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Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

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213. Colin Galbraith of SNH told the Committee that, as a likely consultee on designation, SNH would—

“from a classic scientific perspective … go down the route of looking at rarity, but rarity would be only one aspect. We would look at typicalness—what is typical of a Scottish marine environment—and we would probably want to look at representative samples from those areas.

In recent years there has been much greater consideration of the ecosystem on a global scale, and, behind that, of the processes that are involved and what the environment gives to us, whether that is in relation to fisheries or energy capacity. We would want to examine the ecosystem processes—the example that I used was nursery areas for fisheries—as well as considering the need to represent rarity and typicalness. That would lead to a discussion about numbers and scale in relation to any one site.”153

214. The OSPAR Convention requires member states to work towards the designation of “an ecologically coherent network of marine protected areas.”154 A similar obligation requiring the creation of “coherent and representative” areas arises in European law under Article 13 of the Marine Strategy Framework Directive. The designation of MPAs under the Bill is, however, framed in discretionary terms. Once a prospective MPA has crossed the threshold of being considered suitable, in scientific terms, it is then for the Scottish Ministers to decide whether or not to designate it. The Marine Conservation Society155 was among the bodies to express concerns that there was no duty on the Scottish Ministers.

215. The Cabinet Secretary explained—

“We have very much not taken the view that we must achieve certain targets and percentages of closed areas. Such a view is being taken elsewhere, and some people may think that it is valid, but I do not. I think that we should start from the need and the case, and not simply say that we want to find 30 per cent of our seas to close, or whatever. We should start from the bottom up. For that reason, we have avoided going down the route of duties which, by their very nature, are prescriptive. To impose a duty would mean that it would be incumbent on ministers to go out and identify areas of sea or the marine environment, and protect them if they met certain criteria.”156

216. David Mallon of the Scottish Government also explained157 that the Government was developing guidelines on the basis for designation in co-operation with SNH and the Joint Nature Conservation Committee. These would take account of international principles and guidelines such as those found in the OSPAR Convention relating to the establishment of ecologically coherent networks of protected sites based on representativeness, connectivity, replication and resilience.

217. 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.

Community involvement in designating MPAs
218. Some witnesses argued that communities should have a strong role in deciding which areas should be designated as MPAs, but expressed concerns that the Bill did not readily enable this.158 Gordon Mann of the Solway Firth Partnership, however, said that he did not see that anything in the Bill would hinder such community involvement. He considered that under the Bill it would be easier for communities to propose an MPA than it is now under the current designation process for protected sites.159

219. The Cabinet Secretary also disputed this argument—

“There is a route for communities. They can go to the marine planning partnerships and propose any area that they think should be a candidate to be a marine protected area. If the local community in the form of the marine planning partnership agrees with that, it can contact Marine Scotland, which would set the proposed area against the criteria and do the necessary investigations to see whether the science exists to back up the proposal. It is extremely important to give communities an avenue. Lamlash bay is already subject to regulation through other means, which is obviously of direct interest to COAST. It is important for communities to have a say over their local waters. On the other hand, although we want to put that in place, we also want to ensure that objective criteria exist for any designation, along with the appropriate science.”160

220. 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.

Designation and socioeconomic factors
221. Written evidence from the Western Isles Council reflects concerns heard more generally that designating an area as an MPA could have detrimental social or economic effects on the communities adjacent to it. The Council stated that it was “strongly opposed to the introduction of additional Marine Protected Areas in the seas surrounding the Outer Hebrides if they would impose restrictions on economic activities.”161

222. The Solway Firth Partnership, the remit of which includes economic development, was asked if it shared this view. Gordon Mann replied that—

“The simple answer is no. I hope that we have been able to demonstrate today the incredible importance of the Solway Firth—in terms of the value of the asset—locally, regionally and internationally. The challenge for us is to ensure that we use the resources wisely and sustainably over the longer term for the purposes of renewable energy, fishing and tourism and in a way that allows healthy communities to live beside, and to enjoy, the shores of the sea. That involves both a negative and a positive: we need to protect the areas that are sensitive and important while we encourage development where it will not damage or destroy.”162

223. These comments reflect a view that deciding whether to designate an MPA may involve balancing ecological considerations against social or economic ones. However, the Bill would appear to partially limit this approach. Under the Bill, three different approaches are taken, depending on what type of MPA is being considered:

  • If the proposal is for an Historic MPA, it would appear from the Bill that it would not be competent to take socioeconomic factors into account;
  • If the proposal is for a Nature Conservation MPA, socioeconomic factors may be taken into account only “where the Scottish Ministers consider the desirability of designating 2 or more areas may be equal;”163
  • If the proposal is for a Demonstration and Research MPA, the Scottish Ministers may have regard to socioeconomic factors and this does not appear to be limited in any way.

224. The limited provision to take socioeconomic factors into account when considering a designation for a Nature Conservation MPAs came in for criticism from some witnesses. Rob Hastings of the Crown Estate, which decides whether to give marine renewable projects the go-ahead, commented—

“The Crown Estate's general position on where the socioeconomic input comes into the decision-making process is pretty consistent—our position is the same for whichever piece of legislation we are considering. If the objective is sustainability or sustainable development, three things have to be considered in parallel. Environmental objectives are clearly the primary driver, but without giving due consideration to the social and economic impacts of the decision, it is quite difficult to get a measure of its relative value from an economic conservation perspective.

The bill says that the provision in section 59(5)164 would be the tiebreaker rule that could be brought into play, and that is why we suggest that the socioeconomic perspective has to be considered as the tiebreaker. However, for all cases, and for a true sustainability argument to be presented, all three things have to be considered. An environmental objective might lead the process but unless the other two have been considered, it is difficult to get a measure of relativity in relation to the environmental objective that is being set out.”165

MPAs: the effect of designation and “presumption of use”
225. Scottish Renewables’ written evidence expressed worries that the level of protection afforded to MPAs under the Bill could inhibit the development of a competitive marine renewable industry, arguing that “this level of protection [ie the provision made in sections 71 and 72 as to the duties of public authorities] is too high if the purpose of the introduction of Marine Protected Areas is to increase management of nationally important features.”166 Scottish and Southern Energy’s written evidence went further, questioning whether the power to designate MPAs is required at all. If MPAs were designated, they argued that they should not become “no-go areas for marine renewables.”167 SSE sought comfort that there would continue to be a “presumption of use” in areas designated as MPAs.

226. Scottish Renewables pointed out that there could be circumstances where there was complementarity between conservation and energy production objectives, such as evidence from the oil industry that the deployment of rigs had led to an increase in fish populations. They did, however, concede that the issue was complex and that it would be legitimate to carry out an environmental assessment.168

227. Rob Hastings of the Crown Estate stressed the importance of providing potential developers with clarity from the outset—

“in a conservation area, it must be made clear what the conservation objectives are for the area. Those may be obvious, but it is important to state them from the outset. If it is assumed that there is an opportunity to do something in line with those objectives, it is important for a developer to have a line of sight to understand what hurdles they need to get over. At the outset, that becomes their risk and, if it is clear what the objectives are and what the developer has to do to satisfy those objectives, they can set about a plan to achieve that.”169

228. Mr Hastings also cautioned that an over-precautionary approach to activity within a Nature Conservation MPA could be counter-productive, as it can take a developer being allowed into an area to conduct investigations to allow sufficient data to be made available to clarify conservation objectives.

229. Pam Taylor of the Solway Firth Partnership argued that difficulties could be avoided at an earlier stage if renewable opportunities were identified effectively in the marine planning process.170 Gordon Mann agreed, suggesting that the marine plan should be thought of “not as something that prevents things from happening but as something that helps us to make the best use of resources.”171 He considered that it would be an improvement if proposals for renewable projects arose from marine planning rather than at the initiative of the Crown Estate, with stakeholders then having to react to them—

“We need to move to a position in which marine plans are established in places where we think there is potential for wind farms or other renewable energy. That should be starting point, after which the projects can be considered in more detail. At this stage, we are all running to catch up, but the need for renewable energy projects is so important that we need to bring projects on stream much more quickly than we have done in the past.”172

230. The Cabinet Secretary acknowledged that the question of allowing economic activity within MPAs was about finding the right balance. He too pointed to marine planning as the primary means of making important statements about national priorities, which would have practical effects further down the line.173 On whether a “presumption of use” within MPAs should be reflected in relevant provisions in the Bill, Mr Lochhead offered to—

“reflect and come back to the committee on the matter, but my instinct is that putting something like presumption of use in the bill will affect the balance that we are trying to strike. If it is set out as a policy, we can say that we hope it will be achieved with the tools in the bill. We have to draw the line somewhere.174

231. The Cabinet Secretary expanded on these points in subsequent correspondence—

“The Bill would provide a range of possible management tools for MPAs – from reliance on marine plans and licensing of marine activities to the introduction of conservation orders and management schemes. Considering the management requirements of individual MPAs will help determine whether an MPA needs a more tailored approach as provided by conservation orders or management schemes. Even where this more tailored approach is considered necessary I anticipate that only a small number of the activities taking place in a MPA will need to be restricted and that in most cases social and economic uses are likely to be compatible with the protection of features for which a site is selected. As I said at committee the presumption of use is covered in the policy memorandum and I remain of the view that is sufficient.” 175

Conclusions
232. In evidence, two discrete arguments emerged concerning MPAs and the relevance of socioeconomic factors. One related to whether the Bill had got the balance right in the relatively limited way it allows socioeconomic factors to be taken into account prior to the designation of an MPA. This is a difficult issue with compelling arguments on both sides, but the Committee’s view is that the Bill has largely got the balance right. The process for declaring a Nature Conservation MPA should primarily be science driven, and if the science shows that an area is of exceptional, and perhaps international, importance for its biodiversity or because of its importance for conservation purposes, then socioeconomic factors should not ordinarily stand in the way of its designation.

233. This however should certainly not mean that the area should then automatically become closed off to any marine activity. It was in this area that the second argument focussed, with a number of witnesses calling for there to be a “presumption of use” in any MPA.

234. Clearly the designation of an area as an MPA must have legal consequences. Otherwise the whole of Part 4 of the Bill would be ineffectual. At times, this might include activity within an MPA being restricted, and perhaps severely restricted. The Committee sees no reason why this should be the norm, however. As the evidence made clear, there are plenty of circumstances where the objective of conserving an historic asset, or an ecosystem or species of animal or plant, could take place in harmony with economic activity. Indeed, as witnesses noted, there can be complementarity between the two, as where preparatory work for a marine project gathers valuable data that can be used for conservation purposes.

235. In addition, there are only a finite number of marine locations that are likely to be optimum for the exploitation of marine renewables. It may well be that some of these are also likely sites for an MPA. To close off such areas to any renewable energy projects for reasons of conservation may risk missing the bigger picture.

236. Stakeholders with an economic interest in the sea, the renewables industry in particular, are looking for assurances. Whilst we have no reason to doubt the Scottish Government’s good faith, the Committee considers that, given the economic importance of the sea, and, in particular, the importance of mitigating climate change, it would be appropriate to provide such assurance on the face of the Bill. Whether this is best done by inserting “presumption of use” or some cognate phrase into a relevant provision within Part 4 is not clear to the Committee, as the legal meaning of that phrase would be uncertain. A better approach might be to look at inserting safeguards into the provision on marine conservation orders, which will in practice be key to determining what is and is not allowed within an MPA.

237. 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.

238. The Committee also 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.

Monitoring of MPAs
239. Scottish Environment Link’s written evidence noted that the Bill appears to contain no requirement for MPAs to be monitored. This was taken up by Morna Cannon of Scottish Marine Renewables, who argued that this was—

“an important point, as they should be monitored to check whether they are achieving the objectives that they were established to achieve. In talking about monitoring, it is important to make the point that the localised environmental impacts of wave and tidal energy projects are as yet unknown. It is important for that industry that a pragmatic deploy-and-monitor approach is taken.”176

240. The information gathered from this monitoring could then be used, she argued, to feed into future environmental impact assessments.

241. This appears to the Committee to be a reasonable point, given the evidence referred to earlier about gaps in marine data. Additionally, since provision is expressly made in the Bill to require national and regional marine plans to be reviewed. It would seem appropriate to make roughly equivalent provision for MPAs.

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

Fishing within MPAs
243. Concerns have been expressed about section 85(2) of the Bill which provides a defence to contravening a marine conservation order or causing damage within an MPA, where the person charged was engaged at the time in sea fishing and the effect of the act “could not reasonably have been avoided.”

244. Howard Wood of COAST told the Committee—

“Section 85 is extremely important to the bill and I am worried that if it remains, Scotland will become the laughing stock of the world. No other country has an exception that gives fishermen an excuse to be in an MPA.”177

245. However John Eddie Donnelly of the Firth of Clyde SSMEI argued that—

“This kind of provision is necessary because if it is not in the bill, all activities will be excluded from an MPA. After all, there will always be some activities that do not damage these protected areas and not having the provision will make it difficult for planners to plan such activities.”178

246. Concerns were also raised that the defence in section 85(2) might, in any case, be technically redundant, or near-redundant, in that, in relation to two out of the three offences created in relation to MPAs, provision is already made to limit the circumstances where an offence is committed (eg no offence is committed “where the act was the incidental result of a lawful operation” – section 83(3)).

247. In a letter to the Committee, the Cabinet Secretary explained—

“Section 85(2) provides a specific defence for fishing activities over and above the more general defences provided by sections 83(3) and 84(3). It is possible to think of situations which would be covered by the section 85(2) defence but which would not fall within whichever of section 83(3) or 83(4) was relevant. The overall intention is not to criminalise fishermen acting legally and section 85(2) seeks to strike a balance by providing a defence that is proportionate, reasonable and appropriate. Taken together I believe sections 85(2)(a) and 85(2)(b) achieve that balance but I am aware that there has been debate at Westminster on the equivalent provisions in the UK Bill. I understand that UK Ministers are considering the options. My officials are liaising with UK Government interests on that and considering whether it would be useful to propose an amendment to the Marine (Scotland) Bill to ensure consistency on this point inside and outside 12nm in the seas around Scotland.” 179

248. 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.

Part 5 – Conservation of seals

Provisions in the Bill
249. Part 5 of the Bill seeks to update legislation on the conservation of seals, proposing provisions to replace the Conservation of Seals Act 1970 which is widely perceived to be outdated. Work undertaken to inform the policy behind these provisions included the establishment of a stakeholder group, the Scottish Seals Forum, which developed proposals set out in the consultation Sustainable Seas for All. The resulting provisions are broadly intended to provide additional protection for seals in comparison to the 1970 Act. The Bill creates a new offence of killing, injuring or taking a live seal (intentionally or recklessly) whilst allowing the killing or taking of seals under licence.

250. Repeal of the 1970 Act also means the repeal of the so-called netsman’s defence; providing that it is not a crime to kill or take a seal in the vicinity of fishing nets or tackle where this is done to protect the equipment or any fish caught in it. (It is legally possible, however, that a condition along the lines of the defence could be inserted in a license granted under the Bill.)

251. The Bill permits the killing or taking of seals without a licence but only in order to alleviate suffering.

Seal species and populations
252. Two species of seal breed in Scottish waters; the common (or harbour) seal and the grey seal.

253. The Scottish Government has stated that the revised laws set out in the Bill are, amongst other things, a response to a recent decline in the common seal population. The evidence session on Part 5 commenced with an overview of recent population trends from Ian Boyd of the Sea Mammals Research Unit. Professor Boyd commented that the grey seal population had—

“been increasing quite rapidly for the past few decades, but there is strong evidence of a decline in the rate of increase and of the population numbers approaching stabilisation on the west coast and Orkney…In the North Sea, the numbers continue to increase.”180

254. On common seals, he explained that less is known—

“because they are much more difficult to survey. … Despite their name, there are fewer of them than grey seals.181 We think that there are 140,000-odd grey seals in the United Kingdom, 90 per cent of which are in Scottish waters. We think that there are about 40,000 to 50,000 common seals, about 30,000 of which are in Scottish waters…They are also smaller than grey seals, and they are more coastal. […]

The surveys of common seals that we carried out until the early 2000s suggested that the common seal population was roughly stable. However, about three years ago, our survey suggested that there had been an extremely rapid decline—considering how slowly the animals are able to reproduce—in Orkney and Shetland in particular but also to some extent down some of the North Sea coast. The decline that was observed was equivalent to all the pups that were born in the population every year not surviving. It is too early to say what the cause of that decline has been. We will probably never know."182

Why is seal management considered necessary?
255. Not all countries with seal populations permit them to be managed by culling. The Scottish Government considers it is necessary to retain some sort of licensed seal management scheme. Section 98 of the Bill sets out a number of grounds on which the Scottish Ministers may grant a license to kill or take seals. These include for research or conservation purposes or to preserve public health. However, the vast majority of the discussion at Stage 1 has focussed on just one of the grounds listed; to prevent serious damage to fisheries or fish farms, as this is likely to be the main reason for a license being granted.

256. The question of the extent to which seals threaten commercial fish stocks is controversial. There is no doubt that seals predate wild stocks but the scale of this activity, particularly in relation to commercial fishing, are disputed, as is the effectiveness of seal culling as a fisheries management tool. Either way, no evidence was led at Stage 1 that the Scottish Government plans to issue licenses on this ground. However, the Committee did hear clear evidence as to the potentially serious effect of seal predation on wild salmon stocks in and around salmon river mouths, and it is anticipated that licenses might on occasion be issued for this reason.

257. There is no dispute that, given the opportunity, seals will predate fish farms and can cause considerable damage if they are able to break through. Professor Phil Thomas of the Scottish Salmon Producers’ Organisation explained that—

“both types of seals are attracted to fish farms, but what distinguishes them is the size of the animals. By and large, common seals cannot break nets in a significant way, as they do not have the power to break through things. A large grey seal is a big animal, so it has the power to cause significant destruction to a net if it wants to. If there is a hole or a clever way of getting into a cage, common seals can do that but, by and large, they are much easier to deter with screen netting than greys are.”183

Evidence taking
258. Evidence received by the Committee, together with information gathered on visits has made the sensitivities surrounding this issue abundantly clear. For a number of groups, the only acceptable approach would be a complete ban on killing, except to prevent suffering.

259. Although the Committee does not consider that a complete ban would be practicable, we respect such opinions, which are based on the understandable view that it is inhumane to cull seals. We particularly commend those organisations and individuals who, without compromising on their principled opposition to the approach proposed in the Bill, have been willing to engage in the scrutiny process, and to enter into public debate and discussion with the fish-farming industry, in order to help ensure that, even if the Parliament largely endorses the policy set out in Part 5, the licensing process will be as rigorous and humane as possible. The evidence session involving Advocates for Animals and the Scottish Salmon Producers’ Organisation demonstrated the scope for organisations with very different viewpoints to share information, to agree civilly to disagree on some matters, and to reach a compromise on others. It is to be hoped that this bodes well for the future implementation of Part 5.

Seal management plans
260. According to the Policy Memorandum, "A successful pilot scheme in Moray Firth has provided a framework for the Bill proposals for the management of seals. This is based on cooperation by the District Salmon Fishery Boards.”184

261. The Association of Salmon Fishery Boards’ submission states that—

“The Moray Firth Seal Management Plan was launched in 2004 and involved a wide range of partners. … The Plan is viewed as a successful template for considering how seal and salmon interactions can be analysed so that, amongst other things, impacts on salmon can be minimised whilst at the same time the conservation status of seals (where applicable) can be considered.”185

262. The plan created seal management areas; known bottleneck areas around river estuaries where seals predate on salmon. Within these areas, seals could be managed by shooting or scaring. Under the plan, licences to kill seals in these zones were to be issued on a group basis. Limits set on the number of seals that could be killed under each licence were based on reproduction rates to ensure that the numbers killed did not exceed a level which could impact on the stability of the overall seal population in the area.

263. Given the apparent importance that the Government has placed on the Moray Firth Seal Management Plan in informing the Bill’s provisions, the Committee was keen to explore the basis for the assessment that it had been a success, as well as whether the approach adopted in the Moray Firth could be applied elsewhere.

264. The Seal Protection Action Group queried the evidence base for the claim that the plan had reduced local seal shooting by 60% suggesting that"there is no information provided to support this statement or indicate it will reverse the decline in common seals in the area.”186 Professor Boyd of the Sea Mammal Research Unit responded that—

“The Moray Firth's seal population has been roughly stable since the plan was introduced, whereas most of the seal populations in the surrounding areas have declined. The evidence suggests, therefore, that the act of management in that region has been successful. Whether the population would have declined if there had been no management is an open question, of course, but the Moray Firth is, at least, bucking the trend.”187

265. Libby Anderson of Advocates for Animals acknowledged that the plan had some strengths but highlighted the limitations of applying the model elsewhere. She pointed out, for example, that there were only three fish farms in the area during the pilot.188

266. Brian Davidson of the Association of Salmon Fisheries Group explained that the pilot had helped build up an evidence base on seal predation—

"we have learned about the behaviour of very small numbers of specialist seals that come into rivers and predate salmon. As Professor Boyd indicated, although the numbers of such seals are very small, they have developed the expertise to remove valuable salmon, which can have quite a devastating effect on the economy and on fisheries. We have started to piece together some useful parts of the jigsaw on the interplay between seals and salmon. The key strength of the model is that it gathers together data and asks people who want to be involved in control measures to report those data in a transparent and clear way to the relevant agencies so that everyone can learn from the process and it can be transferred to other areas with some degree of success."189

267. Whilst the evidence does not clearly and compellingly show that the Moray Firth Seal Management Plan has helped with the conservation of common seals, the Committee considers that there is sufficient anecdotal evidence to judge the pilot a partial success pilot that is well worth repeating elsewhere. In doing so, the Committee recognises that the Moray Firth is somewhat atypical having relatively many salmon rivers and relatively few salmon farms compared to other areas where seals and humans have come into conflict. So different approaches would have to be taken.

268. The pilot has undoubtedly demonstrated the merit of sharing information about seal behaviour, prevalence, and distribution within a particular area. It also helped show up gaps in recorded data where more work was needed. Most importantly, there does appear to be a view that it has been beneficial in managing interactions between seals and fish. And, as discussed below, the existence of a seal management plan and the data that flows from it may make it easier to set realistic, tailored licensing conditions.

269. 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.

Harassment of seals
270. Advocates for Animals suggested that there was a gap in Part 5 in that it did not make it an offence to molest or disturb seals. This offence could be made to apply in all Scottish waters or only in seal conservation areas as designated under section 104.190

271. Similarly, Tara Seal Research suggested that the Bill should set out an additional offence of “disturbing or harassing seals, or of obstructing access to their haul-out sites”. They argued that—

“at present the law protecting animals from disturbance in the UK is fragmentary and disorganised – being incorporated into conservation legislation for some species but not others, and for seals in some parts of the UK, but not others…At present animal species in Sch. 5 (protected species) of the Wildlife and Countryside Act 1981 – throughout Great Britain - are protected against deliberate disturbance or interfering with places of rest or refuge (Annex 1). Sch. 5 includes, among marine mammals, bottlenose dolphins, common dolphins, harbour porpoises and otters, but does not include seals. However, the legislation in Northern Ireland and the Isle of Man to enact the 1981 WCA provisions in those regions (Annex 1) does include both common and grey seals in the schedule of protected species. In Northern Ireland and the Isle of Man, therefore, seals are legally protected against disturbance and harassment.”191

272. Professor Boyd of the Sea Mammals Research Unit responded that he—

“would broadly support such a provision. A possible consequence of tighter management could be that harassment becomes a tool that is used in certain quarters for trying to reduce the number of seals in a particular area. Repeated harassment of animals at haul-out sites could be a problem in the future.”192

273. A letter to the Committee from the Cabinet Secretary noted the evidence received on harassment and advised—

“A power to protect seals from disturbance or harassment, which was suggested by some, already exists under paragraph 28 of the Conservation (Natural Habitats etc) Regulations 1994 in relation to European sites.” This protection applies to European sites designated on land, such as breeding sites, as opposed to European marine sites. Therefore, any harassment of seals in water, for example around a fish farm or in a river estuary near a fishery, would not be covered by these Regulations.”193

274. The Regulations state that local authorities may make byelaws for the protection of nature reserves which, amongst other things, can “protect or restrict the killing, taking, molesting or disturbance of living creatures of any description in the site.”194 In other words, the protection of seals from disturbance only applies following the passing of a byelaw in an area already designated as a European site.

275. The Committee recognises the force of the argument that seals should be no less protected from harassment than other marine animals. At the same time, the issue is complex. There is a risk of people being deemed to have harassed seals when their intentions were innocent; for example, tourists going on boat trips near haul-out sites or people walking on beaches where seal colonies are based and unintentionally frightening seals away. If such an offence were to make the statute book, it is to be hoped that common sense would be applied on the enforcement side. More fundamentally, it goes without saying that only intentional or reckless behaviour should be criminalised.

276. A perhaps more tricky issue from a drafting point of view would be to ensure that acts intended only to deter seals from causing damage to fisheries or fish farms, and therefore to avoid a resort to shooting, were not criminalised as harassment, which would clearly be a perverse outcome.195

277. 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.

Licensing conditions-provisions in the Bill
278. Sections 99 and 100 specify conditions that the Scottish Ministers must impose in granting a license to kill or take a seal. These include the method of killing or taking, the maximum number of seals that may be killed or taken, and a requirement to report back to the Scottish Ministers. Provision is also made allowing the Scottish Ministers to impose further conditions. These may include, but are not limited to, conditions about the area where seals may be killed or taken or the circumstances in which they may be killed or taken.

Individual seal behaviour and licensing
279. Evidence at Stage 1 made clear that seal behaviour varies widely. Whilst all seals are fundamentally opportunist predators, many appear to show little or no interest in predating fish farms or salmon rivers. It is a small minority of perhaps unusually adaptive “rogue seals”, as some witnesses described them, exhibiting learned behaviour, that cause disproportionate damage. It clearly follows that if it is considered necessary to manage seals in an area by shooting it is this minority that should be targeted. Randomly shooting a number of seals is not only inhumane and potentially damaging to seal conservation, but also likely to be ineffective.

280. However, a number of clear practical objections arose at Stage 1 to the proposal that licenses be tailored to apply only to particular seals. These include the time delay between a seal getting into a fish farm or fishery and an individual licence being issued, and the challenge of identifying the correct individual seal once it has left the area.

281. Professor Thomas of the Scottish Salmon Producers’ Organisation explained—

“The notion that someone would have to apply for one licence for a particular seal is an utterly unworkable proposition. Think about the analogy of the fox in the hen-coop. A seal is attacking salmon, and we have to pick up the phone to Edinburgh to apply for a licence. The licence might come through in due course, but by that time the problem would be over because the fish would all be dead. We must take on board the way in which the licensing system would have to work. Some block or upper limit would be required—that is an idea in the Moray Firth plan—and that would allow the population of seals to be maintained. When a seal is attacking a net, people must be able to take action there and then to do something about it.”196

282. The Association of Salmon Fishery Boards’ evidence also supported this approach—

“We believe seal control should be operated on a regional level (as per current arrangements in Moray Firth) with an agreed pre-set allocation for each area that can be conducted at the discretion of the District Salmon Fishery Board to provide effective control as and when necessary.”197

283. The Committee agrees that the most workable way to encourage a highly selective approach to seal culling would be to impose an upper limit on the number of seals that may be taken within a particular area. This ought to help incentivise the targeting only of seals whose behaviour is recognised as problematic. Of course care would have to be taken to set a number within a particular area that is neither too high nor too low. Continually updated research on regional seal populations and behaviour, such as is carried out by the Sea Mammal Research Unit and other bodies, is vital in this regard. So too would be any work carried out in future by seal management groups, which the Committee, as already stated, would support being established under the Bill.

284. Other conditions imposed on the granting of a license, for instance, a requirement that a seal only be shot at when it is within a particular distance from the fish farm being predated, may also help raise the probability of the “right” seal being targeted.

Issuing licenses on an individual or group basis
285. If imposing upper limits on seal kills within a particular marine area is seen as desirable as part of an overall licensing regime, it might seem to follow that licenses should also be issued on a group basis. It would then be for the licensees, as a group, to decide how to manage seal predation in that area. As well as being likely to reduce the bureaucracy associated with multiple licensing applications, this approach would arguably make it easier to monitor the impact of such licences on a particular area. It may also make reporting shootings less demanding if one farm assumes responsibility for reporting all shootings under a group licence (the timescales for reporting shootings is considered further below).

286. On the other hand, the Committee recognises that the approach is not without its disadvantages. For instance, fish farms within a particular area may often be commercial rivals, which may provide a disincentive to cooperate unless some sort of binding working arrangement can be reached.

287. Government policy appears to be supportive of licensing on a regional group basis. The Policy Memorandum notes that “Scottish Ministers expect to introduce this [ie licensing] on a group basis following the model of the Moray Firth pilot to limit bureaucracy.”

288. The Cabinet Secretary told the Committee—

“My understanding is that the plan has promoted the concept of licences for groups. We would be keen to take that forward as an option, so the licences could be for either groups or individuals.”198

289. The Committee is not clear whether this means that the Cabinet Secretary is currently undecided as to whether licenses should be issued on a regional group basis or to individuals, or whether he considers that there should be an option to apply either individually or as a group.

290. 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.

Licensing and marksmanship
291. Advocates for Animals said it should be a condition of any licenses granted to kill seals that they—

“require marksmanship and competency to be demonstrated by applicants; prohibit shooting in water or from unstable platforms; and require applicants to ensure that if a seal is shot, it is actually killed outright. These issues have already been addressed by legislation in a number of other countries”

292. Professor Boyd indicated sympathy for these proposals and highlighted the importance of shooting within a range of 50m with a properly zeroed rifle to minimise the chance of a seal being injured, and suffering unnecessarily as a result, rather than being killed outright.199

293. The Cabinet Secretary was invited to respond to suggestions that mandatory licensing conditions along these lines be set out on the face of the Bill—

“The licence conditions can be varied. The bill explains to some extent the kind of factors that could be taken into account. It is perfectly possible to take into account marksmanship or training and so on as part of the licence conditions. We are considering where to go with that.”200

294. 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.

Killing as a last resort
295. Industry representatives and seal protection organisations alike made clear in evidence that they consider that shooting should be a last resort. Professor Thomas said that “the driving force is to shoot a seal only if there is no alternative”.201

296. To ensure that this is the case, Advocates for Animals argued that licensing conditions should “mitigate that solution as much as possible for animal welfare”,202 and that the process of considering a license application should include considering whether all other eventualities have been explored and ruled out before granting a licence. Similarly, the Seal Protection Action Group stated in written evidence—

“We believe the Bill should prescribe that best available non-lethal deterrent measures must be used, and have demonstrably failed, before consideration is given to granting a seal licence, to ensure that killing seals is not simply viewed as a cheaper solution.”203

297. An approach along the lines proposed above is, in fact, being taken in the Bill but only in respect of seals in certain areas. Section 105 states that “The Scottish Ministers must not grant a seal licence authorising the killing or taking of seals in a seal conservation area unless they are satisfied (a) that there is no satisfactory alternative way [emphasis added] of achieving the purpose for which the licence is granted,”

298. The Committee accepts that detailing what constitutes the best non-lethal deterrent measures on the face of the Bill would be impractical, as the list would be likely to become outdated relatively quickly. An alternative option would be to list the measures in subordinate legislation as this can be more readily updated.

299. There may be a more fundamental problem, however. Industry representatives have suggested that there never could be one authoritative list of measures, because some measures will work well in some circumstances but not others, whilst some may work but would not be permitted in particular areas. And some devices may work, to a greater or lesser extent, but may have undesirable side-effects depending on the nature of the surrounding marine environment, which would make it inadvisable to use them.

300. In relation to wild fisheries, the development of effective acoustic scarers within rivers is being explored as part of a Seal and Salmon Research Programme. The Moray Firth Seal Management Plan204 suggests that such technology has successfully reduced common seal predation in the Puntledge River, British Columbia. It also points out its limitations, for example the scarers cannot be used in areas where they may impact on other species such as dolphins, and they do not deter all seals effectively, meaning that “shooting remains the only viable method of reducing seal-salmon conflict.”

301. Professor Thomas set out the salmon farming industry’s view—

“The difficulty is that, for reasons that no one is entirely sure of, some methods work much better in some places than in others. The notion that we should prescribe a single method is impractical because it would not always work as well in different areas… For example, acoustic deterrent devices are extremely effective in some areas, but in other areas it is a condition of the fish farm's licence that they cannot be used because of concerns about cetaceans in the same area.”205

302. This explanation was not entirely accepted by animal rights groups. Libby Anderson of Advocates for Animals responded that—

“farms tend to use the solutions that are available and those that are convenient to use. They do not necessarily use the most expensive solution—the fully tensioned anti-predator net at the appropriate distance from the cage. To avoid further disagreement, we would have to say that there is a lack of knowledge about what is actually being used out there, and the industry and the Government need to explore that when they are considering the terms of licences.”206

303. Advocates for Animals were also among a number of stakeholders who cited anti-predator nets as the most effective way of preventing seal attacks on fish farms, and who suggested that in most instances there was no reason (other than the extra cost to the fish farm) why they should not be used.

304. Animal Concern and Save our Seals’ joint submission stated that—

“Fish farmers can protect their stock from seal attack by installing and maintaining high strength, anchored and tensioned anti-predator nets to stop seals getting near the farm cages. Fish farmers who argue that their farm site is not suitable for the installation of anti-predator nets are actually admitting that they have chosen a site which is not suitable for a fin fish farm.”207

305. The Seal Protection Action Group made a similar point, implying that farms that failed to install adequate anti-predatory nets might be in breach of the law. Anti-predator nets, they argued—

“would also meet criteria set under the Animal Health and Welfare (Scotland) Act 2006 that requires farmers to protect their stock from suffering or injury.”208

306. The Committee recognises that this is a complex area. Whilst we recognise that it may be hard to impose solutions on the face of the Bill, we are not yet satisfied that the Bill does all it could to ensure that culling seals is a last resort.

307. 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.

308. 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.

Reporting
309. Section 100 states that a seal licence must require the licensee to report to the Scottish Ministers “as soon as reasonably practical” after killing a seal.

310. The Scottish Salmon Producers’ Organisation argued that an annual reporting cycle of seal kills (rather than of each individual kill) would reduce bureaucracy and that “publication only of aggregate annual data relating to Seal Licences”209 would protect fish farm personnel from threats or actions from some “seal activists in the UK who have shown a willingness to engage in direct and, in some cases, extreme measures”.210 Professor Thomas described this to the Committee as a practical and proportionate approach.211

311. The Sea Mammal Research Unit disagreed, stating that it supports “rigorous reporting procedures” to enable effective monitoring. The Unit argued that “In the past, poor information about the number of seals being shot has reduced the quality of management advice we have been able to give.”

312. The RSPB argued that to be compliant with the EU Habitats Directive “…the Bill must ensure that shooting can only occur as a last resort, by licensees, within strict guidelines, and that all killings are accurately reported to the Scottish Government.”212

313. The Cabinet Secretary was invited to respond to suggestions that “as soon as reasonably practical” is open to a wide interpretation and requires to be clarified—

“I ask members to bear in mind that the starting point is that we do not have such information…we will certainly reflect on whether the phrase "as soon as reasonably practical" requires to be tightened.”213

314. 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.

Enforcement
315. The Bill increases the penalties for offences against seals in line with those set out in the Wildlife and Countryside Act 1981. The Bill makes provision in relation to the apprehension of offenders, powers of search and seizure, forfeitures, entry upon land, and the giving of notices to ensure enforcement is made.

316. Written evidence drew the Committee’s attention to a number of concerns about enforcement of the existing legislation, including the perceived overuse of the so-called netsman’s defence, where a seal “in the vicinity” of fishing nets or tackle is killed to prevent damage to them. Whilst the removal of this provision has been welcomed in a number of submissions, there is an underlying concern that without effective enforcement, the new provisions may prove as limited as the existing ones. The Seal Protection Action Group argued that—

“there is no explanation [in the Bill] of how effective monitoring and enforcement can be achieved given that most incidents take place in remote areas.” 214

317. Advocates for Animals provided a number of examples of reported shootings which were not prosecuted, including as a result of the difficulties in policing remote areas. For example, Tayside Police investigated culls of seals at the Bell Rock lighthouse off the Angus coast in 2001 and 2006. Advocates for Animals noted that “the lighthouse is at least 12 miles from the nearest salmon nets, and police officers voiced their concern that policing such a remote location in the North Sea was almost impossible, permitting no check on the shooting of seals during the breeding season.” 215

318. The Cabinet Secretary noted that there have been successful prosecutions under existing legislation—

“Therefore, it is clear that there is enforcement…but my understanding is that, given the nature of such activities, there is a lot of local intelligence in some of the communities in which such offences take place, as members can imagine. I am therefore confident that the provisions can be enforced.”216

319. Mr Lochhead also indicated that he intends to amend the bill to provide that—

“the common enforcement powers in Part 6 of the Bill be extended to include offences relating to seals. Although I expect most, if not all, enforcement of seals legislation to be taken forward by the police, it remains possible that Marine Scotland officers could occasionally become involved in such cases and I intend to amend the Bill to ensure they have the necessary powers.”217

320. This amendment is to be welcomed as, amongst other things, it will presumably increase the human resources available to monitor the implementation of provisions under Part 5. Given this additional responsibility being placed on Marine Scotland, the Committee would expect that the funds provided to the organisation for enforcement under Part 6 would be increased to enable it to carry out this new duty effectively.

321. The Financial Memorandum states that Marine Scotland is expected to extend its compliance activities to cover monitoring of licensing and conservation from 2010, but does not provide a total expected figure for such activities. Without a baseline figure, it will be difficult to ascertain how much additional funding Marine Scotland receives for enforcement and monitoring in relation to Part 5 as a result of the Cabinet Secretary’s proposed amendment.

322. The 2010-11 draft budget proposes that Marine Scotland’s budget be reduced from £75.5 million in 2009-2010 to £65.3 million in 2010-2011. The Committee notes that this reflects start-up costs for the new organisation, which was established in April 2009. There would be concern if this reduction resulted in more limited funds for enforcement, especially given the inherent challenge of monitoring and enforcement in remote areas. The Committee is following up this concern in our scrutiny of the 2010-11 budget.

Part 6 – enforcement powers

323. Part 6 sets out enforcement powers. In large part, these are intended to help ensure that any new duties imposed, in particular, under Parts 3 (licensing) and 4 (marine protected areas) of the Bill are adhered to. Scottish Government officials explained that the main policy behind these provisions was to ensure that enforcement powers were largely consistent within and without the Scottish marine area.218

324. For the most part, these provisions aroused no great controversy at Stage 1, although one issue was raised.

Directing a vessel to port
325. Section 132 empowers persons appointed as marine protection officers under the Bill to direct a vessel or marine installation to port under certain circumstances. In evidence to the Committee, the British Port Authority did not express opposition to this provision, which they described as an “extension” of an existing, and rarely-used, power. However, they were concerned about the potential effect that the provision could have on ports. David Whitehead of the BPA commented—

“We are concerned about the impact of the provision on ports. The bill does not seem to say anything about how the port will be contacted, arrangements for dealing with disruption to trade, oil spills and so forth or even how the provision relates to the powers of the secretary of state's representative for maritime salvage and intervention [SOSREP], who has the power to direct into port ships that are being salvaged. We are flagging up the issue as a bit of an unknown area in which consideration of the port side seems to have been left out.”219

326. Mr Whitehead pointed out that where SOSREP directs a vessel to port, the UK Government bears the responsibility for any financial repercussions, but that the Bill was silent on whether this applied in the case of direction under section 132.

327. In a letter to the Committee, the Cabinet Secretary said—

“My understanding is that the SOSREP … role is limited to salvage operations - essentially a ‘command and control’ function which allows SOSREP to intervene and take charge of salvage operations where there is a risk of pollution. The powers of SOSREP in relation to Safety directions come under section 108A and Schedule 3A of the Merchant Shipping Act 1995 as inserted by the Marine Safety Act 2003. These powers are somewhat different to the enforcement powers in the Marine Bill. They relate to ships where an accident has happened to or in the ship, the accident has created a risk to safety or a risk of pollution by a hazardous substance and the direction is necessary to remove or reduce the risk.

In enforcement operations it is often necessary to direct a vessel to port to carry out investigations and necessary enquiries for a number of reasons. It may be that any necessary tests or investigations require to be conducted in a stable environment, or it could require all or part of the cargo to be discharged to allow it to be properly examined, or the investigations may require the involvement of shore-based services or experts. These powers are generally only available when enforcement officers have reasonable grounds to suspect that the vessel concerned is involved in the commission of an offence and are not exercised lightly given the associated practical considerations. These powers are therefore distinct from the role played by SOSREP in marine salvage operations, an activity which is un-connected with enforcement.”220

328. The Committee is grateful for this explanation, which clarifies some issues. However it does not address the issue of compensation.

329. 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.

financial matters

330. The Finance Committee reported to this Committee on the Bill. The Finance Committee reported that it welcomed the detailed cost information available in the Financial Memorandum. The Committee acknowledged that was bound to be variation in the estimates of some costs, depending on, for example, the detailed implementation experience of local marine planning, or the timing of designation of marine protected areas. However, the Committee recommended that the Scottish Government should consider how the presentation of information and the consultation on financial implications could be improved so as to avoid the misunderstandings (for instance from local authorities) which were raised in evidence.

331. The Finance Committee also recommended that the costs summary for the whole Bill set out at Table F could usefully have separately identified the total expected one-off set-up costs (albeit that these are spread over several financial years), and the total annual running costs once the Bill is fully implemented.

332. The Committee expressed concern at the way in which the costs associated with the ‘third tier’ of marine planning (integration of management of Scottish waters with the UK, EU and international contexts) have been expressed. No cost information for activities to implement this third tier is mentioned in the Financial Memorandum. Officials said that a cost of about £1 million per year associated with this had been described in the Financial Memorandum of the UK Marine and Coastal Access Bill and in the corresponding Legislative Consent Memorandum (LCM) to the Scottish Parliament.

333. However, the Finance Committee noted that the LCM was not clear that any costs from marine planning at this level will fall on the Scottish Government. Paragraph 34 of the LCM states that designating nine additional marine protected area sites in the offshore zone may cost around £1 million, but is not clear that this cost is to fall on the Scottish Government. The Statement of Funding Policy between the UK Government and the devolved administrations states that, “where…decisions of United Kingdom departments or agencies lead to additional costs for any of the devolved administrations, where other arrangements do not exist automatically to adjust for such costs, the body whose decision leads to the additional cost will meet that cost.”221

334. Given that officials stated clearly in evidence that this cost would have to be met from the Scottish Government’s budget, the Finance Committee expressed concern that it appeared to have no opportunity to scrutinise whether the assumptions behind this estimate were appropriate. They are not described in the Financial Memorandum. This led the Committee to note that the status, and appropriate route for scrutiny, of the costs of this third tier of planning are unclear. The Committee accordingly recommended that the lead committee seeks clarification from the Scottish Government on this situation.

335. 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.

336. As noted earlier, 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

Annexe A: Subordinate Legislation Committee Report

Marine (Scotland) Bill

Subordinate Legislation Committee Report

Marine (Scotland) Bill

The Committee reports to the lead committee as follows—

Introduction

1. At its meetings on 23 June222, and 1 September223 2009 the Subordinate Legislation Committee considered the delegated powers provisions in the Marine (Scotland) Bill at Stage 1. The Committee submits this report to the Rural Affairs and Environment Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

2. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill.224

3. The Committee’s correspondence with the Scottish Government is reproduced in the Appendix.

Delegated powers provisions

4. The Committee considered each of the delegated powers provisions in the Bill.

5. The Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in the following sections: 3(4), 18(1)(b), 20(4)(a), 20(7), 21(2), 25(1), 27(1), 37(1), 39(1), 42(1), 45(2), 45(3), 68(2), 74(1), 77(6), 79(2), 93, 102(1) and 148(1).

Section 17(3) - Powers to amend section 17(1) so as to add or remove any activity from the list of licensable marine activities

6. This power allows the Scottish Ministers, by order to add or remove any licensable marine activity from the list in section 17(1). The Delegated Powers Memorandum (“DPM”) explains this power is needed in order to respond to changing developmental needs which are likely to change over time. While flexibility is thought important, the DPM does not explain why the power is open to permit any additions to or deletions from the list or why no criteria are specified for before such changes can be made. The Scottish Government was asked to explain why the power was open and what criteria would be applied.

7. The Scottish Government response advises that because there may be any number of reasons for making changes it would not be useful to specify criteria for the exercise of the power.

8. TheBill does not expressly set out the objectives of the licensing regime, but these may be inferred from matters to which the Scottish Ministers must have regard in determining an application for a marine licence. These are set out at section 20(1): the need to protect the environment, to protect human health and to prevent interference with legitimate uses of the sea and such other matters as the Scottish Ministers consider relevant. However, the Committee notes that there is no link between the power to alter the scope of the regime and its objectives as described in the matters specified in section 20(1).

9. The Committee accepts that circumstances will change over time and it may be necessary to make changes to the activities of the marine 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.

10. The Committee also acknowledges that affirmative procedure affords a high level of scrutiny over the exercise of the power. However, the provision of flexibility is not inconsistent with the provision of a limitation (by reference to objectives, criteria or otherwise) on how a power may be exercised.

11. The Committee therefore draws to the attention of the lead committee that the power is unqualified and does not specify any criteria on the basis of which the Scottish Government may determine that a particular activity should be added to or removed from the list.

Section 24(1) - Power to specify activities which will not need a marine licence

12. A marine licence is required for the activities specified in section 17(1). Section 24(1) provides that the Scottish Ministers may by order specify activities which do not require a marine licence or don’t require a licence if specified conditions in the order are satisfied. The Scottish Ministers are required to consult such persons as they consider appropriate in advance of making any order.

13. This would allow for exemptions within the classes of licensable activity and for such exemptions to be permitted subject to compliance with set conditions. The Committee’s comments in relation to section 17(1) apply equally here.

14. While the Committee understands the need for the power and agrees with the power in principle, it notes that it is not qualified in any way and no criteria are specified on the basis of which the Scottish Ministers may determine that an activity should be specified under section 24(1). Also, as with the power under section 17(3), there is no link between the power and the apparent objectives of the regime.

15. Whether or not an activity is to require a licence and thereby come within or be excluded from the marine licensing regime is a matter of considerable significance for those involved in the activity.

16. This power is broadly the same as the power under section 7(1) of the Food and Environment Protection Act 1985, although an order under section 7(1) was subject to negative procedure. There is, however, a significant difference between the two powers with respect to consultation. Section 7 requires a licensing authority to consult the Food Standards Agency as to any proposed order under section 7(1). Section 24(4) provides only a general requirement that the Scottish Ministers must consult such persons as they consider appropriate.

17. The Food Standards Agency therefore no longer has a specified or compulsory role in the order-making process. The consultation requirement has been watered down and there is no explanation of or justification for this significant change. However, the Committee does acknowledge that affirmative procedure provides a greater level of scrutiny than before.

18. The Committee draws to the attention of the lead committee the Government’s control as to consultation prior to the exercise of the power and that the power does not specify any criteria on the basis of which the Scottish Government may determine that a particular activity should be specified as not requiring a licence or not requiring a licence if specified conditions are satisfied.

Section 29(1) - Power to make provision for any person who applies for a marine licence to appeal against a decision made under section 22

Section 52(1) - Power to make provision for any person to whom a notice listed in subsection (2) is issued to appeal against that notice

19. These powers are very similar and the underlying issue is the same in each case, as are the questions asked of the Scottish Government and the Scottish Government responses.

20. Part 3 establishes a regime for the licensing of the marine activities specified in section 17. Section 22 provides that when an application is made to the Scottish Ministers for a marine licence, the Scottish Ministers must grant the licence unconditionally, grant the licence subject to conditions as they consider appropriate, or refuse the application.

21. Section 29(1) provides that the Scottish Ministers must by regulations make provision for any person who applies for a marine licence to appeal against a decision under section 22.

22. There are various enforcement notices which the Scottish Ministers can issue under various provisions in Part 3, which are listed in section 52(2). Section 52 provides that the Scottish Ministers must by regulations make provision for any person to whom a notice listed in section 52(2) is issued, to appeal against that notice.

23. No details of the appeal mechanisms are given on the face of the Bill. The justification provided in the DPM for using subordinate legislation for the purpose of establishing an appeals mechanism is extremely brief.

24. The Committee accepts that it is not unusual to have the details of appeal procedures left to subordinate legislation provided that the core elements or outline of any appeal mechanism are established on the face of the Bill. It is understandable that details of appeals procedures may require to be adjusted over time in the light of experience. However, on the face of the Bill there is no substantive provision with respect to appeals, only a requirement for an appeals mechanism to be put in place by regulations. This, in the Committee’s view, is neither sufficient nor appropriate.

25. While detailed rules of procedure need not be set out in primary legislation, the Committee would normally expect the appeal body to be specified on the face of the Bill. Provision should also be on the face of the Bill for matters such as the grounds of appeal, the legal consequences of an appeal being initiated and the powers of the appellate body. The Committee gives by way of example the extensive and comprehensive provisions for appeals in sections 131 and 132 of the Licensing (Scotland) Act 2005.

26. The Committee informs the lead committee that, notwithstanding the powers to make provision for appeals under sections 29(1) and 52(1) of the Bill, no substantive provision with respect to appeals is made on the face of the Bill and that the Committee expects the fundamental elements of an appeal procedure should appear on the face of the Bill.

Section 54(3)(1) - Power to provide for marine fish farming not to constitute ‘development’

27. ‘Marine fish farming’ is development for the purposes of the Town and Country Planning (Scotland) Act 1997 (‘the 1997 Act’) and accordingly requires planning consent from the local planning authority. Section 54 of the Bill inserts a new provision (section 26AB) in the 1997 Act. This gives the Scottish Ministers power to provide by order that the establishment of a fish farm in the waters specified in the order does not constitute ‘development’ in terms of the 1997 Act. In that event the fish farm would not require planning permission, but would fall to be regulated by and require to be licensed under the marine licensing regime established by the Bill (because it would fall within the list of licensable activities).

28. The reason for a power to transfer marine fish farming between the planning regime and the marine licensing regime and the reason for doing so on an area by area basis was not explained. The change from one regime to another on an area by area basis could result in a lack of uniformity across the country and 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. The Committee therefore sought clarification from the Scottish Government.

29. It appears from the response that the Scottish Ministers are uncertain whether aquaculture developments should fall under the terrestrial planning or the marine licensing regime. The policy objective appears to allow for marine fish farming to be removed from the terrestrial planning regime and to fall within the marine licensing regime on an area basis if the relevant local planning authority wishes that to be done. The need for this power is therefore understandable if that policy objective is to be achieved. However, the potential for confusion and inconsistency in the statutory control of this activity remain. The Committee notes that the affirmative procedure provides a significant degree of Parliamentary scrutiny of any proposal for change.

30. The Committee draws to the attention of the lead committee that the effect of the power is to permit local authorities to determine whether, in respect of their particular area, marine fish farming is to be in the terrestrial planning regime or in the marine licensing regime. The Committee also draws to the attention of the lead committee that the exercise of the power on an area by area basis could result in a lack of uniformity across the country which may 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.

Section 58(1) – Power to designate any area of the Scottish marine protection area as a nature conservation marine protected area, a demonstration and research marine protected area or a historic marine protected area.

Section 64 – Power to amend or revoke a designation order under section 58

31. Section 58(1) provides that the Scottish Ministers may by order designate any area of the Scottish marine protection area as of one of three types of marine protected area (‘MPA’) namely, a Nature Conservation MPA, a Demonstration and Research MPA or an Historic MPA. Section 64 provides that a designation order made under section 58(1) may be amended or revoked by a further such order (under section 58(1)).

32. Section 145(3) provides that an order under section 58(1) is not made by statutory instrument.

33. The designation of MPAs is one of the key elements of the Bill. However, as ‘designation’ is not exercised by legislative provision, the power is not listed or discussed in the DPM. Having regard to the number and nature of the considerations which may arise with respect to any decision on designation and to the fact that a number of areas may be designated, the Committee considered it appropriate to consider whether that ‘designation’ should be exercised by legislative provision.

34. The Scottish Government’s response has been helpful in explaining the approach adopted. Having regard to the context and background and the extent to which other elements of the MPA regimes and procedures are set out in the Bill, the committee does not consider that it is necessary for the power to designate a marine protected area under section 58(1) or the power to amend or revoke a designation to be exercised by statutory instrument.

Section 77(1) - Power to make an urgent marine conservation order

35. Section 77(1) provides that, where Scottish Ministers consider that there is an urgent need to protect an area in respect of which an MCO may be made through an MCO, then an MCO may be made without the need to follow the procedures otherwise required by section 76.

36. An urgent MCO remains in force for the period specified in the order, which must not exceed 12 months. The Scottish Ministers are required to publish notice of the making of the urgent MCO. Representations can be made about an urgent MCO (after it has been made) and the Scottish Ministers have power to revoke an urgent MCO.

37. The DPM does not comment on the power to make an urgent MCO, although it does comment on the power under section 77(6) to continue an urgent MCO.

38. The Committee appreciates the need for a power to take urgent action as well as the need for urgent MCOs to be time limited. It was not clear as to the intended effect of section 77(2)(a) which provides that an urgent MCO comes into effect on such date as is specified in it, as it is accepted that every SSI comes into force on the day specified in it for this purpose.

39. The Scottish Government appears to accept that there is no need for the provision in section 77(2), which it states is designed to make an order under section 77 more ‘user friendly’ than might otherwise be the case. The Committee does not agree with this approach and considers that it is not appropriate or advisable to make provision for something which is unnecessary, not least as a question may arise with respect to the effect if a similar provision is omitted elsewhere.

40. The Committee appreciates the need for this power and agrees with the power in principle. As far as procedure is concerned, the Committee considers that negative procedure is appropriate, and that there should be consistency of approach in the procedure proposed in respect of orders under section 74(1), urgent orders under section 77(1) and urgent continuation orders under section 77(6).

41. The Committee considers that the proposed power is acceptable in principle and that negative procedure is appropriate. However, the Committee considers section 77(2)(a) to be unnecessary.

Section 144(1) - Ancillary provision

42. Section 144(1) provides that the Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of, or for giving full effect to, the Act or any provision of it. Section 144(2) provides that an order under this section may modify any enactment, instrument or document.

43. This is an example of the widest formula adopted in relation to ancillary powers. The Committee has previously expressed concern that non-textual modification of legislation may provide for significant legal effects and that accordingly textual amendment may not be the appropriate test to determine the appropriate level of Parliamentary scrutiny. The Committee has expressed the view that those ancillary powers which make permanent provision may be considered likely to have more significant effects. There should be a full consideration given by the Scottish Government to the procedure appropriate to ancillary powers in each Bill on a case by case basis. There is no significant assessment in the DPM explaining how the Scottish Government has reached its view here.

44. The Scottish Government’s response to the questions posed by the Committee is very brief and does not address the question or add to what the Committee knows already. There is no explanation as to the Scottish Government’s approach to the procedure proposed with respect to ancillary powers having regard to the provisions in this Bill.

45. The Committee is disappointed by the apparent unwillingness on the part of the Scottish Government to give much thought to the use of ancillary powers or to address the use of the individual elements within the powers, either in the DPM or in their response to the Committee’s question.

46. There are six elements to the ancillary powers set out in section 144. The Scottish Government appears to treat the ancillary powers equally and to suggest that the use of all these ancillary powers is ‘standard’ in all Bills. The Committee does not agree with this approach. The appropriateness or otherwise of each of the different elements of an ancillary powers provision has to be considered separately in the context of a particular Bill. While the Committee accept that there may be thought to be nothing out of the ordinary in this Bill, it does not absolve the Scottish Government from its obligation to consider the provision of ancillary powers and to provide adequate justification for each element of the powers.

47. The Committee finds the powers acceptable but reports that, in its view, the different elements of ancillary powers provision should be justified on a case by case basis by the Scottish Government in the context of each Bill.

Appendix

Response from Scottish Government

Marine (Scotland) Bill at Stage 1

Section 17(3) - Powers to amend section 17(1) so as to add or remove any activity from the list of licensable marine activities

The Committee asked the Scottish Government:

  • what is the justification for the power being completely open, in that it does not contain any limitation on the nature, scope or extent of any modification which may be made to the list of licensable marine activities?
  • by reference to what criteria, if any, will the Scottish Government determine that a particular activity should be added to or removed from the list of licensable marine activities and could these be specified in the Bill?

Scottish Government response:

It is envisaged that activities will be added to the list of licensable marine activities if the Scottish Ministers consider that it would be appropriate for those activities to be subject to marine licensing. Activities would be deleted from the list if it is no longer appropriate for them to be subject to that system.

There could be any number of reasons (e.g. a change in other regulatory regimes, technological change and the development of new industries) for making a section 17(3) order and therefore determining criteria could not be usefully specified in the Bill.

Section 20(7) – Power to make further provision as to the procedure to be followed in connection with applications for and the grant of licences

The Committee asked the Scottish Government:

As the power in section 20(7) does not appear to be addressed in the DPM, the Scottish Government is asked for the justification for this power in accordance with rule 9.4A of Standing Orders.

Scottish Government response:

We apologise for the oversight that led to section 20(7) not being addressed in the DPM. The paragraphs set out in Annex A should have appeared in place of paragraphs 21 to 26 in the DPM.

Section 24(1) - Power to specify activities which will not need a marine licence

The Committee asked the Scottish Government:

  • what is the justification for the power being completely open, in respect that it does not contain any limitation on the nature, scope or extent of activities which may be specified as not needing a licence or not needing a licence if conditions specified in the order are satisfied?
  • by reference to what criteria, if any, will the Scottish Government determine that a particular activity should be specified in an order under section 24(1) and could this be set out in the Bill?

Scottish Government response:

Any order under section 24(1) will specify activities which the Scottish Ministers consider should not require to be licensed. There could be any number of reasons for making a section 24(1) order and therefore determining criteria could not be usefully specified in the Bill. There are existing long established exemptions with regards to licenses under the Food and Environment Protection Act 1985 and consents under the Coast Protection Act 1949 and it is likely that similar exemptions will be continued under the new licensing system after a full consultation process. There are existing exemptions for activities such as the deposit of fishing gear other than for the purpose of disposal and the deposit of cable and associated equipment (other than for the purpose of disposal) in the course of cable laying or cable maintenance.

Section 25(1) - Power to allow licensable marine activities which fall below a specified threshold of environmental impact to be registered rather than licensed

The Committee asked the Scottish Government:

Given that regulations made under section 25(1) will specify the threshold of environmental impact for the purpose of determining whether a particular licensable marine activity will not need a licence but will instead be registered, can the Scottish Government explain the need for the regulations to define or elaborate the meaning of ‘specified threshold of environmental impact’ and also ‘fall below’ and ‘registered’, as provided for in section 25(2) and how it is envisaged that this power may be exercised?

Scottish Government response:

It is felt that taking the power to be able to define or elaborate the meaning of the phrases in question in the regulations is a sensible approach and will help to avoid any confusion.

There are a large number of FEPA licences issued at present for small uncontroversial projects each year (e.g. the placing of single sewage outfall pipes for discharge of treated sewage from septic tanks serving single dwellings). These sort of projects (although falling within being a licensable activity under section 17 of the Bill) may merit being registered in future rather than licensed.

The Scottish Ministers will define on the basis of research the ‘specified threshold of environmental impact’ where registration is appropriate. They will be able to use the experience gained through the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (SSI 2005/348) which includes a similar registration system. But the concept of a “specified threshold of environmental impact” is not a straightforward one and the exact meaning of the phrase may need elaborated in the regulations.

Section 29(1) - Power to make provision for any person who applies for a marine licence to appeal against a decision made under section 22

The Committee asked the Scottish Government:

Given the importance of providing a Convention compliant appeals regime, to explain why it is considered necessary to use sub-leg for this purpose in this particular case.

Scottish Government response:

It is considered unexceptional to have the details of appeal procedures left to subordinate legislation, so as amongst other things to allow those details to be adjusted over time in the light of experience.

Section 37(1) - Power to make provision about the imposition of fixed monetary penalties in relation to offences under Part 3; and

Section 39(1) - Power to make provision about the imposition of variable monetary penalties in relation to offences under Part 3

The Committee asked the Scottish Government:

  • what is the justification for 2 civil sanction regimes (fixed penalty and variable penalty)?
  • on what basis or with regard to what criteria will the Scottish Ministers determine which regime to apply in a particular case?
  • why is the maximum variable monetary penalty not specified on the face of the Bill?

Scottish Government response:

Fixed monetary penalties will be for low level, primarily technical offences which are not causing harm to the environment or human health or interfering with other legitimate uses of the sea. This could include failure to notify when works are to commence or a failure to forward a return form to the licensing authority detailing the work that has taken place over the licensing period.

Variable monetary penalties will be for more serious breaches of licence conditions where it is not proportionate to prosecute. The breach may cause harm to the environment or human health or interfere with other legitimate uses of the sea. As the range of operations can vary from small to large-scale operations it is important that penalties can be varied to provide a proportionate response. They could be used to remove financial benefit resulting from the offence or to apply an additional deterrent element.

The penalty levels will be subject to consultation. The levels of fixed monetary penalty will be set down in regulations and any fixed penalty is not to exceed the fine for summary conviction for the offence in question.

A maximum variable monetary penalty is not specified on the face of the Bill as a maximum for the more serious offences would not be appropriate. The Scottish Ministers must be able to capture any financial benefit gained from non-compliance.

Section 52(1) - Power to make provision for any person to whom a notice listed in subsection (2) is issued to appeal against that notice

The Committee asked the Scottish Government:

Given the importance of providing a Convention compliant appeals regime, to explain why it is considered necessary to use sub-leg for this purpose in this particular case.

Scottish Government response:

Reference is made to the answer in paragraph 11 above.

Section 54(3) - insertion of section 26AB into the Town and Country Planning (Scotland) Act 1997 - Power to provide for marine fish farming not to constitute ‘development’

The Committee asked the Scottish Government:

  • what is the justification for the power i.e. what is the justification for moving aquaculture developments out of the normal planning system and into the marine licensing regime where different mechanisms and criteria will apply?
  • what is the justification for moving aquaculture developments out of the normal planning system and into the marine licensing regime on a case by case (i.e. area by area) basis rather than by doing this all at once by an appropriate amendment to the relevant primary legislation, without the requirement for a power?

Scottish Government response:

During the consultation process leading up to the Bill, there was a mixed response as to who should be responsible for consents for aquaculture developments (that is, whether responsibility should be left with local authorities under the Town and Country Planning (Scotland) Act 1997 or whether the developments should constitute licensable activities under the Bill). The Scottish Ministers decided in light of this that the Bill should include a mechanism whereby any particular local authority could decide to give up its role under the 1997 Act in respect of aquaculture developments, with the result that in the area in question those developments would become licensable under the Bill. It is considered that the use of statutory instruments is the best and clearest way to effect the change in relation to any area where an authority chooses in due course to give up its 1997 Act role.

Section 58(1) – Power to designate any area of the Scottish marine protection area as a nature conservation marine protected area, a demonstration and research marine protected area or a historic marine protected area.

The Committee asked the Scottish Government:

Given the significance of designation as a Nature Conservation MPA, Demonstration and Research MPA or a Historic MPA and of the consequences and obligations which follow thereon, why does the Scottish Government consider that it is not necessary for the power to designate a marine protected area under section 58(1) to be exercised by statutory instrument?

Scottish Government response:

The use of an administrative rather than legislative process to establish MPAs is well paralleled in other legislation dealing with protected areas. For instance, “European sites” as defined in regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994 (S.I. 1994/2716) are not set down in statutory instruments. Nor are sites of special scientific interest under Part 2 of the Nature Conservation (Scotland) Act 2004. For historic assets, the scheduling of monuments (Ancient Monuments and Archaeological Areas Act 1979) is also not effected by statutory instrument.

Under the Marine and Coastal Access Bill (currently before the Westminster Parliament), Scottish Ministers will also have responsibility for designating MPAs in the Scottish offshore region and this too will not fall to be done by statutory instrument. An administrative process for establishing MPAs in the inshore region will allow Scottish Ministers to follow through a similar designation process in the inshore and offshore regions.

Part 4 of the Bill contains a process for selecting MPAs and qualifies the grounds on which MPAs may be selected. It is thought appropriate that the Scottish Parliament be asked to agree to a circumscribed selection process rather than to approve each and every MPA designation.

Section 74(1) - Powers to make marine conservation orders (‘MCOs’)

The Committee asked the Scottish Government:

To explain fully why negative procedure is considered sufficient scrutiny.

Scottish Government response:

It is considered that negative procedure is the appropriate procedure for an MCO. A parallel may be drawn with orders made under the Inshore Fishing (Scotland) Act 1984, which are also subject to annulment. While we have no intention of unnecessarily restricting marine activities, should we need to protect an MPA from fisheries related activities then that will be done by an order under the Inshore Fishing Act rather than by an MCO. From a practical point of view we consider it expedient that both sorts of orders should be subject to the same sort of instrument. This will especially be the case where the Parliament is asked to consider fisheries related and non-fisheries related restrictions simultaneously.

Section 77(1) - Power to make an urgent marine conservation order

The Committee asked the Scottish Government:

What the intended effect of section 77(2)(a) is given that it is not necessary to specify this for negative SSIs?

Scottish Government response:

Section 77(2) provides clarity as to the period during which an urgent MCO is to remain in force. Whilst it is not necessary to provide that the order comes into force on such date as is specified in it, the terms of paragraph (a) help the reader to understand the reference in paragraph (b) to the period for which the order may remain in force.

Section 144(1) - Ancillary provision

The Committee asked the Scottish Government:

To explain its approach to the procedure applicable to ancillary powers in more detail given that these are significant powers which should be tailored to the individual circumstances of the Bill in question.

Scottish Government response:

Section 144 is in fairly standard terms and provides the sort of general powers seen in most Scottish Parliament Bills. As far as procedure is concerned, a section 144 order will be subject to negative procedure unless it contains “provisions which add to, replace or omit any part of the text of an Act”, in which case affirmative procedure will apply (section 145(5)(e)). We see no reason to extend affirmative procedure to any other category of order under section 144.

Annexe B: Finance Committee Report

Report on the Financial Memorandum of the Marine (Scotland) Bill

The Committee reports to the Rural Affairs and Environment Committee as follows—

introduction

1. The Marine (Scotland) Bill (“the Bill”) was introduced in the Parliament on 29 April 2009. The Rural Affairs and Environment Committee has been designated as the lead committee for the Bill at Stage 1.

2. Under Standing Orders Rule 9.6, the lead committee at Stage 1 is required, among other things, to consider and report on the Bill’s Financial Memorandum. In doing so, it is required to consider any views submitted to it by the Finance Committee (“the Committee”).

3. At its meeting on 5 May 2009, the Committee agreed to adopt level two scrutiny in relation to the Bill on the basis that the Financial Memorandum indicates that the vast majority of anticipated costs are likely to fall on the Scottish Government.225 At its meeting on 2 June, the Committee took evidence from the Scottish Government Bill Team, including a representative of Historic Scotland.

4. In addition, the Committee also received written evidence from—

  • Angus Council;
  • Argyll and Bute Council;
  • Dumfries and Galloway Council
  • Highland Council;
  • North Ayrshire Council; and
  • Shetland Islands Council,

and supplementary written evidence from the Scottish Government.

5. All written evidence received is published as the Appendix to this report. The Official Report of the oral evidence session on 2 June can be found on the Parliament’s website.226

The Bill

6. The Bill aims to create a new legislative and management framework for the delivery of sustainable development in the marine environment, creating a new system of marine planning, reducing the regulatory burden and improving nature conservation. It thus aims to enhance the long-term viability and growth of the various marine industries.

7. The main themes in the Bill are:

  • Part 2 creates a statutory framework for marine planning and coastal zone management
  • Part 3 changes the current licensing system as a delivery mechanism for marine planning and nature conservation aims
  • Part 4 revises marine nature conservation measures and provides powers to create marine protected areas
  • Part 5 creates a new licensing system for seal management
  • Part 6 creates common enforcement powers.

8. The Financial Memorandum states that delivery of these aims will be through Marine Scotland, which is a new body established within the Scottish Government on 1 April 2009 bringing together the Fisheries Research Service and the Scottish Fisheries Protection Agency. While the Financial Memorandum refers in one or two places to costs falling on Marine Scotland, the Memorandum does not include any broader policy costs associated with establishing the body as these are not considered to be directly resulting from the Bill. They are included in a Regulatory Impact Assessment for the new overall marine management process which will be published shortly.

9. Linkages with UK legislation (the Marine and Coastal Access Bill) have been agreed by Scottish Ministers.

summary of Costs as outlined in the financial memorandum

10. The Financial Memorandum contains substantial cost information (derived from a consultant’s report for the Scottish Government), and explanation of policy background and assumptions underpinning the cost estimates. Paragraphs 11-23 below provide a brief summary.

Part 2 – Marine planning

11. A new statutory marine planning framework is intended to cover all activities, constraints and obligations in the marine environment to the extent that they are within devolved competence, based on a 3-tier approach (regional level covering possibly 9-13 local plans; Scotland level; and Scottish waters within international context).

12. The Financial Memorandum (page 43, table A.1) estimates the costs of preparing 10 local plans (with two plans beginning each year from 2012-13) as building up to a total of £5.57 million per annum by 2018-19. It suggests that these are at the upper end of likely scenarios, and also provides costs based on there being 5 or 15 local plans. It also provides costs based on a higher estimate of plan preparation costs. These local plan costs may not necessarily fall on local authorities, depending on whether a local authority is to become lead partner in a Scottish marine region and become heavily involved in delivery of the planning function. The Financial Memorandum states (para 242) that, in this event, the costs will be offset by a resource transfer from central government.

13. Preparation of a Scottish national plan is estimated to cost £754,000 (split across 2010-11 and 2011-12, and including the cost of a strategic environmental assessment), with a further £312,000 per annum ongoing administration costs. A review every five years will cost £490,000.

14. The Financial Memorandum also states that marine planning may lead to potential benefits for stakeholders, depending on whether the way it operates in practice can lead to reducing conflicts and delays. However, it also states that a planning system may impose restrictions on currently unregulated activities. These potential impacts are not costed, and there are no cost implications stated for the third tier of planning (integration of management of Scottish waters with the UK, EU and international contexts).

Part 3 – Licensing

15. The Bill aims to simplify the various current licensing regimes (for activities such as renewable energy development and dredging, and other activities which are controlled or have environmental impact), seeking to integrate systems and reduce the number of applications required.

16. The Financial Memorandum estimates reductions in the costs to industry of making applications. Individual companies make relatively few applications and so efficiencies in the process may not result in measurable savings per company. Total savings to industry from amalgamating licences are estimated at between £58,000 and £88,000 per annum, and at £44,000 per development for the provision of an activity-based renewables licence. The Financial Memorandum (para 252) notes estimates that the introduction of a licence for hydrodynamic dredging techniques may increase costs to industry by between £487,000 and £1.2 million per annum. However, it suggests that this is not commonly used in Scotland and so the cost may be an over-estimate.

17. Reductions in the administrative costs to the Scottish Government as a result of streamlining licensing regimes are estimated at a net £57,000 per annum. Local authorities will have the option to delegate development consent functions for aquaculture to Marine Scotland, and so may have a net saving. However, the Financial Memorandum does not quantify this (or the offsetting cost to Marine Scotland).

Part 4 – Marine protection and enhancement

18. The development of a marine nature conservation strategy is estimated to cost the Scottish Government £485,000 (based on the costs of an Irish Sea pilot project), and is expected to be incurred in 2009-10 and 2010-11.

19. The Financial Memorandum estimates the cost of establishing an inshore marine protected area as a one-off cost of £222,000, with 10 being created over 2010-11 and 2011-12. From 2013-14 onwards, a further 10 demonstration/local protected areas will be established, at the rate of one per year and at the same cost of £222,000 per site. Table C (page 50) shows the spread of set-up and annual running costs, indicating an annual cost to the Scottish Government varying from approximately £400,000 up to almost £1.2 million over the years to 2019-20.

20. Para 264 of the Financial Memorandum indicates that there may be some costs to businesses of complying with any specific management requirements associated with marine protected areas, and some potential benefits arising from improved nature conservation which may result in the areas.

21. The Bill aims to align safeguarding marine historic assets (such as historic shipwrecks) with the marine protected areas conservation powers. The cost to the Scottish Government of implementing a new system of historic site protected areas out to 12 nautical miles for sites of national importance is put at rising to an ongoing total of £495,000 per annum.

Part 5 – Seals legislation

22. The Bill introduces a new licensing and reporting system for management of seals, at a total initial cost to the Scottish Government in 2009-10 of £150,000. In 2010-11, costs of £400,000 are expected to arise in setting up a regional approach to seal management. Thereafter, ongoing costs are expected to be £25,000 per annum to deal with increased numbers of licence applications. The Financial Memorandum (para 280) is not able to quantify any costs or savings likely to arise for individuals and businesses as a result of the change of approach.

Part 6 – Enforcement powers

23. The Financial Memorandum states that the measures in the Bill will require regular compliance monitoring, with the core function being provided by Marine Scotland which has acquired the existing compliance resources. Marine Scotland is expected to extend its compliance activities to cover monitoring of licensing and conservation from 2010. In the longer term, the enforcement cost associated with marine protected areas is estimated at £12,000 per site per annum. The Financial Memorandum does not provide a total expected figure for enforcement. Costs would only fall on other individuals or bodies if they were in breach of the law and liable to fines.

summary of evidence

General issues

24. The Financial Memorandum indicates that costings are based on a report prepared by consultants. Scottish Government officials confirmed that, on some occasions where the consultants had provided a range of possible costs, the Financial Memorandum showed the lowest figure. This was particularly in the case of local marine planning, which is associated with the most substantial costs. Officials had assumed that data collection costs would be spread over a longer period, and that costs for strategic environmental assessment and possible public inquiries would be lower than estimated by the consultants.227

25. There appeared to be some inconsistency in evidence over the extent to which consultation on the financial implications had taken place. Shetland Islands Council stated that it was not aware of the publication of the Regulatory Impact Assessment which was the basis for the costs in the Financial Memorandum, and had insufficient time to consider the financial implications of the Bill. Highland Council stated that there had been no consultation on the financial implications.

26. Officials confirmed that a consultation had been issued on a draft Regulatory Impact Assessment in December 2008, including to all local authorities. 17 responses were received, including from several local authorities. Officials did, however, acknowledge that what was expected of local authority partners in fulfilling the marine planning responsibilities under the Bill may not yet be clear and may have led to some concern. They said that, “More than 20 local authorities have a piece of coast, but the extent to which they are currently involved in managing marine aspects varies hugely.”228 There is experience of close engagement in different marine management roles in some parts of the country, such as Shetland and Argyll and Bute, but not in other coastal areas. At present, therefore, the role of local authorities in leading marine planning partnerships is still under discussion.

27. The Committee notes that the summary table of financial implications (Table F, page 56 of the Financial Memorandum) does not differentiate between one-off set-up costs and ongoing running costs in each of the years, although the information can be gleaned from other tables in the Financial Memorandum. Officials confirmed that the immediate costs identified in the Financial Memorandum are covered by an allocation of funds for the 2008-09 to 2010-11 period in the 2007 Spending Review, specifically earmarked for the new marine management responsibilities associated with the Bill. They also confirmed that, where a new function is being directed to a local authority, appropriate resources will be transferred.229

Marine planning

28. The Financial Memorandum gives a range of costs for marine planning, depending on how many marine regions are identified, and also gives a further different option using a higher figure for plan preparation costs. Argyll and Bute Council estimated that a team for administering a regional marine plan requires at least four full-time professional staff. The Financial Memorandum (paragraph 241) seems to suggest provision for two staff per region. Local authorities with a considerable marine interest (such as Argyll and Bute and Highland Councils) also expressed concern that it is not yet clear what will be expected of councils.

29. Officials emphasised that, while there has been some experience of non-statutory marine planning initiatives, local marine planning is a significant new challenge. They suggested that getting sufficient trained personnel in place for the Scottish Government’s estimates of the staffing requirements would be very demanding and that an assumption of two officers per region is appropriate.

30. However, officials also said that the apparent difference with the estimate of Argyll and Bute Council was simply based on the fact that “we have unpacked it differently”.230 Officials stated that the provision in the Financial Memorandum for running costs for each partnership, implementation costs per region once the plan is in place, and the possibility of redeploying central staff to assist in local plans, “all adds up to substantially more than the four staff that Argyll and Bute is saying that it needs”.231 Local authorities do not appear to have been able to infer this clearly from the way that information is presented in Table 3 (page 41) and Table A.1 (page 43).

31. The Financial Memorandum states that a new planning system may impose restrictions on currently unregulated activities. However, the potential impacts of any restrictions are not costed. Officials confirmed that there are at present no plans to restrict any particular activities.232

32. The Committee noted that the Financial Memorandum described the ‘third tier’ of marine planning as integration of management of Scottish waters with the UK, EU and international contexts. However, no cost information for activities to implement this third tier is mentioned in the Financial Memorandum. Officials said that this is because the third tier “is a product of the UK Marine and Coastal Access Bill, which provides for the UK marine policy statement at the level above Scotland”.233 They said that a cost of about £1 million per year associated with this had been described in the Financial Memorandum of the UK Bill and in the corresponding Legislative Consent Memorandum to the Scottish Parliament, but that this cost would have to be met from the Scottish Government’s budget.

Marine protection

33. The FM estimates the cost of establishing 10 inshore marine protected areas and 10 demonstration/local protected areas. Table C (page 50) shows the spread of set-up and annual running costs, indicating a total annual cost to the Scottish Government varying significantly as different sites are established. Officials said that the pattern of monitoring costs (which come in with a spike in 2016-17 and 2017-18 of £750,000 each year that is not explained in the Financial Memorandum) is due to the fact that the monitoring takes place five years after implementation. This means that 2016-17 and 2017-18 each see the costs of monitoring the five sites to be set up in 2010-11 and 2011-12 respectively. The monitoring costs thereafter will level to £150,000 per year to reflect the fact that one further site is expected to be identified each year from 2013-14 and to be monitored five years later.234

34. The Committee noted that the estimates in the Financial Memorandum for the cost of the Bill’s historic environment provisions are to undertake work to make data that has been collected for other purposes fit to be used effectively in the context of the marine planning system.

conclusion

35. The Committee welcomes the detailed cost information available in the Financial Memorandum. The Committee acknowledges the possible variation in some costs, depending on, for example, the detailed implementation experience of local marine planning. The Committee also acknowledges the complexity that arises due to the sequencing of costs as different marine plans and different protected area designations come on stream. However, the Committee recommends that the Scottish Government should consider how the presentation of information and the consultation on financial implications can be improved so as to avoid the misunderstandings which were raised in evidence to the Committee.

36. Although they can largely be identified from different tables throughout the Financial Memorandum, the Committee recommends that the costs summary at Table F could usefully have separately identified the total expected one-off set-up costs (albeit that these are spread over several financial years), and the total annual running costs once the Bill is fully implemented.

37. The Committee expresses concern at the way in which the costs associated with the ‘third tier’ of marine planning (integration of management of Scottish waters with the UK, EU and international contexts) have been expressed. No cost information for activities to implement this third tier is mentioned in the Financial Memorandum. Officials said that a cost of about £1 million per year associated with this had been described in the Financial Memorandum of the UK Marine and Coastal Access Bill and in the corresponding Legislative Consent Memorandum (LCM) to the Scottish Parliament.

38. However, the LCM is not clear that any costs from marine planning at this level will fall on the Scottish Government.235 Paragraph 34 of the LCM states that designating nine additional marine protected area sites in the offshore zone may cost around £1 million, but is not clear that this cost is to fall on the Scottish Government. The Statement of Funding Policy between the UK Government and the devolved administrations states that, “where…decisions of United Kingdom departments or agencies lead to additional costs for any of the devolved administrations, where other arrangements do not exist automatically to adjust for such costs, the body whose decision leads to the additional cost will meet that cost.”236

39. Given that officials stated clearly in evidence that this cost would have to be met from the Scottish Government’s budget, the Committee is concerned that it appears to have no opportunity to scrutinise whether the assumptions behind this expenditure estimate are appropriate. They are not described in the Financial Memorandum. The status, and appropriate route for scrutiny, of the costs of this third tier of planning are unclear. The Committee recommends that the lead committee seeks clarification from the Scottish Government on this situation.

APPENDIX A: written evidence

This appendix contains written evidence received from the following organisations—

  • Angus Council;
  • Argyll and Bute Council;
  • Dumfries and Galloway Council;
  • Highland Council;
  • North Ayrshire Council; and
  • Shetland Islands Council.

Also enclosed is supplementary written evidence received from the Scottish Government bill team.

SUBMISSION FROM ANGUS COUNCIL

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

The Council responded to the consultation document “Sustainable Seas for All” by submitting Report No901/08. Within that report, mention was made of the fact that the document recognised the substantive costs involved in setting up the new national marine management organisation, Marine Scotland, and that it should also be recognised that other agencies, including local authorities, will also incur extra costs and should be resourced accordingly.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

It would seem that substantial sums have been identified for the Marine Planning Partnerships.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes.

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

It is difficult to assess the financial impact when the geographic extent of the Regional Marine Plans has yet to be decided. It is also noted that these plans will be developed on a phased basis with priority given to areas where the competition for resources and development pressures are highest. I am unable to comment further on this issue.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

Local authority budgets are under severe pressure because of new burdens and new legislative duties and the decline in building standards and development management income. We believe the Council would find it very difficult to cover any additional costs that may be required and therefore any additional resources should be adequately reflected in future financial settlements.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

No comment.

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

No comment.

8. Do you believe that there may be future costs associated with the Bill, for example, through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

No comment.

David S Sawers
Chief Executive

SUBMISSION FROM ARGYLL AND BUTE COUNCIL

Consultation
1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

Yes, Argyll and Bute Council responded to the consultation ‘Sustainable Seas for All’. We made no comments on financial assumptions made as part of this consultation as no financial information was provided.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Not relevant.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes.

Costs
4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

Aquaculture
Argyll and Bute Council do not currently have the resources for the monitoring and enforcement of marine aquaculture consents. With the ongoing transfer of existing consents from The Crown Estate to local authorities, the Council will take on the role of monitoring and enforcement of these sites in addition to any new sites. There is also a requirement for resources to provide specialised training for planning officers that determine aquaculture applications and enforce consents, which we have estimated to be in the region of £5,000.

Regional marine planning
The financial memorandum for the draft Bill does not detail the expected number of staff that would be required to take forward marine spatial planning for an individual region. Looking at experience in terrestrial planning and existing marine projects, the Council considers that any regional team should be made up of at least four full-time professional officers covering a range of disciplines. This team should also have administrative and technical support, in particular GIS support. An estimated cost for four planning officers is £168,400 per annum.

Marine Protected Areas
The Bill identifies that management schemes can be prepared for marine protected areas. The costs set out in the Financial Memorandum (Table 5) identify an estimated cost of £23,000 against a management scheme. This figure appears very low if it is to include stakeholder involvement and consultation. It is not clear whether other costs identified in Table 5, such as £50,000 for consultation cover the costs of consulting on a management scheme.

Examples of costs for existing marine management projects in Argyll and Bute

ICZM project – development of two Integrated Coastal Zone Management plans (Loch Etive & Loch Fyne)

Total budget - £100,000 (Council project)

Sound of Mull SSMEI project – development of a marine spatial plan & implementation

Total budget - £180,000

Argyll Marine SAC - development of one plan covering two marine Special Areas of Conservation

Total budget - £160,000 (Council project)

Clyde SSMEI – development of a marine spatial plan for the Firth of Clyde

Total budget – in excess of £360,000

The costs above are the full project costs and include setting up stakeholder groups, administration, consultancy fees, marketing, equipment, staffing and travel. It is also important to note that the only project that has planned at the likely scale of a marine region is the Clyde project. The other projects have planned for much smaller areas but possibly planned in greater detail.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

The organisation cannot meet the costs associated with the Bill. The funding should come from either applicants/licence holders or as additional Revenue Support Grant from the Scottish Government.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

See comments under questions 4.

Wider Issues
7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

No comments

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

It is likely that there will be future costs associated with the Bill but it may not be possible to quantify these costs at this stage.

SUBMISSION FROM DUMFRIES AND GALLOWAY COUNCIL

Please note that the Questionnaire responses below reflect the comments of one Dumfries & Galloway Council officer can only represent a limited view on the matter.

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

Yes. Yes, but detailed analysis was not possible within current resources.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

See response to part 2 of Q1 above.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes.

Costs
4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

Detailed analysis within current resources has not been possible, but not confident that the full extent of costs has been identified.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

No.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Detailed analysis within current resources has not been possible, but not confident that it does so.

Wider Issues
7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

Detailed analysis has not been possible within current resources but not confident that this is the case.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

It is anticipated that there will be costs beyond those already identified, but detailed analysis has not been possible within current resources.

SUBMISSION FROM HIGHLAND COUNCIL

General
Highland Council welcomes this opportunity to contribute to the scrutiny of the Marine (Scotland) Bill: Financial Memorandum. If the Finance Committee wishes any further information, Highland Council will be very happy to contribute what it can. Highland Council recognises that the Bill could have significant resource implications for itself given that the Council may have at least 3 Scottish Marine Regions within its administrative area and is likely to have a lead role in developing and delivering a local marine planning function.

Consultation responses
Q1. Highland Council provided a comprehensive response to the consultation exercise that preceded the publication of the Marine (Scotland) Bill (copy available from the Clerks on request). At the time of the consultation, there was very limited information available on the financial implications of the Bill or how implementation of the Bill would be resourced by the Scottish Government.

Q2. At various places throughout its response, Highland Council raises the need for adequate resources to support the implementation of the Bill. Specific references are made to the need to provide additional resources in support of ecosystem based management, monitoring and enforcement and to support forward planning and research. Highland Council would like to see further details regarding the statement that “there will not necessarily be additional costs to local authorities for marine planning”. The Council may have at least 3 SMRs within its area, while only one coastal partnership exists to cover one specific area of the Highland coast (Moray Firth). It is difficult to see how the Highland Council could avoid becoming a lead partner in the SMRs and heavily involved in the delivery of the local planning function. It is also unclear what is actually going to be expected of local authorities and other relevant bodies, so it is difficult to comment on the accuracy of financial information provided with certainty. It is worth noting that SMR boundaries remain to be identified.

Q3. There was sufficient time to contribute to the consultation process but the consultation did not set out what was expected of partners. Rather it considered what might happen and on occasion more than one possible outcome was presented for comment. It was therefore not possible to consider financial implications beyond the general observation that additional resources would be required to implement the Bill and that these should be identified by the Government.

No consultation on financial implications took place.

Costs
Q4. Given the comments contained within the response to Q2 (above), Highland Council is concerned that financial implications for the Council are not accurately reflected. The Council is likely to become involved as lead partner and heavily involved in the delivery of the local planning function. Although Highland Council has a strong history of coastal planning work related to aquaculture strategic planning and coastal zone management projects, this is limited compared to the statutory roles the Council may have within the new marine planning system. The Council would welcome discussion with Marine Scotland on what its role will be.

Q5. The Council is not content that the potential costs can be met from existing resources. In fact it knows that they can’t. Additional resources should be provided by the Scottish Government via Marine Scotland, once roles, boundaries and legal obligations are clarified and agreed.

Q6. There remains quite a bit of uncertainty linked to the roles of local authorities via the Marine (Scotland) Bill and this is true of the timescales that apply to the projected cost implications. As an example, SMR marine plans will require to undergo Strategic Environmental Assessment. SEA could make it very difficult to meet the timescales established and add to the cost of the process if not already included in the figures provided in Table 3.

Wider Issues
Q7. Previous responses apply regarding the accuracy of projected cost implications.

Q8. Yes. There are bound to be additional future costs implications associated with subordinate legislation or in developing guidance. Guidance for lead authorities will be especially important. It is not possible to quantify what additional costs might be involved at present.

Highland Council
27th May 2009

submission from North Ayrshire Council planning services

Consultation
1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

NAC Planning Services Response: Yes

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

NAC Planning Services Response: Not Clear

3. Did you have sufficient time to contribute to the consultation exercise?

NAC Planning Services Response: Yes

Costs
4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

NAC Planning Services Response: No - There are liable to be funding shortages and a need for specific skills/training costs to be built into the process.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

NAC Planning Services Response: No - There are liable to be funding shortages and a need for specific skills/training costs to be built into the process.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

NAC Planning Services Response: No - There are liable to be significant data requirement costs together with associated staffing issues/costs over and above those identified.

Wider Issues
7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

NAC Planning Services Response: Relationship to River Basin Management Plans - no account has been taken of this matter.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

NAC Planning Services Response: There are likely to be future costs associated with the Bill via secondary legislation. It is not possible to quantify these costs at this juncture.

SUBMISSION FROM SHETLAND ISLANDS COUNCIL

Consultation
1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

3. Did you have sufficient time to contribute to the consultation exercise?

The Shetland Islands Council (SIC) submitted a detailed response to the consultation on the Marine Bill (Sustainable Seas for All) on 22 September 2008. That part of the consultation process did not consider any financial aspects and consequently no comment was offered by the SIC. Your letter of 7 May was the first indication that the full Regulatory Impact Assessment on the Bill was available from the end of March 2009.

Time was sufficient in respect of consultation on the remit of the Bill as outlined in Sustainable Sea for All but has been insufficient in respect of financing of the Bill and its consequences.

Costs
4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

There is still a degree of uncertainty with the Marine (Scotland) Bill as proposed in respect of what functions may or may not be delegated to Local Authorities in connection with marine planning and licensing. It is still unclear how many Scottish Marine Regions there will be and the SIC would comment that cost should not be the driving factor in the number ultimately formed. Consequently it is difficult to determine what the financial implications of the Bill might be for the SIC and whether or not any new costs can be met.

It is gratifying to note that, should the local authority take on the lead role within an SMR and play a main role in the delivery of marine planning, any extra costs would be offset by a resource transfer from central government as the local authority would effectively be taking on a new function.

Wider Issues
7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

There is insufficient detail in order to adequately comment on these two aspects.

The SIC believes there is a strong case for marine planning and management decisions to be made at the local level and, through the delegation provisions within it, the Marine (Scotland) Bill should provide the basis for this to happen unless a decision is taken (by the Local Authority) to opt-out. Given that the Planning etc Act 2006 seeks to devolve decision making to a more appropriate level, it would be pertinent to take a similar approach to marine planning (and management) and decisions on local developments should lie locally. Based on experience to-date, the best means of achieving this in Shetland is by designating the Islands as a SMR and designating the SIC as the lead authority in terms of marine planning and licensing.

Martin Holmes
On behalf of Chief Executive

SUPPLEMENTARY SUBMISSION FROM THE SCOTTISH GOVERNMENT

The Committee asked for background information on the increased resources for marine management, particularly in the context of proposed spending in 2010/11.

I attach the relevant table from the 2007 Spending Review documentation- which sets out the substantial increase in marine management provision.

MARINE AND FISHERIES
Table 24.05 Detailed Spending Plans 2008-11

Budget 2007-08 Draft Budget 2008-09 2009-10 Plans 2010-11 Plans
Fisheries Research Services 26.4 29.5 33.7 32.3
Scottish Fisheries Protection Agency 21.8 24.4 24.7 25.0
Fisheries Processing and Marketing Grants 11.5 10.6 9.8 11.1
Fisheries Harbour Grants 0.4 0.4 0.4 0.4
Marine Management - 7.0 7.9 8.7
Other 0.3 1.1 1.0 1.0
EU Income -6.1 -7.4 -6.5 -7.7
Total 54.3 65.6 71.0 70.8

The text makes clear that these new resources will primarily be for purposes linked with the marine bill:

“Scotland has an enviable maritime heritage and a world-class marine environment. We are committed to Scottish marine legislation to achieve better protection for the marine environment and more streamlined regulation of the use of the sea. Substantial additional funds are available to support the new legislation and to put in place new planning arrangement for our seas. The funding will also support the Scottish Marine Management Partnership in developing systems to implement the new legislation, and to support projects and management arrangements ahead of the Bill under existing legislation.

The additional marine funds will also support the implementation of the Scottish Freshwater Fisheries Strategy, and a renewed Aquaculture strategy.”

Linda Rosborough
Head of Marine Planning and Policy
Marine Scotland
Scottish Government

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

11th Meeting, 2009 (Session 3), Wednesday 22 April 2009

Marine legislation: The Committee considered its approach to forthcoming legislation on the marine environment and agreed that the clerks should issue a call for written evidence following introduction of the bill; to authorise the Convener to make bids to the Conveners Group (and where necessary the Parliamentary Bureau) for any fact-finding visits or external meeting held as part of the Committee’s scrutiny of the bill; to delegate to the Convener responsibility for arranging for the SPCB to pay, under Rule 12.4.3, any expenses of witnesses in respect of consideration of this bill; and to hold agenda items involving witness selection, the review of evidence and the consideration of drafts of the Committee's Stage 1 report on the bill in private at future meetings.

13th Meeting, 2009 (Session 3), Wednesday 13 May 2009

Marine (Scotland) Bill (in private): The Committee agreed possible witnesses for future meetings.

15th Meeting, 2009 (Session 3), Wednesday 27 May 2009

Marine (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Phil Alcock, Policy Officer, Marine Biodiversity Policy and Sustainable Management Branch, Chris Bierley, Policy Officer, Nature Conservation Branch, Stuart Foubister, Divisional Solicitor, Solicitors Food and Environment Division, David Palmer, Branch Head, Marine Strategy Branch, Philip Robertson, Senior Inspector of Marine Archaeology, Linda Rosborough, Deputy Director, Marine Planning and Policy, and Ian Walker, Policy Officer, Marine Biodiversity Policy and Sustainable Management Branch, Scottish Government.

16th Meeting, 2009 (Session 3), Wednesday 10 June 2009

Marine (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Captain Jim Simpson, Chair, Scottish Coastal Forum;

Lloyd Austin, Scottish Environment LINK;

Patrick Stewart, Marine Bill Consultant, Scottish Fishermen's Federation;

Professor Phil Thomas, Chairman, Scottish Salmon Producers' Organisation;

Ian Burrett, Scottish Sea Angling Conservation Network;

George Hamilton, Manager of Countryside, Heritage and Natural Resources Team, Highland Council;

Colin Galbraith, Director of Policy and Advice, Scottish Natural Heritage;

Andy Rosie, Acting Head of Environmental Protection and Improvement for North Region, Scottish Environment Protection Agency.

Marine (Scotland) Bill (in private): The Committee reviewed the evidence heard earlier in the meeting.

18th Meeting, 2009 (Session 3), Monday 22 June 2009

Marine (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Brian Irving, Manager, Solway Coast Area of Outstanding Natural Beauty, Gordon Mann, Chairman, and Pam Taylor, Project Manager, Solway Firth Partnership;

Ron Bailey, Harbour Master, Clydeport Operations Ltd., and David Whitehead, Director, British Ports Association;

Morna Cannon, Marine Energy Officer, and Jeremy Sainsbury, Vice-Chairman, Scottish Renewables.

Marine (Scotland) Bill (in private): The Committee agreed witnesses for future meetings.

19th Meeting, 2009 (Session 3), Tuesday 1 September 2009

Marine (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Libby Anderson, Policy Director, Advocates for Animals;

Professor Ian Boyd, Director, Sea Mammal Research Unit;

Brian Davidson, Association of Salmon Fishery Boards;

Colin Galbraith, Director, Policy and Advice, SNH;

Professor Phil Thomas, Chairman, Scottish Salmon Producers' Organisation;

Rob Hastings, Director of the Marine Estate, the Crown Estate;

Captain Nigel Mills, Director of Marine Services, Orkney Islands Council;

Walter Speirs, Chair, Association of Scottish Shellfish Growers.

A number of witnesses agreed to provide the Committee with supplementary information

Marine (Scotland) Bill (in private): The Committee reviewed the evidence heard earlier in the meeting

20th Meeting, 2009 (Session 3), Wednesday 9 September 2009

Marine (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

John Eddie Donnelly, Project Officer, Clyde Scottish Sustainable Marine Environment Initiative;

Dr Billy Sinclair, Chair, Clyde Inshore Fisheries Group;

Howard Wood, Chair, Community of Arran Seabed Trust;

Richard Lochhead MSP, Cabinet Secretary for Rural Affairs and Environment, Stuart Foubister, Divisional Solicitor, Legal Division, David Mallon, Branch Head, Marine Environment Branch, David Palmer, Branch Head, Marine Strategy Branch, and Linda Rosborough, Deputy Director, Marine Planning and Policy, Scottish Government;

Gordon Barclay, Head of Policy, Historic Scotland.

The Cabinet Secretary agreed to provide the Committee with supplementary information on a number of issues in relation to the Bill.

Marine (Scotland) Bill (in private): The Committee reviewed the evidence heard earlier in the meeting.

23rd Meeting, 2009 (Session 3), Wednesday 23 September 2009

Marine (Scotland) Bill (in private): The Committee agreed its approach to the evidence received.

24th Meeting, 2009 (Session 3), Wednesday 30 September 2009

Marine (Scotland) Bill (in private): The Committee considered a draft Stage 1 report.

25th Meeting, 2009 (Session 3), Wednesday 7 October 2009

Marine (Scotland) Bill (in private): The Committee agreed its Stage 1 report.


Footnotes:

153 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 10 June 2009. Col 1760.

154 Recommendation 2003/3.

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

156 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1903

157 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1904

158 Eg Dr Sally Campbell and COAST. Written submissions to the Rural Affairs and Environment Committee.

159 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1782

160 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1899

161 Comhairle nan Eilean Siar. Written submission to the Rural Affairs and Environment Committee.

162 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1780

163 Marine (Scotland) Bill, Section 59(5)

164 Ie, the provision applying for Nature Conservation MPAs

165 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1861

166 Scottish Renewables. Written evidence to the Rural Affairs and Environment Committee.

167 Scottish and Southern Energy. Written evidence to the Rural Affairs and Environment Committee

168 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1794

169 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1863.

170 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1781.

171 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1781.

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

173 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1905.

174 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1906.

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

176 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1797

177 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1875

178 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1875

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

180 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1814

181 Globally, however, common seals are thought to be more common that greys. Globally, Scottish waters are amongst the most important breeding areas for grey seals.

182 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1815.

183 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1817

184 Marine (Scotland) Bill, Policy Memorandum, paragraph 63.

185 Association of Salmon Fishery Boards. Written submission to the Rural Affairs and Environment Committee.

186 The Seal Protection Action Group. Written Submission to the Rural Affairs and Environment Committee.

187 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1822

188 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1822

189 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1822

190 Advocates for Animals. Written Submission to the Rural Affairs and Environment Committee.

191 Tara Seal Research. Written Submission to the Rural Affairs and Environment Committee.

192 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1844.

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

194 The Conservation (Natural Habitats, &c.) Regulations 1994, section 28 (3)(b).

195 Professor Galbraith of SNH referred to seal harassment possibly forming part of a “harassment strategy” for a fish farm: Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1845

196 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1828

197 Association of Salmon Fishery Boards. Written submission to the Rural Affairs and Environment Committee.

198 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1907

199 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1835

200 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1907

201 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1828

202 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1818

203 Seal Protection Action Group. Written submission to the Rural Affairs and Environment Committee.

204 Moray Firth Seal Management Plan. Paragraph 3.6.4

205 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1831.

206 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1832.

207 Animal Concern and Save Our Seals. Joint written submission to the Rural Affairs and Environment Committee.

208 Seal Protection Action Group. Written Submission to the Rural Affairs and Environment Group.

209 Scottish Salmon Producers’ Organisation. Written submission to the Rural Affairs and Environment Committee dated 11 June 2009.

210 Scottish Salmon Producers’ Organisation. Written submission to the Rural Affairs and Environment Committee dated 11 June 2009

211 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 1 September 2009. Col 1843

212 RSPB. Written submission to the Rural Affairs and Environment Committee.

213 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1908

214 Seal Protection Action Group. Written submission to the Rural Affairs and Environment Committee.

215 Advocates for Animals. Supplementary written submission to the Rural Affairs and Environment Committee.

216 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 9 September 2009. Col 1909

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

218 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 27 May 2009. Col 1722

219 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 22 June 2009. Col 1802

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

221 HM Treasury: Funding the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly: Statement of Funding Policy Paragraph 3.2

225 Information on the Committee’s three-level system of scrutiny for Financial Memoranda is available at: http://www.scottish.parliament.uk/s3/committees/finance/financialMemo.htm

226 Scottish Parliament Finance Committee, Official Report, 2 June 2009 available online at: http://www.scottish.parliament.uk/s3/committees/finance/or-09/fi09-1501.htm

227 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Cols. 1344-5

228 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Col. 1348

229 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Cols. 1351-2

230 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Col. 1350

231 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Col. 1350

232 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Col. 1350

233 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Col. 1345

234 Scottish Parliament Finance Committee. Official Report, 2 June 2009, Col. 1354

235 Legislative Consent Memorandum on the UK Marine and Coastal Access Bill. LCM(S3) 14.1. Available online at: http://www.scottish.parliament.uk/business/legConMem/LCM-2008-2009/CoastalAccess-lcm.pdf [Accessed 8 June 2009]

236 HM Treasury. (2007) Funding the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly: Statement of Funding Policy, section 3.2.8. Available online at: http://www.hm-treasury.gov.uk/d/pbr_csr07_funding591.pdf [Accessed 8 June 2009]

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