Section 25 — Activities below specified threshold of environmental impact

Marine (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:00 am on 4th February 2010.

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Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 10:00 am, 4th February 2010

Group 9 is on marine licensing: exemptions specified by order. Amendment 16, in the name of Elaine Murray, is grouped with amendments 17 to 19.

Photo of Elaine Murray Elaine Murray Labour

The amendments in this group relate to activities that are deemed to have a sufficiently low impact on the environment that they do not require to be licensed but will be registered instead.

At stage 2, I lodged an amendment that would have required ministers to make regulations for those activities that will be registered rather than licensed. That amendment was resisted by the cabinet secretary and rejected by the Rural Affairs and Environment Committee on the convener's casting vote, and I have not lodged the same amendment at this stage. I still believe, however, that if ministers make regulations providing for licensable marine activities that fall below a specified environmental threshold, there are certain matters that should be covered by those regulations.

Amendments 16 and 17 would require definitions of what being registered means, what the specific environmental threshold is and what falling below that threshold means. If the bill is to provide a mechanism by which licensable activities are not to require a licence, clarity about the criteria used to assess whether the activity should be registered is essential.

Amendment 19 would replace the requirement for the Scottish ministers to

"consult such persons as they consider appropriate" with a requirement to consult persons who represent conservation and commercial interests. Scottish Natural Heritage would also have to be consulted, as would other persons that the Scottish ministers considered appropriate.

At stage 2, I lodged but did not move a similar amendment, which the cabinet secretary said was unnecessary because he would consult such groups anyway. That might be so, but there is no harm in making such a requirement clear in the bill, as other amendments that we have agreed to today will do.

The bill team expressed concern that amendments 16 to 18 would require the regulations to be rewritten every time a minor amendment was made. I do not think that that is a problem. If the definitions do not change, all that will be needed will be to cut and paste the appropriate part from one regulation to another. Committees consider many statutory instruments that involve minor variations to general text that does not change from one year to another. I do not think that there is an insurmountable problem in that regard.

I have been advised that consequential amendments might be required as a result of amendment 19. If the minister advises what should have been included I will decide whether to move the amendment.

I move amendment 16.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

Amendments 16 to 18 would require all regulations made under section 25(1) to deal with all the matters in section 25(2). However, until we have developed a registration scheme under section 25, we cannot be certain that it would be sensible to make an absolute requirement of the sort that Elaine Murray proposes. For example, there might be no need to elaborate on the meaning of "fall below", but if the amendments were agreed to, regulations that failed to do that would be incompetent.

Moreover, the wording of the amendments is such that they would prevent amending regulations from being made after an initial set of regulations had dealt with the section 25(2) matters. Instead, the principal regulations would have to be remade on every occasion. I doubt that that is Elaine Murray's intention and I would be grateful if she would not press amendment 16 and not move amendments 17 and 18.

At stage 2, we debated a similar amendment to amendment 19, and our view remains the same. Amendment 19 is unnecessary and unhelpful.

Section 25(4) already requires the Scottish ministers to consult

"such persons as they consider appropriate" when they make regulations under section 25. I reassure Elaine Murray again that the groups that are mentioned in amendment 19 will be consulted. An absolute statutory requirement, worded in the way that she envisages, could give rise to disputes about whether the right people had been consulted and could make regulations challengeable by people who thought that they came into the stated categories.

Photo of Elaine Murray Elaine Murray Labour

The meaning of "fall below" is not necessarily obvious and will depend on the

"specified threshold of environmental impact", which could be 1 per cent, 5 per cent or 10 per cent. The issue is not straightforward; it will depend on the criteria that are used. The issue is important because, as we discussed in committee, a number of small registrable activities could have a cumulative effect. We need to understand what is meant by the terms that are used in section 25.

Amendment 19 was not intended to be unhelpful. I heard what the cabinet secretary said, but surely the same argument could be made against the many provisions in the bill that require representatives of recreational, commercial or environmental protection and enhancement interests to be consulted or involved in partnership. The specification of such groups could lead to disputes between different representatives. I do not see why the argument that applies to amendment 19 should be different from the argument that applies to other provisions in the bill. I press amendment 16.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The question is, that amendment 16 be agreed to. Are we agreed?

Members:

No.

Division number 7

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

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The result of the division is: For 58, Against 60, Abstentions 0.

Amendment 16 disagreed to.

Amendments 17 to 19 not moved.