The Scottish Crown Estate Bill: Unfinished Business?

By Fiona Grahame

Scottish Parliament FGThe Scottish Parliament has  passed two pieces of legislation recently which directly affect  Orkney.

The Islands Bill came about from the extensive work done by  ‘Our Islands Our Future’ led by OIC councillor Steven Heddle which brought together  the 3 island authorities. This is now the Islands (Scotland) Act 2018.

The Islands (Scotland) Act included ‘Islands Proofing’ and was the start of a process to develop an Islands Plan.

“The purpose of preparing a national islands plan is to set out the main objectives and strategy of the Scottish Ministers in relation to improving outcomes for island communities that result from, or are contributed to by, the carrying out of functions of a public nature.”

Islands Proofing

Islands Proofing was to ensure island communities were not disadvantaged by future legislation. Its impact assessment also applied to all public bodies. Additionally Island Authorities could  request that past legislation or national strategy could be retrospectively examined.

I have considerable doubts that Islands  Proofing is being used (unless it has merely become a meaningless check box) when you look at for example the Fuel Poverty (Target, Definition and Strategy) (Scotland) Bill  which will have a significant effect on the redefinition of fuel poverty in Orkney.  For more information read: Redefining Fuel Poverty

Energy Action Scotland was disappointed with some aspects of the Bill and ‘profoundly disagreed’ with the timescale put forward.

“Energy Action Scotland is also disappointed that the Scottish Government continues to use the UK Minimum Income Standard (MIS) in its fuel poverty calculation without the need to adjust the MIS thresholds upwards for households living in remote rural areas.

“This takes no account of the specific circumstances of hundreds of thousands of rural fuel poor who pay significantly more for all goods and services, not just energy costs.  It ignores the rural and poverty premiums experienced by many.”

Scottish Crown Estate Bill

The Scottish Crown Estate Bill was passed by the Scottish Government this week. The Crown Estate legislation was kept separate from that for the Islands (Scotland) Act. I was surprised by a comment from a leading member of the Orkney renewables industry at a meeting during the consultation period for the ‘Islands Bill’ that the Crown Estate was of no importance anyway. I hope his remark was recorded as a personal one and not the view of the industry as a whole.

Here’s what the Scottish Crown Estate covers, and now includes the MeyGen tidal power development in the Pentland Firth,  the first commercial scale tidal stream array in the world.

Assets listed in Schedule 1 of the Crown Estate Transfer Scheme 2017

Rural estate

  • The Whitehill estate.
  • The Glenlivet estate.
  • The Applegirth estate.
  • The Fochabers estate.
  • 1 and 2 Kings Park Cottages, Stirling.
  • 10 the Homesteads, Stirling.

Commercial estate

  •  The land known as 39 to 41 George Street, Edinburgh.
  • The lock-up garage at 3 and 5 West Thistle Street Lane, Edinburgh.
  • The land at Rhu Marina.

Seabed etc.

  • The land forming the seabed of Scottish coastal waters.
  • The rights in the Scottish zone—
    (a) of unloading gas to installations or pipelines,
    (b) of storing gas for any purpose and recovering stored gas,
    (c) of exploitation for the production of energy from water or winds,
    (d) of exploration in connection with any of those rights, and
    (e) for other purposes connected with the exploitation mentioned in sub-paragraph (c) including, in particular, the
    transmission, distribution and supply of electricity generated in the course of such exploitation.
  • The right in the Scottish zone of exploiting the seabed and its subsoil other than for hydrocarbons.
  • The land which lies between the high and low water marks of ordinary spring tides.
  • Rockall.

Other property, rights and interests

  • All rights—
    (a)of fishing for salmon in rivers and Scottish coastal waters,
    (b)to naturally occurring gold and silver,
    (c)to reserved mineral rights.
  • Any other property, rights and interests—
    (a) which are held by the Commissioners on behalf of the Crown; and
    (b) to which paragraphs (a) or (b) of section 90B(2) of the 1998 Act apply.

Fort Kinnaird Retail Park

Not included in the above list was the Fort Kinnaird Retail Park in Edinburgh which the
Crown Estate Commissioners held in partnership with a property trust. M&G Real Estate acquired the 50% share in the Fort Kinnard Retail Park from the Crown Estate in a £167.25m deal.

“The investment into the £334.5m asset has created a new joint venture with Hercules Unit Trust (HUT), a Jersey-based investor in retail warehouses and shopping parks.”

This deal went through before the transfer of the management of the Crown Estate assets to the Scottish Government.

You can read about the Scottish Crown Estates debate and watch it here: Scottish Crown Estate Bill Passed

The Smith Commission

Apart from the extensive discussion on kelp there were several references to The Smith Commission. Orkney Islands Council had hope that several amendments would be accepted from constituency MSP Liam McArthur, LibDem  which would devolve more of the control of the crown estate assets to OIC.

After the Independence Referendum in 2014 The Smith Commission recommended that the management and revenue from the Scottish Crown Estate be devolved to the Scottish Parliament. But it went further than that:

” Following this transfer, responsibility for the management of those assets will be further devolved to local authority areas such as Orkney, Shetland, Na h-Eilean Siar or other areas who seek such responsibilities. It is recommended that the definition of economic assets in coastal waters recognises the foreshore and economic activity such as aquaculture.”

The amendments from Orkney did not get enough support in the Scottish Parliament.  Conservative and Labour MSPs expressed concern that local authorities would not have the training and capacity to monitor the sea bed especially in view of funding cut backs.

Roseanna Cunningham for the Scottish Government further felt that with the emphasis on local authority control it  could prevent a community organisation from directly taking on the management of a Crown estate asset.

Roseanna Cunningham said:

” I am of the view that there should be as much of a presumption in favour of community organisations managing Scottish Crown estate assets. The bill does not contain any presumptions about who should manage any particular Crown estate asset and that is as it should be, as it allows for consideration on a case-by-case basis and allows those who wish to manage an asset to demonstrate why they are best placed to do so.”

The Response from Orkney Islands Council

Orkney Islands Council is disappointed in the failure of their amendments.

 James Stockan Leader of OIC said:

James Stockan“It is important that island communities like ours have the ability to control development in the waters around them.

“We are best placed to do this in the interests of Orkney and to achieve maximum benefits for our community.

“The passing of the Scottish Crown Estate Bill by the Scottish Parliament is an important step in the right direction. However, the Parliament could have gone further by agreeing amendments we put forward.

“We saw these as being in the spirit of the Smith Commission, set up after the Independence Referendum in Scotland, which recommended that responsibility for the management of Crown Estate Scotland assets should be further devolved to local authority areas such as Orkney.

“There was cross-party support for this at the time, so it is disappointing that our amendments were not supported by the majority of MSPs during the parliamentary debate.”

It should be noted that it is only the management of the Scottish Crown Estate which has been devolved. The ownership remains that of the Crown. There are also liabilities involved.

Roseanna Cunningham confirmed that the net revenue from the marine assets out to 12 nautical miles will be provided to coastal communities once all the costs have been met.

Roseanna Cunningham” the Scottish Government and COSLA have agreed an interim formula-based approach to distribute the net revenue from Scottish Crown estate marine assets out to 12 nautical miles to each island and coastal local authority.”

Closing the debate she said:

“I am pleased to have created a historical first by bringing the first bill on the Scottish Crown estate before this Parliament. We have seized the opportunity to develop a new, modern, statutory framework that will support the realisation of our shared national ambition for some of Scotland’s most important assets.”

It is hoped that both the Islands (Scotland) Act and the Scottish Crown Estate Bill will lead to more decisions about Orkney being taken in Orkney. It is somewhat disappointing that if the application of Islands Proofing is anything to go by then what we have is very much unfinished business and only the start of the journey to more local control.



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