groups in the past year or two, and there has been a lot of heated debate about the membership of those groups. We have set down the membership at the moment because it was important to move the groups forward. Environmental organisations have the opportunity to provide input to the groups, although they are not members of the executive committees. […]

In all issues such as this, the question is where we draw the line. If we set something up to give commercial fisheries the opportunity to introduce fisheries instruments to manage their local fisheries, that is clear and understood. If we start expanding the role of inshore fisheries groups, they become different beasts and it gets incredibly complicated. I am sure that all of us around the table know that even within inshore fisheries groups, debates are taking place, and that there are complications from time to time. To compound that is not an attractive option.”102

147. The debate as to the future of ICZM groups following enactment of the Bill has been less heated. Gordon Mann of one such group, the Solway Firth Partnership, explained that there had been “a long and not terribly helpful debate” about the relationship between marine and coastal planning. However, he took the optimistic view that the very fact of the setting up of integrated marine planning under the Bill, and with it, hopefully, improved or more coherent research into the marine environment would in itself lead to greater integration between coastal and marine management.103

148. The Cabinet Secretary indicated to the Committee that he had an open mind as to whether there would be the same need for coastal partnerships once the Bill was enacted.104

149. The Committee supports the application of relevant principles of integrated coastal zone management to marine planning and notes that the role of ICZM groups will evolve and possibly reduce following implementation of the Bill and the establishment of marine planning partnerships.

150. The Committee recognises the need for effective local management of inshore fisheries. We note that inshore fisheries groups are new bodies that need more time to settle into their role. However, the Committee considers that there is a strong case for re-examining the role, membership, or indeed existence of IFGs in around three or four years’ time, once the Bill, if enacted, is being implemented and marine planning partnerships have been set up, and once any reforms arising from the European Commission’s green paper105 on reform of the common fisheries policy have become clear. Until this re-examination takes place, it is vital that there be effective co-operation between IFGs and MPPs.

Taking a decision in conflict with a marine plan

151. As noted, the purpose of section 11 is to provide that there is consistency between marine plans and decisions taken by public authorities, including licensing decisions by Marine Scotland under Part 3 of the Bill. But a public authority may decide not to take a decision in accordance with a marine plan if “relevant considerations indicate otherwise.”106

152. Some evidence107 has raised concerns as to the lack of definition of the “relevant considerations” that would entitle a public authority to depart from a marine plan. These concerns are understandable. The problem is not so much the overall policy – there may be times when the plan, has got something wrong or become outdated and so should not be followed – as the lack of clarity.

153. The Committee considers that section 11 is one of the key provisions of the Bill since it is the link between marine planning and the taking ofdecisions by public authorities. It is therefore important that its meaning is properly understood. The Committee does not object in principle to a policy of allowing public authorities –, exceptionally – to take a decision that is not in accordance with a marine plan. However more clarity and certainty is needed as to the circumstances where this would be permissible than is provided by the phrase “unless relevant considerations indicate otherwise”. The Committee recommends that the Bill make provision for the Scottish Ministers to issue guidance as to what would amount to “relevant considerations” permitting a public authority to depart from a marine plan.

Part 3 of the Bill: marine licensing

154. Part 3 of the Bill sets out a new licensing regime for activities within the Scottish marine area. Fairly detailed provision, much of it concerned with the process of applying for a license, is set out in the Bill and accordingly only the main provisions are set out below.

155. The starting point, under section 16, is that no person may carry out a licensable marine activity, or cause another person to do so, except in accordance with a marine license. It is for the Scottish Ministers to issue marine licenses, although they may delegate that role to another person, or group of persons. The present administration’s policy is that Marine Scotland will have operational responsibility for licensing under Part 3.

156. Section 17 goes on to list those matters deemed licensable marine activities. These include activities such as dumping objects or substances, scuttling, or carrying out construction or alteration of structures, dredging, and incineration.

157. The Bill goes on to provide two important qualifications. First, section 24 enables the Scottish Ministers to specify by regulations particular activities that do not require licensing or which do not require licensing provided certain conditions are satisfied. Secondly, section 25 entitles the Scottish Ministers to provide, again by regulations, that licensable marine activities falling below “a specified threshold of environmental impact”108 should be registered rather than licensed.

158. Most witnesses appeared broadly content with the policy laid out in Part 3 and with the list set out in section 17.109 However, some did express concerns as to whether or not particular activities that are not currently licensable might become so once the Bill is enacted. Concerns were also expressed about the effect of taking a regulatory approach that would turn out to be less light-touch than those of our neighbours – and rivals. For instance, David Whitehead of the British Ports Authority cautioned Members that the creation of two or more substantively different regulatory regimes within UK waters could have consequences for the renewables industry in which there was “fierce competition.”110

Licensing and the “one stop shop”

159. The Cabinet Secretary told the Committee that—

“one of the successes of the bill is that it will streamline the licensing system. I will explain the position using the example of a renewable energy company that wishes to develop in our seas. Currently, as a first stage, the developer has to identify the consents that are required and apply to the relevant bodies, which involves making applications under the Food and Environment Protection Act 1985, the Electricity Act 1989 and the Coast Protection Act 1949, and often securing a wildlife licence. That process will be replaced with the requirement to submit one application to Marine Scotland. I hope that the committee appreciates that that will streamline the system significantly, as opposed to making it less coherent.

There have also been efforts to identify situations in which licenses will not be required, which will result in exemptions. There are numerous examples of that. Marine Scotland will deal with the various aspects of those matters internally.”111

160. A number of witnesses doubted this however. In particular, there were doubts that the Bill would lead to there being a “one stop shop” in which all the consents necessary for a marine project could be obtained at once. Morna Cannon of Scottish Renewables explained to the Committee—

“As well as making an application under section 36 of the Electricity Act 1989, developers would need to apply for a licence under the bill. Our concern is that it is unclear what that licence will replace. It has long been assumed that the licence under the bill will replace the FEPA and CPA licences112 … but it is not clear from the bill that the requirement for those licences will be repealed and that they will be replaced by the licence under the bill. That is what we expect, but we would appreciate it if it was made clear.

Even if that point was clearly stated in the bill, however, there would still be some uncertainty in the industry about the application process. Will only one application be required, or will two applications need to be made separately? If only one application is required, which part of the Scottish Government will be responsible for dealing with it? It would probably be either the energy consents unit that currently deals with section 36 consents or some branch of Marine Scotland, but it is unclear which would be the relevant department.

That level of detail is not needed in the bill itself. We recognise that the bill will be around for a long time, so the detailed process should not be pinned down in it but would be better placed in secondary legislation. […] We would simply like some clarity about which licences will be replaced by the licence under the bill. We also want the results of the marine energy spatial planning group's work to be published as soon as possible so that people have clarity and certainty.”113

161. Similar concerns came from the port and shipping industry. David Whitehead of the British Ports Authority told the Committee—

“The bill and the documents that surround it say the right things about making the licensing system better and so forth, but that just refers to the licensing system that Marine Scotland can deliver. There are also harbour revision orders, which are a very important part of the whole system and which will continue to be handled by the ports section of the Scottish Government. There are two bits there, and it is the harbour revision order bit that is usually very slow because there are not enough people dealing with that matter. The provisions in the bill on licensing deliver only part of the solution.”114

162. Jeremy Sainsbury of Scottish Renewables explained that the root problem was that pieces of legislation had been enacted over time to deal with specific users of the sea in specific ways, leading to a piecemeal approach to licensing—

“When a project is proposed that involves not only placing structures in the sea bed but connecting them with cables, a new beast is brought to the environment. Managing the process requires separate applications, and we have to ensure that conditions run in parallel. There are several sets of administration during the project's development, and the process becomes complicated and unwieldy because the system was designed to deal with other things.

If there is to be a new way forward and a proper spatial plan is created that can be administered by a single licensing regime, proposals will be able to be considered and given consent in an holistic way, against an holistic plan. That is a perfectly logical approach, and the committee should not allow it to evaporate before its eyes—it is an important concept of the whole process.”115

163. Lloyd Austin of Scottish Environment Link, however, pointed to section 11 of the Bill, which requires that any enforcement or authorisation decision taken by a public authority must be in accordance with a marine plan. He considered that this would help ensure a more all-encompassing and holistic approach to marine planning provided the marine plan itself is comprehensive.116

164. In written evidence, Jamie Grant of MacRoberts Solicitors pointed out the risk of sections 16 and 17, which are quite broadly drafted, creating a duplication of legal responsibilities. He noted that it was not clear what marine licensing under Part 3 of the Bill was intended to replace, pointing out, in particular, the need for clarification as to what effect the provision would have on current legal provisions requiring harbour authorities to consent to certain activities.117

165. The Committee notes that a number of stakeholders are not persuaded that the Bill will lead to a simplification of the marine licensing system. Whether the problem has simply been a failure to communicate the effect of Part 3 clearly is not apparent. If the Government considers that the Bill will enable an integrated approach to marine licensing, including the likelihood of a “one stop shop”, there is a need for the Cabinet Secretary to state the case more clearly.

166. The Committee also seeks clarification that the combined effect of sections 16 and 17 will neither create a legal overlap, where both Marine Scotland and another body have the right to authorise the same type of marine activity, nor create uncertainty as to the legal status of pre-existing authorisation powers apparently superseded by sections 16 and 17 but not expressly repealed.

Decommissioning marine structures

167. The Bill does not expressly refer to decommissioning. This has led to Members picking up some concerns that the Bill does not deal with the issue, and that this too might threaten the creation of a one-stop shop for licensing. In fact, it does deal with it, albeit not in great detail, this being another issue in relation to which much will depend on implementation. Section 22(1)(a) entitles the Scottish Ministers, when granting a marine license to attach conditions, and section 22(3)(d) then goes on to state that this might include conditions as to the removal of objects or work at the end of a specified period.

168. The Bill therefore would appear to allow decommissioning to be dealt with as part within a single licensing arrangement, even where a project is expected to run for 20 years or more, as may be the case with some Crown Estate leasing arrangement for use of the seabed.118

169. At the same time, evidence from some stakeholders indicates that it would not, in their eyes, represent progress if a one-stop shop approach to licensing routinely involved conditions being issued requiring a total removal of marine structures. Scottish and Southern Energy argued that matter called for—

“detailed debate and consideration as a blanket condition of this kind would not be a pragmatic approach (e.g. removal of structures below seabed level), nor would it necessarily yield the best environmental result (e.g removal of buried subsea cables). This area is interwoven with obligations under international maritime law for which there are a number of precedents with respect to removal (or not) of maritime structures, cables, pipelines and other infrastructure.”119

170. This reflects evidence that the Committee has picked up from visits, for instance, to the Scottish Association from Marine Science near Oban, where an artificial reef has been laid offshore using granite blocks from the nearby Glensanda quarry, and from witnesses in meetings120 that there might occasionally be ecological benefit in leaving structures in the sea. A blanket approach of imposing strict removal conditions in all cases would therefore appear to be inappropriate. Conversely, it is not clear to the Committee from the Bill what would happen were the Scottish Ministers to decide to allow a structure to sink or be scuttled to form a reef. Under the Bill, it would appear that this could be dealt with either as a condition of the license or as a “marine activity” under section 16 and 17 requiring a separate license.

171. The Committee considers that a rigorous approach to decommissioning based on leaving the sea bed in as close to its original state as possible should continue to be the norm. However, Marine Scotland should avoid taking an inflexible approach, if that were, for example, to prevent research into the effect of artificial reefs on marine biodiversity. In particular, the Committee notes that the creation of a Demonstration and Research Marine Protected Area around a marine structure could amount to a potential “win-win” situation for industry, science, and conservation. In this connection, the Committee notes section 23 of the Bill which would enable the Scottish Ministers to vary an existing marine license because of increased scientific knowledge relating to the environment, and invites the Cabinet Secretary to clarify whether this power would be available on the application of the licensee.

172. The Committee invites the Cabinet Secretary to clarify whether a decommissioning arrangement that would allow all or part of a marine structure to be laid on the sea bed would be dealt with under the Bill as a condition of the original license or as a marine activity requiring a further license application.

173. Decommissioning was another area in which concerns as to bureaucratic duplication arose. Jeremy Sainsbury of Scottish Renewables noted that international conventions, together with the rigorous conditions of a Crown Estate lease, required decommissioning to be done to a high standard. He warned of the danger of the Bill leading to the creation of “a new regime that does not replace or harmonise existing regimes”.121 adding that—

“The Crown Estate lease requires very detailed plans to be drawn up and revised every five years. I think that what happens on land, with landowners and planning bodies reaching an agreement that forms the decommissioning of an on-land project, is a fair reflection of what should be considered for offshore projects.”122

174. The Committee invites both the Cabinet Secretary and the Crown Estate to note concerns that the Bill should not lead to the creation of a new decommissioning regime running in parallel with that already imposed by the Crown Estate under leasing arrangements, without serving any additional purpose. The Committee invites Marine Scotland and the Estate to work jointly to address these concerns in their future work.

The power to amend section 17(1) so as to add or remove any activity from the list of licensable marine activities

175. The Subordinate Legislation Committee has expressed concerns about section 17(3), allowing the Scottish Ministers, by order to add or remove any licensable marine activity from the list in section 17(1).123 The Scottish Government’s Delegated Powers Memorandum124 explained that this power was needed in order to respond to developmental needs which are likely to change over time. The DPM does not otherwise explain why the power is open to permit any additions to or deletions from the list or why no criteria for making such changes are specified. The Subordinate Legislation Committee sought an explanation from the Scottish Government.

176. The Scottish Government responded that because there might be any number of reasons for making changes it would not be useful to specify criteria for the exercise of the power. 125

177. The Subordinate legislation Committee’s report126 said that it accepted that circumstances will change over time and that it might be necessary to make changes to the licensing regime. Nevertheless the exercise of the power in section 17(3) is of significance as the inclusion of an activity on the list of licensable marine activities will result in that that activity being brought into the marine licensing regime. Inclusion in the regime will have a significant effect on the people involved in that activity. It therefore drew to the attention of this Committee that the power is unqualified and does not specify any criteria for making changes to section 17(1).

178. The Committee agrees with the Subordinate Legislation Committee that the power to vary the list of licensable activities in section 17(1) should specify more clearly the criteria the Scottish Government may use to determine whether a particular activity should be added to or removed from the list.

The threshold for registration

179. Clearly, the setting by the Scottish Ministers of an environmental impact threshold is likely to be of considerable practical concern to stakeholders with a commercial interest in marine activity, as well as environmental groups. Not much direct discussion on this point took place at Stage 1. Discussion instead tended to focus on whether particular activities would be treated as exempt.

180. Colin Galbraith of Scottish Natural Heritage, however, welcomed the provision as contributing towards the streamlining of the licensing process. He called for a realistically-timed consultation process to allow SNH and others to comment on proposals. However SNH did not at this stage have any concluded views on what the threshold should be.127

181. The Committee notes the lack of clarity currently as to what the minimum environmental threshold will be for registering, rather than licensing, marine activity. As this will be of considerable practical concern to stakeholders, the Committee considers that the Cabinet Secretary should outline his preliminary thinking on this issue during the passage of the Bill, giving an indication of what this would mean in practice to stakeholders.

Appeals against licensing decisions

182. Section 29 requires the Scottish Ministers, by regulations, to make provision to allow appeals against licensing decisions. Some evidence expressed concerns about the absence of detail on the face of the Bill as to what sort of appeals procedure there would be.128 These concerns were also picked up by the Subordinate Legislation Committee, which reported to this Committee that “the fundamental elements of an appeals process should appear on the face of the Bill.”129 The Subordinate Legislation Committee also noted that the same observation could be made in respect of section 52(1) regarding appeals against notices issued in relation to a marine license.

183. The Committee agrees and recommends that the Bill be amended to set out the fundamental elements of an appeals procedure against a marine licensing decision and against the issuing of a notice concerning a marine license.

Marine aquaculture

184. Finfish and shellfish farmers made frequent representations that the Bill risked making the licensing regime more rather than less complicated. As introduced, the Bill represents a compromise position between two viewpoints. One is that licensing decisions concerning fish farms should remain with local authorities acting as planning authorities, as has been the case since 1997. The other is that the Bill should take the opportunity to subject fish farms to the same system of licensing and registration as other marine activities so as to reduce inconsistency of treatment. A number of local authorities take the former viewpoint; whilst the Scottish Salmon Producers’ Organisation, the Crown Estate, and the Association of Scottish Shellfish Growers were among those to call for a more centralised approach.130

185. Professor Phil Thomas of the SSPO described the current regulatory system for fish-farming as “horrendous” but commented that the Bill had “snatched defeat from the jaws of victory” because it made the position even more complex—

“If the bill is passed in its current form, everything in the marine environment will come under a licensing system of marine planning. The exception is fish farming, which will sit with local authorities, under town and country planning procedures. The two are incompatible. Even worse, responsibility for fish farming may revert to Marine Scotland, as local authorities will be able to opt out of the town and country planning arrangements. There is the potential for two entirely different planning and licensing systems to operate in one marine region—in the same stretch of water. I suspect that that would happen quite quickly in some areas. […]

The system that is proposed at the moment is horrendous. It is logical to bring everything into a single marine licensing system, to streamline the system—which is the objective of the bill—and, if the Government is concerned about local democracy and returning activities to the control of local authorities, to devolve the relevant elements of the licensing system.

Some island councils and island operators—the best examples are in Shetland and, to a lesser degree, the Western Isles—are concerned about anything that looks as though it is simply sitting in Edinburgh, if I can use that terminology. We must be sensitive to that. The solution that the bill comes up with is entirely intellectually incoherent and illogical, as it gives us a mixture of systems operating in the same area. That is an impossible situation.”131

186. In response to suggestions that decisions about licensing fish farms were best taken at a local level, Professor Thomas argued that it was “illogical” to have different licensing systems operating in different parts of the country. If a degree of local control were considered desirable, he argued that this could be done by allowing local authorities to operate the licensing process locally, whilst maintaining Marine Scotland as the overall licensing authority. 132

187. Rob Hastings of the Crown Estate expressed similar views—

“The notion of centralising licensing [for fish farming] as a planning function is attractive. In our experience, the common issues in these sorts of development activities make centralisation practical and pragmatic. There may be an opportunity to delegate some responsibilities locally; as the Crown Estate is not a regulator, we would stand by and support that if it was absolutely necessary.”133

188. The suggestion that local authorities should, as a compromise, be allowed to operate a licensing system the rules of which have been laid down centrally, does however leave open the question of whether they would have much meaningful discretion in practice.

189. Walter Speirs of the Shellfish Growers’ Association linked the licensing issue back to the national marine plan—

“When the Crown Estate was responsible for allocating leases, we had one authority that took the same view for the whole of Scotland. For 10 years now, we have had a very unsatisfactory interim procedure that has involved great uncertainty for the future of our industry in knowing whether consent will be granted. We have had differences of opinion from different planning authorities. Without doubt, Shetland has been the shining example of the development of the aquaculture industry—those of us in other areas are slightly jealous of that—but that does not mean that all areas should not come up to the same speed. What is missing is a national strategy, which perhaps existed when the Crown Estate was in charge.”134

190. Remarks along similar lines but with respect to regional planning were made by George Hamilton of Highland Council. He made clear that Highland Council wished to retain control over the licensing of aquaculture. However, if the Council were to be made a member of the relevant local MPP or MPPs, he suggested that the work it currently undertakes producing aquaculture framework plans could be subsumed into the preparation of aquaculture policies within the regional marine plan.135 Presumably this would not only reduce the risk of duplication of effort but also help ensure consistency between planning and licensing.

191. Nigel Mills of Orkney Council put the argument in favour of local authorities retaining control, arguing that it benefited both the industry and the local area—

“Perhaps I can give some practical examples of why local influence, attention and planning powers are paramount. Recently, I met representatives of a local fish farming company in the harbour office prior to an application being submitted to the planning authority. Such applications can cost thousands of pounds to prepare, but people can currently come to see the planning authority, which in this case was the port authority because the proposed farm was to be positioned in Scapa Flow. By working through a range of different scenarios that could have affected the licence application, we were able to point the company in the right direction to ensure that the work that it undertook would result, as far as we could see, in a positive result without the application being objected to. That saved that company tens of thousands of pounds. If we had not been able to exert such influence, the company could have spent an awful lot of time and effort on the application without getting anything up and running.

At the other end of the spectrum, some fish farm cages last for only three to four years and tend to be hauled out and left on beaches when they come to the end of their life. With all due respect to the Crown Estate, the owner might take no part in cleaning up the beach and the cages might simply be left there. The port authority—or, wearing my other hat, the local authority when the matter is outside the port—must then find ways to have the cages removed, either by using byelaws or by threatening the fish farmer that it will not renew his licence. That is sometimes the only way that we can get derelict and redundant fish farm equipment cleaned off beaches. Because of the expense involved, it is a lot easier for the farmer to haul the cages out on to his land and leave it on the beach for five or six years. That happens.

For Orkney, having the local plan and the ability to license and effect clean-up is very important. If that power was lost to a national body, I am not sure whether it would protect the islands.”136

192. The Cabinet Secretary acknowledged that aquaculture was “the odd one out”137as far as creating a more streamlined licensing process is concerned—

“As the committee will be aware, in recent years, in order to enhance local accountability, responsibility for consenting to aquaculture developments was transferred to local authorities under the Town and Country Planning (Scotland) Act 1997. We have thought hard about the way forward. At the moment, we hope to give local authorities the power to delegate to Marine Scotland responsibility for consenting to aquaculture developments, which will streamline the process in those areas. However, a number of local authorities strongly take the view that local accountability can be protected only if they are allowed to keep their responsibility for consenting to aquaculture developments in their waters, and we respect that.

It is worth pointing out that amendments to the Town and Country Planning (Scotland) Act 1997 will mean that regional marine plans have to take account of terrestrial development plans and vice versa. It is my understanding that the Town and Country Planning (Scotland) Act 1997 will take precedence, although I will ask my legal colleague to clarify that. The granting of aquaculture consent will remain with the local authority, but the process will require it to pay regard to the marine plan. Likewise, the marine plan will have to pay regard to the 1997 act. It is hoped—it cannot be guaranteed—that that will prevent situations arising in which the marine plan says one thing for aquaculture and the local authority takes a different view when consents are applied for. It is no guarantee, but it is an attempt to ensure that some joined-up thinking is involved and that that is reflected by local authorities.”138

193. Mr Lochhead confirmed the evidence heard previously that the Bill left open the theoretical possibility of two or more licensing regimes for fish farming operating within the same marine region, where it crossed two or more council boundaries. However, he said that he did not consider that this would be any more complicated than the current situation where a licensing regime may differ from council to council. He also clarified that where there was a conflict of views between the terrestrial plan and the marine plan as to aquaculture, it would be the terrestrial plan that prevailed. This accords with the clarification by Government officials that a marine plan does not create rights – whereas a licensing decision by a planning authority would do. However in the Cabinet Secretary’s view this was not objectionable as it was an issue of local accountability.139

Conclusions

194. The Committee considers that the case for treating marine aquaculture as an exception to the holistic marine planning and licensing system proposed under the Bill has not been made.140 Allowing some local authorities to retain responsibilities for marine aquaculture under terrestrial planning law is, as the Cabinet Secretary himself appeared to acknowledge, contrary to the overall philosophy of the Bill. A majority of the Committee fears that the provisions in the Bill currently are a recipe for confusion, as well as being difficult to reconcile with the existence of a national strategy for aquaculture, which was devised in view of the industry’s national importance. In so doing, we note the views of the Subordinate Legislation Committee, which noted that the provision could give rise to “considerable confusion as different criteria for development could apply from one area to another with different procedural rules and different rights of appeal.”141

195. The Committee acknowledges the vital importance of there being local input to decisions about whether, where, and under what circumstances to authorise a marine fish farm. The Committee142 considers that adequate provision could be made for this, at a strategic level, by ensuring local input into decisions made by MPPs about what areas should be deemed appropriate for fish farming. We propose that the Bill should allow local authorities to apply to the Scottish Ministers to handle applications for licenses. The Scottish Ministers should be empowered to allow any such application on cause shown, subject to their reaching a service level agreement with the authority on how license applications are to be dealt with.

196. Where this happens, the Committee proposes143 that the Cabinet Secretary should seek to ensure that there is a consistency of approach towards licensing aquaculture within each marine region, for instance by providing that, in a region bordering two or more local authority areas, only one authority will handle applications.

Dredging

197. Representatives of port authorities expressed worries that the Bill could impose a more restrictive regime on dredging. David Whitehead of the British Ports Association sought to put the matter in context, remarking that Scottish ports, handling around 100 million tonnes of cargo a year “absolutely depend on the ability to dredge – we cannot have ports without dredging”. He argued that since dredging was a much repeated exercise with known consequences and impacts and rigorous environmental monitoring, this ought to enable the agreement of an approach under the Bill that would please all sides of the debate. However, he argued that—

“There is a bit of a mixed message in the bill: on the one hand, it extends the licensing regime to dredging activity itself and to hydrodynamic dredging,144 on the other, it suggests that realistic consideration will be given to exemptions and perhaps a system of registration, neither of which approaches is explained in great detail. Implementation is therefore key”145

198. British Ports Association representatives called for the opportunity to be taken, in implementing the Bill, to make three-year licenses for the disposal of dredged materials available to Scottish ports. This would bring Scottish and English licensing on disposal of dredged materials into line. Similarly, whilst not objecting to hydrodynamic dredging becoming a licensable activity, they wanted a three-year license to be available for all dredging activity so as to reduce paperwork and reduce the risk of inconsistencies.146 They further clarified that it would be acceptable if licenses for maintenance dredging (ie maintaining the navigability of an existing port channel) could run for up to three years, but licenses for capital dredging (ie dredging for new berths) run for one year only, in view of the need to check the effects on the environment of dredging in a new area.

199. The Cabinet Secretary told the Committee—

“Our current thinking is that we do not want to stand in the way of accepted techniques for dredging, so we are considering what exemptions could be provided for existing activities. Dredging per se will be included in licensing, but we will ensure that there are exemptions for appropriate dredging that has been taking place for a long time.”147

200. In subsequent correspondence, the Cabinet Secretary clarified that the likely basis for charging for dredging requiring a license would be cost recovery. He noted that—

“The discussion in committee centred around the possibility of a double licence fee covering the licence fee and a payment for a sea bed lease from the Crown Estate. These 2 payments are different and are for different things much in the same way that council tax payments and house rents are different. In addition it is my understanding that the Crown Estate does not levy a lease charge where dredging and disposal of dredge spoil is undertaken, though it may levy a charge if the dredge spoil is put to “beneficial” use.”148

201. This accords with evidence from the Crown Estate that it charges for dredging activities (rather than requiring a license for them) and that this will not be affected by the Bill.149

202. The Committee is reassured to note the Cabinet Secretary’s comments that accepted forms of dredging with recognised minimal environmental impacts are likely to be exempted. Clearly stakeholders in shipping and ports would appreciate having sight of the detail of any proposed exemptions well in advance of the Bill’s implementation. The Committee also invites the Cabinet Secretary to consider the merits of three-year rather than one-year dredging licenses, which would apparently bring Scotland into line with the rest of the UK.

Remediation

203. Section 35 of the Bill entitled the Scottish Ministers may issue a “remediation notice”150 to a person who has breached the terms of a license and, in so doing, has caused harm.

204. At Stage 1, the Committee invited the Cabinet Secretary to consider whether the wording of the provision would be sufficient to allow the Scottish Ministers to require restoration of a damaged site. A similarly worded clause in the UK Bill, intended to enshrine much the same policy had been considered defective and had been amended.

205. In a letter to the Committee, the Cabinet Secretary confirmed that similar amendments to section 35 were now being considered.

206. The Committee notes the Cabinet Secretary’s intention to introduce an amendment clarifying that a remediation notice may require restoration of a damaged site. We call on the Cabinet Secretary to ensure that shipping and port interests, as well as environmentalist groups, have the opportunity to consider the proposed approach.

Part 4: marine protected areas

207. The purpose of Part 4 is to enable the Scottish Ministers to designate marine protected areas (MPAs) within the Scottish marine area. The policy memorandum explains151 that these powers have been taken because of an emerging consensus that current powers to designate marine areas requiring protected status are insufficiently broad. Under both European law and the OSPAR Convention, Scotland is required to designate a network of MPAs, although the Bill goes slightly further than our international obligations in allowing MPAs to be designated other than for purely environmental reasons.

208. Under the Bill, there would be three types of MPA:

  • Nature Conservation MPAs (for the purpose of conserving marine flora or fauna or for conserving marine habitats or features of geological or geomorphological interest);

  • Demonstration and Research MPAs (for the purpose of demonstrating sustainable methods of marine management or exploitation, or for researching into such matters); and

  • Historic MPAs (for the purpose of preserving a marine historic asset – for instance a wreck or the remains of a human settlement – that is of national importance).152

209. Provision is made to seek to ensure that the Scottish Ministers consult adequately before making an order designating an MPA. It would also be expected that the Scottish Ministers would, as a matter of good practice, take relevant scientific advice before designating a Nature Conservation or Demonstration and Research MPA, although this is framed as discretionary rather than mandatory in the Bill itself.

210. The Bill sets out the effect of an area being designated as a MPA. These are various but include the following:

  • a public authority must seek to exercise its functions so as to further the objectives of an MPA. Where the authority is unable to exercise its functions without hindering those objectives, it must inform the Scottish Ministers and, as appropriate Scottish Natural Heritage. Similar provision applies in respect of determinations made by a public authority;

  • once an area is designated, the Scottish Ministers may make orders (Marine Conservation Orders) in respect of it. Such an order might make provision to restrict or prohibit movement within the area, or the taking or disturbing of plants or animals in the area, or the removal or dumping of objects or substances within the area. In practice, it is the making of a Marine Conservation Order that determines the main impact of the designation, since it is the Order that will clarify permitted and prohibited activity within the MPA;

  • various offences are created. Contravention of a marine protection order is a crime as is intentionally or recklessly carrying out an act which hinders the conservation objectives of a protected area.

211. As with marine licensing, few if any witnesses objected to the underlying aim of seeking to provide particular parts of the marine environment with additional legal protection in recognition of their significance. Any concerns arose from uncertainties as to how the provisions would apply in practice rather than to objections to the overall policy. In particular, there were concerns about particular activities being prohibited where that might cause economic detriment.

The basis of designation

212. The Committee is clear that the designation of Nature Conservation or Demonstration and Research MPAs is intended to be a scientifically-driven process. However, the Bill provides that the power to designate an MPA is discretionary. The Committee was interested to seek views from witnesses as to how they thought the process of identifying sites under the Bill would work in practice and whether they considered the process to be satisfactory.


Footnotes:

1 Liam McArthur MSP dissenting

2 Liam McArthur MSP dissenting

4 Marine (Scotland) Bill, Policy Memorandum, paragraph 2. Available at http://www.scottish.parliament.uk/s3/bills/25-MarineScot/b25s3-introd-pm.pdf

7 Scottish Government (2008) Sustainable Seas for All: a consultation on Scotland's first marine bill. Scottish Government. Available at http://www.scotland.gov.uk/Publications/2008/07/11100221/17 [Accessed 29 September 2009]

8 For more details on the UK Bill, and on similarities and differences between the Scottish and UK Bills see SPICe briefing: A comparison of the UK and the Scottish Marine Bills, http://www.scottish.parliament.uk/business/research/date/index.htm [Accessed 6 October 2009]

9 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009, Col 1887.

10 Marine (Scotland) Bill, Section 3(2)(a)

11 Marine (Scotland) Bill, Policy Memorandum, Paragraphs 15 to 17

12 UN Convention on Law of the Sea (1982)

13 Scottish Parliament Information Centre briefing: Marine (Scotland) Bill (10 June 2009)

14 Rural Affairs and Environment Committee, Official Report, 24 October 2007.

15 For a more detailed discussion, see the Scottish Parliament Information Centre briefing, European Dimensions of the Marine Environment. http://www.scottish.parliament.uk/business/research/date/index.htm [Accessed 6 October]

16 Transposed into Scots law by the Water Environment and Water Services (Scotland) Act 2003

17 EU Marine Strategy Framework Directive. Available at: http://www.semide.net/media_server/files/l/q/EU_MarineStrategy.pdf [Accessed 6 October 2009]

19 The common fisheries policy applies within all EU waters but management of the CFP within the twelve-mile limit remains with national or, as the case may be (eg Scotland) devolved authorities.

21 Scottish Government. A Strategy for Scotland’s Coast and Inshore Waters (July 2004). Available at http://www.scotland.gov.uk/Publications/2004/07/19639/40165

22 These are set out at Annexe E.

23 These were Petition 1047 from Mark Carter on behalf of the Hebridean Partnership and Petition 1081 from Ronald Guild. Petition 1047 called for the Scottish Parliament to consider and debate the failure of the existing coastal and marine national park/marine environmental protection process and the extent to which such failure is due to pressure from individuals and industries with a vested affiliated or commercial interest. Petition 1081 called for the Scottish Parliament to urge the Scottish Executive to seek a UK-wide reappraisal of all government, local authority and NGO maritime and maritime air space responsibilities and organizations, taking into account EU and International Maritime Organization contexts and world-wide best practice.

24 The Minute extracts at Annexe C provide a full list of all those who provided evidence in person.

25 Site of Special Scientific Interest

26 See Annexe B

27 See Annexe A.

28 Seafish. Written submission to the Environment and Rural Affairs Committee.

29 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1773.

30 Caroline Wickham-Jones. Written submission to the Rural Affairs and Environment Committee.

31 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1753

32 There is no one internationally accepted definition of the precautionary principle but it proceeds from the belief that caution should be exercised in pursuing a course of action where there is reason to believe that it may cause damage to the environment or human health. The European Commission Communication on the Precautionary Principle (2 February 2000) enunciates it as follows: “The precautionary principle applies where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen by the EU.”

33 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1754.

34 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1755.

35 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1756.

36 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Cols 1756-1757

37 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1795

38 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1786

39 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1901

40 Scottish Government. Correspondence from The Cabinet Secretary for Rural Affairs and the Environment dated 16 September 2009.

41 In this connection, the Committee notes that the Scottish Government proposes to report on the state of Scotland’s seas, having regard to the obligations imposed under the Directive, in 2010: http://www.scotland.gov.uk/News/Releases/2008/04/09100100 [accessed 7 October 2009].

42 Walter Speirs. Written submission. Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1854.

43 Walter Speirs. Written submission. Scottish Parliament Rural Affairs and Environment Committee.

44 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1769

45 Scottish Government. Letter from Cabinet Secretary to Rural Affairs and Environment Committee dated 16 September 2009.

46 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1854

47 Scottish Government. Letter from the Cabinet Secretary for Rural Affairs and the Environment to the Rural Affairs and Environment Committee dated 8 September 2009.

48 The Scottish Government may, however, wish to note two technical issues raised in written submissions. SCAPE (Scottish Coastal Archaeology and the Problem of Erosion) noted that soft coastlines, such as the machair of the Western Isles, can be highly dynamic, and that if Ordnance Survey maps are used to determine the extent of mean high water spring tide, the information found on those maps could quickly become outdated. Jamie Grant of MacRoberts Solicitors noted that the definition would include uninhabited islets not covered by mean high water spring tide and queried whether this would mean that if marine work affected such an islet, permission would be needed under both terrestrial planning and marine licensing.

49 Marine (Scotland) Bill, Part 2 Section 3 (2)(a)

50 Marine (Scotland) Bill, Part 2 Section 3 (3)

51 Marine (Scotland) Bill, Part 2 Section 3 (5)

52 Marine (Scotland) Bill, Part 2 Section 11(1)

53 Marine (Scotland) Bill, section 3(3)

54 Eg Scottish and Southern Energy. Written submission to the Rural Affairs and Environment Committee.

55 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1881.

56 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1884

57 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1735.

58 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1736.

59 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1774

60 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1767

61 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1764

62 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1765

63 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1737

64 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1765

65 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1775

66 Solway Firth Partnership. Written Submission to the Rural Affairs and Environment Committee.

67 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1873

68 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1890

69 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1890

70 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1860

71 Scottish Coastal Forum. Written submission to the Rural Affairs and Environment Committee.

72 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1742

73 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1742

74 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1775. In this connection, Mr Mann cited a sustainable cockle fishery, visited by Members that morning, in respect of which it had taken ten years to reach agreement.

75 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1784

76 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1785

77 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1892

78 Scottish Association for Marine Science. Written Submission to the Rural Affairs and Environment Committee.

79 As confirmed by the Cabinet Secretary: Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1889.

80 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col, 1883

81 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1776

82 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1740

83 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1776

84 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1779

85 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1778

86 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1788

87 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1882

88 Marine (Scotland) Bill, Sections 13 and 14

89 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 27 May 2009. Col 1705

90 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1745

91 Scottish Government. Correspondence from Cabinet Secretary for Rural Affairs and the Environment dated 8 September 2009.

92 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1746. Mr Stewart’s observations on fish-farming, which concerns planning but is predominantly a licensing issue, are discussed further below.

93 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 september 2009. Col 1859

94 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1859

95 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1846

96 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1887

97 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Cols 1892-1893.

98 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1746

99 Some witnesses did, however, complain about the number of regulators that they had to deal with, eg Walter Speirs, Scottish Shellfish Growers’ Association, Official Report, 1 September2009. Col 1852

100 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1874

101 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1767

102 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1901

103 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1773.

104 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1891.

105 European Commission. Green Paper on the Reform of the Common Fisheries Policy, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0163:FIN:EN:PDF

106 The Marine (Scotland) Bill, Section 11(1)

107 Eg Marine Conservation Society. Written submission to the Rural Affairs and Environment Committee.

108 Marine (Scotland) Bill, Section 25(1)

109 Eg Andy Rosie, SEPA: Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1761.

110 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1799.

111 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1894.

112 Ie licenses under the Food and Environment Protection Act 1985 and the Coast Protection Act 1949

113 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1804

114 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1806

115 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1808

116 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1749

117 Jamie Grant, MacRoberts Solicitors. Written submission to the Rural Affairs and Environment Committee.

118 No upper limit for the “specified period” is set out in the Bill. If circumstances changed over the life of a lengthy marine project, there would be scope to revise the conditions attached to the licenses under section 23.

119 Scottish and Southern Energy, written evidence. (Response to Sustainable Seas for All, forwarded to the Committee for Stage 1 scrutiny purposes.)

120 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Jeremy Sainsbury, Col 1793

121 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1809

122 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1809

123 Scottish Parliament Subordinate Legislation Committee. Report, 2009 (Session 3). Report on Marine (Scotland) Bill, paragraph 6.

124 Marine (Scotland) Bill. Delegated Powers Memorandum, paragraph 13. Available at http://www.scottish.parliament.uk/s3/bills/25-MarineScot/b25s3-introd-dpm.pdf

125 Scottish Parliament Subordinate Legislation Committee. Report, 2009 (Session 3). Report on Marine (Scotland) Bill, paragraph 7.

126 Scottish Parliament Subordinate Legislation Committee. Report, 2009 (Session 3). Report on Marine (Scotland) Bill.

127 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1762

128 Eg Scottish Renewables. Written submission to the Rural Affairs and Environment Committee.

129 Scottish Parliament Subordinate Legislation Committee. 4 September 2009, Session 3. Report on Marine (Scotland) Bill.

130 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1768. SEPA also have an interest in the regulation of aquaculture by way of its responsibilities under river basin management planning, which give it regulatory responsibilities for river water quality out to three nautical miles from the coast. SEPA’s Andy Rosie told the Committee that the regulatory approach it had practiced had worked well for aquaculture and that SEPA wished to retain its functions.

131 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1747.

132 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1747.

133 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1849.

134 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1850

135 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1766

136 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1849.

137 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1895

138 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1895

139 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1896

140 Liam McArthur MSP dissented from this view.

141 Scottish Parliament Subordinate Legislation Committee. Report, 2009 (Session 3). Report on Marine (Scotland) Bill, paragraph 30.

142 Liam McArthur MSP dissenting

143 Liam McArthur MSP dissenting

144 Ie, the agitation (for instance, by raking) of soft sediment in the sea bed, which results in the sediment being suspended in the water column and being displaced, or partly displaced by water currents.

145 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1789

146 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1790

147 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1897

148 Scottish Government. Letter from the Cabinet Secretary for Rural Affairs and the Environment to the Rural Affairs and Environment Committee dated 16 September 2009.

149 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1864.

150 Marine (Scotland) Bill, Section 35(2)

151 Marine (Scotland) Bill. Policy Memorandum, paragraph 46.

152 Marine (Scotland) Bill. Policy Memorandum, paragraph 52. The policy memorandum states that this accords with the Valletta Convention on the protection of archeological heritage.

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