Consultation on Proposals for a Scottish Marine Bill

Terminology and subdivisions in the Marine Area

The marine area around Scotland can be divided into a number of geographical areas. Throughout this note references are made to the following:

• the territorial sea – this extends to a maximum of 12 nautical miles from the baseline (normally the coast); and

• the offshore area – extends from the edge of the territorial sea to 200 nautical miles from the baseline (N.B. this area can also be referred to as the UK continental shelf);

Background

In the summer of 2007, the Scottish Government asked Fisheries Research Services (FRS), the Scottish Environment Protection Agency (SEPA) and Scottish Natural Heritage (SNH) to start work on assessing the state of Scotland's seas. On 3rd January 2008, the membership of a new national stakeholder group – the Sustainable Seas Task Force – was announced, its remit being to help develop proposals for legislation and form the basis for a consultation. On 9th April 2008, the document "Scotland's Seas – Towards Understanding their State" was published, having been jointly produced by FRS, SEPA and SNH. This document is an initial summary of the data available on the marine environment and has formed the basis for the development of a Marine Bill for Scotland. Scotland's first public consultation on proposals for a Scottish Marine Bill was launched on 15th July 2008 and will close on 6th October 2008.

Territorial Extent

One of the most difficult issues is that of who rules Scotland's seas. The Scottish Government has devolved powers in relation to Scotland's territorial waters (i.e. from 0-12 nautical miles) whilst controls over fishing extend out to 200 nautical miles.

The UK Marine Bill proposed that control over issues such as nature conservation and planning, while devolved to Scotland up to 12 nautical miles, should continue to be reserved to Westminster beyond that, i.e. between 12 and 200 nautical miles. However, the Scottish Parliament has backed demands by the Scottish Government, the fishing industry and conservationists that control of the marine environment from 12 to 200 miles off-shore be devolved to Scotland in relation to nature conservation and planning. The consultation document also supports this position. As this change would require the consent of the UK Government, negotiations are currently ongoing between the Scottish Government and the UK Government, with a decision on the matter expected soon.

Key Areas Covered by the Consultation

• Marine Planning;

• Marine Scotland;

• Marine Licensing;

• Marine Nature Conservation;

• Marine Science and Research

Marine Planning

The consultation document proposes that the marine planning system in Scotland should be based on a 3-tier system: national, international and regional.

National

The first of the tiers would be the national level. A National Marine Plan (NMP) would be prepared by Marine Scotland (more on this body below) which would set out national marine objectives and a marine planning framework at a strategic level. The NMP would form part of the National Planning Framework for Scotland.

The Scottish Government believes that the NMP should cover both the territorial seas out to 12nm and the offshore area out to 200nm, although this will require further devolution of powers to Scotland, as mentioned above. If further devolution does not occur, marine planning out to 12nm will rest solely with Scottish regulatory authorities whilst in the offshore area (out to 200nm) those authorities will only control planning in respect of the limited range of functions devolved to Scottish Ministers. Planning for any other types of activities will rest with the UK authorities.

The NMP will have statutory force and all Scottish public bodies will have to act in accordance with it. The Scottish Government anticipates that it will take between 12 to 18 months to draft the national marine objectives and construct the NMP. The NMP and objectives will then be subject to public consultation, which means that the first NMP and objectives could take up to two years to produce, say by the end of 2010. The intention is that the NMP and objectives would be reviewed on a five-yearly cycle.

The national marine objectives will be a key part of the NMP, determining the use of the seas and the limits of that use and will include objectives for specific sectors, for example, energy, food and tourism. They will also reflect national commitments such as those within the requirements of the EU Marine Strategy Framework Directive (MSFD) which, when it comes into force, will create an obligation on Scottish Ministers to "take necessary measures to achieve and maintain good environmental status" by 2020. Marine objectives for Scotland will also include Marine Ecosystem Objectives (MEOs). These will follow an ecosystem-based approach and will be substantially informed by River Basin Management Plan objectives at both local and national levels (those objectives being produced in accordance with the Water Environment and Water Services (Scotland) Act 2003 which implemented the requirements of the Water Framework Directive).

Scottish Ministers will also have to consider how best to work with the UK Government in delivering any joint objectives. A draft set of twenty two high level marine objectives for the UK has already been developed by the UK Government and has been issued for consultation by DEFRA along with the Northern Ireland Executive and the Welsh Assembly Government. The consultation document is entitled "Our seas – a shared resource". The objectives are grouped under five headings: achieving a sustainable marine economy, ensuring a healthy and just society, living within environmental limits, promoting good governance and using science responsibly. The intention is that these high level objectives will inform the process of preparing integrated marine policy statements across the UK. A copy of the draft objectives is attached to the Scottish consultation document and stakeholders are invited to comment on them by 30th September 2008 in order for Scottish Ministers to be in a position to respond to the UK Government. Scottish Ministers then plan to consult on Scotland's marine objectives.

International

The international level beyond Scotland would deal with planning matters that are external to Scotland, setting Scottish waters within the wider UK, EU, North Atlantic and global frameworks. So, for example, Marine Scotland (see further below) would be responsible for coming to agreements with cross border partners on how to achieve a consistent approach to planning and management at territorial boundaries. Marine Scotland would also be responsible for agreeing how the NMP and reserved activities (assuming there are any) interact and for delivering Scotland's obligations under the Marine Strategy Framework Directive, as mentioned above.

Regional

The consultation document proposes that Scottish Marine Regions (SMRs) will be the means by which marine planning and management takes place at the regional level within Scotland. Marine Scotland will designate the SMRs, establishing their boundaries via secondary legislation.

The proposals include that each SMR will have a Board consisting of representatives from the main stakeholder groups in the area. For example, Local Coastal Partnerships and Inshore Fisheries Groups might be included as well as local authorities. Day-to-day responsibility for planning and management would be devolved to the SMRs who would be responsible for drawing up and consulting on regional level plans, referred to in the consultation document as Regional Marine Plans (RMPs). To ensure that any RMP is consistent with the NMP, the SMR will have to submit its Regional Marine Plan to Marine Scotland for assessment and agreement.

The consultation document proposes that the basic principle of marine planning would be the presumption of use, i.e. it would be presumed that an activity can take place in a specific location unless it is specifically excluded. In practice, the proposer of a new activity would identify the appropriate area for the activity and assess whether it would be compatible or not with existing activities, by reference to the RMP. If deemed compatible, (i.e. if consistent with the RMP)  it could progress but if the activity was incompatible or no mitigation measures could be found, then the SMR Board would open a dialogue with all interested parties to try to reach an agreement. If agreement was not possible, the matter could be referred to Marine Scotland and ultimately there would be a right of appeal to the Scottish Ministers.

Marine Scotland – A Scottish Marine Management Organisation

The consultation document proposes two delivery options for a Scottish marine management organisation called Marine Scotland:

Option 1 – Existing bodies involved in marine management would be required to coordinate, integrate and streamline management and regulatory activity, systems and processes. Existing roles would largely be retained but through planning, strategy development and working together in partnership, a type of 'virtual integration' would be achieved.

Option 2 – Marine Scotland would be an integrated body with responsibility for policy, marine planning, science and regulation/licensing to the limits of devolved responsibility.

The consultation document notes that these two options are at opposite ends of the scale and that there are many possible combinations of the two. Clearly there are advantages and disadvantages to both. Option 1 would leave existing roles and responsibilities largely as they are, without any disruption or costs. However, it does not address the need to streamline the licensing system more effectively. Option 2 does address this point but would obviously require existing organisations to be dismantled and there would be costs and disruption associated with that.

One other important aspect discussed in the consultation document is the status of Marine Scotland. Three options are proposed:

• Marine Scotland would be part of the Scottish Government itself;

• Marine Scotland would be an agency (like, for example, Historic Scotland) with a Chief Executive responsible to the Scottish Ministers and operating under a framework document; or

• Marine Scotland would be a Non Departmental Public Body (like SEPA or SNH), removed from the Scottish Government, with a Board responsible to the Scottish Ministers and the Parliament.

The consultation document supports the first option, i.e. Marine Scotland would be part of Government itself. However, it is also recognised that some form of independence or separation from Government would be required in order for appropriate review and appeal mechanisms to operate. The consultation suggests some form of 'ring-fencing' would be required.

Marine Licensing

Currently, Scottish Ministers and their agencies issue a range of licences and consents covering a wide variety of purposes. Some deal broadly with protection of water from pollution, such as FEPA (Food and Environment Protection Act 1985) and CAR (Controlled Activities Regulations 2005); whilst some deal with navigation, such as CPA (Coast Protection Act 1949). There are a range of licences that deal with marine wildlife, including fishing, and a range of other licensing and consenting processes such as those relating to the marine historic environment. A key aim of the proposed changes to the marine licensing system is, according to the consultation document, "to deliver an effective, streamlined and modernised licensing system that deals with the diversity around Scotland's coasts".

The consultation document puts forward the following main proposals relating to licensing:

Changing how licences are delivered

Currently, licences are granted by a wide range of organisations such as FRS, SEPA and the Scottish Ministers. Delivery of separate licences in this fashion for the same project can cause problems and be time consuming. The consultation document proposes two models for the delivery of licences:

The first is for Marine Scotland to be wholly responsible for regulation of marine consents, with the advantage of creating "a one-stop shop" for licence applicants. However, the consultation document notes that this sort of approach does raise issues such as how to coordinate resources between Marine Scotland and existing regulators.

The alternative approach, which would address these concerns, is to provide operators with a single access point to the licensing framework, with Marine Scotland acting as the gateway or the 'front door'. For example, in such a scenario SEPA would continue to regulate the impacts on the water environment under CAR but Marine Scotland would act as the gateway to SEPA.

Streamlining of consents

The consultation document proposes that the number of licence applications required should be reduced to a minimum, thereby simplifying the application/consideration process and related consultation process. The consultation document proposes two possible approaches to streamlining consents:

The Impact Approach – the first would be to pull licences for individual impacts together into one environmental/ecological impact licence where it made sense to do so. Clear candidates would be FEPA, CPA, CAR consents (solely for discharges from marine installations), aggregates dredging and wildlife licences. This would leave development consents for fish farms with local authorities and for marine renewables with Scottish Ministers. The consultation document discusses the merit of the impact approach as being that the number of licences would be reduced to two. The impact approach would probably bring a greater focus on environmental issues.

The Activity Approach – the alternative approach would be to integrate all the licences which a particular activity currently has to apply for into one licence, creating a single activity licence. For example, rather than licence all the separate aspects of a marine renewables project such as the development consent, any environmental consents, the navigation consents and the wildlife consents, Scottish Ministers would create a single licence to cover all aspects of the activity.

Consultation

This is another area which can cause problems under the current system which is often fairly random and inconsistent. In order to create greater coherency and consistency, Scottish Ministers propose that a list of consultees should be produced who would always be consulted on new applications. They also intend looking at ways to improve local involvement in licensing decisions.

Risk-based approach

A further proposal put forward in the document is that a more risk-based approach to licensing should be adopted, similar to the CAR model whereby scrutiny would be focused on higher risk activities with standardised conditions applying to lower risk activities, reducing the regulatory burden.

Decommissioning

The Scottish Minsters intend to give powers to Marine Scotland to create, in each licence, a standard condition on decommissioning at the end of an installation's life, requiring removal of redundant kit and installations.

Appeal Process

The consultation document asks for views on a new appeal process. It is proposed that a review/appeal could comprise two stages: firstly, asking Marine Scotland to exercise its "call-in" powers to review the case and secondly, some form of independent consideration of the issue, although much will depend on the status of Marine Scotland once it is created (see 2.3 above).

Timing

In order to overcome timing difficulties, Ministers propose to set out timescales for Marine Scotland (or other regulator) to reach decisions on licence applications.

Charging

In order to overcome the wide variation in charging practices for marine licences across Scotland, a scale of charges is proposed to create certainty and transparency.

Monitoring and Enforcement

Ministers propose a review of existing licence monitoring and enforcement provisions relating to the marine environment, with the aim of consolidating them into a single set of coherent powers and remedies. Marine Scotland would be responsible for ensuring that compliance monitoring and enforcement was being carried out consistently and efficiently.

Marine Nature Conservation

The consultation document proposes a three pillar approach to marine nature conservation. The three pillars are:

• wider seas measures;

• species conservation; and

• site protection.

Taking each of these briefly in turn:

The term 'wider seas measures' refers to any measures that benefit marine nature conservation but which are more general in scope than the other two pillars. The contribution of wider seas policy to nature conservation can be substantial. Significant opportunities will be created through the new marine planning system and the duty Scottish Ministers intend to place on Marine Scotland to deliver ecosystem management and safeguard biodiversity. Improvements in science and data will also deliver benefits in how Scotland's seas are managed.

The second pillar focuses on potential improvements to species protection measures on two levels: firstly, in terms of improvements to the general system of species management and, secondly, more specific legislation relating to seal management issues.

The third pillar looks at site protection and how this area could be improved. One proposal is to introduce a new flexible power for Scottish Ministers to designate particular locations of biodiversity importance, over and above their existing powers. These areas would be called Marine Protected Areas (MPAs). Such powers could be used to recognise locations of habitats or species which are important, rare, threatened or which contribute to a wider network. It is proposed that this system of new MPAs would complement the existing Natura sites but would also allow Ministers to designate sites that they believe are important for Scotland, over and above any international requirements.

Marine Science and Research

Various issues are discussed in the consultation document under this heading, including the development of a Marine Science Strategy to help focus marine science research; additional research such as a national seabed survey which would map the full extent of the seabed around Scotland; improvements in monitoring and assessment of Scotland's seas, the responsibility for which should lie with Marine Scotland; and improved data capture and storage systems, to be taken forward by Marine Scotland.

What happens now?

As noted above, the consultation is open until 6th October 2008 and comments are invited on the proposals contained in the consultation document. The consultation on the UK's draft high level marine objectives has also been launched and stakeholders have been encouraged to send their comments on these draft objectives to Scottish Ministers by 30th September to allow them to respond to UK Ministers.

McGrigors LLP
July 2008

Jennifer Ballantyne Partner Planning & Environment Tel. +44 (0)141 567 9355 jennifer.ballantyne @mcgrigors.com

Donna Brown Senior Solicitor Real Estate/Planning & Environment Tel. +44 (0)141 567 9431 donna.brown@mcgrigors.com

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