Devolution-shaped hole in new marine access legislation

Published on Wednesday 4 November 2009 18:33

THE recent approval of the UK Marine and Coastal Access Bill and the ongoing debate over the Scottish Parliament's Marine (Scotland) Bill reflects the increase in pressure for development at sea.

It also demonstrates the need for wider reform: to simplify the existing law on licensing marine activity to ensure compatibility of proposed uses and to protect the marine environment. But why two bills? Won't this make the law unnecessarily complicated?

The pressures for development are obvious in Scotland's seas: oil and gas; the expansion of fish farming; new or increased port facilities planned at places such as Hunterston and Rosyth; carbon capture and storage; the new Forth bridge; and, above all, the drive for offshore renewables.

The complexity of existing law can be seen by taking the example of proposals to place a one megawatt tidal energy facility on the seabed.

Consents might be required with differing procedure and by different authorities. They might be to ensure the facility was not a danger to shipping or to allow the impounding of water. Planning permission will be required for the generating equipment and the creation of a marine safety zone as well as the removal of public rights of navigation near the equipment.

Failure to obtain one single authorisation might jeopardise the entire project.

One aim of the Scottish and UK governments is to simplify the law, but devolution itself causes legislative complexity. The Scottish seas are divided into an inshore area (to the 12 nautical mile limit) and an offshore area (the rest of the seas to a 200 nautical mile limit). The Scottish Parliament has legislative power for the inshore area with certain exceptions such as approvals for oil and gas and related pipelines, while the UK Parliament retains power to legislate for the offshore area, with the exception of fishing.

To complicate matters, the UK government has transferred executive power but not legislative power to administer certain matters in offshore seas to Scotland. One way of simplifying the law might have been for one parliament and one government to have sole responsibility. However, it was not politically acceptable to adjust Holyrood's powers this way, so marine bills in both legislatures were required.

Nevertheless, both governments have taken the next best approach and sought to co-operate to ensure smooth operation of the new provisions and the Scottish Government has established an agency, Marine Scotland, to handle marine planning and licensing.

Both bills provide for the creation of marine plans to guide development and decisions by public authorities on other activities at sea.

But the UK bill leaves a devolution-shaped hole for the Scottish legislation: the rules for offshore marine planning are determined by Westminster, but matters relating to inshore seas are dealt with in the Scottish bill.

The UK bill makes Scottish ministers the planning authority for Scotland's offshore area, and they may include provision for reserved matters within their marine plans, if the UK Government gives its consent.

Both bills aim to streamline marine licensing by consolidating key provisions. Scottish ministers will have responsibility for licensing most activities in the offshore area although they must do so within UK law, while the Scottish Parliament will make the law for new streamlined marine licences in the inshore area (with the exception of certain reserved matters).

Scottish ministers will have responsibility for designating and administering both Marine Conservation Zones (the new conservation designation created by the UK bill) and Marine Protected Areas, the Scottish bill's equivalent.

So, the two governments have gone a long way to seek consistency of administration of the new regulatory regimes.

The legislation balances UK and Scottish powers: for instance, there are significant matters the Scottish Parliament might have wished to legislate upon that it cannot, such as the proposed authorisation of ship-to-ship oil transfers in the Firth of Forth.

As regards consistency of the rules between the Scottish and UK regimes, that is now an issue for Holyrood, the UK Parliament having completed consideration of its bill.

It is important for the sake of simplicity that the rules should be as similar as possible, but since the onus is on the Scottish Parliament to ensure compatibility, this may limit its ability to make such rules as it sees fit.

&#149 Robert Seaton is a planning specialist in the public sector services group at Brodies LLP