Conservation (Natural Habitats, &c) Amendment (No 2) (Scotland) Regulations 2007 (SSI 2007/80)

Point of Order – in the Scottish Parliament at 2:56 pm on 28 June 2007.

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Photo of Alex Fergusson Alex Fergusson None 2:56, 28 June 2007

The next item of business is a debate on subordinate legislation, on motion S3M-252, in the name of Richard Lochhead, on the Conservation (Natural Habitats, &c) Amendment (No 2) (Scotland) Regulations 2007.

Photo of Richard Lochhead Richard Lochhead Scottish National Party 2:49, 28 June 2007

On 24 May, I made a statement in the Parliament on proposals for ship-to-ship oil transfer in the Firth of Forth. It was evident that there was cross-party concern about the proposals.

The controversy over proposed ship-to-ship oil transfer in the Forth has highlighted two key issues. First, there are gaps in the Scottish ministers' locus to secure compliance with the habitats directive under our devolved powers. Secondly, there is a need for better controls on ship-to-ship transfers of the type that is proposed, in sensitive places around our coast. Concerns have been expressed not only in the Parliament but by local authorities, environmental organisations, community councils and other stakeholders.

Following my statement, I told members that I would commit to indicating to Parliament, prior to the summer recess, the shorter-term measures that are within the powers of this Parliament. I will do that and, I hope, a little more.

My officials have been working flat out to investigate the options that I mentioned. Immediately following my statement, I wrote to the then Secretary of State for Transport to seek a meeting to discuss what action he would be prepared to take. There have been subsequent discussions between officials, and I finally received a response to my letter on Monday. Although United Kingdom ministers are neither ruling action in nor ruling it out, I was disappointed that the minister was not proposing to take any immediate action to resolve the particular issue of the Forth. Perhaps other matters have been occupying his mind over the past few weeks.

I will, of course, now write to congratulate Ruth Kelly on her appointment as the new Secretary of State for Transport in the UK Government. I hope to be able to present her with a strong message from this chamber that she must act. In addition, I have strived to ensure that parliamentary colleagues across the chamber have been kept informed and kept engaged in this work as it has progressed.

Today's debate will address what can be done here and in Westminster. To that end, I am grateful to David McLetchie MSP for his useful contribution on this issue during the first ministerial statement. I will therefore be delighted to accept the amendment in his name, and I urge all parties to do likewise. As I will explain, the amendment touches on the fundamental issue of where we go from here.

Three key options are open to the UK Government: it could make regulations under the Merchant Shipping Act 1995 to prohibit ship-to-ship transfers under certain circumstances; it could agree to devolve appropriate powers to the Scottish ministers to allow us to regulate ship-to-ship oil transfers in particular circumstances that we choose; it could implement amendments to the British habitats regulations that are analogous to those before us today.

The power to regulate or stop ship-to-ship oil cargo transfer lies very clearly in section 130 of the Merchant Shipping Act 1995, which is a UK act. The power can protect sensitive sites from hazards arising from transfers. I believe that the power needs to be transferred to the Scottish ministers; however, for the case that many of us will address today, we can rightly call on the Westminster Government to exercise its power now. I hope that the whole chamber will echo my call.

The option of analogous amendment of the British habitats regulations by the UK Government is a further complementary measure that could be taken to protect environmentally sensitive sites such as the Forth. The Great Britain regulations currently have the same vulnerability in relation to plans or projects that are not currently covered by part IV of the regulations. I understand that Whitehall is considering new legislation to improve the implementation of the habitats directive in the UK. Therefore, in my further discussions with Whitehall, I will urge it to consider legislation analogous to that which is before us today.

This case has thrown up gaps in our powers that the regulations are intended to correct. If we pass the regulations, we will no longer be vulnerable to hazardous activities that fall within the powers of this Parliament but, as I have said, even with them, the power to stop the proposal for ship-to-ship transfer in the Forth lies with Westminster. Today, we are calling for that power to be used.

Taken together, our actions will amount to securing an important piece of environmental legislation and providing the spur for essential action elsewhere. Many of us, across the whole chamber, believe that that action is long overdue.

I will summarise how the regulations would improve articles 6.3 and 6.4 of the habitats directive in Scotland. Those provisions relate to Natura sites, which are a cornerstone of the habitats directive. They require an appropriate assessment to be undertaken for all plans and projects that are likely to have a significant effect on a Natura 2000 site, and that such plans or projects should be allowed to proceed only when it can be shown that they will not adversely affect site integrity—unless there are no alternatives and approval needs to be given for overriding reasons of public interest.

Photo of Liam McArthur Liam McArthur Liberal Democrat

The cabinet secretary will be aware of my concern that, in addressing the serious risks in the Firth of Forth, nothing is done to undermine the long-standing and successful operations in Scapa Flow—and Sullom Voe, in Shetland—either now or in future. Will he assure me that such operations will not be subject to additional and unnecessary conditions as a result of these regulations?

In the absence of any consultation on the proposals with the harbour authorities in Orkney and Shetland, will the cabinet secretary undertake to write to Tavish Scott and me, before the vote later this afternoon, to make clear the implications for Scapa Flow and Sullom Voe?

Photo of Richard Lochhead Richard Lochhead Scottish National Party

I recognise the close interest Tavish Scott and Liam McArthur are taking in this important issue, given the industries in their constituencies. Our concern is to ensure compliance with the habitats directive in Scotland as far as the devolved powers will allow. We hope that our representations to the United Kingdom Government on ship-to-ship oil transfers will be taken in the context of the habitats directive and environmentally sensitive areas. I can therefore give the members the reassurance they seek.

The protection that is afforded to Natura sites under article 6 of the habitats directive is implemented in domestic legislation through regulation 3 and part IV of the habitats regulations. The regulations fill the gaps in the Scottish ministers' capability to protect Natura sites to the full extent of our devolved powers. They improve implementation of article 6 of the directive by ensuring that part IV of the regulations is applied generally to all such authorisations. They also provide new powers for the Scottish ministers to ensure that competent authorities follow the requirements of the directive when they consider authorisations.

The regulations are an important piece of legislation that will benefit the environment of Scotland. They will improve the implementation of the habitats directive in Scotland by ensuring that the principles of sustainable development in article 6 of the directive are applied generally to all decisions within devolved competence. They will also provide ministers with new powers to ensure compliance with the directive.

The proposals by Forth Ports and the subsequent public concern has highlighted gaps in existing devolved legislation and the shortcomings of the Parliament's powers. Today, we are putting our house in order to address the first of those issues, and we require the co-operation of the UK Government to address the second. The regulations will enable me to advance discussions with Whitehall from a position of strength and to apply pressure to the UK Government to make immediate use of its powers to control ship-to-ship transfers in the Firth of Forth and to safeguard our precious marine environment. I urge Parliament to approve the motion and, indeed, the amendment.

I move,

That the Parliament agrees that the draft Conservation (Natural Habitats, &c.) Amendment (No. 2) (Scotland) Regulations 2007 be approved.

Photo of John Scott John Scott Conservative 3:06, 28 June 2007

I welcome the cabinet secretary's remarks on the rather complicated subject of ship-to-ship oil transfer and thank him for the briefing he provided for all parliamentary colleagues and the reasonable way in which he has responded to the problem. I ask Parliament to note how much his response to the situation contrasts with the position of the Labour Government at Westminster and the previous Lib-Lab administration, and to recognise the sense of urgency in the cabinet secretary's reference to Douglas Alexander's inability even to arrange a meeting on the subject, and his failure to reply to the cabinet secretary until Monday. I hope that Ruth Kelly can do a little better.

I ask Parliament to compare and contrast the cabinet secretary's determination to introduce legislation within his competence to the refusal by the Department for Environment, Food and Rural Affairs and the Department of Trade and Industry even to use existing legislation. That leads us to whether the Labour Government in London is listening to its colleagues in the Labour opposition in Scotland. If Labour in London is listening to Labour in Scotland, either the Labour opposition in Scotland has no influence over its colleagues down south or they do not care about an issue that, on the face of it, has united the whole Parliament. However, that does not mean that we have to accept the cabinet secretary's view without question.

The Conservative party here and in London needs to be reassured once and for all that the Parliament is competent to amend part IV of the Conservation (Natural Habitats, &c) Regulations 1994 in this way. Parliament cannot afford to get this wrong and to be on the wrong side of an argument with a competent authority—an argument that might, ultimately, if Parliament gets it wrong, end up being decided in court.

Make no mistake, as the competent authority, Forth Ports is not the villain in this piece, and it is disingenuous of others to suggest or imply that it is. We need to know what effect the regulations would have on ship-to-ship oil transfer currently taking place at Scapa Flow, Nigg and Sullom Voe. I welcome the minister's clarification on that. The obvious difference is that ship-to-ship oil transfers appear to be welcome in those northern waters, while here in the Firth of Forth, Fife, East Lothian and Edinburgh councils appear to be utterly opposed to the proposals.

We must all be aware that the regulations do only what they say on the tin: ensure compliance with the directive, provide the power to issue directions and provide the power to suspend proposals until ministers are satisfied that an appropriate assessment has been carried out. As the minister said, they cannot stop ship-to-ship transfer of oil taking place. That is why we have lodged the amendment in David McLetchie's name.

Without complementary legislation from Westminster, the Scottish ministers—notwithstanding the will of Parliament—are powerless to stop ship-to-ship oil transfer. Complementary regulations under section 130 of the Merchant Shipping Act 1995 to regulate the ship-to-ship transfer of oil within the 12 nautical mile limit of United Kingdom territorial seas is now essential, particularly where there is a higher risk to precious habitats. As the minister said, that would fill a legislative gap.

That is why I urge Parliament to support our amendment and send the clearest possible message to the Government at Westminster that it is time to act on this matter. The sooner it does so, the better.

I move amendment S3M-252.1, to insert at end:

"and, in so doing, requests the Scottish Government to invite Her Majesty's Government to consider complementary legislative measures to protect environmentally sensitive sites such as the Firth of Forth."

Photo of Sarah Boyack Sarah Boyack Labour 3:10, 28 June 2007

I warmly welcome the Executive's amending regulations. As Richard Lochhead and John Scott said, the proposal to have ship-to-ship oil transfer in the Forth has generated petitions and campaigns on both sides of the Forth, by MSPs, councillors and local communities. It is clearly something that worries people.

John Scott made some uncharacteristically ungracious remarks. One of the first things I did when I became Deputy Minister for Environment and Rural Development in January this year was ask officials to work up plans to amend the existing regulations in light of representations we had received from the Environment and Rural Development Committee.

Photo of Sarah Boyack Sarah Boyack Labour

No—I want to get into my speech. I congratulate the Cabinet Secretary for Rural Affairs and the Environment on following through on his commitment immediately after the election to make regulations on ship-to-ship transfer. I thank the civil servants who have been working behind the scenes on this complex issue. The minister acknowledged that when he first spoke about his intention to bring proposals to the Parliament.

Members of the public were worried by the idea that whereas, like other bodies, private companies must abide by the habitats directive, unlike other bodies they were effectively judge and jury on their own proposals. I hope that the regulations will override that.

I welcome the wider implications of the regulations, and I would be interested to hear the minister reflect on them in his winding-up speech. My understanding is that they cover private organisations—for example former public utilities that are now private companies—that carry out their own assessments. I understand that there are wider implications that my party would welcome. I would be interested to have a detailed briefing on those points later, if the minister is not able to answer them in his closing speech.

I am told that Scottish Power and Scottish Coal, for example, are also covered by the regulations. I particularly welcome the strengthening of ministers' ability to require decisions to be taken in the public interest. There is no specific power to stop any project, as the minister said, but my reading of the regulations is that he may delay projects endlessly if the assessments do not meet the test of not damaging nature conservation interests, as set out in the habitats directive. We therefore very much welcome the regulations.

I understand that, once the regulations become law, a ministerial direction may be delivered to Forth Ports. Will the minister be ready to call the project in straight after today's vote? Is he ready to serve that direction so that firm action can be taken immediately? Scottish Natural Heritage has been in discussion with Forth Ports on its assessment for months. It would be helpful to know what SNH's current view is. Are there still concerns about cetaceans? Are there other habitats interests? Are there specific concerns that we should know about?

One thing the regulations do not do is ban ship-to-ship transfer directly. We did not lodge an amendment to the motion because we believe that the minister's next job is to move on to a marine bill. That is where all the complexities could be ironed out. We would much rather the minister focused his energies on such a proposal, which will go to the newly appointed ministers—Hilary Benn and Ruth Kelly—rather than concentrated on the one side issue of ship-to-ship transfer.

We need to bring all the issues together, although the matter is complex. The recommendations of the advisory group on marine and coastal strategy—AGMACS—came out in March, as did the former Environment and Rural Development Committee's recommendations on marine issues. The UK white paper for a marine bill was also published in March. The UK consultation closed on 8 June.

There is a real danger that this Parliament will get left behind in drafting its own marine bill. Labour members urge the minister to get his act together on the Scottish marine bill. He did not give us a timetable yesterday at the Rural Affairs and Environment Committee. We welcome the amendments to the 1994 regulations, but the number 1 issue to which the minister should now be turning his attention is the need to ensure that we do not fall behind. The groundwork has been done. The challenge is to translate that into proposals.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat 3:15, 28 June 2007

The Liberal Democrats at Holyrood and at Westminster are acutely aware of the importance of the Firth of Forth in environmental and economic terms. Fife's Liberal Democrat MSPs and MPs have been unanimous in their opposition to ship-to-ship oil transfer and have supported Fife Council's decision not to approve the plan.

Ship-to-ship operations on the Forth would take place on an extremely large scale in unpredictable waters and would risk serious harm to environmentally significant waters and coastlines.

I have to agree that John Scott's speech hit the wrong tone. It was not necessary for him to bring partisan politics into the debate. As Sarah Boyack pointed out, the piece of work that we are discussing today was initiated by the previous Administration and was carried on by the current Administration, as is right and proper.

I want to remind everyone that ship-to-ship operations are lawful and, as we have heard, already take place in Scottish harbour authority areas: for example, Scapa Flow in Orkney, Sullom Voe in Shetland and Nigg. The activity is of great economic benefit to the local economies of those areas. We have to be extremely careful that, in tackling the undoubted anomaly of Forth Ports being the "responsible body" and the promoter of ship-to-ship oil transfer in the Forth, we do not pass regulations that have unintended consequences.

The regulations extend the habitats directive to all plans or projects and empowers the Scottish ministers to call in plans that they consider might have a significant effect on a protected site, to ensure compliance with the habitats directive.

The British Ports Association has expressed fears that the regulations might have unintended consequences and that ministers might use the new powers widely on all plans and projects—and, indeed, apply them retrospectively to established activities, seriously disrupting them. I would like the minister to comment on that when he closes the debate.

There is a fear that a harsher regulatory regime in Scotland could damage the economic competitiveness of our ports. The British Ports Association has written to say that

"the industry is highly critical of the Executive's handling of the draft Statutory Instrument. No consultation has been carried out, the Regulatory Impact Assessment does not conform with accepted standards ... and the short timescale—six days from announcement to debate in Parliament—has left stakeholders in a state of somewhat bewildered disappointment."

The association goes on to say that the way in which the Executive is about to apply the habitats directive—through these regulations—might be ultra vires, given that this is not a straight transposition of the EU directive. The letter even raises the possibility of judicial review in the event of a port's business being damaged by the regulations.

Orkney Islands Council says that it is concerned that very little consultation has occurred and, given the potential impact on Scottish ports, feels that the situation is "totally unacceptable". The council cautions that

"this type of action rarely achieves the desired effect and has the potential to create unforeseen pitfalls for both industry and the legislator."

Although the Liberal Democrats appreciate the fact that the Executive is taking action to prevent the plans for ship-to-ship transfer in the Forth being authorised by vested interests in Forth Ports, we have serious reservations about the way in which the Executive will use the regulations that Parliament is about to pass. As with everything else, the devil is in the detail. Although everyone is keen to see a solution to this particular problem, I am not convinced that enough time has been given to ensuring that all those who will be affected by the regulations have been properly consulted.

Photo of Tricia Marwick Tricia Marwick Scottish National Party 3:19, 28 June 2007

I welcome the plans that the cabinet secretary has announced: ministers will have more powers to help stop ship-to-ship transfers off Methil, in my constituency.

The regulations will give powers to call in proposals that have a significant environmental impact and to issue directions about how those assessments should be carried out. At the moment, the power to assess the impact of ship-to-ship oil transfer in the Forth is in the hands of Forth Ports, which stands to make money if it agrees that such transfers should take place.

It is worth quoting article 6 of the habitats directive, which requires member states not to consent to plans or projects that could damage special protection areas or special areas of conservation unless there is no alternative solution and a plan or project must be consented to for

"imperative reasons of overriding public interest".

It is clear that SPAs and SACs could be damaged if Forth Ports gives the go-ahead. It is also clear there are alternative facilities at Sullom Voe and Scapa Flow, which are keen to get the work, and that there are no

"imperative reasons of overriding public interest".

A private company with a conflict of interests must not be allowed to determine the public interest, never mind override it.

Ministers have taken a significant step towards greater control over such developments. It is a victory for all the communities and councils around the Forth. It took the SNP Government just one month after the election to put the measures in place. Mike Rumbles criticised John Scott, and Sarah Boyack said that she has been working hard on the issue since January. I appreciate that, but I say to her as kindly as I can that one is tempted to ask what Rhona Brankin was doing during her time as Deputy Minister for Environment and Rural Development, when she had meetings with me and other members.

The regulations will give the Scottish ministers greater powers over Forth Ports' assessment of the plans but, as the minister said, they will not put the final decisions into ministers' hands. I congratulate the Cabinet Secretary for Rural Affairs and the Environment on finding a way through the legislative spaghetti that he inherited, but only the Westminster Government can transfer the powers from Forth Ports to the Scottish ministers so that they can decide on the matter.

I regret the fact that, although Richard Lochhead has been in touch with the Westminster Government, the former Secretary of State for Transport was a bit tardy with his response. Now that Gordon Brown is Prime Minister, he has a duty to act immediately to ensure that the views of his constituents in Kirkcaldy, as well as my constituents in Methil and Buckhaven, are heeded. I suggest that he orders his UK ministers today to get the situation sorted out once and for all.

Photo of Claire Baker Claire Baker Labour 3:22, 28 June 2007

I welcome this opportunity to speak on an issue that concerns many people in my region, particularly the people of Methil and Buckhaven. The first time I spoke in the chamber was on the issue and I am pleased to return to it today.

The proposal for ship-to-ship oil transfers off the coast of Methil in the Firth of Forth has been of interest to the Parliament for some time. The work of previous ministers—particularly Sarah Boyack, who initiated a review of the legislation on ship-to-ship oil transfers—has been acknowledged by members today. I also acknowledge Catherine Stihler MEP's efforts to raise the issue at European level and her continuing commitment to finding a long-term solution. It is clear that Labour members, along with other members, particularly from Fife, have been concerned about Forth Ports' conflict of interest and the potential environmental impact on a sensitive area.

As a new member, I have been reading the Official Report of the Environment and Rural Development Committee meetings in the previous session. It is clear that ship-to-ship transfer is a complex issue because it involves devolved, reserved and European matters including maritime legislation, regulations on legitimate commercial activity, and considerable environmental concerns.

I welcome the measures that have been announced today. Better transposition of the habitats directive will strengthen its intention. I acknowledge the RSPB's support for the move and thank it for producing a useful briefing. Scottish ministers will have the power to influence decisions by competent authorities and to ensure compliance with the directive. That will remove the concern about Forth Ports' conflict of interest. As other members have pointed out, it is not appropriate for Forth Ports to make the decision because it also stands to benefit financially from it.

However, it is fair to say that ministers have not found the dilemma easy to solve. As the Cabinet Secretary for Rural Affairs and the Environment rightly acknowledged, there are limitations to what the measures can achieve. Although the solution moves the decision-making power to ministers, they will still have to take decisions in line with the habitats directive. The new provisions will not raise the hurdle that proposals for ship-to-ship oil transfers must overcome.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

The member mentions the dilemma that ministers face. I will clarify a point for members. Ship-to-ship oil transfer is a reserved matter so, under the new regulations, the Parliament can act only within the competence of devolved powers. That is an important point for members to bear in mind when referring to the Parliament's powers over the Forth Ports proposal. Of course, the Forth Ports proposal has not proceeded to a decision yet.

Photo of Claire Baker Claire Baker Labour

I do not disagree with the minister that Westminster has a role to play in resolving the situation, which I hope will be based on constructive dialogue with Westminster ministers.

If the appropriate assessment meets the directive's requirements, in the present situation, ministers appear to have no power to say no. They can enter into a process of suspending the decision and endlessly delaying, but today's decisions will not allow them to veto the activity. However, that is not the impression that the people of Fife and Methil have been given. Two weeks after the recent election, the Executive-in-waiting briefed that it would be able to veto the proposals. I assume that that was said because the SNP did not fully appreciate the issue's complexity or just because it was trying to reel in the Greens. That situation gave the people of Fife hope that ship-to-ship oil transfer could be laid to rest quickly.

As welcome as today's changes are, they are—arguably—a stopgap measure. For the future protection of Fife and Scotland's coastline, the Executive must introduce a marine bill at the earliest opportunity. Apart from occupying this legislation-lite Executive, that would provide lasting protection for the fragile marine-based wildlife of Fife and Scotland.

Photo of Margaret Smith Margaret Smith Liberal Democrat 3:26, 28 June 2007

I welcome the chance to speak in the debate and I welcome the cabinet secretary's approach of developing the review of relevant legislation on this complex subject that his predecessors began. I also thank him for the useful meeting that he held earlier this month with colleagues of all parties on this important issue.

Concern has been expressed around the Forth and that has been mirrored by the work that MSPs of all parties have done in Fife and in the Lothians. A role has been played by the relevant local authorities and environmental groups, to which I pay tribute for the support that they have given us all as we have sought to tackle the issue in recent months.

My constituents have raised two key issues. The first of those is the substantive point that residents have been concerned about proposals to initiate ship-to-ship oil transfers close to conservation areas and special protection areas. Ship-to-ship operations have taken place for many years elsewhere in Scottish waters, but that does not rule out the possibility of accidents. I accept that the oft-quoted incident in the Gulf of Mexico some time ago occurred in circumstances that are different from those that are suggested for the Forth but, nevertheless, residents and others are deeply concerned about the possible impact of any oil spill on the Forth, its beaches, its environment and its tourism.

I thank Forth Ports and its staff for the offer that was made some time ago to the Environment and Rural Development Committee in the previous session, which I took up, to visit its operational headquarters at Grangemouth and see for myself how it deals with the many thousands of ship movements in the River Forth. I was impressed by what I saw in the ship traffic control room. I am more used to seeing air traffic control at Edinburgh airport; ship traffic control is a lot slower and more sedate, but it is important nevertheless, to avoid collisions, which could lead to oil spills in the river.

The second reason for people's concern is the governance situation. It is ludicrous that Forth Ports—a private company that would have a significant financial benefit from the proposal—is the competent authority that is, in effect, the judge and jury on an issue that could have a dramatic impact on our environment. Yes—the appropriate assessment has had to be conducted and Scottish Natural Heritage, as an arm of Government, has had the chance to comment on that. However, that is not good enough. Ultimately, the Scottish ministers are responsible for our environment and should have all tools at their disposal to perform their functions and duties. Given that, I am sure that my constituents will welcome the amendments to part IV of the Conservation (Natural Habitats, &c) Regulations 1994 (SI 1994/2716).

I very much welcome the proposal to provide new powers for the Scottish ministers to call in a plan or project that might have a significant effect on a protected site, to ensure compliance with the habitats directive. That will cover not just ship-to-ship transfers, but other operations. In principle, that is a sensible step.

That addresses the governance issue, to some extent, and I welcome the strengthening of the minister's functions in relation to the public interest. Scottish ministers will be able to use the powers only when that is justified. Where operations have been undertaken for many years satisfactorily—as at Scapa Flow and Sullom Voe, for example—there will be no question of those operations being curtailed. In fact, I would be delighted for them to be increased to include the Russian oil that is planned to come to the Forth.

One of the wider issues that the discussion around ship-to-ship oil transfer has thrown up is the need for discussion and co-operation with the UK Government not only on ship-to-ship transfers, but on marine law. Can the minister give us some idea of the timetable for that and of where we are with regard to the appropriate assessment?

I hope that ship-to-ship transfer of oil in the Forth will not be given the go-ahead, but we must be realistic. Today's announcement does not guarantee that by any means, although it gives the minister greater powers. Ultimately, the power to stop the transfers rests with UK ministers. I hope that the Parliament's decision today will aid the minister's discussions with his UK partners with our support behind him.

Photo of Rob Gibson Rob Gibson Scottish National Party 3:31, 28 June 2007

On the last day before the recess, we have been presented with a need to fill a gap that has been looming for several years. I am delighted that the Scottish Government has found a way to try to narrow that gap. We all recognise the fact that a large amount of work is needed to reconcile habitats and the needs of the marine economy, and that a marine bill is the way in which to do that. We are, however, talking about the need to reconcile 85 acts of Parliament in the UK legislature, which will take time.

I welcome this opportunity for us to make a united statement that we want progress to be made. Nothing will happen all of a sudden during the recess that could put us off course. I believe that the minister's efforts show that, with the determination that the Scottish Government now has, we will ensure that regulation is put in place to allow us to intervene and prevent the oil transfers from happening.

There are many good reasons why we need local democratic accountability—indeed, accountability in Scotland—over such matters. Local accountability is an obvious difference between what is planned in the Forth and what happens in Orkney, where there is a locally accountable harbour authority. I say to John Scott that part of the problem we face is the privatisation that took place in the 1980s, which has caused much of the difficulty today. We could have taken in hand the question of democratically accountable harbour authorities much more easily.

The joint ministerial committees will help the ministers to talk about these things. I hope that the ministers down south now realise how important such communication is. Given their irresponsibility in not applying the Merchant Shipping Act 1995 in this case, I hope that our ministers will ask them why they took so long to address the matter.

The Scottish Government is taking more powers—that is welcome. By making these minor amendments to the details of part IV of the 1994 regulations and broadening their scope to cover all plans and projects, the amending regulations will plug gaps in the current legislation, transposing article 6 of the EU habitats directive in Scotland. However, as Sarah Boyack mentioned, we must also think about the utilities that can operate outwith the regulations governing strategic environmental assessment, and so on. We need to review that. Forth Ports and Scottish Power are the kind of bodies that must be brought into the scope of the regulations.

In Scotland, we have gone further than they did down south on matters of strategic environmental assessment, but I think that we need to go further again. It is important to recognise that we are all involved in a learning process. Iain Gray, who is sitting beside Sarah Boyack, told election audiences before he was re-elected that he thought that it was really a matter for the UK to deal with and not a matter for the Scottish Parliament at all. I am pleased to say that we are working closely with the UK Government and that we can all influence the process by being united in support of the motion today.

Photo of Robin Harper Robin Harper Green 3:34, 28 June 2007

I congratulate the Executive on the celerity with which it has addressed the situation, but I also pay tribute to the amount of work that my colleagues in the Green party have done on it over the past two years. Mark Ruskell first drew the Executive's attention to the problem as long ago as 30 October 2005 and we have worked and campaigned on both sides of the Forth since August 2005.

In the Environment and Rural Development Committee, Eleanor Scott pointed up one of the most important and alarming things about the situation. She asked:

"If ship-to-ship transfer goes ahead and is subsequently found to be in breach of the habitats directive, what would the consequences be? What would be done to whom as a result of the directive having been breached?"

Iain Rennick, a committee witness, replied:

"I guess that, ultimately, the Executive would bear the responsibility and infraction proceedings could begin against the United Kingdom Government."

Eleanor Scott then clarified the matter:

"So although the Executive has not had a role in deciding whether the proposal goes ahead, it would be the body that would be found to be in breach of the habitats directive", and Iain Rennick said:

"That is my understanding."—[Official Report, Environment and Rural Development Committee, 7 February 2007; c 4062.]

That is the position that we are in at the moment. The Executive can be held responsible and, if that is case, it should have a say in the decisions.

I will comment on one or two matters that have been raised in the debate, particularly the position of Sullom Voe and Scapa Flow. I know that the minister will address that, but I will set out the Green party position. Scapa Flow was one of only three sites in the whole of Britain to be designated by the Donaldson report as suitable for ship-to-ship oil transfers. Both sites have gone through the same processes as Forth Ports is trying to go through at the moment in trying to be judge and jury for itself, both satisfied the habitats directive and only in exceptional circumstances would the Executive have to call in a granted application for consideration. I am sure that the minister will expand on that.

Claire Baker highlighted the important mistake that the debate is all about Forth Ports. It is not just about Forth Ports. In fact, it is not about Forth Ports, but about the Executive having the powers that are proposed. In a written answer just the other day, Stephen Ladyman said:

"The introduction of this control is intended to address local concerns about the situation in the Firth of Forth."—[Official Report, House of Commons, Written Answers, 25 June 2007; Vol 462, c 521W.]

I hope that the minister will write to Stephen Ladyman to disabuse him of that misapprehension about the intention of the amendment regulations.

Scotland ultimately needs a full marine bill so that we can properly address environmental protection and responsible stewardship of our seas and coasts. There remains a great deal of work to do. Under the current chaotic legal mix of responsibility, there is no robust consenting regime for ship-to-ship oil transfers. The Forth bid has been the subject of fierce criticism for the way in which it has been conducted. It has been condemned by the public, politicians, environmental agencies and local authorities but it is the occasion, not the cause, of the amendment regulations and I urge members to vote unanimously for them at decision time.

Photo of John Park John Park Labour 3:39, 28 June 2007

Like many members, I welcome the opportunity to participate in the debate because I have lived and worked around the Fife coastline for a number of years—in fact, all my life. The competing priorities of the needs of business and the marine environment have been commonplace since the industrial revolution and probably a long time before that. It has always been necessary to strike a balance between those needs and I welcome the cabinet secretary's proposals as a step in the right direction.

It is important for us to acknowledge the work that Sarah Boyack and Richard Lochhead have done to move the issue forward. I am pleased that the cabinet secretary recognised Sarah Boyack's activity in her former ministerial role.

For members who do not know Fife's coastline, I will paint a picture to show its complexity. Most members may know that Grangemouth, which is a key industrial site in Scotland, is opposite the furthest west point of Fife's coastline. Everyone knows about the significance of Longannet power station. The beautiful and historic village of Culross is further along. Further east again are the villages of Limekilns and Charleston, which once acted as a port for Dunfermline—many people may not know that. For many years, kilns there that were fuelled by charcoal—and later coal—converted lime into quicklime, which was shipped out all over Scotland. The area is virtually all now residential, but it has an industrial past.

Towards the bridgehead area, Rosyth dockyard is still a prominent employer. The new port at Rosyth has potential to link Scotland to many more destinations in Europe. Dalgety Bay was a port more than 100 years ago. In the early 1980s, there were several campaigns to stop the establishment of Braefoot gas terminal, which is close by. No mention of the area would be complete without recognition of Aberdour's popular award-winning beach.

Further up the coast, people can witness many aspects of industry and commerce and environmental areas of interest that are of economic significance.

Photo of Marilyn Livingstone Marilyn Livingstone Labour

Does the member acknowledge the huge role that places in my constituency, such as Kirkcaldy, Burntisland, Kinghorn, the Wemyss villages and Buckhaven, have played in opposing the current proposals? In particular, does he recognise the role that the Kinghorn environmental group—which submitted a petition to the Parliament—has played? Does he accept that the real answer to the problem lies in bringing about a speedy resolution through the introduction of a marine bill?

Photo of John Park John Park Labour

I was about to deal with that matter. I accept what the member says and acknowledge the work that has been done by local people, environmental groups such as RSPB Scotland, local politicians and members of the Scottish Parliament. We have moved the issue up the political agenda. There are high expectations, which I hope the regulations will go some way towards meeting.

I warmly welcome the minister's proposals. However, the debate has highlighted the importance and sensitivities of the marine environment more generally. As Marilyn Livingstone and Sarah Boyack said, it is important to clarify the marine legislation and to introduce a bill that will allow the issues to be debated in the chamber.

The Administration should build on the lessons that have been drawn from the ship-to-ship experience and develop a marine strategy in the coming months that reflects those lessons.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 3:43, 28 June 2007

Sometimes it seems to me that the only questions that need to be asked in politics are whether there is a problem, whether there is a solution and whether we have the power to deliver the solution. We are discussing such questions today. Once such questions are answered, it is simply a matter of priorities.

It is clear that there is a problem. Concerns have been expressed not only by the communities that live and work by and near the Firth of Forth, but by many organisations—not least of which is SNH—whose principal focus of interest is the care of the wider environment.

The second aspect to the proposal, which has been referred to repeatedly today, is the extent to which it has highlighted the deficiency of the current arrangements with respect to the scope of ministerial intervention.

Obviously, one response to the environmental concerns would be to rule out transfers if they are planned to take place too near areas of environmental and/or economic sensitivity, but we cannot do that. In any case, we would not do that, because we are talking about part of the economy of local areas. Alternatively, we could build in robust measures that would ensure strict compliance and provide the maximum possible safeguards, but the devolved and reserved split makes that difficult. We could try to ensure that decisions are taken democratically—they could be made subject to scrutiny—but I am particularly concerned about that because, despite comments that I have heard today, I have real questions about Forth Ports Authority, which is a public limited company. To whom is it accountable? It is a private company with a regulatory role; there is seemingly no oversight.

Ultimately, Forth Ports makes a profit from the decisions that it takes. I cannot see how that is the best way to proceed. It is difficult to see how Forth Ports would ever want to take decisions that would adversely affect its bottom line. Indeed, there are other concerns about the way in which Forth Ports conducts its business. It imposes huge variations on the charges that are levied on different harbours around Scotland—my principal concern is Perth—with the intention, I suspect, of moving shipping business to its own ports. However, I will take up that matter separately with the cabinet secretary.

Right now, a proposal with potentially far-reaching consequences for one of the busiest waterways in Scotland seems subject to little in the way of control. It is clear that Westminster, if it so wished, could use merchant shipping legislation to block ship-to-ship oil transfers anywhere round the UK that it chose and could, therefore, react to this concerted Scottish concern. Apparently, it chooses not to do so. It is not exactly a ringing endorsement of Westminster democracy that it should so flagrantly ignore the cross-party and widespread concerns of the people of this country.

Meantime, in this Parliament, we have to address the deficiencies in our powers and consider what can be done through the devolved settlement to effect some meaningful intervention and ensure compliance with the habitats directive, which is currently not possible. The mechanism that is proposed today might not be the whole answer, but it will at least insert a more strategic check into the process than is currently the case. It is widely welcomed by various environmental organisations and I hope that it is welcomed by the communities that live and work in the Firth of Forth area.

With reference to my friend Michael Rumbles's comments, it seems extraordinary to me that the clamour for speedy action should be responded to on his part with a call for us all to slow down. With reference to Sarah Boyack's comments about the proposed marine bill, I too would like to know whether the marine bill will contain provisions that will impact on the area of policy concerned with ship-to-ship oil transfers. It would be interesting to know whether we could do anything through the bill that would bear on the situation.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I am in my last paragraph.

I question the assumption among members that the marine bill will somehow resolve all the devolved and reserved issues. I do not see how that could be the case. I have a much simpler solution to resolving those devolved and reserved issues.

Photo of Jim Tolson Jim Tolson Liberal Democrat 3:47, 28 June 2007

I am grateful to Richard Lochhead for opening the debate. He made a number of particularly good points. For example, I am glad to hear that there will be further discussions between him and other ministers and that Ruth Kelly, the new UK Secretary of State for Transport, will be a key person to whom he will speak on the subject. Mr Lochhead rightly seeks to transfer the powers relating to ship-to-ship oil transfers to Scotland now, which will help to protect us in the future. I am also glad that he is looking to have further discussion with Whitehall about its using its powers in relation to the Forth now.

Although ministers might be able to call in that power in the future, there are many dangers in the current scenario, not least to the wildlife, marine life and tourism around the Forth estuary. I see no benefit to anyone of the ship-to-ship oil transfer proposal. As was mentioned by John Park, the Fife Lib Dem MPs and MSPs have unanimously opposed the proposal; indeed, as a recent former Fife councillor, I spoke out against the proposal in the council chamber in Glenrothes.

You might or might not know, Presiding Officer, that I spent six years of my life as a member of the Royal Naval reserve, working out of Leith on a river-class minesweeper. I often sailed and conducted exercises on the Forth, so I know how difficult conditions there can be. The danger of collision or even hose connection breakages during oil transfer are a major concern, given how difficult the conditions can be.

It is shameful that Forth Ports is both the body responsible and the promoter of the proposal to make money from ship-to-ship oil transfers on the Forth. Near the Forth on the Fife side is Middlebank wildlife centre, which is in my constituency. The centre deals with wildlife after oil spillages, but I am extremely concerned that many thousands of marine animals could be killed by a major spillage.

When Richard Lochhead sums up, will he give an assurance that if—it is a big "if"—ship-to-ship oil transfers go ahead, the Parliament will do all that it can to minimise the effect of any spillages on all the tidal areas of the Forth, including my constituency, Dunfermline West, rather than just the estuary areas?

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party 3:49, 28 June 2007

I welcome the Government's position as outlined by the cabinet secretary and I am sure that those who live along the shores of the Firth of Forth—and many others—will do so, too. That the cabinet secretary has acted so swiftly is testament to the gravity that he attaches to the issue and its resolution. I am glad to see how positively the Government's and the cabinet secretary's approach has been received by all the parties. In that spirit of consensus, I say that I, too, warmly welcome David McLetchie's amendment. The occasions on which the Parliament acts with unanimity will be rare so, like Robin Harper, I hope and trust that today will be one such occasion.

The pursuit of enterprise is important and I am sure that we all broadly support the growth of the Scottish economy and broadly welcome investment in Scotland that originates furth of its borders. However, the pursuit of economic growth must be tempered by other important, wider considerations. In that regard, the idea that the Firth of Forth is a suitable place for ship-to-ship oil transfers has been shown to be fundamentally flawed. The stretch of water runs beside one of the most populated parts of the country. Should an accident occur, the impact on the communities along the Fife coastline, in our capital city or in Grangemouth and Bo'ness in the Central Scotland region, which I represent, would be enormous. As Jim Tolson said, the firth is home to varieties of seabirds and wildlife that would be fundamentally threatened should an oil spillage happen.

To forecast the worst eventuality is not to take an unduly pessimistic line. We all know that such incidents and accidents can and do happen and that, when they occur, the costs—monetary, human and otherwise—are significant. If we fail to act now, not only would today's citizens rightly criticise us, but history would judge us harshly. I therefore trust that the new United Kingdom Secretary of State for Transport will do what her predecessor failed to do and heed the call of the cabinet secretary and, I hope, the Parliament to act with haste and use the powers that are at her disposal to stop ship-to-ship oil transfers in the Forth.

I am concerned that Forth Ports stands to make a financial gain and is the arbiter in the decision-making process. It is right that Scotland's democratically elected Government should assume control of the process, as Forth Ports should not have that role. Roseanna Cunningham rather eloquently set out the problems inherent in the present state of affairs. The role of decision maker belongs properly to the Scottish Government. I therefore have no hesitation in commending the Government's chosen course of action, while stating my hope that, in the not-too-distant future, our Government will not have to rely on others to act and will have full control over such matters. I agree with Roseanna Cunningham's suggested resolution to the situation.

Photo of Iain Smith Iain Smith Liberal Democrat 3:53, 28 June 2007

The debate has been interesting. There seems to be a new definition of unanimity—we all agree that something should be done, but anybody listening to the speeches would not believe that we were unanimous.

I welcome the amendment regulations to the Conservation (Natural Habitats, &c) Regulations 1994. There is cross-party support for the amendment regulations and the minister must be congratulated on acting swiftly to introduce them before the summer recess. There is no question but that one major issue of concern that has arisen from the ship-to-ship oil transfer proposal is that Forth Ports is both the commercial operator that is applying for the licence for the transfer and the competent authority that determines the application. The amendment regulations will go some way towards addressing that by giving an increased role to the Scottish ministers in respect of the habitats directive, but we should all be clear—I am sure that the minister is clear on this—that the regulations will not give the Scottish ministers a veto on ship-to-ship oil transfers.

The habitats directive relates to specific habitats that are deemed to require special protection. It is vital that we ensure that sensitive sites around our coast, particularly those around the Firth of Forth such as the Isle of May, are protected properly. I welcome the fact that the amendment regulations will remove from Forth Ports the final say on what constitutes an overriding public interest. It cannot be right that a commercial company has to balance its interests and profit with a general public interest and it is therefore right that ministers have a say in that. We have to bear it in mind, however, that if the proposal as it stands complies with the requirements of the habitats directive, overriding the public interest would not come into it, and this Parliament and the Scottish ministers could do nothing to stop ship-to-ship oil transfers.

There are other issues around ship-to-ship transfers that are not covered by the habitats directive and need to be addressed. John Park took us on a guided tour of part of the Fife coast; it goes much further round to reach Fife Ness before becoming St Andrews bay and the Firth of Tay. Those areas are economically important to my constituency and an oil spill could have a significant economic impact, even if there were no risk to any of the protected habitats.

Photo of Michael Russell Michael Russell Scottish National Party

The member is correct to say that the final and important power lies with Westminster at this stage. Will he therefore join me in appealing to the new-in-post Prime Minister—a Fife MP—to ensure that action is taken now?

Photo of Iain Smith Iain Smith Liberal Democrat

The Liberal Democrat MPs have already made such representation and I am happy to support that. I am coming on to the issues on which we need to press the UK Government.

I mentioned tourism, which is extremely important for the award-winning blue flag beaches that we have around the east neuk of Fife. Huge damage could be done to our fragile fishing industry, on which the cabinet secretary and I exchanged views earlier this afternoon. Contamination from an oil spill could have a serious impact on the Firth of Forth fisheries.

Those issues need the UK to make legislative changes and give powers to this Parliament so that when we legislate on the marine environment, as all parties have promised that we will do, we will have the powers to bring in effective controls to protect our marine environment and sea shore. It cannot be right that a private commercial company can act as the competent authority to determine applications on its commercial activities. Those decisions must be subject to proper democratic scrutiny by this Parliament or the appropriate local authorities. I hope that the UK Government will agree to make the required legislative changes to give this Parliament the powers to ensure that the situation is corrected.

Photo of David McLetchie David McLetchie Conservative 3:57, 28 June 2007

The proposed ship-to-ship oil transfers in the Firth of the Forth and the desire to improve the regulatory framework that governs such activities and to give the Scottish ministers a locus in this matter has led us into a legal labyrinth. The most that one can charitably say about the previous Scottish Executive's efforts is that it appears to have been lost in that maze for a considerable time, given that the issue first arose more than two years ago. Although it is fair to acknowledge Sarah Boyack's contribution and efforts since January of this year, it is also fair for John Scott, Tricia Marwick and others to ask what took so long.

We are essentially being asked to approve a clever device to use the limited powers of the Scottish Parliament under the habitats regulations to give ministers a measure of control over ship-to-ship oil transfers. The cautionary note sounded by Mike Rumbles about the competence and vires of any decision should be taken on board in the exercise of the powers that we now confer upon ministers.

When the cabinet secretary made his statement on this issue last month, I asked why Her Majesty's Government had not addressed the concerns. As many members have pointed out, the regulations do not empower ministers to prohibit such transfers, but would merely give them a role in the assessment procedures, so my question remains perfectly valid—and unanswered. The Merchant Shipping Act 1995 gives Her Majesty's Government powers to make regulations about the transfer of oil between ships, within UK waters, for the purposes of preventing pollution, danger to health or navigation or to natural resources. Such regulations could prohibit transfers of a specified description in a specified area. That is the legal position. Since the Government has chosen not to legislate directly on this matter, I can only assume that that is a deliberate act of policy. It might have perfectly valid and good reasons for not so acting, but we need to know them. Her Majesty's Government should not be allowed to wash its hands of the matter.

My colleague, David Mundell MP, of fond memory in this Parliament, received an answer on Monday of this week from the Secretary of State for Transport. He asked whether the Government had power under merchant shipping legislation to block such transfers, and about the Government's response to the present public concerns. The reply that he received on Monday this week notes the regulations that are before the Parliament today and goes on to say that the UK is considering making regulations under section 130 of the Merchant Shipping Act 1995 in areas where there is no appropriate oil spill contingency plan in place. That is a welcome development. It may not apply to the exact circumstances that pertain in the Firth of Forth, but it demonstrates that the overall regulatory framework in this respect is not comprehensive in its scope or nature and that more work needs to be done on the subject.

My amendment

"requests the Scottish Government to invite Her Majesty's Government to consider complementary legislative measures to" address the problem. That is a modest and reasonable request to make. I am pleased that the cabinet secretary has taken the amendment on board and hope that, through constructive co-operation, Scotland's two Governments and two Parliaments can work in tandem to achieve a satisfactory result on this important matter.

Photo of Iain Gray Iain Gray Labour 4:01, 28 June 2007

I am pleased that this debate is taking place and to have the chance to contribute to it. Like many other speakers, particularly those from Fife and the Lothians, I represent one of the constituencies—East Lothian—in which concern about the oil transfer proposal has been greatest. Time does not allow me to compete with John Park's vivid travelogue of Fife. Although I am sure that I could do just as well on the other side of the Forth, that will have to wait for another day. Suffice it to say that in East Lothian there is no support for Forth Ports' proposal. It is opposed by all political parties in East Lothian. The previous East Lothian Council opposed it, and I assume that the new administration opposes it. The proposal is opposed by the Scottish Ornithologists Club, from its base at Aberlady, and by the Scottish Seabird Centre at North Berwick. It has no support in and is believed to be of no benefit to East Lothian.

I welcome the cabinet secretary's motion, which will also be welcomed by my constituents. We last discussed the issue in Parliament on 24 May, when the cabinet secretary made a statement on the matter. On that occasion, he endorsed and undertook to continue the search that Sarah Boyack initiated for a route to an amendment to the habitats directive that would give Scottish ministers a locus in the decision. At that point, we urged the minister to update us before the summer recess. I freely acknowledge that Mr Lochhead has responded to that request. A couple of weeks ago he held a useful and welcome briefing for MSPs on progress, and he has clearly worked hard to get the measure that is before us today in place before the summer recess. I give him and his officials all credit for doing so.

On 24 May, we stressed the importance of recognising the limits to the powers that the measures will give to ministers. That issue has been aired at length today by many speakers. A helpful aspect of the debate is that the position is clear and honest. We know that the measure will not give ministers absolute power to agree to or to reject proposals such as this on the basis of public opposition or the threat to tourism, for example; it allows solely for the exercise of devolved powers, within the framework of the habitats directive. It is a partial measure, but we agree with the minister that it is what is possible under the Scotland Act 1998 and that it will be a great improvement on the perverse legal position that currently prevails, which leaves Forth Ports as both regulator and beneficiary. Roseanna Cunningham was right to point out just how perverse the position is. Of course, this perverse position was created by a previous Tory Government. If it had got things right the first time round, we would not have been left in this situation.

Photo of David McLetchie David McLetchie Conservative

Would the member like to tell us when, in all the time that he was advising the former Secretary of State for Scotland and Secretary of State for Transport, he told him to get on his bike and do something about this matter?

Photo of Iain Gray Iain Gray Labour

I advised the secretary of state in the Scotland Office, and the issue certainly was taken seriously and examined at the time. If today's debate is about finger pointing, some fingers must point in the direction of the Tories.

However, today's debate is not about pointing fingers. The fact is that the legal position is perverse, and all sides of the chamber want to correct it. As Sarah Boyack made clear, we still believe that the regulation of ship-to-ship oil transfers should in the long run be dealt with in this Parliament by a marine bill that complements the proposed United Kingdom marine bill.

There is some truth in Tricia Marwick's reference to legislative spaghetti and Rob Gibson's comment about 85 pieces of legislation. Mr Gibson also referred to a comment that I made at an election hustings; I do not remember seeing him there, but he is always very welcome. That very complexity is exactly the reason why, as Robin Harper made clear, these matters must be resolved fully within a proper marine spatial planning framework. Of course, that will require close work with the UK Government and, almost certainly, complementary legislation here and at Westminster. As a result, we have no problem with supporting the Conservative amendment, although it would have been better if it had cited the need for a marine bill.

However, the main business today is to secure the regulations before the Parliament, so I give credit where credit is due to the Cabinet Secretary for Rural Affairs and the Environment for bringing them to the chamber before the recess. We will certainly support his motion this evening.

Photo of Michael Russell Michael Russell Scottish National Party 4:07, 28 June 2007

At the outset, I say that we have had a positive debate with many good speeches, and I hope to address some important points that have been raised.

I also want to pay tribute to Sarah Boyack, who I know showed great concern about this issue and instituted entirely appropriate work to deal with it. However, I pay stronger tribute to the cabinet secretary, who has accelerated that work in order to bring this matter to the chamber today.

Let us be very clear what we are talking about. If Forth Ports were to decide to proceed with a set of proposals that, as Iain Gray has indicated and as we hope will be demonstrated this afternoon, have no support in this Parliament, no support from any of the local authorities bounding on the Forth, no support from the environmental organisations and no support from the members of the public, we would require Westminster to act, because the regulations governing ship-to-ship transfers are reserved.

Westminster could act in various ways. I, of course, feel that the best way would be to transfer the powers in question to this chamber, but it could make regulations under section 130 of the Merchant Shipping Act 1995 or make amendments to the Conservation (Natural Habitats, &c) Regulations 1994, similar to those before us today. In any case, Westminster would be required to act.

We need to consider a number of points before we can think about what we can do to complement any such action. For example, some members have wondered whether the amendment regulations are ultra vires. We have been assured—and I think that I can assure the chamber—that the amendment regulations create a proportionate set of powers for ministers to help to ensure that the habitats directive is complied with, and powers conferred under the European Communities Act 1972 allow us, within our devolved competence, to introduce such regulations.

Members, especially John Scott, have asked whether we are the competent authority to legislate on this matter. We are indeed the authority that can make these regulations, and I hope that they will be passed today.

Sarah Boyack asked whether the regulations are too wide and whether they will cover other public authorities. All the competent authorities will be covered under our devolved competence to deal with them. As a result, the regulations must have this particular shape and form.

Photo of Michael Russell Michael Russell Scottish National Party

I see that I have interventions from both sides. I will take Sarah Boyack first.

Photo of Sarah Boyack Sarah Boyack Labour

I was not criticising the move to sweep other organisations into the scope of the legislation; indeed, I welcomed it. I simply thought that it might helpful if the minister could clarify how that would be done.

Photo of Michael Russell Michael Russell Scottish National Party

The regulations will attach to existing plans and projects that are not compliant with the directive. In reality, the regulations must be shaped in their present form.

I think that Mr Scott had a similar question, so I will let him ask it.

Photo of Tavish Scott Tavish Scott Liberal Democrat

I apologise to the minister and to his colleagues for labouring the point, but I am genuinely concerned about the possible impact on ports such as Sullom Voe in my constituency. Does he share my concern about the British Ports Association's submission to the consultation? It is concerned that, as Sarah Boyack mentioned, the broader social, environmental and economic issues might not have been considered in the construction of the regulations. Will the minister undertake to write to members—or to place in the Scottish Parliament information centre the relevant information—and to the BPA on those points so that we can be very clear about what we are being asked to pass today?

Photo of Michael Russell Michael Russell Scottish National Party

I am happy to commit the cabinet secretary—with his consent—to write in those terms so that Mr Scott is reassured.

The only member who suggested that our proposals might have been rushed was Mr Rumbles. His point was somewhat negated by his colleague Iain Smith, who said that tackling the issue was a matter of urgency. We know that our proposals have been produced in a short time, but the situation that we face meant that that had to be the case.

We are arguing that Westminster should act and we are suggesting how it should act, but the issue of the marine bill is a chimera because, as Roseanna Cunningham pointed out, a marine bill could not take reserved powers and give them to the Scottish Parliament. Such a bill could not do that. To stop ship-to-ship oil transfers, we must ensure that Westminster acts and that we make the progress that we can make with the regulations that we can pass—of course, all SNP MSPs would like us to be able to pass all appropriate regulations. We will take our steps and Westminster must take its. I repeat the point that the constituency interest of the new Prime Minister might impel him to act where others have failed to.

Photo of Michael Russell Michael Russell Scottish National Party

No, I am sorry—I really must make progress.

We have worked hard on the issue, as did the previous Administration. There has been acknowledgement in the Parliament that we have had to work hard on it. Now we must ensure that, unanimously, the Parliament sends the right message.

As a Government, we have done what the Parliament asked us to do. We have reported in advance of the summer recess on measures that are within the powers of the Parliament. We have been swift to develop appropriate new legislation that puts our own house in order—the proposed powers are immensely useful in that regard—and which will send out a strong signal from the Parliament.

Photo of Michael Russell Michael Russell Scottish National Party

No, I must make progress.

As the cabinet secretary said, the Scottish Parliament has a vital role to play in ensuring that legislation that implements the habitats directive is fit for purpose.

I repeat that we need Westminster to act on the proposal in question. It is clear that that is where the powers to regulate or stop ship-to-ship oil cargo transfer lie. The motion, as amended, rightly calls on the Westminster Government to exercise those powers now. I urge other members to accept the amendment, as we have done. We will continue to attach the highest priority to progressing these important matters with Whitehall to secure action. Taken together, our actions will solve the problem and ensure that it does not occur again.

The Scottish environment is extremely precious. I spent the early part of this week on the island of St Kilda, so I know how precious such places are. We must protect and preserve our environment. The proposals that Forth Ports favours have no parliamentary or public support. I hope that the Parliament will send a unanimous message and that progress will be made.