Subordinate Legislation Committee, 01 Sep 2009

Meeting date: Tuesday, September 1, 2009

Official Report 96KB pdf

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Marine (Scotland) Bill: Stage 1

I welcome everyone to the 22nd meeting of the Subordinate Legislation Committee in 2009. I hope that everyone has had a good break. It was well deserved.

We have received apologies from three members: Jackson Carlaw, Helen Eadie and Bob Doris. I welcome Douglas Wands, who is sitting beside me, to his new position as our clerk. We are also joined by Stephen Fricker, who is joining us as the committee's support manager. Let us turn off all our mobiles and BlackBerrys.

The first agenda item is the Marine (Scotland) Bill. We will consider the responses to a number of questions that we raised at our last meeting before the summer recess. We must report to the lead committee at the end of this week, in time for its consideration of the bill with the minister in charge next week. Before we go through the responses, I thank our legal advisers for the legal brief, which is very informative.

Section 17(3) contains powers to amend section 17(1) so as to add or remove any activity from the list of licensable marine activities. Are we content to draw the power to the attention of the lead committee and to inform that committee that the new power to add activities to the regime 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?

Members indicated agreement.

Section 20(7) contains a power to make further provision as to the procedure to be followed in connection with applications for and the grant of licences. Are we content to consider that the proposed power is acceptable in principle and that negative procedure is appropriate?

Members indicated agreement.

We had already decided about section 21(2), but there was a little bit of wrong information about it—that is why we are where we are with it today. It contains a power to prescribe, under section 210(7B) of the Local Government (Scotland) Act 1973, the standard daily amount which may be recovered in respect of an inquiry in relation to marine licences. Are we content to consider that the proposed power is acceptable in principle and that no procedure is appropriate in this case?

Members indicated agreement.

Section 24(1) contains a power to specify activities that will not need a marine licence. Are we content to draw the attention of the lead committee to the Government's control of consultation prior to the exercise of the power, and to inform the lead committee 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?

Members indicated agreement.

Section 25(1) provides for a power to allow licensable marine activities that fall below a specified threshold of environmental impact to be registered rather than licensed. Are we content to consider that the proposed power is acceptable in principle and that affirmative procedure is appropriate in this case?

Members indicated agreement.

We come now to section 29(1), which contains a power to make provision for any person who applies for a marine licence to appeal against a decision made under section 22; and section 52(1), which contains a power to make provision for any person to whom a notice listed in section 52(2) is issued to appeal against that notice. Are we content to inform the lead committee that, notwithstanding the powers to make provision for appeals under sections 29(1) and 52(1), no substantive provision with respect to appeals is made in the bill, and to express to the lead committee our view that we expect the fundamental elements of an appeal procedure to appear in the bill?

Members indicated agreement.

Section 37(1) contains a power to make provision about the imposition of fixed monetary penalties in relation to offences under part 3, and section 39(1) contains a power to make provision about the imposition of variable monetary penalties in relation to offences under part 3. Are we content to consider that the proposed powers are acceptable in principle and that it is right to use affirmative procedure in this case?

Members indicated agreement.

Section 54(3) contains a power to provide that marine fish farming is not to constitute "development". I am sure that we have all read the provisions a few times—I certainly have.

Are we content to draw it to the attention of the lead committee that the effect of the power will be to permit local authorities to determine whether, in respect of their area, marine fish farming is to be in the terrestrial planning regime or the marine licensing regime? We might also wish to draw to the attention of the lead committee our view that the exercise of the power on an area-by-area basis could result in a lack of uniformity across the country, which might give rise to considerable confusion, as different criteria for development could apply from one area to another, with different procedural rules and rights of appeal. We are saying quite a bit there. Are members content with that?

Members indicated agreement.

We will see what comes back.

Section 58(1) provides a 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 provides a power to amend or revoke a designation order under section 58. Are we content that it is appropriate for those proposed powers in relation to marine protected areas to be exercised by the Scottish ministers as an administrative process, rather than by statutory instrument?

Members indicated agreement.

On section 74(1), are we content that the proposed power to make marine conservation orders—MCOs—is acceptable in principle and that negative procedure is appropriate?

Members indicated agreement.

On section 77(1), are we content that the proposed power to make an urgent marine conservation order is acceptable in principle and that negative procedure is appropriate? We might also wish to comment that we think that section 77(2)(a) is unnecessary. Will we draw attention to that?

Members indicated agreement.

On section 77(6), are we content that the proposed power to make an urgent continuation order is acceptable in principle and that negative procedure is appropriate?

Members indicated agreement.

Finally, we come to section 144(1), which is on ancillary provision. Are we content to find that the powers are acceptable in principle, but to comment in our report that, in our opinion, the different elements of ancillary powers provision should be justified separately and on a case-by-case basis by the Scottish Government in the context of each bill?

Members indicated agreement.

I am bound to say that, looking over the bill, it could have been a little tighter and not quite so sloppy. That is the point that we wish to make.

That completes our consideration of the bill.