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Scottish Marine Regions Order 2015 [draft]
Agenda item 2 is consideration of the draft Scottish Marine Regions Order 2015. The instrument has been laid under the affirmative procedure, which means that the Parliament must approve it before the provisions can come into force. Following the evidence session, the committee will, under agenda item 3, be invited to consider the motion to approve the order.
I welcome to the meeting Richard Lochhead, the Cabinet Secretary for Rural Affairs, Food and Environment, and his supporting staff, who are David Palmer, Ian Vickerstaff and David Tulett. Do you wish to speak to the order, Richard?
I do, convener. Thank you very much.
Good morning. As members will see, I have brought a number of colleagues with me to help with some of the order’s technical aspects and some unusual phrases that you might find.
The committee will know that we recently adopted Scotland’s first ever national marine plan. The next step, which is to take forward regional planning as part of that process, allows local ownership and decision making on specific issues out to 12 nautical miles.
The draft order designates 11 Scottish marine regions and identifies their boundaries. That needs to happen to ensure that regional marine planning can be delegated to the bodies that will form the marine planning partnerships. Finalising the draft order has taken some time, because we have had to carry out two rounds of consultation and because of the complexities of establishing marine boundaries, the yearly use of co-ordinates and how those things are joined up.
All Scottish marine regions must be part of the Scottish marine area, which is of course defined in the Marine (Scotland) Act 2010. It is bounded by the mean high-water spring tides of Scotland, the boundaries provided by the Scottish Adjacent Waters Boundary Order 1999 and the seaward limit of the territorial sea, which is commonly referred to as the 12-nautical-mile limit. Under the 1999 order, which is a United Kingdom order made under the Scotland Act 1998, boundaries have been drawn to determine which areas of the UK’s internal waters and territorial sea are, for the purposes of the 1998 act, defined as part of Scotland.
However, recent mapping shows that those boundaries do not actually extend to the mean high-water spring tides at the border between Scotland and England. On the east coast, the boundary extends to the mean low-water spring tides, while on the west coast, the first co-ordinate under the 1999 order is now some distance from the border between Scotland and England, where it runs through the middle of the River Esk and the mouth of the River Sark. The distance between those points is now about 200m, which was not the case when the 1999 order was made. In effect, there is a 200m gap in the Scotland-England border.
I have recently written to Elizabeth Truss, the Secretary of State for Environment, Food and Rural Affairs, seeking a review of the 1999 order for two reasons. The first is to address the inconsistency of some 6,000 square miles between the North Sea boundary between Scotland and England on the east coast under the 1999 order and the previous boundary that had been established under the Civil Jurisdiction (Offshore Activities) Order 1987. The committee might remember that Parliament has debated the difference between these two boundaries on several occasions, including in its early days.
I have also written to the secretary of state to address a technical issue in relation to the boundary on the west coast that has arisen because of the change in the course of the River Esk that I have referred to, which is the result of natural processes since the 1999 order was made. The issue on the west coast was also recognised by the Delegated Powers and Law Reform Committee in its recent consideration of the order that we are discussing today, but it is important to note that the committee did not raise any legal issues with the order itself.
The extent of the Solway and the Forth and Tay Scottish marine regions in those two areas is that of the Scottish marine area as provided for in the 2010 act. It is not the function of the order that we are discussing today to determine the boundaries in these areas, which can be achieved only by amending the 1999 order.
Article 1 of the draft order sets out the details of the co-ordinates system and lines used in determining those boundaries, and those co-ordinates are expressed in terms of latitude and longitude and use the same projection as in the 1999 order. In the draft order’s remaining articles, the regions themselves and their boundaries are described in a clockwise rotation, starting from the Solway, working around the coast of Scotland and ending with the Forth and Tay region.
The order is essential in establishing the 11 marine regions and thereby making possible the delegation of regional marine planning functions to marine planning partnerships and the preparation and adoption of statutory regional marine plans. It will take some time to set up the marine planning partnerships and develop marine plans for all 11 regions; indeed, it will be an evolving process that will be taken forward in phases. Clyde and Shetland will be the first marine planning partnerships, but they can be created only after the establishment of marine regions by this order.
I hope that that introduction gives some background—I have tried not to make it too technical—and I am happy to take the committee’s questions on the various issues that I have raised.
Members have a number of questions. I will start off.
The setting of the boundaries is part of the process of establishing the way in which marine regions will be administered. What discussions have you had with the bodies that are going to administer the areas to ensure that they have the competences and skills to be able to manage them? Obviously that is something that will follow on.
I should also say that the marine borders that the Government has set are novel. I understand their onshore aspect, but some questions might be raised about the placing of boundaries between certain islands and the mainland and so on.
First, it is worth pointing out that there have been two rounds of consultation in previous years. The first was on the concept of regional planning as part of the 2010 act and on establishing marine regions, and the second was on what the regions should be, how many there should be and what they should look like. We have concluded that there should be 11 such regions in Scotland, and that has broadly been agreed by the stakeholders and the people who responded to the consultations.
I do not deny that expertise is clearly an issue, but, as I said in my opening remarks, we are taking a phased approach to establishing the marine planning partnerships that will do the work. For that reason, the first two that we will establish are the Clyde and Shetland regions, where there is existing expertise, and they are on board for blazing the trail and being in the vanguard. We are confident that, with that expertise, those two regions—two out of the 11—will get under way in 2015, once we have gone through various processes and depending on the committee’s view of the draft order before it today. I also point out that, when the committee and I previously discussed the national marine plan for Scotland, I gave a commitment that local authorities and other bodies will have a role in ensuring that we can build up expertise, and Marine Scotland is clearly taking that role seriously.
I notice that some offshore islets on the north coast of Scotland have been associated with Orkney rather than with the nearer coast, which is the north coast of my constituency, and the north coast marine area. Why has that arrangement been made? I can understand why other ones have been associated with the Western Isles, but I am surprised that those areas have been joined to Orkney.
I will ask David Palmer to answer that, as he has been involved in the detailed discussions with local authorities and other agencies.
Our understanding is that those islands are actually part of Orkney, which is why we have included them in that region.
I see. That is very interesting,
Did you think that those islands were included in your constituency, convener? I am not sure whether you are having a land grab in Caithness and Sutherland, but I will not interfere too much if you are.
There we go. Are they part of the same local government area as Orkney?
I guess so. That is my understanding.
I would like an answer to the question, if that is possible, so that we can sort out this little matter.
You might be able to pass some of your constituency casework to the local member for Orkney.
I most certainly will. I suspect that, since nobody lives on those islands, any planning for the area will involve fishing development and so on.
I want to press the cabinet secretary further on the convener’s question about resource implications. Has the Scottish Government itself or Marine Scotland set aside additional funds to support the implications of the roll-out? I take the point about there being expertise in the two pilot areas—I accept that in good faith—but I am concerned about the lack of knowledge in some local authorities and among stakeholders and as a result about the implications for support and training. Can you detail any additional funding that is going towards that?
Marine Scotland does not have a dedicated fund in that respect, but its budget is being used to take forward everything that flows from the Marine (Scotland) Act 2010, including events that have been held in the past and anything that needs to be done to ensure that we can work with local authorities and agencies to put appropriate training in place. No doubt that will continue in future. I cannot give Claudia Beamish specific budget headings for that, but I assure her that the Marine Scotland budget is being used in a general sense to do anything that needs to be done.
As this is an evolving process, it is difficult to say exactly what will have to be done to get us where we want to be by a particular time. After all, there are no set target dates for establishing the 11 marine regions. At the moment, we are focusing on the first two, which are keen and enthusiastic about getting established and moving forward and which have the expertise. Across the other nine regions, there are various levels of expertise. As you will know, there are different levels of activity in different parts of our marine area. Where there is a history of, say, aquaculture, those local authorities will have a certain level of expertise, but in other areas of Scotland that have little marine activity, it might be some years down the line before the marine regions get established. That said, although this is an evolving process, we are in constant contact with the potential partners in the marine partnerships to ensure that we understand their needs.
For the record, having taken some soundings from a local councillor and others in the Solway area—and without going into any more detail—I would like to say that I am content with the changes to the boundaries.
That is good. I should tell the committee that, in considering what to do in the Solway, we had to turn to the treaty of York of 1237, which a very good king of Scotland, Alexander II, and Henry III of England helpfully signed to establish the borders between Scotland and England.
Mr Russell has a point about that.
10:15
Mr Lochhead is correct, except that the treaty did not establish that, as it was subject to considerable revision later on.
The serious point is this: how do you resolve the issue? The issue of the boundary between Scotland and England might not seem particularly serious in relation to marine regions, but it is serious in relation to where the law and planning processes will apply. You do not seem to have a proposal on how you will resolve that. Therefore, how will you resolve it? You are speaking to the UK Government, but what is the basis of the resolution that you are seeking?
The Scottish Adjacent Waters Boundary Order 1999 was established under the Scotland Act 1998. Therefore, as the Parliament is bound to the Scotland Act 1998, we have to use that order in determining our boundaries. On the Solway, the 1999 order clearly used as the boundary the mid-point of the two rivers the Sark and the Esk, but that mid-point moves. I am not sure whether the committee has access to the maps but, by looking at the maps over even the past 10 or 15 years, one can compare where the mid-point of the two rivers was with where it is now and see that it has moved substantially. The 1999 order does not account for that and, as a result, a 200m gap has appeared.
We are asking for the 1999 order to be revised to take that into account. The order should give a geographical description stating that, wherever the mid-point may be is where the boundary joins up. That would account for any future movement of the mid-point of the rivers.
On the east coast, if I recall correctly, one of the first debates that the Parliament had in 1999—indeed, it was the first debate that I spoke in—was on the boundary order, which was put forward in 1999 for devolution. The Civil Jurisdiction (Offshore Activities) Order 1987 was ignored and a new boundary was established, which in effect removed 6,000 square miles of waters from Scottish jurisdiction. Since then, there have been attempts to persuade various UK Governments to revisit the 1999 order, but that has not happened. Because of the new issue, however minor it may be, we are using the opportunity to again ask for a revision of the 1999 order.
To be absolutely clear, on the east coast, the proposal is to revert to the 1987 order and, on the west coast, the proposal is to set global positioning system co-ordinates of where the line was in 1999 and to hold those as fixed points, rather than to allow a moving point, which is the mid-point, as that has changed. There will be GPS co-ordinates based on where the fixed point was in 1999, and that is where you want the official boundary to be drawn. Is that correct?
Effectively, yes. I will bring in colleagues who are experts on establishing the co-ordinates.
I am not sure that Mr Russell is correct. My understanding is that we want a geographical description rather than co-ordinates. The problem has arisen because co-ordinates were specified, and the mid-point of the river has since moved away from those co-ordinates.
If we have GPS co-ordinates of where the boundary is, that is fixed for all time, is it not?
It would be, if that was what was chosen.
Okay. It would surely be better to have a fixed decision rather than something that could change again.
We are looking at the interaction between the marine boundary and the existing Scotland-England boundary. There is interaction between those two boundaries.
They should be the same.
What you are saying is a potential option. We are saying that, because at the moment the point that is used shifts over time, and the 1999 order does not account for that, we are left with a gap.
It would be better to have a fixed boundary, would it not?
In the Marine Regions Order 2015, we are closing that gap. In terms of revising the 1999 order, we have to find a way, through negotiation, to ensure that, should the sands shift in the future, that does not leave a gap between the marine boundary and the Scotland-England boundary.
Which would imply that you need a fixed point.
No.
It depends how you define—
Sorry, but Mr Fergusson and I will now debate this issue between ourselves.
Sarah Boyack has a question. Is it on this point?
It is on a boundaries issue but not this exact point, so perhaps you can come back to me later.
We will come back to you. Mr Fergusson?
I picked up from the cabinet secretary’s earlier remarks that the intention was to find a solution that took account of a shifting boundary in future. A fixed point surely would not, as Mr Russell intimates it would, have that effect. Can you clarify for me your thinking on the matter?
Our thinking is that it would make sense to have a geographical description. Two boundaries are hitting each other: the marine boundary and the existing Scotland-England boundary. The marine boundary was established by the 1999 order and the other boundary was established as the mid-point of the two rivers. Where the co-ordinate in the 1999 order meets a previous mid-point of the two rivers, then the co-ordinate becomes defunct. The mid-point has shifted because the sands have shifted, which has left a gap between the boundaries. It seemed to us that the easiest way of resolving the problem would be to still have a fixed point but one that would be wherever the mid-point of the two rivers happens to be.
But that will not be a fixed point from the GPS point of view, will it?
Not from the 1999 order, no.
We may be making heavy weather of this, but it seems to be a fairly important point. The setting of a boundary as being the mid-point of two rivers is perfectly understandable when people thought that the rivers did not move very much and they looked out with their spyglass and said “That’s where it’s to be.” However, if we have the capability of setting the mid-point by using satellite technology, surely it would be best simply to have the line defined by exactly where we believe the boundary to be and to have been, and that would be the end of the matter. Otherwise, we are going to come back to this in a few years’ time.
Clearly, we are asking for a revision of the 1999 order. There are two issues: one on the east coast and one on the Solway. Who knows where the negotiation with the UK Government will go? However, we are not proposing to reopen the 1237 treaty of York, which established the common-law border between Scotland and England. Of course, that border is one of the two boundaries that we are discussing, while the other is the marine boundary. The point that I am making is that the 1999 marine order fixed a point where the previous mid-point of the two rivers concerned was but that that has now shifted and the co-ordinate has left a gap of 200m.
Now we know that, as
“Sark runs over the Solway sands”,
they are shifting sands and that somehow or other we have to pin down the boundary.
If only Alexander II or Henry III had thought about their own Scottish adjacent waters boundary order, we could have had this sorted.
I, too, have a boundaries and borders question, but it is not about lines on a map, per se. This discussion has flushed out the fact that we have to think about time, space and depth, and that in the marine environment that is not as easy as negotiations about lines on maps.
My boundaries question is not about national boundaries, although we have had a good debate on that, but about regional boundaries. I have looked at maps in the context of discussions about regional boundaries between planning authorities. However, in the marine context, the cross-boundary discussions between those in charge of the different regional areas will become more important and I want to flag that up as an issue for the future.
The Government’s selection of Shetland and the Clyde as our two starter points for marine regions is intelligent, but it begs questions about boundaries between the north and south of the Clyde, for example. The convener’s questions earlier about the islands off the north of Scotland—for example, in Orkney—were quite interesting. However, we can see from looking around the map that there will be cross-boundary issues that need to be factored in for the future.
It is not about where the boundaries lie but more about activities and species that will cross boundaries and not remain in one regional area. It is about factoring in some kind of protocols or that will be a big issue at the start. The Government needs to think through how organisations in different areas will be required to relate to each other over time and have regular discussions.
That is a very fair point from Sarah Boyack. As the process evolves and more regions are established, our intention will be to ensure that they work closely together.
That is important at the UK level as well, but my concern is primarily interregion within Scotland.
I think that we are talking about two or three areas where there are several local authorities, such as the Tay and Forth area—whatever that is called—and the one between Highland, Moray and Aberdeenshire, in the Moray Firth. There will be a need for that co-ordination. However, the boundaries have been proposed.
As there are no further questions, we move to agenda item 3, which is consideration of motion S4M-12904. The committee is asked to recommend that the draft Scottish Marine Regions Order 2015, which is an affirmative instrument, be approved. The motion can be debated for as long as we like, or at least for up to 90 minutes, although we hope that it will not take that long. Debating it for 1,237 minutes is out of the question.
I start the formal process by asking the cabinet secretary to speak to and move the motion.
Thank you, convener. Although I am tempted to use the 90 minutes to continue my debate with Michael Russell on how to establish the Scotland-England border—
I am happy to do so. [Laughter.]
—I will forgo that opportunity.
I thank members of the committee for their questions and reiterate that we are keen for regional marine planning to be bottom up and for local decision making to be built into the process as much as possible, albeit within the context of the national marine plan that has been adopted. It is clearly important to establish the boundaries of the marine regions to allow us then to establish the marine planning partnerships and allow that process to kick off. I thank the committee for its time.
I move,
That the Rural Affairs, Climate Change and Environment Committee recommends that the Scottish Marine Regions Order 2015 [draft] be approved.
I would just like to say that there are clearly urgent issues in many places and the marine partnerships need to be set up and to become active. It is clear to me that, in areas that I represent, we have incursions by scallop dredging and things like that, which are already agitating many people. They want to see the process moving quickly, and we wish you every success in getting the authorities, especially where there are several, to work together speedily.
Does anyone else wish to make any points?
Members: No.
Does the cabinet secretary wish to wind up?
I thank the committee for its co-operation.
Motion agreed to.
I thank Richard Lochhead and his officials. We will convey the information to the Parliament.
10:27 Meeting suspended.