Section 132 — Power to direct vessel or marine installation to port

Marine (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 4th February 2010.

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Photo of Trish Godman Trish Godman Labour 3:30 pm, 4th February 2010

We move to group 21. Amendment 7, in the name of Liam McArthur, is grouped with amendments 85 and 86.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Committee colleagues will recall that I lodged a series of amendments at stage 2 reflecting concerns in the port industry in Scotland, including Orkney Harbours, about the implications of the use of the enforcement powers in the bill. Although I am pleased to say that some of the concerns have been addressed, legitimate concerns remain that there is no requirement on enforcement officers to communicate with or seek the views of a port authority prior to taking a decision to direct a vessel to that port.

I accept that, as the cabinet secretary suggested at stage 2, in practice such exchanges take place in most instances. However, I am concerned that enforcement officers could make decisions that are expedient for them in discharging their duties but which do not reflect the best interests of the affected port, other users of the port and even, conceivably, the environment. It would clearly not be acceptable for ports to refuse to accept a vessel without compelling reasons, but a policy on the part of enforcement officers of "don't ask, don't tell" does not appear to be satisfactory either.

Before deciding whether to press amendment 7, I will be interested to hear the steps that the cabinet secretary feels he might be able to take to address this underlying concern.

I move amendment 7.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

First, I will address amendment 7, in the name of Liam McArthur. The power to direct a vessel to port is not new. It exists, for example, for investigating and enforcement officers under the Food and Environment Protection Act 1985, for wildlife officers under the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007 and for British sea-fishery officers under the Sea Fisheries Act 1968.

I recognise Liam McArthur's good intentions in lodging amendment 7. However, our compliance officers believe that it could introduce considerable difficulties for them. Importantly, they believe that it would seriously hinder their ability properly to enforce marine legislation. When a ship is directed to port, I believe that the convention is for those on the marine protection vessel to contact the port concerned and make the appropriate arrangements. However, I am advised that it is not possible to share enforcement policy instructions.

I am happy to write to Liam McArthur to set out our approach. With that in mind, I ask him to seek leave to withdraw amendment 7.

Government amendment 85 provides clarity concerning to whom evidence needs to be shown when enforcement officers are exercising powers under part 6. Section 136 was amended at stage 2 by a non-Government amendment in the name of Stuart McMillan. Prior to that amendment, there was a duty to produce evidence of authorisation on request before exercising any power under part 6. Mr McMillan's amendment brought about the change that marine enforcement officers must produce such evidence, regardless of whether or not they are asked to do so. That raised the question to whom the evidence must be shown and what would happen when no relevant person was present. Amendment 85 clarifies those matters.

Amendment 86 disapplies sections 136 and 137 in relation to the entry of marine enforcement officers into dwellings for the purpose of exercising enforcement powers under part 6. That is required because entry into dwellings by officers is covered by section 122, which requires that a warrant is needed for such entry. Paragraph 9 of schedule 3 has its own rules on production for evidence in this situation.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I hear what the cabinet secretary says about my amendment 7, but it was expressed to me that enforcement officers are having kittens over this—although the person put it in rather more measured terms.

I appreciate the cabinet secretary's offer to write to me with an explanation. However, given the concerns that have been expressed to me and the underlying problems that many in the port industry perceive in this regard, I will press amendment 7.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 7 be agreed to. Are we agreed?

Members:

No.

Division number 19

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, 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, 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, Scott, Tavish, 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, Gavin, 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, Goldie, Annabel, Grahame, Christine, Harper, Robin, Harvie, Christopher, Harvie, Patrick, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, 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, Mitchell, Margaret, Neil, Alex, Paterson, Gil, Robison, Shona, Russell, Michael, 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 Trish Godman Trish Godman Labour

The result of the division is: For 57, Against 62, Abstentions 0.

Amendment 7 disagreed to.