Section 8 — Delegation of functions relating to regional marine plans

Marine (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:20 am on 4th February 2010.

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Photo of Alex Fergusson Alex Fergusson None 9:20 am, 4th February 2010

Amendment 24, in the name of Elaine Murray, is grouped with amendments 104, 25, 105, 106, 42 and 43.

Photo of Elaine Murray Elaine Murray Labour

The Rural Affairs and Environment Committee stage 1 report expressed concerns that functions relating to regional marine plans could, under the present wording of the bill, be delegated to one public authority acting on its own without any other partners.

At stage 2, I introduced a similar amendment to amendment 24 that, surprisingly—considering the committee's view at stage 1—was defeated on the convener's casting vote.

Amendment 24 would require delegation of functions in relation to regional marine plans to

"a person nominated by Scottish ministers" plus a public authority and/or a person who is

"nominated by a public authority with an interest in the ... marine region".

The requirement to include a person who is nominated by Scottish ministers as a delegate reflects the committee's stage 1 recommendation:

"the Committee considers that Marine Scotland's experience and expertise will be crucial for the effective running of all MPPs. The Committee would expect that Marine Scotland would take the lead role in administering MPPs."

The inclusion of a representative from Marine Scotland would ensure that national priorities be appropriately reflected in regional plans.

Amendment 24 has the support of the Scottish Fishermen's Federation and it is the view of that organisation, and of other witnesses who gave stage 1 evidence, that Marine Scotland should chair the regional planning partnerships in order to ensure fairness and consistency.

Amendment 25 is consequential on amendment 24. The intention is the same as that of section 8(3), which it would replace, and it would require ministers only to give direction with the consent of the public authority or authorities involved in the partnership, either directly or by nomination of delegates.

Amendments 42 and 43 would apply the same principle to the delegation of functions relating to marine licensing, and would mean the requirement of a partnership approach to the issuing of marine licences where that has been delegated by Scottish ministers. The consent of the public authority or authorities involved will also be required if an order is made.

Concerns have been raised that amendments 24 and 42 would mean that only one person who has been nominated by ministers and one person who has been nominated by the local authority or public authority could be on the planning partnership or licensing authority. However, in the amendments, as in all United Kingdom and Scottish legislation, the singular includes the plural. I refer members to The Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999, statutory instrument 1379, which states in schedule 1, paragraph 3,

"In an Act of the Scottish Parliament, unless the contrary intention appears,-

(a) words importing the masculine gender include the feminine;

(b) words importing the feminine gender include the masculine; and

(c) words in the singular include the plural and words in the plural include the singular." [Applause.]

As there is no contrary intention in, for example, the use of the word "one" rather than the use of the word "a", in amendments 24 and 42, more than one person could be nominated by ministers or by the authority, and there could be more than one public authority delegate.

I move amendment 24.

Photo of Robin Harper Robin Harper Green

Amendment 104 seeks to give some structure to marine planning partnerships. Section 8 currently enables ministers to delegate regional planning functions to "a group of persons". The policy intention is to delegate, and we support increased local governance for planning, but the bill contains no provision for how those groups would be structured or constituted.

In its stage 1 report, the committee supported a flexible approach to membership, and that support was reiterated at stage 2. However, it also made it clear that the MPPs should be diverse bodies that are not dominated by narrow sectoral interests. Amendment 104 seeks to strike a balance between those concerns, and as with the similar amendment that was lodged at stage 2, it requires ministers to ensure only "so far as" is "reasonably practicable" that the partnerships include

"representatives of persons with an interest in ... the protection and enhancement" of the area, and in use of the area for recreational and commercial purposes. Amendment 104 is supported by Scottish Environment LINK, Surfers Against Sewage, and Scottish Renewables, who

"welcome strong, transparent and inclusive marine planning partnerships that can bring all the stakeholders together early in the process to get renewables rapidly developed in the right places."

On amendment 105, in its stage 1 report, the Rural Affairs and Environment Committee stated that it found it almost impossible to envisage circumstances in which a single public authority would be an appropriate partnership, and it advocated removal of that provision. Amendment 105 does not go that far, but we agree that ideally, regional planning functions should be delegated to a group of people and not to a public authority. Amendment 105 therefore would require that when ministers make such a direction, they must include a statement of reasons why they have chosen a public authority, and it would require that authority to consult representatives of persons from the three broad sectoral interests that I mentioned when speaking to amendment 104, and any other persons that Scottish ministers consider appropriate, when it is exercising its delegated functions. Again, amendment 105 comes with broad support.

Amendment 106 would require ministers to lay before Parliament a draft of any direction that they give under section 8 to delegate regional planning functions, in order that Parliament has an opportunity to consider a direction that will hand enormous power to those groups. Parliamentary scrutiny of the partnerships and their composition will ultimately give them clear authority to get on with the job with which they are tasked, safe in the knowledge that they have passed the test, that they are representative, and that they have the seal of Parliament. If the composition of the partnerships were to leave out interests, the danger would be that those groups will cry foul at a later date, and would seek to undermine the plans and agreements that have been put in place. It is essential that we get this part of the planning process right.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Despite Elaine Murray's rather learned, three-musketeer style defence of her amendments, I am afraid that we cannot support amendments 24 and 25 because it appears that they would dilute the flexibility that ministers have in the bill as it stands in return for no commensurate benefit.

I am, however, minded to support amendments 104, 105 and 106. Although I am not certain that they would add a great deal of practical effect beyond what is in the bill already, amendments 104 and 105 seem to have the benefit that they would provide additional clarity for those who might expect to be involved in marine planning. As Robin Harper said, amendment 106 seeks to introduce greater transparency and accountability through Parliament's role. On that basis, the amendments are worthy of support.

Photo of John Scott John Scott Conservative

I speak in support of Elaine Murray's amendments 24, 25, 42 and 43, which will give the opportunity for a wider view to be taken in the development of regional plans and marine licensing than that which might be taken by a single authority acting on its own. In terms of consistency of approach, Marine Scotland should have an input into the development of all regional plans and granting of marine licences. That is why I believe Elaine Murray's amendments to be so important. I know that the minister has concerns about the amendments, but they are, nonetheless, better than what is already in place, notwithstanding what Liam McArthur said. Elaine Murray has more than adequately answered any doubts that the minister might have.

I am happy to support Robin Harper's amendments 104 and 105, although I am unable to support amendment 106.

Photo of Richard Lochhead Richard Lochhead Scottish National Party 9:30 am, 4th February 2010

Amendment 24 would remove the flexibility to delegate planning functions to a single public authority. I believe that none of us would wish the powers to delegate planning functions to be limited in such a way. It is not inconceivable that delegation of planning functions to a single public authority might be appropriate in some cases. For example, delegation to one of the islands councils in Scotland might be a possibility. Elaine Murray referred eloquently to existing legislation, but we must address the wording of the amendment that is before us, so I ask her to consider seeking to withdraw amendment 24.

Amendment 104 is similar to amendment 141, which was debated at stage 2. That amendment was defeated, as it was too prescriptive, but amendment 104 addresses the issue by including the phrase

"any other persons that the Scottish Ministers consider appropriate".

That drafting provides more flexibility to meet the wide range of circumstances around the Scottish coast, so we are happy to accept amendment 104.

We want to resist amendment 25, which is consequential on amendment 24.

Amendment 105, which sets out further details on what a direction to a public authority must include, would offer a safeguard to a number of stakeholders who are worried about the use of the Government's direction-giving powers, so we are happy to accept it.

Amendment 106 would introduce another layer of decision making by requiring the Government to lay before the Parliament for consideration a copy of the draft directions that are given to marine planning partnerships. That process, which would take a minimum of 40 days, is not necessary and would add a further layer of bureaucracy. For those reasons, and given the movement that I have made on amendments 104 and 105, I ask Robin Harper to consider not moving amendment 106.

The arguments on amendment 42 are similar to the ones that I have just laid out on amendment 24. Amendment 42 would remove the flexibility to delegate licensing functions to a single public authority. We would not wish to limit the powers to delegate licensing functions in such a way. I repeat that it is not inconceivable that delegation of licensing functions to a single public authority might be appropriate in some circumstances, perhaps to one of the islands councils. Therefore, I ask members to resist amendment 42 and the consequential amendment 43.

Photo of Elaine Murray Elaine Murray Labour

To clarify, in the situation that the cabinet secretary describes, a partnership could be a single public authority plus a representative of Marine Scotland. That is not ideal, but that is all that amendments 24 and 42 would require. I do not think that there can be a partnership of one—I have never heard of that—and it is important that Marine Scotland be involved in all the regional marine planning partnerships.

The statutory instrument to which I referred affects all acts of the Scottish Parliament and applies in all cases, including the bill. I have come up against the issue previously when I have complained about something being expressed in the singular and been advised that that includes the plural. The clerks have checked the amendments and discussed them with a senior draftsperson, so I am confident that they would not restrict partnerships to two people plus one local authority. I therefore press my amendment 24.

The Labour Party supports amendments 104 to 106 in the name of Robin Harper.

Photo of Alex Fergusson Alex Fergusson None

The question is, that amendment 24 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brocklebank, Ted, Brown, Gavin, Brownlee, Derek, Butler, Bill, Carlaw, Jackson, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Godman, Trish, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Harvie, Patrick, Henry, Hugh, Jamieson, Cathy, Johnstone, Alex, Kelly, James, Kerr, Andy, Lamont, Johann, Lamont, John, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McAveety, Mr Frank, McConnell, Jack, McGrigor, Jamie, McLetchie, David, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Milne, Nanette, Mulligan, Mary, Murray, Elaine, Oldfather, Irene, Park, John, Peacock, Peter, Peattie, Cathy, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Elizabeth, Stewart, David, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Allan, Alasdair, Brown, Keith, Brown, Robert, Campbell, Aileen, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, Finnie, Ross, FitzPatrick, Joe, Gibson, Kenneth, Gibson, Rob, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hume, Jim, Hyslop, Fiona, Ingram, Adam, Kidd, Bill, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McArthur, Liam, McInnes, Alison, McKee, Ian, McKelvie, Christina, McMillan, Stuart, Morgan, Alasdair, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Salmond, Alex, Scott, Tavish, Smith, Iain, Somerville, Shirley-Anne, Stephen, Nicol, Stevenson, Stewart, Stone, Jamie, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Tolson, Jim, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

Photo of Alex Fergusson Alex Fergusson None

The result of the division is: For 62, Against 60, Abstentions 0.

Amendment 24 agreed to.

Amendment 104 moved—[Robin Harper]—and agreed to.

Amendment 25 moved—[Elaine Murray].

Photo of Alex Fergusson Alex Fergusson None

The question is, that amendment 25 be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brocklebank, Ted, Brown, Gavin, Brownlee, Derek, Butler, Bill, Carlaw, Jackson, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Godman, Trish, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Harvie, Patrick, Henry, Hugh, Jamieson, Cathy, Johnstone, Alex, Kelly, James, Kerr, Andy, Lamont, Johann, Lamont, John, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McAveety, Mr Frank, McConnell, Jack, McGrigor, Jamie, McLetchie, David, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Milne, Nanette, Mulligan, Mary, Murray, Elaine, Oldfather, Irene, Park, John, Peacock, Peter, Peattie, Cathy, Scanlon, Mary, Scott, John, Simpson, Dr Richard, Smith, Elaine, Smith, Elizabeth, Stewart, David, Whitefield, Karen, Whitton, David
Against: Adam, Brian, Allan, Alasdair, Brown, Keith, Brown, Robert, Campbell, Aileen, Coffey, Willie, Constance, Angela, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, Finnie, Ross, FitzPatrick, Joe, Gibson, Kenneth, Gibson, Rob, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hume, Jim, Hyslop, Fiona, Ingram, Adam, Kidd, Bill, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McArthur, Liam, McInnes, Alison, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McMillan, Stuart, Morgan, Alasdair, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Salmond, Alex, Scott, Tavish, Smith, Iain, Somerville, Shirley-Anne, Stephen, Nicol, Stevenson, Stewart, Stone, Jamie, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Tolson, Jim, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John

Photo of Alex Fergusson Alex Fergusson None

The result of the division is: For 62, Against 60, Abstentions 0.

Amendment 25 agreed to.

Amendment 105 moved—[Robin Harper]—and agreed to.