Official Report 242KB pdf
Under item 4, we will take evidence from the cabinet secretary on a legislative consent memorandum on the United Kingdom Marine and Coastal Access Bill. We have been appointed lead committee for consideration of the LCM. The committee issued a targeted call for evidence before Christmas, in which it invited stakeholders to flag up any issues that they wished members to raise with the cabinet secretary. Following today's evidence taking, we will produce a report on the memorandum, which will inform consideration of a legislative consent motion on the bill by the whole Parliament.
As the convener said, I am joined by officials on the legal and policy sides to discuss a somewhat complicated but extremely important issue. For that reason, I welcome the opportunity to make a five-minute opening speech, in which I will put the legislative consent memorandum in context.
Members wish to ask some questions.
In its written evidence to the committee, the Scottish coastal forum states:
I understand that concern. It is in the interests of our marine environment in Scotland that, as far as possible, we take a joined-up approach on the matter. The agreement that we have reached with the UK Government allows for a joined-up approach from zero to 200 miles, but it also provides safeguards. It respects the constitutional responsibilities of both the UK Government and the Scottish Government and allows us to further what we believe are the interests of our own unique circumstances.
Do you accept that you are part of a Government that has been characterised by its determination to accentuate differences rather than promote similarities in approach north and south of the border? That might be a concern to the SCF and others.
The Government has been characterised by its willingness to stand up for Scotland, which it has accentuated. We stood up for Scotland in achieving the agreement with the UK Government, which gives us the opportunity to protect Scotland's interests. As I said in my introduction, 86 per cent of respondents to "Sustainable Seas for All" believed that our approach of gaining additional powers out to 200 miles was right, and the Scottish Parliament adopted that view. I fully accept that we must handle that extra responsibility sensibly and constructively. We intend to do that.
I will ask a couple of more specific questions. The Scottish inshore region is not covered by the UK's Marine and Coastal Access Bill, so who will be responsible for planning for reserved matters in Scottish inshore waters?
You ask who will be responsible for reserved matters from zero to 12 miles. The agreement with the UK Government allows Scotland to draw up a marine plan for the seas from zero to 200 miles. If that plan is agreed with the UK Government, it will apply to reserved matters in the area from 12 to 200 miles, but it will also bind the UK Government to reserved powers from zero to 12 miles. If we do not have the UK Government's agreement, reserved matters will continue to be reserved and the marine plan under our bill will not apply to reserved matters.
I also asked about the biodiversity duty.
As Scottish Environment LINK says, the UK bill does not include a biodiversity duty. We consulted on having such a duty, but in the context of full devolution. If the duty is not in the UK bill, there cannot be executive devolution of it to Scotland for the seas from 12 to 200 miles. The UK bill contains clauses that place duties on public authorities to exercise their powers in such a way as to further the conservation objectives of marine conservation zones, so the bill covers biodiversity to that extent. However, the bill does not contain the duty to which you refer.
Is the minister's stance backed up by the fact that the Scottish coastal forum produced no evidence to support its concerns and by the fact that when one major offshore development—the Robin Rigg wind farm in the Solway Firth—was subject to different Scottish and English planning legislation, albeit not marine planning legislation, none of the delays to that development was attributed to the different planning regimes on either side of the border?
If anxiety is felt about the potential for Scotland and the UK not to work together, we want to answer that. We will be big and mature in our approach to the future of our marine environment. However, you are right—I have seen no evidence to back the concern that major fallouts will occur over measures that we think are sensible for Scotland and the UK. You cite an example of the system working perfectly well in the past.
Cabinet secretary, I remind you that this is an evidence-taking session, so your officials are entitled to speak on their own behalf.
Of course. I am not trying to blank out my officials. If you feel that you might get more accurate answers from them, I will happily invite them to speak.
I simply want to short-circuit the notes from officials.
I want to follow up the point about marine conservation zones and the limits. Scottish Environment LINK's written evidence suggests that there will be no subordinate legislative power in Scotland to back up the marine conservation zones, although there will be such a power in other parts of the UK. LINK suggests that Scottish waters could be compromised as a result. Are those assertions correct? Is that an omission from the bill, or did the Scottish Government specifically seek it?
Heeding your advice, convener, and given that Linda Rosborough has volunteered to provide some information on that, I will hand over to her.
The answer is yes and no.
That is my line.
The bill provides enforcement powers in relation to offshore marine protected areas. There are specific powers relating to byelaws, about which concerns have been raised. Those powers are conceived primarily to protect nature conservation sites that are very close to the shore, where there are concerns about jet-skis and other issues that might interfere with the site. That is a park-type control. The powers do not extend into the offshore zone.
Scottish Environment LINK also pointed out that the bill apparently gives no enforcement powers in relation to the wider nature conservation offences in the Scottish offshore zone. That is simply an error and it will be dealt with by amendment to the UK bill.
So you are negotiating on that with the UK Government.
Actually, the UK Government spotted the omission itself.
So both those matters will be rectified, to the extent that you have described, as the bill proceeds.
The first matter is that the byelaw powers will not extend to the offshore zone. That is the policy. As I understand it, they will not extend to the offshore zone in England and Wales either.
So that is on purpose.
Yes.
Yes, for the reasons that I explained.
I hesitate to quote the Scottish coastal forum again, given what Alasdair Morgan said, but it has suggested that there is a potential conflict of interest between the Scottish ministers' role as the licensing authority for the offshore region and their role as the enforcement authority. Do you perceive any potential conflict of interest in the new marine licensing arrangements? How will the arrangements be managed? The note that we received from the Government on the LCM suggests that any licence charge will be set simply to cover the costs and will not be at a level that will be a disincentive to new businesses. I am not entirely sure how that can be achieved in every instance. Will you comment on that, too?
The Scottish ministers will issue licences and will therefore be responsible for enforcement. We do not see a conflict of interest in that—it is a sensible and practical arrangement. In many areas at present Governments issue licences and are responsible for enforcement. I hear what the Scottish coastal forum says, but we cannot identify any conflict of interest. We agree that the cost of licences should be proportionate. We have said all along that licences should not be disproportionately expensive and therefore an obstacle.
When fines are levied because of breaches of consent or licences, will the funds accrue to marine Scotland or the marine management organisation?
Unfortunately, I understand the legal position to be that we would collect the money but would then hand it to the UK Government. That is perhaps an incentive for us to keep the fines as low as possible.
The minister is correct: criminal fines generally find their way back to the Treasury.
Unfortunately, that applies to all kinds of fines that are imposed by justice agencies in Scotland.
So, we get all the opprobrium and they get all the money.
I guess so.
I would like to ask about financial implications. The costs of marine planning in the offshore zone will be met from resources for the Scottish national marine plan. That suggests that the Scottish Government will be providing the necessary funding for the new responsibilities that it intends to take from the UK Government. What is the most up-to-date estimate of the on-going costs to the Scottish Government of the new responsibilities?
We have included in the legislative consent memorandum an estimated cost of about £1 million a year for the additional responsibilities for nature conservation, which we regard as the biggest and most expensive element.
In discussions with the UK Government, what progress have you made on the financial implications of shifting responsibilities?
The UK Government said at the outset that no resources would be transferred to Scotland if we wanted the powers. However, as Linda Rosborough has just said, we already budget for our existing responsibilities.
I have a more parochial question. Under the Scotland Act 1998 (Border Rivers) Order 1999, the Environment Agency manages a section of the River Esk that is in my constituency. As a consequence, the EA decided to introduce a system of rod licensing that did not exist in the rest of Scotland. The system caused a fair amount of local discontent. There was no consultation with local people and I do not think that there was much consultation with Scottish ministers either. My concern relates to any consultation that may be done prior to an emergency order having to be made because of an event in the warmer waters of the south of England. What consultation would be done with you or with me and my constituents on such an order and its relevance to the situation on the River Esk?
We would be keen to ensure that the UK Government consulted us on the matter. Indeed, there was press coverage last week on the River Esk and issues of this sort. Under the cross-border rivers legislation, we have responsibility for the River Tweed and the UK Government has responsibility for the River Esk. Given the concerns about the River Esk, I have asked my officials for an up-to-date report on the situation, which I have not yet received. I take on board the member's comments that we should ensure that we are consulted.
In looking into the rod licensing issue, I found that consultation was undertaken with UK ministers but not with Scottish ministers.
I am happy to write to the committee on the point to give Elaine Murray the information she requests.
As there are no further questions, I thank the cabinet secretary and his officials for their attendance at committee. There are no questions arising from the evidence this morning that require further elucidation but, if you have further information, please feel free to forward it to us. We will consider our draft report at our meeting of 25 February. Thank you again for coming before the committee.
Thank you very much.
Meeting suspended.
On resuming—