The Public Petitions Committee of the Scottish Parliament sat recently and as we reported on oil leaks they agreed to write to the Scottish Government (again). SEPA, SNH, MCA and the Scottish Government all responded to our petition. We were then allowed to respond to these organisations – now our response to the Scottish Government:
RESPONSE TO SUBMISSION FROM THE CABINET SECRETARY FOR ENVIRONMENT, CLIMATE CHANGE AND LAND REFORM (PE1637/D)
We agree with the broad statement that licensing of ship-to-ship oil transfers is the preserve of the UK Government, however it is incorrect to say that the Scottish Government “have no regulatory powers over the process for determining whether a ship to ship oil transfer licence should be granted or not”.
The Merchant Shipping (Ship-to-Ship Transfers) Regulations 2010 as amended (“the STS Regulations”) provide that the Secretary of State (as represented by the Maritime and Coastguard Agency (MCA)), after deciding who are to be “the consultation bodies” for any new application, must either supply, or direct the applicant harbour authority to supply, a copy of the application to the chosen consultation bodies, and invite them to make representations. The consultation bodies therefore have powers to influence the process for determining whether a ship to ship oil transfer licence should be granted or not in any case.
Documents obtained from Marine Scotland show clearly (1) that, despite all Ministers’ public statements to the contrary, the Cromarty Firth Port Authority (CFPA) did send them a copy of the application and formally invite them to comment, thus making the Scottish Ministers one of the consultation bodies in this case, (2) that Marine Scotland prepared 4 drafts of a response based on comments from in-house scientists; and (3) that in the end the Scottish Government made a policy decision to send no response, thereby knowingly waiving the opportunity to influence the MCA’s determination of the application.
The latest draft Marine Scotland response raised concerns not mentioned by the other consultation bodies. For instance, although SNH had pointed out that the River Moriston Special Area of Conservation (SAC), designated for salmon, had been overlooked by the applicant, that fish returning there from the Atlantic would use the inner Moray Firth, and that migrating salmon are vulnerable to oil spills, Marine Scotland’s draft response alludes to the more widespread socioeconomic consequences not only of an accidental oil spill, but of the intended regular movement of ships and discharge of ballast water, at any time of year:
“All the main potential environmental impact factors identified could have potential risks to diadromous fish including salmon and sea trout. There are many important salmon and sea trout rivers in the local area and both species are important for conservation and for rod fishing, particularly within the rivers. Salmon smolts leaving local rivers and adult salmon returning to the rivers will pass close to or through the proposed new transfer area. The peak time for salmon smolts is likely to be mid-April to mid-June and returning adults could be present in any month with a summer peak. Some returning adult salmon associated with rivers further afield may also enter the proposed new transfer area or be in its vicinity. … Sea trout are also important in the local area and should also have been mentioned. The report should also have clarified whether there has been any net fishing for salmon and sea trout in recent years in the local area which could be directly or indirectly affected.”
Rod fishing on local rivers is a key regional tourist attraction, providing a major income stream for the Highlands, but was not mentioned by other consultees. Neither was the risk to jobs, and other aspects of the wider regional economy, of the potential impacts of the proposal on both rod and net fishing.
The Scottish Government did therefore have a role in this licence application, and had useful information to contribute to the MCA’s assessments, but failed in its duty to carry out the role. Why did the Scottish Government fail to respond? The documents obtained show that Ports and Harbours branch of Transport Scotland appear to have been behind this decision. Scottish Government officials effectively buried the duly prepared Scottish Government response and fabricated a party line that the Scottish Government had not been consulted. This has led to both the UK and Scottish Parliaments being misled in this regard. Trust ports are supposed to operate independently of the Scottish Government, and there is no evidence to suggest that the CFPA asked for the Scottish Government response to be shelved, in which case Ports and Harbours must have been acting on their own initiative. The Scottish Government’s decision not to respond, together with its deliberate public misrepresentation of the true position, needs independent investigation at the earliest opportunity to establish exactly what happened. We seek the Committee’s support to ensure this is done.
With regards to trust port governance the Scottish Government response confirms that trust ports are their own judge and jury. To quote the Cabinet Secretary, “it is for their boards to ensure they operate effectively in this way, taking account of stakeholder views, but also to ensure they are complying with the powers set out in their legislation and acting in the best interests of the port overall”. Boards of trustees are self-appointed by the trust port and there is no independent oversight or accountability to Scottish Ministers or any other public authority. The Scottish Government Guidelines for Modern Trust Ports are not enforceable in law bringing a lack of governance and ministerial accountability. This point has not been answered.
The Cabinet Secretary also states: “Trust Ports are statutory bodies in their own right and their constitution requires them to ensure that the harbour facilities are fit for purpose and are secured for future generations. There are no shareholders and any profits made must be returned to the harbour for this purpose.” We are not convinced that all trust ports operate as described. For example, the creation of the Port of Cromarty Firth Services Company Ltd is potentially an avenue for profits to be diverted away from CFPA stakeholders. No attempt has been made to demonstrate that this arrangement has benefited, or can benefit, stakeholders. This point has not been answered either.
