Section 42 — Delegation of functions relating to marine licensing

Marine (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:15 am on 4th February 2010.

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Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 10:15 am, 4th February 2010

Group 12 is on marine licensing: fish farming. Amendment 41, in the name of Elaine Murray, is grouped with amendment 22.

Photo of Elaine Murray Elaine Murray Labour

This area of the bill is a little contentious. I hope to be able to give an explanation of the intention behind amendments 41 and 22 and provide reassurance to the local authorities that have expressed concern about them.

The amendments were prompted by the majority conclusion of the Rural Affairs and Environment Committee at stage 1 and the policy intention of the bill as expressed in the policy memorandum. The bill aims to provide a simplified and streamlined way of getting a licence for a marine activity and provides powers for ministers to deliver a single consent to each renewable energy project. However, unfortunately, marine fish farming is excluded from the bill. It alone among licensable activities remains under terrestrial planning legislation within the Town and Country Planning (Scotland) Act 1997 as amended by the Water Environment and Water Services (Scotland) Act 2003 and the Planning etc (Scotland) Act 2006.

The bill enables local authorities to transfer responsibility for granting and refusing marine fish farming consents to the Scottish ministers should they wish to do so. The majority view of the Rural Affairs and Environment Committee—disagreed with only by Liam McArthur at stage 1—was that that was the wrong way round and that marine fish farming should be treated in the same way, and dealt with under the same legislative planning framework, as every other licensable marine activity.

Provisions already exist in section 42(1) for the delegation of marine licensing functions to public authorities and other partners. The subsection that amendment 41 would insert after subsection (1) makes it explicit that that would include the function of approving or refusing a licence for a licensable activity, such as fish farming if it were transferred under the bill, as would happen if amendment 22 was agreed to.

Amendment 22 would remove fish farming from the provisions of the Town and Country Planning (Scotland) Act 1997 as amended and thereby bring it under the bill. I am aware that the proposal has been opposed by the Convention of Scottish Local Authorities. I have met COSLA representatives and spoken with officials from a number of councils that, historically, have had key roles in the determination of marine fish farming applications, such as Orkney Islands Council, Shetland Islands Council, Western Isles Council, Highland Council and Argyll and Bute Council. Those councils are concerned that a power will be removed from them but, with their long experience, they should and could apply to ministers to have the licensing function devolved to their marine licensing authorities.

Furthermore, under the amendments to the Town and Country Planning (Scotland) Act 1997 that were made by the Planning etc (Scotland) Act 2006, decisions on marine fish farm applications are deemed to be local and, therefore, are made by planning officials, not a council's planning committee. Licensing authorities, which would assume responsibility for such decisions if these amendments were passed, would probably include councillors. Therefore, the arrangement under my amendments would be not only more logical but, potentially, more democratic.

The Scottish Salmon Producers Organisation has also advised me that it is likely that combined renewable energy and marine fish farming proposals will be developed within the next five years. As the bill stands, such applications would have to be determined under two legislative regimes: the Town and Country Planning (Scotland) Act 1997 for the fish farming side and the bill for the renewables side. Amendment 22 would enable such applications to be determined under one system and, potentially, by the local licensing authority.

Amendments 41 and 22 are supported by the Scottish Fishermen's Federation and the SSPO. I understand that Scottish Environment LINK is also in favour, although that has not been included in its briefing on today's amendments.

I move amendment 41.

Photo of John Scott John Scott Conservative

I speak in support of amendments 41 and 22.

In its stage 1 report, the Rural Affairs and Environment Committee concluded that licensing should come under one regime and that, for consistency of approach, fish farming should be under the same licensing regime as other activities. With the notable exception of Liam McArthur, the committee also took the view that the function could be delegated to other authorities.

The key point is that ultimate responsibility for planning decisions on fish farming would rest with the Scottish ministers and Marine Scotland, not local authorities—in an undemocratic way, as Elaine Murray pointed out—as is the current position. Amendment 41 would allow the Government to delegate that responsibility if it chose to. Local authorities would still have a huge input into the process, but the current approach—with different local authorities taking different approaches to similar planning applications—is simply a mess. Professor Phil Thomas drew attention to that in his evidence to the committee.

Amendment 41, taken in conjunction with amendment 22, seeks to bring clarity to a confused situation and I hope that it will be supported at this late stage by members who agreed with the conclusion in the committee's report.

Photo of Bill Wilson Bill Wilson Scottish National Party

My concern in the committee was that, if we had several local authorities in a single marine region, we could end up with multiple licensing conditions within that region. I would be reassured if the minister assured us that he will issue guidance to ensure that multiple local authorities will co-ordinate to produce a single licensing regime within a marine region.

Photo of John Scott John Scott Conservative

Bill Wilson should speak to the minister about that because, thus far, he has made no attempt to reassure us in that regard.

Amendment 22 would change the provisions of section 54 and ensure that the consenting of marine fish farms falls within the new licensing system. It would ensure that fish farming consents are treated in the same way as all other applications and are dealt with by the Scottish ministers. The benefit of that will be to provide a consistent approach towards fish farming applications, which is lacking at the moment. That is the key element, but the amendment will further allow the Government to set a strategic direction, should such be required to encourage food production over tourism, for example.

Photo of Liam McArthur Liam McArthur Liberal Democrat

After some of the less generous comments about my antics on amendment 32, I am pleased to note that Elaine Murray and John Scott acknowledge my consistent rebellion on licensing arrangements for fish farming. The arguments against the approach that amendments 41 and 22 propose have not changed since I first articulated them at stage 1. I appreciate that those arguments have so far failed to convince Elaine Murray and her Labour and Tory colleagues, but I am heartened by the success that the cabinet secretary and I enjoyed in winning hearts and minds among SNP back-bench members at stage 2.

The changes that Elaine Murray proposes are unnecessary and unwelcome. They introduce a presumption in favour of centralisation in the interest of administrative neatness rather than in favour of the communities that have the greatest interest in the future of fish farming. As Elaine Murray indicated, COSLA has prepared an excellent briefing that highlights the risks that are inherent in the approach. Those include a loss of efficiency, local accountability and financial certainty in business planning.

Moreover, the proposal sends entirely the wrong signal about the confidence that the Parliament has in local councils, a number of which have invested a considerable amount of time and resources in developing the specific expertise that is necessary to deal effectively and efficiently with fish farming planning procedures. Elaine Murray acknowledged that point.

As the RTPI makes clear in its submission, the current planning system provides the integrated view that is essential for coastal communities. It does so with local and national accountability and with expert consultee input from scientists in Marine Scotland, SNH, the Scottish Environment Protection Agency, district salmon fishery boards and other bodies. If it ain't broke, we should not attempt to fix it.

Photo of Tavish Scott Tavish Scott Liberal Democrat

As the MSP for Shetland—an area where 200 jobs depend on salmon farming and 36 per cent of Scotland's farmed salmon is produced—I will make a brief contribution on amendments 41 and 22.

I take issue with Elaine Murray's point that the industry supports her proposal, as she said early on. The industry in my constituency absolutely does not support it.

Photo of Elaine Murray Elaine Murray Labour

I actually said that the Scottish Salmon Producers Organisation supports the amendments, which it does.

Photo of Tavish Scott Tavish Scott Liberal Democrat 10:30 am, 4th February 2010

It does, but it does not represent the entire industry. If she is to make a contention about the industry, I ask her please to be accurate about the industry's view.

The proposed measure is not good; it is centralising and anti-democratic. I am disappointed that good friends and colleagues of mine in Labour think that the measure is a way forward—I look particularly at Mr Peacock. I am sure that, as a Highlands and Islands representative, he will reflect on the amendments before he votes on them.

John Scott made a point that—

Photo of Tavish Scott Tavish Scott Liberal Democrat

In a minute—I will deal with Mr Scott's point.

John Scott suggested that different approaches throughout Scotland were a bad thing and that everything had to be done in the same way. I could not disagree more. He could and should ask the planning authorities that have dealt with salmon farming since the early 1980s to show him any problems that the existing regime has created, because they do not exist. Of course, procedures will always be refined, but John Scott and Elaine Murray contend that planning authorities—particularly those in Highland, Shetland, Orkney and the Western Isles, which are the main authorities that deal with salmon farming—cannot do the task, which I do not believe is right. I hope that the cabinet secretary will hold to his position on how the matter is dealt with.

The idea that marine licensing is the only regime that applies to salmon farming is wholly wrong. The Scottish Environment Protection Agency and several other bodies deal with salmon farming day in, day out. In many ways, the consents that SEPA grants mean that it has more say than any other part of the system, so John Scott's suggestion that the matter is all down to planning again shows ignorance of the industry.

I hope that amendment 41 will be rejected. It is anti-democratic and would create more centralisation. We should not have it.

Photo of Peter Peacock Peter Peacock Labour

I am grateful to have the chance to respond to Tavish Scott and to support the amendments. I am in an unusual position. When I was Highland Council's leader, I argued strongly for fish farming powers to be removed from the Crown Estate and given to local authorities. If returning those powers to the Crown Estate had been proposed, I would argue against that, but that is not proposed.

The bill fundamentally shifts all permissions in the marine environment to Marine Scotland, with the sole exception of fish farming permissions. I was persuaded by the evidence that the Rural Affairs and Environment Committee took—I thought that my role on the committee was to listen to such evidence. With the notable exception of Liam McArthur, the committee agreed overwhelmingly with the propositions that were put to us in evidence and agreed that fish farming should move to the marine planning system, to be consistent with everything else in Marine Scotland.

I know that local authorities are upset. I have had my ear severely chewed by Michael Foxley, Highland Council's leader. I have had representations from the Western Isles and I spoke to Shetland Islands Council's vice-convener the other day. I told them that they should be relaxed about the proposal and that they will have a big opportunity in the marine planning regional plan framework to lead the strategic planning process on where fish farms should be located—they will play a strong part in that.

As amendment 41 makes clear, the powers could be delegated straight back to local authorities, but in a consistent framework throughout Scotland of the Marine Scotland permissions system. For example, I know that Shetland Islands Council has an exemplary record in handling fish farming. I would fully expect that council to apply to be given the powers back and ministers to give them back. That would happen in a consistent framework that still allowed discretion for local councillors. On the basis of the evidence that we heard, that is a sensible way to move forward.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

As we have just heard and as we all know, where the responsibility for marine fish farms should lie is controversial. The amendments have just generated some angst in the chamber.

The matter was well debated at stage 2 and the arguments remain the same. Amendment 22 would remove local authorities' controls over marine fish farming under the Town and Country Planning (Scotland) Act 1997 and would place responsibility for consents with Marine Scotland under the marine licensing system. Amendment 41 would make special mention of marine fish farming licensing decisions among those that can be delegated to bodies such as local authorities.

We acknowledge that requests have come from the aquaculture sector for greater streamlining of the consenting processes that apply to aquaculture and we are not unsympathetic to those pleas. Nonetheless, local authorities have a role in delivering local accountability, which cannot be dismissed lightly. The way through the problem is by involving local authorities in marine planning and by showing that local accountability can be safeguarded through the marine planning process.

My response to Bill Wilson's intervention is that we would of course be willing to speak to local authorities when more than one local authority is involved in one marine region, which would create the possibility of more than one licensing regime for aquaculture operators. Only once we have convinced local authorities and their stakeholders that local accountability can be safeguarded will we seek to ask them to consider what streamlining for aquaculture consents can be achieved.

The consenting regime for the aquaculture industry was significantly changed as recently as 2007 and further change now might not be a sensible way forward.

We appreciate the many pressures behind the amendments, but the issue is far too complicated for us simply to remove existing functions from local authorities. On that basis, we resist the amendments.

Photo of Elaine Murray Elaine Murray Labour

If what Bill Wilson said in his intervention on John Scott is the case, why on earth did he sign up to the committee's report? We are not talking about what was discussed thereafter.

Photo of Elaine Murray Elaine Murray Labour

I will not, because we are short of time.

Tavish Scott's comments were impassioned but deeply uninformed. It is clear that he did not listen to me or John Scott and that he has not read the bill or the policy memorandum. The bill is about streamlining the licensing system, not centralising it. The bill also provides for delegation to regional planning partnerships and licensing authorities. If Tavish Scott checks the Official Report, he will find that I did not mention "the industry"—I talked about the Scottish Salmon Producers Organisation, from which the amendments originally came.

The amendments are not about centralisation. The bill allows the powers to be passed back to Shetland Islands Council, Western Isles Council and Highland Council, with additional powers for licensing activity elsewhere. The amendments would make the bill logical and would bring all marine licensing activity within the same legislative framework. Given that, I will press amendment 41.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The question is, that amendment 41 be agreed to. Are we agreed?

Members:

No.

Division number 8

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, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, 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, Harper, Robin, Harvie, Christopher, Harvie, Patrick, 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, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Salmond, Alex, Scott, Tavish, Smith, Iain, Smith, Margaret, 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 Alasdair Morgan Alasdair Morgan Scottish National Party

The result of the division is: For 59, Against 63, Abstentions 0.

Amendment 41 disagreed to.

Amendment 42 not moved.

Amendment 43 moved—[Elaine Murray].

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

The question is, that amendment 43 be agreed to. Are we agreed?

Members:

No.

Division number 9

For: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brocklebank, Ted, Brown, Gavin, Butler, Bill, Carlaw, Jackson, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Goldie, Annabel, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Harvie, Patrick, Henry, Hugh, Jamieson, Cathy, 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, McLaughlin, Anne, McMillan, Stuart, Neil, Alex, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Salmond, Alex, Scott, Tavish, Smith, Iain, Smith, Margaret, 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 Alasdair Morgan Alasdair Morgan Scottish National Party

The result of the division is: For 59, Against 60, Abstentions 0.

Amendment 43 disagreed to.

Amendment 44 moved—[Richard Lochhead]—and agreed to.