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Scotland's Islands in Legislative Focus - the Islands (Scotland) Bill is introduced…

The Islands (Scotland) Bill was introduced into the Scottish Parliament on 10 June 2017.

It started life as an initiative of the Orkney, Shetland and Western Isles Councils who got together to look at issues of particular importance and relevance to their island situation and to their people. They successfully launched "Our Islands Our Future" in June 2013 to start others thinking about these issues, including the Scottish Government. While it has taken a few years to become a Bill, the proposals have been the subject of numerous consultations and discussions across the islands and beyond over the years and the Scottish Government have long been a supporter of recognising the special place Scotland's islands have in our country and their particular needs.

The Bill does four main things;

  • It creates a duty on Scottish Ministers to prepare a National Islands Plan and review it regularly.

  • It provides that specified "relevant authorities" must have regard to the impact of their proposals and decision making on island communities.

  • It provides for changes to be made in relation to electoral representation to the Scottish Parliament and local authority elections for the Western Isles.

  • It gives power to Scottish Ministers to establish Scottish Island Marine areas and to delegate power to local decision makers to determine applications.

As you would expect with any well drafted Bill it starts with definitions. It defines "island" as "a naturally formed area of land….ignoring artificial structures….surrounded on all sides by the sea… and above water at high tide". So we ignore that Skye is connected to the mainland by the Skye Bridge or the causeway from Barra to Vatersay and ignore the pedantic yachtsman's query as to whether the high tide is spring or neap. An "inhabited island" must be permanently inhabited by at least one individual (presumably a person) and an "island community" consists of two or more individuals who permanently inhabit an island (whether or not the same island)" and an island community "is based on common interest, identity or geography". There may be scope for lots of healthy discussion before a warm peat fire of a winter evening on what "common interest, identity or geography" means to each of the discussants.

Scottish decision makers are well used to dealing with the existing National Planning Framework, Local Plans, Scotland's National Marine Plan and Regional Marine Plans. It is likely that the proposed National Islands Plan will fit well into this overall framework and the consultation and review processes involving the Scottish Parliament seem appropriately robust.

There is a new duty placed on a raft of what are referred to as "relevant authorities" to have regard to island communities in carrying out their functions. They will need to prepare an island communities impact assessment in relation to their policies, strategies or service and report annually. Scottish Minsters may issue guidance on how to do this. Ministers will themselves do a similar assessment in respect of bills, and, more unusually, subordinate legislation.

The Western Isles have long had concerns over electoral representation and the provisions in the Bill will allow changes to be made to address those concerns.

The part of the Bill dealing with what is potentially the biggest practical change, if not with the biggest overall effect, are the proposals to create Scottish island marine areas to regulate development activity within those areas. The marine area is defined "as adjacent to an island" and this time the pedantic yachtsman is satisfied because it is to cover an area "up to 12 nautical miles from that island, measured from the low water mark of the ordinary spring tide". There is not a lot of detail in the Bill as to how this will work and how overlap with other regimes will be avoided. "Development activity" is defined broadly with certain exclusions in respect of oil and gas, defence and pollution activity all of which are reserved under the Scotland Act 1998. Fish farming is also excluded but only because that is already regulated by the Local Authority as planning authority.

Scottish Ministers are to draw up a Scheme by regulations and it will be up to a Local Authority to ask Ministers for an area to be designated as a Scottish island marine area. The Bill gives Ministers wide powers as to the requirements of the Scheme and there is going to be a lot of consultation again as to what to include. However, failure to comply with the requirements of the final Scheme may result in a hefty fine or  imprisonment.

This Scheme is to sit beside current regulation and licensing of activity under the Marine (Scotland) 2010 Act and it is not immediately clear how that will work in practice, particularly if not all local authorities who have potentially qualifying "island communities" choose to opt in. Does Marine Scotland continue to deal with applications along side or under their existing powers?  No doubt the new Scheme will spell that out.

The Scottish Government intend to deal with planning issues and anything relating to the operation of Crown Estates Scotland in separate Bills later this session. There is therefor potential for even more bodies regulating different or similar aspects of marine development around Scotland.

The Scottish Parliament have issued a call for evidence on the Bill with a response date of 25 September 2017. There is plenty of time for the discussion group on the island, whether with a peat fire or not, to reach their considered view on their future as outlined in the Bill and send it off to Holyrood. Greek and Croatian islands may be warmer as thoughts turn to summer, but there is little to beat the charm and beauty of the islands of Scotland at their magnificent best. Pedantic yachtsmen beware the tides, spring or neap, as you enjoy Scotland's sailing areas.