Official Report 128KB pdf
The next item is consideration of the delegated powers in the Marine (Scotland) Bill, a piece of legislation that I have looked at with great interest and about which many questions have arisen in not only our legal team's minds but, I am sure, our own. This is our first look at the bill, which we will consider again after the summer recess. In the meantime, we need to consider a number of points.
Members indicated agreement.
Section 17(3) sets out powers to amend section 17(1) so as to add or remove any activity from the list of licensable marine activities. First, are we content to ask the Scottish Government about 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 that may be made to the list of licensable marine activities? Secondly, are we content to ask the Government with reference to what criteria, if any, it will determine that a particular activity should be added to or removed from the list of licensable marine activities and whether they could be specified in the bill?
I wonder about the use of the phrase "if any". Can we not assume that there are criteria?
That is for the Government to say. I am taking a completely unbiased approach to the matter.
Members indicated agreement.
On section 18(1)(b), which sets out the power to determine fees to accompany licence applications, are we content that the proposed power is acceptable in principle and that negative procedure is appropriate?
Members indicated agreement.
On section 20(4)(a), which sets out the power to specify the persons or bodies to be consulted with regards to each licensing application, are we content that the proposed power is acceptable in principle and that negative procedure is appropriate?
Members indicated agreement.
On section 20(7), which sets out the power to make further provision on the procedure to be followed in connection with applications for and the grant of licences, are we content to ask the Scottish Government, given that the power does not appear to be addressed in the DPM, about the justification for it in accordance with rule 9.4A of standing orders? I believe that there is a gap in the DPM.
Something is addressed, but I am not really clear about what it is.
Precisely. I suggest, in passing, that DPMs in future could be slightly better than the example before us. However, we will give the Government the chance to respond. Are members agreed?
Members indicated agreement.
Section 21(2) sets out the power to prescribe under subsection (7B) of section 210 of
Members indicated agreement.
Section 24(1) sets out the power to specify activities that will not need a marine licence. First, are we content to ask the Scottish Government about its justification for the power completely open, in that it contains no limitation on the nature, scope or extent of activities that may be specified as not needing a licence or not needing a licence if conditions specified in the order are satisfied? Secondly, are we content to ask the Government with reference to what criteria—if any, Dr McKee—it will determine that a particular activity should be specified in an order under section 24(1) and whether any such criteria could be set out in the bill?
Members indicated agreement.
We thank our two Government colleagues for their restrained approach in this meeting.
Absolutely.
We look forward to the response with considerable interest.
We will have to wait until after the recess, convener.
You will just have to contain yourself.
Members indicated agreement.
On section 29(1), which sets out the power to make provision for any person who applies for a marine licence to appeal against a decision made under section 22, are we content to ask the Scottish Government, given the importance of providing an appeals regime that is compliant with the European convention on human rights, to explain why in this case it is considered necessary to use subordinate legislation for this purpose?
Members indicated agreement.
Section 37(1) deals with the power to make provision about the imposition of fixed monetary penalties in relation to offences under part 3, and section 39(1) deals with the power to make provision about the imposition of variable monetary penalties in relation to offences under part 3. Are we content to ask the Scottish Government what the justification is for two civil sanction regimes—fixed penalty and variable penalty—on what basis or with regard to what criteria the Scottish ministers will determine which regime to apply in a particular case, and why the maximum variable monetary penalty is not specified in the bill? Shall we put those three pertinent questions to the Government?
Members indicated agreement.
On section 42(1), which deals with the power to provide for any delegable marine licensing functions to be exercised by a delegate, are we content that the proposed power is acceptable in principle and that the affirmative procedure is appropriate?
Members indicated agreement.
On section 45(2), which deals with the powers to prescribe particulars to be contained in a register, are we content that the proposed power is acceptable in principle and that negative procedure is appropriate?
Members indicated agreement.
On section 45(3), which deals with the power to set out further provisions regarding maintenance of the register of licensing information, are we content that the proposed power is acceptable in principle and that negative procedure is appropriate?
Members indicated agreement.
Section 52(1) deals with the power to make provision for any person to whom a notice that is listed in subsection (2) is issued to appeal against that notice. Given the importance of providing a convention-compliant appeals regime, are we content to ask the Scottish Government to explain why it is considered necessary to use subordinate legislation for that purpose in this particular case?
Members indicated agreement.
Section 54(3) deals with the power to provide for marine fish farming not to constitute development. First, does the committee agree that we should ask the Scottish Government what the justification is for the power—that is, for moving aquaculture developments out of the normal planning system and into the marine licensing regime, in which different mechanisms and criteria will apply? That question sprung out at me big time. Secondly, does the committee agree that we should ask the Scottish Government what the justification is for moving aquaculture developments out of the normal planning system and into the marine licensing regime on a case-by-case—that is, an area-by-area—basis rather than by doing that all at once by an appropriate amendment to the relevant primary legislation, without the requirement for a power? Do members agree that we need clarification on that?
Members indicated agreement.
Section 58(1) deals with the 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 an historic marine protected area. Given the significance of designation as a nature conservation MPA, demonstration and research MPA or historic MPA and of the consequences and obligations that follow thereon, are we content to ask the Scottish Government why it considers that it is not necessary for the power to designate a marine protected area under section 58(1) to be exercised by statutory instrument?
Members indicated agreement.
Section 64 deals with the power to amend or revoke a designation order under section 58. Members may wish to note that it relates to the power under section 58(1). We may wish to return to that power on receiving a response to our question about section 58(1). We shall see what happens with that.
Members indicated agreement.
Section 74(1) deals with the powers to make marine conservation orders. Are we content to ask the Scottish Government to explain fully why negative procedure is considered sufficient scrutiny?
Members indicated agreement.
Section 77(1) deals with the power to make an urgent marine conservation order. Are we content to ask the Scottish Government what the intended effect of section 77(2)(a) is, given that it is not necessary to specify such detail for negative Scottish statutory instruments?
Members indicated agreement.
Section 77(6) deals with the power to make an urgent continuation order. The power relates to powers at sections 74(1) and 77(1). We may wish to return to it after we have considered the answers to our questions on those two powers. Is it okay to come back to that?
Members indicated agreement.
On section 79(2), which deals with the power to provide for procedures to be followed in relation to any hearing on a proposed marine conservation order, are we content that the proposed power is acceptable in principle and that negative procedure is appropriate?
Members indicated agreement.
Section 93 deals with the penalties in regulations that implement the habitats directive for the Scottish marine area. Are we content that the proposed power is acceptable in principle and to note that, under section 2(2) and paragraph 2(2) of schedule 2 to the European Communities Act 1972, the Scottish Government may choose the affirmative or negative procedure?
Members indicated agreement.
On section 102(1), which deals with the powers to introduce fees for seal licences, are we content that the proposed power is acceptable in principle and that negative procedure is appropriate?
Members indicated agreement.
Section 144(1) is on ancillary provision. Are we content to ask the Scottish Government to explain its approach to the procedure applicable to ancillary powers in more detail, given that they are significant powers that should be tailored to the individual circumstances of the bill in question?
Members indicated agreement.
On section 148(1), which deals with the power to appoint the day on which the provisions of the act come into force, are we content that the proposed power is acceptable in principle and that, in accordance with the normal practice with respect to commencement orders, no procedure is appropriate?
Members indicated agreement.