Marine and Coastal Access Bill [HL]

The amendment picks up the devolutionary theme that runs through this Bill; it is designed to elicit clarification on where the different boundaries fall. The Minister has told the House on a number of occasions that the scheme agreed among the devolved Administrations with the United Kingdom Government is, as far as Scotland is concerned, to allow Scottish Ministers to devise a plan for the offshore area—subject to the express approval of the Secretary of State and any required Executive devolution. The amendment has a number of purposes, but it is primarily designed to clarify the extent to which the Scottish Parliament has or has not competence to deal with issues in respect of the offshore area. Prima facie, given the terms of the Scotland Act 1998, it certainly would be my understanding that the offshore area is beyond the territorial competence of the Scottish Parliament except in relation to fisheries, where a specific order has already been made confirming devolved powers. The body which is likely to be created to deal with Scottish waters for the purposes of the Scottish marine Bill is Marine Scotland. Indeed, a press release from the Scottish Government on 9 February indicated that a new marine management body was being created to help Scotland make the most of its seas for future generations and stated that Marine Scotland would be up and running by 1 April this year. It went on to indicate that it would play a key role in managing Scotland’s seas with direct responsibility for marine science, planning, policy development, management and compliance monitoring measures. It also indicates that it will work with other partners with marine interests to deliver both economic prosperity and environmental sustainability. It is fair to say that it is a body which enjoys cross-party support. Indeed, I seem to recall that in Committee on the first part of the Bill—on the MMO—there was an indication that Marine Scotland would play a role comparable to the MMO so far as Scottish inshore and offshore waters were concerned. I wish to raise some simple questions. Does the Scottish Parliament have the legislative competence to endow Marine Scotland with a remit in respect of the offshore area? Clearly, Marine Scotland will be able to be established by the act of the Scottish Executive, but one presumes that it will have a role and responsibility that relates to the offshore area, where there will be devolved responsibility to Scottish Ministers. Will the Scottish Parliament have any role in establishing what Marine Scotland can or cannot do? If the answer is that it will, I would like to know the basis for such legislative competence. If not, should the Bill not confer powers on the Scottish Parliament? The amendment specifically relates to a duty on biodiversity. Its wording is very similar to that in Section 1 of the Nature Conservation (Scotland) Act 2004. Section 2(1) of that Act refers to the Scottish biodiversity strategy. The duty—it is for, "““every public body and office-holder, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions””—" has been widely supported in Scotland. However, it can apply only up to the 12-mile limit. The marine conservation group of the Advisory Group on Marine and Coastal Strategy, which was set up in 2005 by my colleague Ross Finnie MSP, the then Minister for Environment and Rural Development, commended the above statutory definition of a biodiversity duty but acknowledged that to extend it beyond the 12-mile limit would require legislation at Westminster. Subsequently, the Scottish Government’s own consultation on the Scottish marine Bill—Sustainable Seas for All, published last summer—states, at paragraph 117: "““The Biodiversity Duty in the Nature Conservation (Scotland) Act 2004 could also be considered as a wider measure in that it is not limited in its application to protected sites or specific species protection. Some potential improvements to this duty are described below””." Paragraph 120 states: "““The Biodiversity Duty on all public bodies and office holders contained in section 1 of the Nature Conservation (Scotland) Act 2004 currently only extends out to 12nm””—" nautical miles. It continues: "““If Scottish Ministers achieve further devolution of nature conservation in the offshore area beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal””." While I raise a general point about the competence of the Scottish Parliament in respect of Marine Scotland in the offshore area, the specific point is that it does not seem possible or competent for the Scottish Parliament to impose a biodiversity duty on public bodies in the offshore area, as the law stands. I see nothing in the Bill that would allow the Scottish Parliament to do so. There is soon to be recognition that, if it could not be done by the Scottish Parliament, it should be done by Westminster, and the amendment would undoubtedly facilitate that. That is the background to why I move the amendment.