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CHAPTER 6 - MANAGING OUR SEAS: MARINE SCOTLAND

INTRODUCTION

189. There is a consensus that a marine management organisation is required to raise the profile of the coastal and marine area but also to act as the marine champion with integrated responsibility for the stewardship of Scotland's seas.

190. Subsequent work and discussions involving Scottish Government, associated bodies and stakeholder interests, including the Sustainable Seas Task Force discussions, have highlighted the complexity of the issues and the need to consider carefully marine management delivery arrangements and options. There is no inevitably right approach. There are concerns and uncertainty about some aspects at least of potential change.

191. This chapter sets out issues and options related to future marine management delivery arrangements in Scotland, including the case, role and remit for a Scottish marine management organisation, Marine Scotland. It sets out our vision and a proposition on a possible way ahead and seeks views on that and on alternative approaches.

OPTIONS FOR FUTURE DELIVERY ARRANGEMENTS

192. Two delivery options have been identified.

• Option A - the existing bodies involved in marine management could be required through statutory provisions to co-ordinate, integrate and streamline management and regulatory activity, systems and processes. Progress towards agreed marine objectives would be made through planning, strategy development and partnership working, effectively 'virtual integration'. Existing roles and relationships could, largely, be retained with limited disruptive effects on existing organisations and arrangements.
• Option B - is Marine Scotland as an integrated body with responsibility for policy, marine planning, science and regulation/licensing to the limits of devolved responsibilities.

193. These two options represent points on a range of possibilities and there are many possible combinations of the two. We have focused on the two options for ease. There are advantages and disadvantages to either of these two approaches.

194. The 'virtual integration' approach (option A), based on collaboration and co-ordination leaves existing roles and responsibilities essentially intact, avoiding disruptive effects and costs. However, it risks marine planning and strategy development becoming an additional tier of regulation and does not address the need for a more holistic, better integrated and streamlined approach.

195. Developing a 'vertically integrated' Marine Scotland (option B), with a more holistic role, responsibility and resources for marine management, would deliver a champion but would require the effective dismantling of some existing organisations, with associated substantive disruption and costs.

Q49 Scottish Ministers propose to develop Marine Scotland to champion the seas and their use and provide better integrated and streamlined delivery in the marine area. Do you agree?

196. The following paragraphs discuss some of the key functions Marine Scotland might deliver and seek views on the most appropriate approach to deliver improved marine management arrangements in Scotland.

197. A key duty of Marine Scotland will be to deliver increased economic growth for the marine area and strategic oversight of potential development will be an essential element in generating further growth. Moreover, the provision of a streamlined licensing function integrated with the planning system will reduce the burden on developers in making developments happen and generate higher growth in remote rural areas. Oversight of aquaculture, wet renewables and other industries will allow a more focused approach to increase the delivery of individual projects and also allow planning and licensing bottlenecks at the industry level to be identified and removed.

Marine planning

198. Chapter 2 sets out the proposed approach to how marine planning would work in Scotland, including the powers and responsibilities of the body responsible for the delivery of marine planning. With the possible exception of Scottish Government itself, there seems no evident existing body to which the range of marine stakeholders might look to provide a holistic, balanced approach to planning. The general view of marine stakeholders is that this would be an appropriate role for Marine Scotland, subject to appropriate engagement with and delegation to local bodies in the development of regional/local plans, and with appropriate links to terrestrial planning systems and responsibilities. Securing the appropriate conditions for substantial investment in renewable energy projects around Scotland will be a key required outcome from the marine planning process.

199. As part of delivering its marine planning responsibilities, Marine Scotland will need to create and get agreed marine objectives. It will be critical that Marine Scotland has access to robust, comprehensive and coordinated marine data. Discussion of marine science and data issues is set out in chapter 5. There is a need for a clear lead responsibility for ensuring the availability and coordination of relevant marine science and data to underpin the creation of objectives, management approaches and decision-making. Scottish Ministers propose these responsibilities be integrated within Marine Scotland, to help ensure clear linkage between marine science, planning and management policy.

Q50 Scottish Ministers propose that Marine Scotland deliver the marine planning proposals as set out in Chapter 2. What are your views on this proposal?

Fisheries and aquaculture management

200. Oversight and management of sea fisheries and aquaculture are currently undertaken largely by the Marine Directorate of the Scottish Government. The SFPA provide monitoring and compliance assets/activity and local management functions for sea fisheries. Scottish Government also has strategic responsibility for fish and shellfish farming and is about to launch a consultation on a renewed Strategic Framework for Scottish Aquaculture. FRS provides research and scientific advice and undertakes some regulatory functions. Local Authorities have development planning and development consent responsibilities for new, and modifications to existing, fish farms out to 3nm. SNH and SEPA have related implementation and regulatory interests.

201. Fisheries and aquaculture are key elements in Scottish marine management. They provide important socio-economic benefits, especially in remote and rural areas of Scotland. Scottish Ministers believe there is a good case for integration of fisheries and aquaculture management and policy with marine planning and wider marine management responsibilities.

202. Scottish Ministers therefore propose that Scottish Government Marine Directorate responsibilities and resources, those of the SFPA and FRS should be transferred into Marine Scotland. This approach would address the need for greater consistency and efficiencies in this area of activity. It would also allow greater flexibility to integrate and co-ordinate use of SFPA resources and assets to undertake broader-based marine compliance monitoring and surveillance activity. We believe Marine Scotland should also have policy as well as management responsibilities, so as to be able to take and promote a holistic view and approach to marine management.

203. The question of local authorities' responsibilities in this area is discussed further in the dedicated "local authorities" section below.

Q51 Do you agree with the approach set out for fisheries and aquaculture management? Do you have any further comments in connection with this approach?

Marine nature conservation

204. Marine nature conservation is discussed in more detail in chapter 3.

205. Policy and implementation responsibility for marine nature conservation issues in Scotland is a devolved responsibility exercised by Scottish Government inside 12nm. Implementation of policies is led by SNH on behalf of Scottish Ministers. SNH, in turn, looks to other management and regulatory bodies to ensure that requirements for example under the EU Birds and Habitats Directives are implemented in the context of the regimes for which they are responsible.

Table 6.1 Key organisations and their marine nature conservation functions

206. SNH has a statutory advisory role on natural heritage issues and there may be value in keeping this function separate from responsibilities for licensing and related aspects of implementing marine nature conservation policies. SNH is also a consultee on related marine policies and management/regulatory functions.

207. Although SNH leads on marine nature conservation implementation, as Table 6.1 demonstrates, it is not the only organisation involved. The growing marine nature conservation agenda, alongside growing demands on use of marine space, means a need for holistic, balanced approaches to marine planning and management. Need and demands for better marine data, management and monitoring carry substantive resource implications. This all points to a need for marine nature conservation functions to be enhanced, better co-ordinated and better integrated with wider marine management arrangements and resources. Consent and monitoring arrangements, and marine plans, need to reflect marine nature conservation aims. These need to be delivered efficiently and affordably.

208. Scottish Ministers believe there is a strong case for changes to marine nature conservation responsibilities and delivery arrangements. The main options for future marine nature conservation delivery arrangements therefore seem to be:

• essentially the enhanced status quo with better co-ordination between Scottish Government, SNH and Marine Scotland, and with the latter taking a lead responsibility for better consolidated compliance monitoring activity;
• transferring SNH's (and relevant parts of Scottish Government's) regulatory responsibilities to Marine Scotland, with SNH retaining its statutory advisory and wider natural heritage 'promotional' roles. Scottish Government's overall marine nature conservation policy responsibility could also be integrated into Marine Scotland along with other current Scottish Government Marine Directorate responsibilities; or
• transferring and integrating into Marine Scotland all of Scottish Government's and SNH's marine nature conservation functions and relevant resources. This would mean Marine Scotland would take on marine nature conservation as part of a wider set of marine management responsibilities, with SNH's role restricted essentially to that of consultee and the provision of advice in the context of more generic natural heritage issues.

Marine consents

209. There is a complex range of marine licensing/consent responsibilities in Scotland. The picture is further complicated by a mixture of reserved or (fully or partially) devolved Scottish marine management responsibilities. Depending on the nature and potential impacts of a proposed marine development or activity, several regulatory bodies may have an interest/role and several separate regulatory regimes may apply (as, for example, for aquaculture developments). Chapter 3 sets out Scottish Ministers views on the development of an integrated licensing/consents system. A key question is where responsibility should rest for delivery of marine licensing and consenting. Again, with the possible exception of Scottish Government itself, there seems no evident existing body to which the range of marine stakeholders might look to provide a holistic, balanced approach to such responsibilities. The general view of marine stakeholders is that this would be an appropriate role for Marine Scotland.

210. There are however a range of possible options including:

• maintaining the status quo, on the basis that changing existing arrangements would be broadly disruptive, costly and detrimental to industry/Scottish interests overall;
• integrating responsibility for environmental regulation of inshore waters within SEPA, with other marine regulatory functions resting, largely, with Marine Scotland;
• integrating responsibility for marine environment regulation in Marine Scotland (alongside other marine management responsibilities), on the basis this represents the most appropriate long-term approach, and managing the related transition and disruption as best we can; or
• finding a compromise (administrative) mechanism, for example, by developing better co-ordinated consent mechanisms, with a simpler 'front-door' approach for industry.

211. Scottish Ministers believe we should aim for as integrated an approach to marine management as possible. Nonetheless, it would be important for Marine Scotland to build strategic and working relationships with the organisations (including relevant parts of Scottish Government) which were to continue to hold regulatory and other responsibilities bearing on marine management.

Local authorities

212. A complementary relationship is envisaged between Marine Scotland and local authorities on marine planning. As discussed above, local authorities also have some marine regulatory roles including, since last year, development planning and development consent responsibility for new and modified existing fish farms out to 3 nautical miles. In the Northern Isles, Shetland and Orkney Islands Councils have always had responsibility for marine fish farm development. One of the main reasons for transferring responsibility for marine fish farm developments from The Crown Estate to local authorities was to bring them under local democratic control; marine fish farms are developments which generally have an impact on land and, in particular, on local communities since most activity takes place inshore in lochs/estuaries. Ultimately, decisions on developments can be taken by locally accountable councillors.

213. As discussed in chapter 2, there is a case on consistency, integration and simplification grounds for Marine Scotland to take on local authorities' aquaculture development consents, but also counter arguments relating to the linkages with terrestrial issues, local planning responsibilities and development interests and subsidiarity/local 'democracy'. We are willing to consider any views on the balance of those arguments.

214. Local authorities also have responsibilities in relation to local (private) coastal protection and flood prevention schemes, with some responsibilities, including for local authority led schemes, also resting in Scottish Government (Environmental Quality Directorate). Creation of Marine Scotland is not proposed to alter those responsibilities.

Q52 What are your views on the arguments relating to where control for aquaculture should lie?

Marine science

215. The First Minister's announcement of 30 January 2008 on more effective government and simplification of the public sector noted the intention to explore the scope for better integration of natural and environmental (including marine) science and research, as part of an aim to grow Scottish science/research capacity and capabilities.

216. FRS is the Scottish Government Agency for the provision of expert scientific and technical advice on marine and freshwater fisheries, aquaculture and the protection of the aquatic environment. It currently successfully balances two potentially conflicting key roles: firstly as a visible, credible, independent and highly regarded science institute, working with others in the science community at both the national and international level; and secondly as an advisor to Scottish Ministers on the science aspects of marine policy and regulation. We want it, under any revised future arrangements, to continue to be able fulfil that balanced role and to retain and enhance its reputation and credibility - both with the range of marine stakeholders and within the international science community.

217. Scottish Ministers believe that FRS' marine science capabilities and resources would best be integrated into Marine Scotland, to provide clear, 'vertical' linkages between science, policy and management arrangements. Nonetheless, there are also likely to be benefits for FRS' science and for Government in wider linkages, integration and co-operation. We therefore need to consider carefully the relationship and linkages between FRS' capabilities and responsibilities through, for example, Marine Science Scotland and with the possible new Institute which is under discussion.

Q53 Do you have any views on the role that FRS should take?

THE WAY AHEAD

218. Our overall aim is better, integrated and efficient marine management consistent with our overall strategic aim of sustainable economic growth.

219. Issues and options relating to marine management delivery arrangements have been discussed in the SSTF. A range of views has been expressed on the most appropriate arrangements and which may be influenced, in any event, by decisions to be taken on some of the issues set out elsewhere in this consultation paper.

220. There has however been some evident consensus on some key elements of consideration:

• arrangements and responsibilities need to be clear - with a customer focus;
• the advantages and disadvantages of organisational and system changes need to be considered - we should not disrupt existing arrangements that work well, unless sure that the benefits will outweigh the costs;
• a range of options for future delivery arrangements - including the potential for, and merits of, a phased (incremental) approach to their development - should be considered; and
• it would be helpful, to focus consideration, to set out a proposition on the way forward.

The Proposition

221. On that basis, reflecting the various issues identified throughout this paper, analysis and discussions to date, and the need to balance complex and competing considerations, our proposition is as follows.

• A Scottish marine management organisation, Marine Scotland, should be established.
• It should have responsibility for securing marine based economic growth and safeguarding the environment of the sea. It would be a champion for Scotland's seas.
• It would have lead responsibility for marine planning in Scotland and a related role, responsibility to promote and ensure the availability, co-ordination, management and monitoring of underpinning science and data. Marine Scotland would be the Competent Authority for implementation of the MSFD in Scotland. Arrangements and resources to begin to put these responsibilities in place is an early priority.
• It should integrate the current responsibilities and resources of Scottish Government, FRS and the SFPA related to marine, salmon and freshwater fisheries and aquaculture management so that the interests and impacts of these industries can be integrated and managed alongside economic growth, marine planning and wider marine management responsibilities.
• Marine Scotland should also have lead responsibility on marine nature conservation but with SNH retaining its statutory advisory responsibilities.

222. Marine Scotland should have responsibility for administering better integrated marine consents; linking policy, planning and decision-making on developments and activity. That would include responsibility for: a combined marine consent; potentially expanded arrangements to cover marine dredging and other currently unregulated activity which may impact on the marine environment; consolidated marine 'wildlife'/European Protected Species licensing; and the range of consents or authorisations needed under fish health etc. legislation for aquaculture developments.

Q54 What are your views on the creation of Marine Scotland and the proposed range of functions it should deliver?

223. There are some areas or issues which need further consideration. They include:

• whether we ought to develop a different approach in relation to aquaculture development consents (currently the responsibility of the Local Authorities) - for example, by integrating them into local marine planning (on which local authorities will have a key, often lead role), or into Marine Scotland/an integrated marine consent;
• how best to manage together marine renewables consents (under sections 36 and 37 of the Electricity Act 1989) and related marine consents. We can see merit in having a 'single front door' for such applications, which could be delivered through Marine Scotland. It would also be worth pursuing the possibility of combining in so far as is possible the procedures for the different consents and licences required for such developments. It will however be necessary to ensure that the system which operates respects the legislative requirements under the Electricity Act, including the role Ministers play in determining such applications, and the economic ramifications of such developments as well as their environmental impacts. Options for taking this forward include Marine Scotland processing the application and seeking stakeholder and public comment before referring the issue to Ministers for determination, and Marine Scotland acting as the gateway for applications before passing the application to the Scottish Government's Energy Consents Unit for processing;
• responsibility for safeguarding Scotland's most important marine historic assets would rest with Historic Scotland, although there may be scope for collaboration with Marine Scotland on matters of mutual interest. It is however envisaged that Marine Scotland would take account of the wider historic environment through its planning/licensing functions; and
• that Marine Scotland has an overarching role and responsibility, and relevant powers, to ensure that things were done (or not done) by others, to ensure sustainable management of Scotland's marine and coastal areas.

224. In the case of some of the proposals above, the proposed new legislation is needed, for example, to provide for new regulatory roles and responsibilities and to amend existing ones. For much of what is proposed, responsibility and resources currently rest within various parts of Scottish Government and related agencies, so that early implementation steps could be taken on an administrative basis. For example, to develop new structures and processes to help ensure we can meet EU and other obligations. We therefore propose a phased approach to change, which is likely to begin to be implemented alongside the Scottish Marine Bill legislative process.

Q55 Do you have any views on the development of Marine Scotland's role and functions over time?

Resources and relationships

225. We envisage that Marine Scotland, to fulfil the functions set out above, would absorb in large part
the existing resources of the Scottish Government Marine Directorate, FRS and the SFPA, along with some other existing resources currently devoted to functions to be integrated under its responsibilities.

226. Marine Scotland's overall role is to deliver the Scottish Government purpose of sustainable economic growth. Marine Scotland will require new resources to deal with the substantive new tasks and responsibilities related to marine planning, science and data co-ordination, management and monitoring, and wider holistic management and co-ordination responsibilities. Aspirations to enhance some existing functions also carry cost implications. Any extension to existing devolved powers would also carry resource implications. Overall, there are likely to be substantive costs associated with the development of enhanced marine management arrangements and their delivery.

227. In terms of relationships and working with others, Marine Scotland would be expected to build key, strategic partnerships and relationships at three broad levels:

• at the UK and international level (the latter depending on the extent of its devolved powers beyond 12nm), for example with the proposed UK Marine Management Organisation, with the JNCC and with other relevant international and UK bodies/authorities - to ensure complementarity of approach to meeting UK-level and international obligations and sensible management of boundary and cross-boundary issues;
• at the Scotland level, with the likes of SEPA, SNH and other Government bodies as well as key marine industry sectors and non-Government bodies, to build understanding and shared perspectives and to promote complementary and collaborative working arrangements where possible towards marine objectives;
• at the regional/local level, with local authorities, coastal partnerships, fisheries groups and others, to help develop marine plans and other arrangements to ensure regional/local management arrangements and contributions towards strategic aims.

The status of Marine Scotland

228. The status for Marine Scotland will need to be decided. The main options are:

• part of Scottish Government itself;
• an Agency (like SFPA, FRS or Historic Scotland) with a Chief Executive responsible to Ministers and operating under a framework document; or
• a Non Departmental Public Body (like SEPA or SNH), at a remove from Government, with a Board responsible to Ministers and the Parliament.

229. If the first or second options are chosen, the Bill will simply refer to the Scottish Ministers. Marine Scotland as a term will not appear in the Bill.

230. A decision on the most appropriate status for Marine Scotland will depend on its final agreed role and remit, which is subject to the outcome of this consultation process. Assuming, however, it is to have integrated policy and management responsibilities implies a need for a close relationship with Scottish Ministers which suggest Marine Scotland might most appropriately be part of Scottish Government. Nonetheless, it would need appropriate freedoms and flexibility to operate and deliver in a developing policy and management context. We would also need to ensure appropriate 'independence' in relation to some of Marine Scotland's proposed functions; for example, to safeguard the integrity of its science and enforcement activity. In addition, some form of separation is required to provide for appropriate mechanisms for a review or appeal process (for example by an applicant against the granting or refusal of a marine consent) so as to provide appropriate reassurances for stakeholders and to ensure probity and security against legal challenge. This could mean, for example, 'ring fencing' certain activities, providing for independent assessment of decisions or, in some cases, recourse to the courts.

Q56 Ministers believe Marine Science should form part of Scottish Government with appropriate safeguards for science and the appeals process. Do you have any views?

WHAT DO YOU THINK?

There are no absolutely right or wrong approaches to future marine management arrangements: and differing considerations to balance. We welcome your views.

Q57 Are there any other aspects of the proposals in this consultation document on which you wish to add your views?

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