Official Report 248KB pdf
This is the committee's first evidence session on the Marine (Scotland) Bill. Scottish Government officials will explain each part of the bill in order and take questions on each part separately. I welcome the panel: Stuart Foubister, divisional solicitor, solicitors food and environment division of the Scottish Government; David Palmer, branch head of the marine strategy branch; Linda Rosborough, deputy director, marine planning and policy; Chris Bierley, policy officer, nature conservation branch; Phil Alcock, policy officer, marine biodiversity policy and sustainable management branch; Philip Robertson, senior inspector of marine archaeology; and Ian Walker, policy officer, marine biodiversity policy and sustainable management branch.
We should first consider the links between this bill and the UK Marine and Coastal Access Bill, which the committee considered in January. The two bills are interconnected. Both have a long history and took a long time to be formulated, working with stakeholders throughout Scotland and beyond. Together, they seek to achieve joined-up management of the seas. This bill covers inshore Scottish waters out to 12 nautical miles. The UK bill covers the sea from 12 to 200 nautical miles, and also provides for additional functions for the Scottish ministers.
Thank you. Do members have any questions on part 1?
Good morning. Thank you for coming before us. I want to ask about the definition of "sea". Section 1 defines the "Scottish marine area" as
The definitions reflect the existing position in regard to licensing. The coverage in the Food and Environment Protection Act 1985 is, essentially, the same as what is set out in part 1. A policy decision was taken that different coverage was wanted for part 4, on marine protection and enhancement.
You are entirely happy with the two definitions.
Yes.
There are no further questions on part 1. I invite the officials briefly to explain part 2.
Part 2 covers marine planning and provides a range of powers for ministers to create national and local marine plans. It provides for the creation of marine regions and provides a range of functions for reviewing, amending, monitoring and reporting on those plans to keep them up to date. It also provides ministers with the powers to give directions to marine regions under certain conditions in order to carry out certain functions in those regions. It is the crux of the planning process.
The bill goes into detail about how the marine plans will be created, giving timetables and stating who will be consulted, but it does not explain what marine plans—either national or regional—will look like. What will be in them? Will I recognise one if I fall over it?
We have to recognise that we have not seen a national marine plan—certainly not a Scottish national marine plan—before. It is a new departure for us, without a shadow of a doubt. Any plan involves setting objectives, indicating how they will be achieved and giving some sense of which of them have priority and of the wider strategic issues that are considered important in stewardship of the marine area. At national level, there will be a high-level strategic plan that sets out how we see the marine area going forward. At regional level, the focus will be on more regional and local issues. One reason why we have different tiers is to allow important local issues to be expressed. Plans should express the common aspiration for the local marine area and set out the vision for that area and how it will be achieved.
Presumably, the objectives of regional plans will be the same as those of the national plan, but regional. How will regional plans be merged into the national plan? Let us take the issue of the offshore production of renewable energy in a planning area. If the national plan says that we anticipate that we will produce X megawatts of power in the Scottish seas, but the objective is not taken on in any of the regional plans, on the basis that someone else can do it, how will the matter be resolved? The same could happen in other areas.
The broad theory is that regional plans should sit within the envelope of the national plan. We do not propose to take any formal powers in the bill to force regions to take particular shares of anything. Basically, the bill provides for ministers to adopt plans and, by so doing, to make them formal and enforceable. Where ministers do not adopt plans, they will have no status. If it were thought that a regional plan did not contribute its fair share towards meeting the renewables target or any other target that had been set, there would have to be some discussion—starting at the level of officials—with the region concerned about how the national targets would best be expressed at regional level.
When the Parliament's Enterprise and Culture Committee examined renewable energy in the previous session, it highlighted the lack of a national plan for renewable energy, which led certain parts of the country to feel that they were being asked to shoulder too much of the burden of onshore wind farms. One can see the same problem rearing its head in relation to marine plans.
I see the concern. I anticipate that at national level there will be a plan for marine renewables, including offshore wind, wave and tidal energy. The question is, how will the plan be relayed down or reflected at regional level? As the bill stands, that is for regions to decide, to some extent. The fundamental point is that, potentially, renewables are valuable economic activity. Most of the areas in which marine renewables might be appropriate are rural and peripheral, so such economic activity could be important, and we tend to think that those areas will be keen to pick up the challenge. That is why ministers have not taken powers in the bill to force areas to do so.
Clearly, some interesting tensions could arise in this area—and many others—between what local people see as their regional objectives and what you see as the need for them to contribute towards meeting national objectives.
That is entirely right. The bill provides for a framework that is flexible, largely because we are seized of the fact that conditions, industries and interests differ around the Scottish coasts—concerns in the Solway are different from those in Shetland. We need a system that allows such concerns to be expressed at local level. That is one of the strengths of the bill, but, as you point out, it has the potential to create a lot of tension in the process.
We have some experience through pilot work on marine planning. The delegation to the regional level is a distinctive element of the bill. Part of the thinking behind that was the importance of ensuring that we have a partnership approach to the management of the sea. Building in a strong local dimension from the outset, rather than having a system that is entirely top down and only at the national level, is key to effective management for the future. That creates a potential for the sort of tension that Alasdair Morgan outlines, but it also has the potential to provide a good way forward through which ideas are developed at local and national level.
How is it envisaged that the system will interact with the existing land planning system?
The bill contains a requirement for marine plans to take account of terrestrial plans. That requirement is expressed formally. We intend to amend the regulations under the Town and Country Planning (Scotland) Act 1997 to make marine plans a material consideration in terrestrial plans. The two systems will be joined up functionally in that way.
How set in stone or flexible will the plans be? If a community or planning authority that has decided not to have fish farms all of a sudden finds that the waters in the area are good for rearing a type of very expensive cockle or mussel or whatever, how will the marine planning authority be able to change the plan?
There are various mechanisms in the bill to allow plans to be amended. Section 7 is about keeping relevant matters under review. Various powers will allow plans to be kept up to date. The key function is that ministers must adopt plans to give them statutory force. There is a duty to keep relevant matters under review, a power to amend and a power to withdraw plans. Those powers will provide an ability to renew plans and have them readopted by ministers and brought into force.
What independent appeals process is envisaged under the planning system? I am thinking particularly about requirements under the Aarhus convention.
Stuart Foubister knows more about the issue than I do, but the concept of appeals is not particularly relevant to plans per se. There is a provision on independent investigation in schedule 1—I am trying to find it, but I have lost it for the moment.
It is in paragraph 11 of schedule 1, but it would not be correct to represent that as an appeals process.
Was the matter of compliance with the Aarhus convention raised during the drafting of the bill?
I look to Stuart Foubister for the legal aspect but, from the planning aspect, the bill is compliant with the convention, as far as we understand. I defer to Stuart.
We have no reason to believe that it is not compliant with the Aarhus convention. The convention requires public participation, which is not the same as requiring an appeals process, and schedule 1 sets out provision for the public to comment generally on the preparation of plans.
It is not a huge leap from public participation to the public having a meaningful influence on the system in general.
Appeals generally have the connotation of an appeal before a court or an independent tribunal. Such appeals would be quite difficult with plans, which do not deal with individuals' rights. Who, for example, would be the appellant in such a situation? At the end of the day, a plan is a statement of policy, not a legal judgment, and it would be quite difficult to present public rights as rights of appeal in connection with it.
Section 14 sets out the Court of Session's powers on applications made under section 13 relating to the validity of national and regional marine plans. A plan cannot be questioned in court but, under section 13, it can be taken to court on the grounds that it
The idea is to co-ordinate terrestrial and marine plans, but it is not inconceivable that a local authority's terrestrial plan might be in conflict with the marine plan. How will such conflicts be resolved?
That is an interesting question. We see local authorities being key stakeholders in the creation of regional marine plans and we hope that, as such, they will find some way of integrating the two planning systems. I find it difficult to envisage any circumstances in which a local authority will not want to be involved in the creation of the regional marine plan but if, for the sake of argument, that happened, there would always be the fallback of the legal structure, which makes it clear that marine plans must be material considerations within terrestrial plans and that marine plans must take account of terrestrial plans. Indeed, that is the fundamental legal basis for the integration of the two types of plan.
When responsibility is delegated to the marine planning partnerships, they will—in theory, at least—have a reasonable degree of influence and power if ministers approve their plans. However, at that point, a huge number of players will come on to the scene: the local authority, as you have just pointed out; fishing interests, including sea angling interests; offshore energy interests; oil sector interests; leisure interests; marine conservation interests and so on. Given that these regional marine planning partnerships could turn out to be enormous assemblies of people, can you say a bit more about your expectations in that respect? How many and what kind of people will be on the partnerships, and how will they get on to them?
It is difficult to be prescriptive about such issues, which is why we are trying to create a permissive framework in the bill. We are keen not to exclude any stakeholder or anyone with an interest. We are also clear that what might be an appropriate group of stakeholders in, say, the Solway will be different from what might be appropriate in the Shetland Islands. As I say, it is difficult to be prescriptive.
If I understand correctly, from a Government point of view, you are relaxed about whether there are 20, 50, 70 people or whatever in marine planning partnerships, as long as a way is found to make partnerships work.
That is right. They key thing at the end of the day is that they work.
So a workable approach has to be built up by consensus over time. I understand that.
I hope—certainly in the case of Peterhead—that port authorities will be part of the regional marine planning partnerships. That works in many cases, and I hope that it will be the relationship between the two types of body. If you have an interest in marine activities within a region, whether you are a port, in aquaculture or in renewables, you will want to be represented on the marine planning partnership. That is how the process will work fundamentally.
I agree with the principle that you have enunciated, but is there any sense in which regional marine planning partnerships, which will be the planning authorities, will be able to instruct or direct other bodies, such as port authorities, or will that not be the case?
Marine planning partnerships will create the plans, which will have to be adhered to, assuming that they have been adopted by ministers. All enforcement and authorisation decisions will have to be in accordance with the plans. The plan is the key, not the partnership.
My final question comes back to one of Alasdair Morgan's points. Given the potential number of partners on marine planning partnerships, is there a danger that to get agreement, planning policy will be at such a high level that it will not have much practical impact? If you get down to the detailed level, you might never get agreement because of competing interests. How do you envisage that working?
That is a danger, but I do not see any other way of attacking the problem. If you do not get into the detail, it is because you do not have consensus, which is the key thing. In our experience of the pilots, that is where progress can be made on the plans. If you do not have fundamental consensus, the whole thing becomes quite difficult.
If the policy was at too high a level, could the minister send it back and say, "I'm not approving it"?
Yes.
The experience of people who are working on the pilots is that where there are problems in regions, people reach a shared understanding of what they are and start to look for solutions. Although it takes time to get there, the experience of the pilots is that people are actively looking at problems in a new way across sectors, because they have been brought together in a new marine planning body.
Is not the partnership approach potentially anticompetitive? We visited the north-east. If, for example, Aberdeen and Peterhead harbours and, to a lesser extent, Fraserburgh harbour were all competing for business, but the marine planning partnership decided that one harbour should do more than another, that approach could end up being anticompetitive.
Because the process is open and transparent and follows clear public participation procedures, the sort of problem that you describe should be mitigated. It is a potential problem, but the fact that the process is open and formal should minimise the risk.
But there could be lobbying of all the partners on the marine planning partnership, and if one harbour had a stronger voice than another, the harbour with the weaker voice might be disadvantaged.
In that situation, people would make representations and we might hold inquiries into the plans.
There are no further questions on part 2. Let us move on to part 3, which deals with marine licensing.
Part 3 sets out a range of things. It creates a requirement for the marine licence, defines licensable activities and allows those licensable activities to be extended by order. It allows for certain exemptions from licensing and for appeals against licensing decisions, and it creates certain offences for the enforcement of licensing. It also creates a set of enforcement notices, a series of civil sanctions powers effectively to streamline the process back out of the courts, and a range of supplementary powers, such as the powers to issue stop notices and emergency notices. In addition, part 3 gives ministers the power to create a registration system to allow activities that may not have a huge environmental impact to drop out of the licensing system.
Which organisation will be the point of contact for marine licences? Will the same body issue all licences?
Marine Scotland will be the point of contact, but it will not issue all licences. This part of the bill creates the ability for local authorities to give up the development consent for aquaculture, but the power to issue such a consent still rests with local authorities.
What will the threshold be for activities to be registered rather than licensed? That seems to be a bit of a grey area.
It certainly is. We will answer that question on the basis of research. It is similar to the process for the registration of controlled activities under the water framework directive, whereby a system was created that allows small projects to be registered rather than licensed. That is what we want to do in the context of marine licensing, and we hope to build on the work that has already been done in setting the environmental threshold above which someone will have to get a licence but below which they will be required only to register.
It was a fairly vague question but, with respect, that was a fairly vague answer. For those who are directly concerned, it is an important matter. Can you give us any indication—even a ballpark figure—of the threshold? We will not hold you to any figure that you give us at this point.
I can give you one example. At the moment, under FEPA, there are a substantial number of applications for single pipes for discharges from single dwellings. The discharge from those pipes has to be permitted by SEPA under the controlled activities regulations, but putting the bit of plastic in the water has to be permitted under FEPA as a licensable activity. That is an example of a fairly small instance in which a substance is put into the marine environment. We need to consider the science behind it, but we might say that that was beneath the bar for the marine licence. There would still be the SEPA requirement for the discharge, which is a continuous activity, but the one-off placing of the plastic pipe might be the sort of thing that we could exempt. Quite a substantial proportion of FEPA licence applications at the moment are of that nature—small activities with a fairly modest impact.
Do you anticipate that a cost will be attached to the application for marine licences? If so, what is it likely to be? Will there be a simple application form to fill in, or will it be a licence for consultants to charge applicants loads of money for drawing up applications?
Obviously, there will be a cost. There is a charge for the FEPA licence, although the charges are fairly out of date. There is provision in the bill to recover the costs of the licensing function.
Section 20 states:
I will defer to Stuart Foubister's legal view, but as far as I can see they have equal weight.
There is nothing about weighting in the section—there is simply a requirement to have regard to those factors. Each factor must be borne in mind, but there is no question of the legislation requiring any particular weighting.
So you are saying that there will not be one preferred area over another and that human health will not be more important than the environment or the environment more important than legitimate uses of the sea.
Consideration will be case by case. It is not about saying in advance that one factor outweighs another; it is about taking into account the factors and making a balanced decision in each case.
Fair enough.
The basic requirement in the planning system is that all enforcement and authorisation decisions are taken in accordance with the marine plan. In effect, any licence decision should be taken in accordance with the marine plan—that is how the two link together.
There is a form of fishing called scallop dredging. Although that does not involve dredging of the kind that would normally be thought of, are you happy that the references to the licensing of dredging do not apply to that activity?
I think so.
I would not have thought that a form of fishing known as dredging would generally come within a bald reference to dredging, but it is something that we can look into. There is a power to make exemption orders if there is any question of that being caught.
Dredging could involve using any device to move any material. Whether a scallop is material—
I would not have thought so in that context.
It would be useful to get that clarified. If a scallop is not material, what is it?
There are no further questions on part 3. Let us move on to part 4, on marine protected areas.
I will introduce part 4 briefly, but my colleagues will chip in.
A marine conservation order.
Such an order will be the subject of a negative resolution instrument in relation to the requirement of a specific site. There are also provisions relating to the management of marine protected areas.
We heard evidence, at a conference that we attended a couple of weeks ago on the marine environment in general, that there is probably a lack of scientific understanding of a lot of Scotland's seas. The bill creates powers and provisions for improving that, but if one accepts that there is a lack of scientific evidence what will underpin the decision to make a conservation order or to designate a site for conservation reasons in its absence? Might the lack of such evidence itself be a reason for designation?
The thrust of the bill is that the designation of sites must be based on sound scientific evidence. The basis on which a site is to be designated will have to be researched thoroughly before it can be put forward for designation.
Does that imply that a long period could elapse before a site could be designated? I presume that a huge amount of investigative scientific work would have to be done over a long period.
We have various international commitments to designate marine protected areas and to be part of a wider network, and we are looking to work to the necessary timescale to meet those commitments. That will require work, and we have been in discussions with Scottish Natural Heritage, which is our adviser in the inshore zone, about identifying the sites to enable us to meet those commitments.
Are you saying that, because of the European imperatives, precautionary principles are being pursued? Where is the balance between, on the one hand, taking a precautionary approach to protecting an area without necessarily having the full science and, on the other, having the full science to make the decision?
The science will never be perfect, so when we designate sites we have to use the best available science. We have a project running on the criteria for the designation that we are going to undertake. Phil Alcock might want to say more about that.
With SNH and the Joint Nature Conservation Committee, we are developing criteria to give scientists and regulators an idea of how MPAs can be designated both inshore and offshore. We anticipate that that will go out to consultation in the late summer.
You said that the Scottish Government is obliged to designate certain sites under European law. Will it delegate that obligation to the regional marine planning partnerships? If they took a different view, who would make the decision? I assume it would be the Government. Can you require the regional planning partnerships to deliver for you?
The power to designate sites will be for the Scottish ministers, and there is no intention to delegate it to Scottish marine regions or planning partnerships.
Irrespective of the bill, part of the process that you describe would have to go ahead anyway because of the international commitments that have been made. You said that you will not delegate the function to the marine planning partnerships, but I presume that the planning partnerships could make bids to the Government in respect of certain parts of their region, as some of them are in protected areas. I see people nodding, so I take it that that is correct.
Yes. Indeed, the bill specifically mentions that and recognises that communities might have their own aspirations for marine protected areas.
Okay. You talked about a network of sites as if it will be ecologically coherent and the sites will be joined up, but if the initiative comes from the regions the approach could be somewhat ad hoc. Will you say a bit more about the potential balance between the ad hoc desires of communities and your international obligations to create a coherent network of sites?
Any local or regional site would have to meet national priorities and would have to be shown to be worthy of being a marine protected area.
So you have in mind a coherent network of sites that have an ecological connection even though they might not necessarily have a physical connection. All the sites together would add to the overall picture.
That is correct. The new sites, along with existing sites designated under Natura 2000 and suchlike, will form a coherent ecological network. That is what we are looking for.
Some sites will be partly driven by international commitments, irrespective—arguably—of local views. Will marine planning partnerships consult on proposals at local level? Would that process take place whether or not this bill existed? What does the bill add to the processes of consultation and future management?
At the moment, we do not have powers to designate marine protected areas, apart from specific powers that stem from European legislation, which are limited and inflexible. The bill will provide a more flexible basis for designating marine protected areas and for the protection of habitats other than those already provided for in the habitats directive. It will enable a wider consideration of what needs to be protected, beyond the consideration that is required by European legislation, which is narrow in some areas.
I take that point. What might be the role of the marine planning partnerships in driving the local consultation processes? Would they have a role, or would it be a role for SNH or another agency?
The key adviser would be SNH, and the key basis for designation would be science. Local involvement in the marine protected areas would be more modest. That lies down the road while people get to grips with marine planning.
Is there a definite commitment to consult on any proposal for a marine protected area?
Yes.
Yes, that is correct.
I want to go back a little and ask about mapping exercises, linking them to what Peter Peacock was saying about existing statutory requirements and the aspirations of various regional planning partnerships. In the renewable energy sector, people are being candid and saying, "The more we learn, the more we realise we do not know about what is happening on the sea bed." For submerged archaeological sites, the renewables sector relies very much on mapping exercises undertaken by the oil and gas sector.
You are right to suggest that the gaps in the data are large, as will be the cost of collecting the data that will make our knowledge perfect. A big component of the cost of preparing marine plans at regional level is the cost of collecting data. That is the most important gap, and filling it will be a key function of Marine Scotland. A lot of that will involve working with people who hold data at the moment. Much of the data that exist are not well shared or integrated. Some of the boats that are already monitoring Scottish seas are collecting data for one purpose and could collect data for other purposes.
Are you reliant on the collaborative approach, to which you have already referred as underpinning a lot of the planning that is going to take place, or will there be requirements, in undertaking the work, that the data will be extended if necessary and made freely available when possible?
I am sorry, but I do not quite follow the question. Requirements on whom?
Are you reliant on the good faith of those who are required to undertake the mapping to make the information freely available or to extend it more widely than they initially planned in order to ensure that it is done in a cost-effective way? Or will there be a requirement in the bill for a degree of transparency about the data that are gathered?
The bill does not contain a specific requirement for data gathering. We are working with the component parts of Marine Scotland and beyond to move towards the sharing of data and a single basis on which data will be shared. We are not meeting any obstacles to that, and I am not entirely sure what the points of conflict might be.
I think that there is enough evidence of that in the context of the development of the marine renewables sector to date. The individual developers have been very guarded about the evidence that they are building up. By contrast, when we attended the Fisheries Research Services marine laboratory when we visited Peterhead and Aberdeen recently, we saw the mapping exercise that it is undertaking, the results of which will rightly be made extensively available. There are different pressures on marine energy developers and bodies such as FRS, but, if the mapping exercise is to be completed in the most cost-efficient way, collaboration and a pooling of the resource will be required.
Yes.
We are undertaking a nationwide study in conjunction with the UK Administrations to map the sea bed habitat out to 200 miles, to inform marine protected area development and marine planning in the UK. We expect the results of that study to be ready this time next year.
We are also working with the renewables industry specifically to identify what information can be collected and shared. We acknowledge commercial concerns about aspects of the data, but we are working with the industry to identify where we can co-operate without jeopardising people's commercial interests.
You referred to sites of archaeological interest. Work is going on around Orkney that Historic Scotland has been supporting in a small way. We recognise the significant challenges that there are around the sharing of data and knowledge, but we feel that we can work closely with Marine Scotland in the wider work that it proposes on surveys and with bodies such as the Royal Commission on the Ancient and Historical Monuments of Scotland, which has a role in that area. Collaboration will certainly be required.
As we are talking about historical marine protected areas, I will start with that. Can you give me an idea of the size of the sites that might be so designated? What advantages will the new designation offer over the present protection for such sites?
Under the existing mechanisms in the Protection of Wrecks Act 1973 and the Ancient Monuments and Archaeological Areas Act 1979, we have 15 protected shipwrecks in Scottish waters for which the Scottish ministers have responsibility. Those will be eligible for protection under the new mechanism. Section 1 of the Protection of Wrecks Act 1973 will go, and underwater assets such as the German high-seas fleet wrecks in Scapa Flow, Orkney, are likely to be eligible for protection under the new mechanism.
To jump back to nature conservation, section 59(5) states that where ministers are considering the designation of two sites that are considered to be equal in value, the minister may give consideration
I do not think that there is any requirement to say that it must be designated. We are talking about using science to find those sites. If there is a clear reason why a marine protected area would be the best sort of mechanism to protect that site, the decision would go out to consultation, but there is not an assumption that everywhere that has something interesting in terms of biodiversity must be designated as a marine protected area or suchlike.
I understand that. Let us assume that you have identified an area as somewhere that should be designated. As I understand it, you cannot
Yes and no.
You are hedging your bets slightly.
The issue was discussed long and hard within the framework of the sustainable seas task force. It stems from a desire to ensure that the sites that are protected are, from a scientific point of view, the most genuinely important sites. It is a power to designate, rather than a duty to protect any specific amount of sea or any specific sites.
I understand that, but your scientific criteria or threshold is a certain level of biodiversity or species richness, or the presence of a unique species. I presume that you must have some kind of threshold; otherwise you would simply be saying, "Well, we like this one, but we don't like that one." So, if you have data that show that a site is clearly a high-quality one, it would be designated regardless of any social or economic factors, unless there was an equivalent site.
Not quite. For the reasons that I outlined, there is no duty to designate any particular site.
I understand that, but if you do it by the science alone, you must surely have a set of clear criteria for a designatable site.
Yes.
So if a site meets those criteria, it must be designated.
That is not what the bill says.
So you could have data that show that a site meets the criteria, but you might not designate it. The designation will not be done by hard science, because you can elect to ignore the criteria and the thresholds that you set.
What we are getting at here is what is in and what is out. How the process works is that what is designated must meet the science bar; it is not about a balance between science and socioeconomics.
But if it makes the bar, do you have to designate it? The answer is no.
Yes, because it is not a duty, but a power.
Did you consider in the drafting of the bill and in the policy considerations whether, when the bar has been met, there should be a duty on ministers to designate? Was that considered and positively ruled out? Or was it not considered?
We have experience of other forms of nature designation that are felt to be rather inflexible. We were looking for more flexible powers through this bill than are currently available to ministers. The bill will allow ministers the flexibility to both designate and de-designate. The policy intention of the package of powers is to provide ministers with more flexible powers than they have through other legislation.
So it was a deliberate, positive policy choice.
It was a policy choice. The thinking behind it was worked out with the sustainable seas task force, which led us to where we are now.
Marine protected areas and the Natura sites will sit together with wider planning measures for the protection of our marine environment. From a policy point of view, we do not consider MPAs as a sort of target-driven exercise; we regard them as part of a more cohesive, holistic approach to the marine environment. We have put a duty in the bill for the Scottish Government to report to Parliament every five years or so on how designated MPAs have contributed to a national network.
We have given that aspect a fair airing. We will move on to part 5.
Part 5 will repeal the Conservation of Seals Act 1970, which was rather dated. In future, there will be an offence of killing, injuring or taking a seal. Permitted derogations will allow the taking of seals under licence in certain circumstances, such as to prevent serious damage to fisheries, netting stations and fish farms. That will put various industries on an even playing field and provide for a consistent approach to be taken to seal management, regardless of the industry and the time of year.
I welcome much of what you say, particularly about the Moray Firth approach. People seem to have found a pragmatic way of doing things.
The existing Moray Firth plan includes a code of practice on what should be done when seals are being shot and provides for training for marksmen. There is already provision for that on a trial basis in the Moray Firth, and we intend to extend that provision to all licensing. [Interruption.]
So there is no planned management view on the matter other than the view that the developed approach that has worked in the Moray Firth should be taken when problems arise.
Absolutely. We are looking at seal management where there are problems with seals' interaction with fisheries or aquaculture and no further than that. Basically, we are looking at a narrow field.
I have asked a number of questions in writing about animal welfare concerns—about shooting proficiency and taking seals when they are lactating, for example. The responses that I have received suggest that such matters are still being discussed. Can you give us a timescale for those discussions? Is the intention to lodge an amendment at stage 2 to deal with those matters, or will they be dealt with in regulations?
We intend to have discussions over the next year or so on what specifically should be in the licence. We intend that issues and regulations will be dealt with through the licensing process and that things will be specified on the face of each licence. The reason for doing that is that there were concerns about a provision in the 1970 act for a specific type of rifle to be used when a person was shooting seals. We could not easily change that provision, as it was included in the act. We foresee improvements being made and new developments coming in, and we want the licensing system to be as flexible as possible to take such changes on board as soon as they come on stream. We also want non-lethal measures and options to be covered. If such measures and options become more effective and practical, we want to shift over to using them. The deliberate intention is not to have too much specified in the bill, but to make changes on the face of the licence so that we can adapt it over time.
Will secondary legislation to Parliament specify that information or will it just be on the licence?
Each licence that the Scottish Government issues will specify the methods that are to be used for killing, the procedures that are to be followed and so on. If a code of practice is in operation, the licence will say that people should follow it, for example.
Such matters will not be subject to parliamentary scrutiny.
No; it is not our intention that they will be.
I understand that a review of species protection is under way, although that is not because of the consequences, or lack of them, of the 1970 act, which the bill will repeal. Do you envisage that a more general review of species protection would have an impact on what the bill will do on seals?
Possibly. The bill provides for increased penalties for offences under it, which will bring the position into line with that in other wildlife legislation, such as the Wildlife and Countryside Act 1981 and the habitats regulations. If how seriously wildlife crime is treated were changed and the penalties for that were increased, we might want to look at some issues again. However, seals are a case on their own for the moment. In the bill, we have done our best to improve the measures. If other developments came to light, we might want to consider them.
I am not sure whether I caught you correctly earlier. Did you say that a trial is taking place in the Solway—
It is in the Moray Firth.
I am sorry—Alasdair Morgan coughed at an unfortunate time. You said that a trial was taking place in the Moray Firth and you related marksmanship to licences. Does that mean that you are considering saying that a person must reach a certain marksmanship level before a licence will be issued to them?
We are examining the possibility of training courses, which people would have to undertake before they received permission under a licence.
We move on to parts 6 and 7, which will be discussed together.
Part 6 provides for a set of common enforcement powers for the area from 12 to 200 nautical miles. As part of the agreement on additional executive devolution of planning and conservation, we will receive a set of common enforcement powers. The part reflects those powers for the area from 12 to 200 nautical miles, so that the enforcement system for planning and conservation is wholly consistent from zero to 200 nautical miles. The part lists powers of entry, search and seizure and the duties on marine enforcement officers to provide evidence about who they are and so on.
My question is specific to some parts of Scotland. The Solway Firth Partnership has worked across the boundary between England and Scotland. The partnership would like the Solway to have one single marine planning authority but, after the bills have gone through the Westminster and Scottish Parliaments, the legislation that applies to Scottish and English waters could be different. What consideration has been given to areas such as the Solway, where co-ordinated planning is needed across the border between England and Scotland? How will that be dealt with?
What you say is right. We are comfortable that the marine regions and the planning powers that are delegated to them will ensure that the Solway Firth Partnership can progress its plan. The intention of the Department for Environment, Food and Rural Affairs and English ministers is to empower their marine management organisation to interact on the Solway, which it is hoped will allow a consistent plan to be pulled together.
We move on to what is not in the bill. Concern has been expressed that Marine Scotland has been structured as part of the Government. When we visited the Fisheries Research Services, we were told about scientific research that is being conducted that will support delivery of the bill's provisions. What safeguards will be introduced to prevent a conflict of interest between the different functions of Marine Scotland? Are there tensions between its being part of the Government and its undertaking and disseminating independent scientific research?
It is recognised that there is a need to ensure the continued integrity and independence of the scientific process, so a science advisory board will be set up with the specific purpose of overseeing the process. The board will involve key scientific people and provide the external world with assurance about the nature of the scientific work that is done in Marine Scotland. In addition, a forum bringing together stakeholders from the wider marine family will be set up, to ensure co-ordination and to allow stakeholders to engage at a strategic level with Marine Scotland on its work.
Earlier, you described the faith that you are placing in marine planning partnerships. Has thought been given to would happen if one of the partnerships became dysfunctional and did not operate or perform at anything like the level that is expected—which is not inconceivable? Does the bill make provision for ministers to intervene and to restart the process? What would happen in such situations?
To ensure that planning continued, we could withdraw the delegation and return regional planning to the centre. We would probably want to have a period of reflection, to learn lessons from the experience, but we would then seek to reconstitute the partnership by nominating people for appointment to it.
I can see that ministers have the power to withdraw delegation, but do they have the power to nominate partnership members?
Yes.
Why was a biodiversity duty on all public bodies exercising functions in the offshore area not included in the bill?
The bill does not go beyond 12 nautical miles as far as nature conservation responsibilities are concerned, because that is outwith the powers of the Scottish Parliament. The UK Marine and Coastal Access Bill includes provisions in relation to nature conservation in the offshore zone. There has been some discussion on the issue recently in the House of Lords and UK ministers have said that it would be within the power of Scottish ministers, as part of the marine planning function that is proposed in the bill, to bring in biodiversity objectives for the offshore zone. Essentially, it is a matter for the Westminster Parliament rather than this Parliament.
Okay.
Meeting suspended.
On resuming—
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