Third Standing Committee on Delegated Legislation
Tuesday 23 March 1999
[Mr. Edward O'Hara in the Chair]
Draft Scottish Adjacent Waters Boundaries Order 1999
10.30 am
The Minister for Home Affairs and Devolution, Scottish Office (Mr. Henry McLeish): I beg to move,
That the Committee has considered the draft Scottish Adjacent Waters Boundaries Order 1999.
I am pleased to present the draft order to the Committee.
The order is needed to implement the devolution settlement for Scotland in relation to certain maritime matters, most notably in relation to sea fisheries. It does so by establishing a boundary between the waters within British fishery limits that are adjacent to Scotland and those adjacent to other parts of the United Kingdom. It creates a Scottish zone within British fishery limits. In general terms, Scots law for sea fisheries will apply within that zone.
It may help if I set out the relevant provisions of the Scotland Act 1998 a little more fully to explain the significance of the Scottish Zone and the maritime boundaries.
Under schedule 5 (c.6), the regulation of sea fishing outside the Scottish zone is reserved, except in relation to Scottish fishing boats. Section 126 provides a definition of a Scottish zone, which is, the sea within British fishery limits, adjacent to Scotland. In section 126(2), Her Majesty by order in council, may determine a boundary to distinguish between waters that are adjacent to Scotland and those that are adjacent to other parts of the United Kingdom.
The Order sets out the boundaries by listing the necessary co-ordinates in schedules to the order. An illustrated map has been attached to the order so that Members can see where the boundaries will run.
The boundary follows the normal convention for determining similar international boundaries, that is, a median line between the nearest points of land on either side, using the baselines that have been established around the coast of the UK in accordance with international law. For convenience there are two small exceptions to this rule, south of the Mull of Galloway and north of Lough Foyle, in Northern Ireland, where the boundaries follow the existing limit of the UK's territorial sea for short distances. Within the Scottish zone, the Scottish Parliament will have competence to make law for sea fisheries, and Scottish Ministers will exercise functions in relation to the regulation of sea fisheries.
Mr. A. J. Beith (Berwick-upon-Tweed): Although the Minister's definition is a parody of itself, can he explain why the boundary on the map appears to follow a line of latitude after going out at an angle seeming to derive from the points of land on either side? I am thinking of the eastern boundary where it leaves my constituency, Berwick-upon-Tweed. It proceeds out to sea at an angle that is obviously drawn from the adjoining points of land, but when it is some distance out to sea, on the map it begins to resemble a line of latitude. Is that because it is defined from some further piece of land, or what?
Mr. McLeish: The northern boundary is at right angles from the line until Grampian region, the nearest point of land.
Mr Oliver Letwin (West Dorset): I am sorry, but I did not understand the Minister's response to what was a serious question. He looks at the kink at the point at which the north-easterly line turns east but there does not appear to be any specific relationship to land.
Mr McLeish: What we are saying is that the northern boundary is at right angles to land until it cuts on the Grampian boundary.
Several hon. Members rose—
The Chairman: Order. It might benefit the Committee if the Minister were allowed to make his statement, after which hon. Members will be able to ask questions.
Mr. McLeish: Thank you, Mr. O'Hara. That is a sensible suggestion, given that there are so many details. I realise that the order is just a mass of co-ordinates and that the boundary may be less specific than possible in relation to the size of the map.
Within the Scottish zone, the Scottish Parliament will have competence to make law for sea fisheries, and Scottish Ministers will exercise functions in relation to the regulation of sea fisheries. In both cases, of course, the Parliament and Scottish Ministers will have to act in accordance with our international obligations—notably with EU law for fisheries and the common fisheries policy. In practice, therefore, the Scottish zone marks the sea area where EU law on fisheries, as well as Scots law will be enforced by Scottish Ministers and their officials and by Scottish courts.
Mr. Michael Fabricant (Lichfield): Will the Minister explain, because it is not at all clear to me, the difference in practical terms for people fishing in the Scottish zone as opposed to the English zone of British limits?
The Chairman: Order. May I suggest that the Minister answers that question later and that the Committee observe my suggestion that our business would be dealt with more coherently if the Minister were allowed to make a statement before questions were asked.
Mr. Fabricant: On a point of Order, Mr. O'Hara. I am not sure from your directive what you mean. We are debating a statutory instrument so all that we can do is to make speeches, not put questions to the Minister—or are you directing a different process from that to which I am normally used?
The Chairman: I have rarely known hon. Members to miss the opportunity of asking questions when making a speech or any other intervention.
Mr. McLeish: Thank you, Mr. O'Hara. I agree with your suggestion and will return to the question later.
The key point is, I repeat, that in practice the Scottish zone marks the sea area where EU law on fisheries as well as Scots law will be enforced by Scottish Ministers and their officials and by Scottish courts.
For the avoidance of any doubt or confusion, I should explain that the Scottish Parliament will also be able to make laws to govern the activities of Scottish fishing boats, even when those boats are operating outwith the Scottish zone. For example, the Scottish Parliament might wish to introduce new licensing arrangements to control the activities of Scottish fishing boats, and the conditions of such licences would still apply to those boats, irrespective of where they may be operating, as a matter of Scots law. Such Scottish boats, of course, would also be subject to local fisheries laws if they were operating within the fishery limits of another country.
The boundary provided by the order has particular significance for sea fisheries. I wish to make it clear, though it should be self-evident, that the boundary has no significance for other matters at sea which are reserved. In particular, it has no relevance to the regulation of oil and gas exploration and production at sea, which are reserved matters.
The boundary, however, does have potential significance in relation to other matters that are devolved, notably within the UK territorial sea. That is the margin of sea within 12 miles of UK baselines where the UK is authorised by international treaty to exercise certain functions of a sovereign state. Certain devolved functions may be exercisable within the territorial sea, such as the enforcement of criminal law or the control of pollution from land. The boundary that is specified in this draft order does not automatically apply to such functions, but it provides an obvious line of demarcation for the exercise of appropriate functions by Scottish Ministers or public authorities in future.
In addition, hon. Members will see from section 126 of the Scotland Act 1998 that the term ``Scotland'' does extend to include the territorial sea around Scotland, which is relevant for certain provisions of that Act. One important example is section 75, which defines a Scottish taxpayer with regard to the number of days spent by a person within Scotland. In that respect, the boundary provided within the territorial sea will also be relevant for those purposes of the Act.
Finally, I draw the Committee's attention to the boundary that is established by this order within the Solway firth. Here, the draft order would establish a new, simplified boundary which the Government believe will be helpful for the future enforcement of law in that area. At present, the border between Scotland and England is understood in common law to follow the central line of the border Esk and to follow the combined Eden and Esk rivers at low tide—though I should add that there is some uncertainty about the exact boundary opposite the town of Annan.
In practice, the course of the river at low tide can vary greatly, depending on the effect of the ebb tide on the mud and sand flats of the Solway firth. This is rather specific stuff, which I am sure that some Members of the Committee will be following with enormous interest. As a result of the tides, there is always some uncertainty about where the border may lie at any moment, which has caused difficulty in establishing the jurisdiction of law enforcement agencies and of the courts.
The boundary set out in the draft order will not change the common law border, but it will provide a basis for future legislation, whether at Westminster or by the Scottish Parliament. The prospect of a clear and simplified boundary should avoid the uncertainty inherent in the present arrangement.
With those, I hope, helpful comments, I commend the order to the Committee.
The Chairman: I am grateful to the members of the Committee for heeding my advice to conduct the proceedings as they have. They will take the opportunity to ask the Minister questions during their speeches and I am sure that the Minister will provide the answers when he responds to the debate.
10.40 am
Mr. Letwin: The Minister's speech contained a number of interesting points, as does the order. However, I want to begin with a highly apposite question. It would in any case have been my first question, but it was asked by the right hon. Member for Berwick-upon-Tweed (Mr. Beith); the Minister was not in a position to answer it at the time, but perhaps he now is. The question was of signal importance, for reasons to which I shall come later.
The line that is drawn to the east clearly traverses a north-easterly path and then takes a turn to the south and goes east. Whatever the explanation, it is not the one that the Minister gave us. I should be grateful if he would clarify that in a way that an ordinary human being who is not a geographer can understand.
Secondly, the Minister said towards the close of his remarks that the boundary would not change the common law border. I think that he was referring to the west rather than to the east, but I take it that the principle extends both sides. Are there precedents, in common law, administrative practice or statute law, from which these lines diverge? In other words, are we here dealing with a set of geographical limits for which there is good precedent one way or the other, administratively or legally, or with a new set of definitions, which have not been used previously for most purposes and in most of the areas demarcated? The answer to that is extremely important in understanding the answers to the next sets of question that I want to pose.
Moving from the geography of the line to its effects, I come first to the question of precedent. When we discussed the order before the Committee met, my hon. Friends and I were worried about how far it went beyond the demarcation of fisheries and how far it extended, as a matter of precedent, into issues where far more is immediately at stake, or might be at stake.
The Minister said some interesting things about that. The record will show his exact words, but I think that he said that the map had no relevance for other issues such as oil and gas. However, a few sentences later he said that the set of lines constituted an obvious line of demarcation. Indeed, he went on to describe other affects that the line might have, for example in relation to residence. His argument for supposing that it would have no relevance for matters such as oil and gas was, if I remember correctly, that they are reserved matters. I come to my questions.
First, is the Minister clear in his mind which matters are sufficiently reserved for the order not to have a precedent effect on them? If so, what are they? Assiduous examination during the past few days of the parts of schedule 5 to the Scotland Act 1998 dealing with reservation in relation to quite another matter—the Food Standards Agency—has persuaded us that there is great scope for ambiguity about what things are and what are not excepted from the specific and general reservations; more scope than we were aware of when the Bill was being debated. At that time, Labour Members raised some perspicuous points about that matter, which an examination of the Hansard report reveals were not fully explored by Conservative Ministers.
Are oil and gas clearly reserved, so that they fall within the category described by the Minister? If they are so reserved, why will not something that has been proposed as a set of geographical demarcations in an order relating to an Act of this Parliament have a precedent effect for a matter that is reserved to this Parliament? I do not follow the juridical logic of that. The order is being made by this House and the other place and makes provision for a reserved power to determine matters. Why, then, does it follow that the order cannot constitute a precedent for matters that are reserved to this House and the other place?
Are oil and gas a clearly reserved matter that falls within the category enunciated by the Minister? If so, we should pay attention to the Minister's logic.
Of course, that matter is of great concern when allied to the geography of the limits that I spoke about earlier. The Minister and the right hon. Member for Berwick-upon-Tweed will not be unaware that there is a difference between continuing the north-westerly route—which the line traverses in its first segment—up to the outer fishing limits and the contrary move of taking a turn to the right and going eastward. That represents a triangle of immense potential and actual value.
Should the order have a precedent effect in relation to oil and gas, that triangle may become a matter of intense discussion between the Scottish Parliament and the Scottish Executive, especially if our friends in the Scottish National Party find themselves in charge. It would also concern this House and the United Kingdom Government.
I am not aware of the exact scope of the current production of that oil and gas triangle or of the reserves ascertained or expected of it, although I believe that they are substantial. Will the Minister provide guidance on that? Should the precedent effect apply, this matter will be of the greatest economic significance in the transitional history of the two Parliaments.
I turn to a set of questions which—if that is possible—are of even greater significance. They do not relate substantially to the precise definition of the boundaries, but relate to the order as a whole. The Minister said that EU law would be enforced by Scottish Ministers within the limits defined by the boundaries. We do not doubt that that statement is accurate, nor do we doubt that it is the limit of the Government's immediate intentions.
However, a series of questions arises. Bearing in mind that chronology has progressed since we debated the Bill that became the Scotland Act 1998, what is the role that Scottish Ministers will play in the Council of Ministers when it comes to dealing with matters that relate to fisheries within the limits?
The Minister knows that long discussions of such matters took place in the past, but time has moved on. When we debated the Scotland Bill, the Ministers said a great deal along the lines of ``We cannot tell you yet''. Now seems an admirable moment for that disclosure.
The mechanism for the application of directives is obviously extremely important in that area. The Minister mentioned Scottish Ministers enforcing EU legislation. Is he saying that it will always be the case that the Scottish Parliament, under the relevant provisions of the Act which forces it to take cognisance of United Kingdom treaties, will enact such measures as are necessary under directives? Is the Minister sure that that will apply only in relation to fisheries?
We return to the precedent effect. If there were a directive on a reserved matter in which the geography was important in an area delimited as Scottish waters, would that directive automatically be implemented by virtue of an order or enactment of this House and the other place, not of the Scottish Parliament? Or will the fact that the lines have been drawn in this order in some way influence the view of which Parliament needs to enact the relevant provisions?
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