The Marine (Scotland) Bill was introduced to the Parliament on 29 April 2009. The Rural Affairs and Environment Committee was designated the lead Committee on the Bill. No secondary committees were designated to report to the lead Committee.

SSACN made a written submission and gave verbal evidence to the Committee.

The following is a summary of their conclusions and recommendations and has been extracted from their full findings which may be found here.

Rural Affairs and Environment Committee Report – RAE/S3/09/R11

11th Report, 2009 (Session 3)

Stage 1 Report on the Marine (Scotland) Bill

Summary of conclusions and recommendations

The Committee reports to the Parliament as follows —

General principles of the Bill

The Committee welcomes the general principles of the Bill as we consider that it will, if implemented following adequate consultation and resourcing, help improve the governance and sustainability of Scotland’s seas. (Paragraph 41)

Marine Scotland

The Committee invites the Cabinet Secretary to clarify the reasons for establishing Marine Scotland as a Scottish Government directorate rather than proposing in the Bill to establish it as a statutory body, at arms length from the Scottish Government. The Committee also invites the Minister to explain what governance arrangements he proposes to put in place in order to ensure the independence of scientific advice provided to the Scottish Ministers as to the exercise of their functions under the Bill. (Paragraph 14)

Policy memorandum

The Committee invites the Cabinet Secretary to note our observations on the lack of detail or proper discussion in parts of the policy memorandum. (Paragraph 37)

The state of Scotland’s seas

The Committee invites the Cabinet Secretary to clarify whether he considers current enforcement provisions on marine littering are sufficiently robust, and whether he considers there are sufficient resources for them to be applied effectively. (Paragraph 50)

The Committee recommends that the Bill place a duty on the Scottish Ministers and all relevant public bodies, when exercising functions, to have regard to the need to maintain and improve the health of the Scottish marine area. We recognise that, were this duty to be inserted into the Bill, there would be a need to provide indicators, whether in subordinate legislation or through guidance, as to the factors that constitute a healthy marine environment. The Marine Strategy Framework Directive, which sets out indicators of “good environmental status”, may provide some pointers. (Paragraph 55)

Shellfish industry concerns

The Committee invites the Cabinet Secretary to note industry concerns as to the status of the pacific oyster in the course of preparing the forthcoming Bill on wildlife and the natural environment. (Paragraph 57)

The Committee would encourage the Cabinet Secretary and SEPA to continue to engage in dialogue with the Scottish shellfish growers’ industry as to the latter’s concerns over the replacement of the Shellfish Waters Directive in 2013. We invite the Cabinet Secretary to press for clarification from the European Commission as to whether there will be any diminution in the legal protection afforded to growers once the new regime under the Water Framework Directive is in place, and to indicate whether he would do so before Stage 2. (Paragraph 63)

The Scottish marine area and the meaning of “sea”

The Committee is content with the definitions used in Part 1. (Paragraph 65)

The national marine plan

The Committee suggests that it would reflect the national, and indeed international, importance of climate change mitigation and adaptation if it were expressly included in the list of objectives in section3(3) that a national marine plan may set out. (Paragraph 80)

The Committee recommends that the Bill expressly sets out a minimum time period for Parliamentary consideration of a draft national marine plan. The Committee proposes that this be set at 40 sitting days. (Paragraph 82)

Marine planning partnerships

The Committee largely supports the flexible approach to the membership and governance of marine planning partnerships proposed in the Bill. (Paragraph 104)

The Committee considers that MPPs should be diverse bodies, drawing their membership from a wide selection of local stakeholders, and should not be dominated by narrow sectoral interests. It follows that we find it almost impossible to envisage circumstances where a single public authority would be an appropriate “partnership” and suggest that the provision enabling this to happen be removed from the Bill. (Paragraph 105)

On the other hand, the Committee would make the practical observation that any policy-determining body with too large a membership risks being unwieldy and may lack the momentum to drive through timeous agreement of a marine plan. As this may mean that not every local stakeholder group that wants to be on an MPP will end up being on one, Marine Scotland should consider drawing up good practice guidelines on ensuring that views can be fed in to MPPs in other ways. The forums held by advisory groups for river basin management planning appear to be one possible approach to follow. (Paragraph 106)

The Committee supports each individual MPP having discretion to determine its own working practices. However approaches should not be so flexible as to lead to national objectives being unrealised or good practice not being shared. To that end, the Committee considers that Marine Scotland’s experience and expertise will be crucial for the effective running of all MPPs. The Committee would expect that Marine Scotland would take the lead role in administering MPPs. (Paragraph 107)

The Committee also expects that it would be a Marine Scotland representative who would chair most MPPs, although there may be instances where it would be more appropriate for the representative of a locally-based organisation (most obviously a local authority) to take the chair. In all cases, however, the Committee considers that it should be for the Cabinet Secretary to appoint the chair of an MPP. (Paragraph 108)

Conformity between the national marine plan and regional plans

The Committee invites the Cabinet Secretary to consider concerns that the requirement in section 3(5) that regional marine plans conform to the national plan “unless relevant considerations indicate otherwise” is broad, and that “relevant considerations” should be defined in the Bill or explained in guidelines. (Paragraph 109)

Marine region boundaries

The Committee expects that the Scottish Ministers will consult widely, including with the Parliament, before designating Scottish marine regions under section 3(4). (Paragraph 115)

The Committee supports the principle of taking an ecosystem-based approach to designation but recognises that the waters surrounding Scotland cannot be broken down into discrete clearly-defined ecosystems, and that accordingly it is legitimate to take other considerations into account. (Paragraph 116)

We consider that there is a reasonably clear-cut case for the major firths and for the seas surrounding Orkney, Shetland and the Western Isles to be considered discrete marine regions. Making the major firths marine regions would also have the advantage of enabling a partial integration of river basin management plans and regional marine plans. (Paragraph 117)

The Committee considers that the case for treating the Solway Firth, as much as is practicable, as a single area for marine planning purposes is clear. Major planning decisions about matters such as sites for renewable energy projects should always be taken having regard to stakeholder views on both sides of the Firth, and the necessary legal or administrative arrangements should be in place to ensure that this is the case. (Paragraph 123)

The Committee recognises that the Marine (Scotland) Bill cannot, of itself, produce a solution. There should be action at a UK level too and we hope that the UK Bill will not be enacted in such a way as to place obstacles in the way of effective cross-border working in the Solway area. The Committee seeks assurances from the Cabinet Secretary that he has made representations to his UK counterpart to this effect. (Paragraph 124)

Appeals against marine plans

The Committee notes that, whilst a marine plan will be an important document, it will not impose justiciable rights or duties on persons. In particular, the Bill will enable public authorities, exceptionally, to depart from marine plans in making decisions affecting the marine environment. The Committee is therefore reasonably satisfied with the restriction of appeals against a marine plan to technical objections to the plan. This does however underline the importance of plans being properly consulted upon, with all stakeholders, including the Scottish Parliament, having adequate opportunity to consider proposals before the Scottish Ministers sign any plan off. (Paragraph 130)

Marine planning and the complexity of the current law

The Committee notes that the Bill will not create a hierarchy of legal rights and duties, but hopes that the marine planning process will put legal rights and duties within a particular marine area in context enabling stakeholders to make more informed decisions about the use of the marine environment. (Paragraph 141)

However, the Committee invites the Cabinet Secretary to note witnesses’ concerns that the law of the sea has become too complex, and to investigate whether this can be addressed, for instance through consolidation or codification of legal rights and duties, or through instructing Marine Scotland to provide guidance on the lawful use of the sea tailored to particular stakeholder groups. In doing so, the Committee recognises that much of the law emanates from international sources over which the Scottish Government has no direct control. (Paragraph 142)

Marine planning, integrated coastal zone management, and inshore fisheries groups

The Committee supports the application of relevant principles of integrated coastal zone management to marine planning and notes that the role of ICZM groups will evolve and possibly reduce following implementation of the Bill and the establishment of marine planning partnerships. (Paragraph 149)

The Committee recognises the need for effective local management of inshore fisheries. We note that inshore fisheries groups are new bodies that need more time to settle into their role. However, the Committee considers that there is a strong case for re-examining the role, membership, or indeed existence of IFGs in around three or four years’ time, once the Bill, if enacted, is being implemented and marine planning partnerships have been set up, and once any reforms arising from the European Commission’s green paper on reform of the common fisheries policy have become clear. Until this re-examination takes place, it is vital that there be effective co-operation between IFGs and MPPs. (Paragraph 150)

Relationship between marine planning and decisions by public authorities

The Committee considers that section 11 is one of the key provisions of the Bill since it is the link between marine planning and the taking of decisions by public authorities. It is therefore important that its meaning is properly understood. The Committee does not object in principle to a policy of allowing public authorities – exceptionally – to take a decision that is not in accordance with a marine plan. However more clarity and certainty is needed as to the circumstances where this would be permissible than is provided by the phrase “unless relevant considerations indicate otherwise”. The Committee recommends that the Bill make provision for the Scottish Ministers to issue guidance as to what would amount to “relevant considerations” permitting a public authority to depart from a marine plan. (Paragraph 153)

Marine licensing and simplification

The Committee notes that a number of stakeholders are not persuaded that the Bill will lead to a simplification of the marine licensing system. Whether the problem has simply been a failure to communicate the effect of Part 3 clearly is not apparent. If the Government considers that the Bill will enable an integrated approach to marine licensing, including the likelihood of a “one stop shop”, there is a need for the Cabinet Secretary to state the case more clearly. (Paragraph 165)

The Committee also seeks clarification that the combined effect of sections 16 and 17 will neither create a legal overlap, where both Marine Scotland and another body have the right to authorise the same type of marine activity, nor create uncertainty as to the legal status of pre-existing authorisation powers apparently superseded by sections 16 and 17 but not expressly repealed. (Paragraph 166)

Marine licensing and decommissioning

The Committee considers that a rigorous approach to decommissioning based on leaving the sea bed in as close to its original state as possible should continue to be the norm. However, Marine Scotland should avoid taking an inflexible approach, if that were, for example, to prevent research into the effect of artificial reefs on marine biodiversity. In particular, the Committee notes that the creation of a Demonstration and Research Marine Protected Area around a marine structure could amount to a potential “win-win” situation for industry, science, and conservation. In this connection, the Committee notes section 23 of the Bill which would enable the Scottish Ministers to vary an existing marine license because of increased scientific knowledge relating to the environment, and invites the Cabinet Secretary to clarify whether this power would be available on the application of the licensee. (Paragraph 171)

The Committee invites the Cabinet Secretary to clarify whether a decommissioning arrangement that would allow all or part of a marine structure to be laid on the sea bed would be dealt with under the Bill as a condition of the original license or as a marine activity requiring a further license application. (Paragraph 172)

The Committee invites both the Cabinet Secretary and the Crown Estate to note concerns that the Bill should not lead to the creation of a new decommissioning regime running in parallel with that already imposed by the Crown Estate under leasing arrangements, without serving any additional purpose. The Committee invites Marine Scotland and the Estate to work jointly to address these concerns in their future work. (Paragraph 174)

Provision to modify marine licensing requirements

The Committee agrees with the Subordinate Legislation Committee that the power to vary the list of licensable activities in section 17(1) should specify more clearly the criteria the Scottish Government may use to determine whether a particular activity should be added to or removed from the list. (Paragraph 178)

Activities not requiring a marine license

The Committee notes the lack of clarity currently as to what the minimum environmental threshold will be for registering, rather than licensing, marine activity. As this will be of considerable practical concern to stakeholders, the Committee considers that the Cabinet Secretary should outline his preliminary thinking on this issue during the passage of the Bill, giving an indication of what this would mean in practice to stakeholders. (Paragraph 181)

Marine licensing: appeals process

The Committee recommends that the Bill be amended to set out the fundamental elements of an appeals procedure against a marine licensing decision and against the issuing of a notice concerning a marine license. (Paragraph 183)

Marine licensing and aquaculture

The Committee acknowledges the vital importance of there being local input to decisions about whether, where, and under what circumstances to authorise a marine fish farm. The Committee considers that adequate provision could be made for this, at a strategic level, by ensuring local input into decisions made by MPPs about what areas should be deemed appropriate for fish farming. We propose that the Bill should allow local authorities to apply to the Scottish Ministers to handle applications for licenses. The Scottish Ministers should be empowered to allow any such application on cause shown, subject to their reaching a service level agreement with the authority on how license applications are to be dealt with. (Paragraph 195)

Where this happens, the Committee proposes that the Cabinet Secretary should seek to ensure that there is a consistency of approach towards licensing aquaculture within each marine region, for instance by providing that, in a region bordering two or more local authority areas, only one authority will handle applications. (Paragraph 196)

Dredging and marine licensing

The Committee is reassured to note the Cabinet Secretary’s comments that accepted forms of dredging with recognised minimal environmental impacts are likely to be exempted. Clearly stakeholders in shipping and ports would appreciate having sight of the detail of any proposed exemptions well in advance of the Bill’s implementation. The Committee also invites the Cabinet Secretary to consider the merits of three-year rather than one-year dredging licenses, which would apparently bring Scotland into line with the rest of the UK. (Paragraph 202)

Remediation and marine licensing

The Committee notes the Cabinet Secretary’s intention to introduce an amendment clarifying that a remediation notice may require restoration of a damaged site. We call on the Cabinet Secretary to ensure that shipping and port interests, as well as environmentalist groups, have the opportunity to consider the proposed approach. (Paragraph 206)

Designation of marine protected areas

The Committee notes that Scotland is under international obligations to create an ecologically coherent and representative network of marine protected areas and therefore has some concerns that the power to create MPAs under the Bill is discretionary. The Committee considers that the Bill should impose a duty on the Scottish Ministers to create such a network, as this would both help ensure compliance with our international obligations and guarantee further protection of the marine ecosystem. (Paragraph 217)

The Committee is not persuaded that there is a need for a formal process in the Bill entitling communities to propose an MPA, especially if the process is to be predominantly scientifically driven. However, it is vital that there are open channels within Government to enable communities to propose MPAs for consideration, and that this is well known at a local level, so that communities feel engaged in the process. Marine Scotland should have a clear advocacy role in this regard. MPAs will work best where local communities feel that have enjoyed ownership over the process of helping create them. (Paragraph 220)

Relevance of socioeconomic factors etc in relation to marine protected areas

The Committee agrees with the Scottish Government that the process for designating Nature Conservation MPAs should be mainly science driven. However, the Committee recommends that provision be inserted into the Bill requiring the Scottish Ministers, when drawing up a marine conservation order for an MPA under section 74 to have regard (a) to social and economic factors, and (b) the desirability of mitigating climate change. (Paragraph 237)

Relationship between marine protected areas and national marine plan

The Committee invites the Cabinet Secretary to clarify the extent to which, under the Bill, there is sufficient linkage between the marine planning process and the process of designating MPAs, and whether there is any risk of national objectives set out in the national plan (for instance on economic activity or climate change) failing to integrate with the designation of a network of MPAs under Part 4. (Paragraph 238)

Monitoring of marine protected areas

The Committee recommends that the Cabinet Secretary consider the merits of the Bill requiring MPAs to be regularly monitored and reviewed following designation. (Paragraph 242)

Fisheries and marine protected areas

The Committee notes the discussion at Scottish and UK Governmental level on the question of whether fishing activity in MPAs requires additional protection under the Bill, and looks forward to being notified of the outcome. However the Committee is not convinced that this additional protection is necessary. (Paragraph 248)

Seal management plans

The Committee recommends that the Cabinet Secretary consider putting into the Bill a requirement to set up seal management plans in all areas of Scotland where there is a perceived difficulty in the interaction between seals, angling, and fish farms. (Paragraph 269)

Offence of harassing seals

The Committee invites the Cabinet Secretary to consider including on the face of the Bill an offence of intentionally or recklessly harassing seals, whilst recognising that careful drafting would be required to address the complexities surrounding the issue, including the risk of unintended consequences. (Paragraph 277)

Seal licenses: group applications

The Committee supports the licensing system being sufficiently flexible to allow for the issuing of licenses on a group or individual basis as appropriate, recognising that there are some practical issues that may need to be ironed out where a group license is issued. This approach should go hand in hand with the setting up of regional seal management groups, so as to encourage an open and cooperative approach to seal management within a particular area. (Paragraph 290)

Seal licenses: marksmanship etc

The Committee considers that the list of conditions that may be specified in a license (as set out in section 100(3)) should include the skill of the marksman, the type of firearm used, and the marksman’s proximity to the target. Committee members consider that there is a case to be made for some or all of these conditions being mandatory for any license. (Paragraph 294)

Seal licenses: “no satisfactory alternative”

The Committee sees no reason in principle why the requirement that the Scottish Ministers may only issue a license to kill or take a seal if there is “no satisfactory alternative” to doing so should not apply in all areas, rather than just in seal conservation areas as the Bill presently provides. At the same time, the Committee seeks clarification from the Government as to what deterrent or combination of deterrents could be used to satisfy Ministers that there is ‘no satisfactory alternative’ to issuing a licence. (Paragraph 307)

The Committee recommends that the Scottish Government consider making it a condition of granting a licence to shoot a seal that, if the farm is not fitted with anti-predator nets, the applicant provide an explanation of why this is so. (Paragraph 308)

Reporting on licensed seal kills

The Committee recommends that the Cabinet Secretary set out reporting standards in guidance. The Committee suggests that there should be a requirement on a licensee to report the taking or killing of a seal at least quarterly. (Paragraph 314)

General enforcement powers

The Committee seeks clarification as to whether it is intended that port authorities should be compensated for the exercise of the power to direct a ship to port set out in section 135 in a manner which has caused them financial loss. (Paragraph 329)

Financial issues

The Committee notes and agrees with the views of the Finance Committee and invites the Cabinet Secretary to respond to them, whilst recognising that costs falling on the Scottish Government as a result of the UK Marine and Coastal Access Bill are not directly a matter for consideration in respect of the Marine (Scotland) Bill. (Paragraph 335)

Concerns have been raised as to the adequacy of data-gathering on the marine environment, especially in view of the huge marine planning responsibility that will be placed on public authorities, Marine Scotland in particular. The Committee is considering this issue separately through its scrutiny of the 2010-11 budget. (Paragraph 336)

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