KEITH STUART CAMERON examines the delicate manœuvring between Holyrood and Westminster over ship-to-ship oil transfers and comes to some surprising conclusions.
11 September 2007 marked an important Scottish anniversary. There was little fanfare about it, but a decade before – after years of campaigning, campaign promises, constitutional conventions and deals made in smoke-filled rooms – the Scottish people voted overwhelmingly for a Parliament of their own.
So where do we stand now? In May 2007, the Scottish Parliamentary elections left no overall majority, and the Scottish National Party formed a minority government. They hit the ground running with some eye-catching moves, such as the abolition of bridge tolls and tuition fees, as well as a proposed “decluttering” of the public sector organizational chart. So far, the new political administration can claim to have used the “three Cs” of consultation, consensus and compromise to push through key measures, such as the Budget Settlement, where deals were done with the Conservatives and Greens to gain their support.
At the same time, new relationships were formed with the other tiers of government. The association between a Holyrood SNP Administration and a UK Labour Government was always going to be uneasy, and the recent spat over the proposed introduction of a local income tax shows that the big constitutional question is never going to be far from the top of the agenda.
On the other hand, relationships with local government seem to be improving. This wasn’t a given, with the potential for conflict given town-hall fears that Holyrood might centralize some functions. However, the signing of a concordat between the Convention of Scottish Local Authorities (COSLA) and the Scottish Government, as well as the loosening of purse strings for councils in the Scottish Spending Review in November 2007, appear to have paved the way for a fresh start.
But how does this all affect the man on the Kelty omnibus? Leaving aside the political changes over the past ten years, how have the new structures bedded in – and crucially, how do ordinary people have their wishes expressed through those structures? There was concern when the new Parliament came in that we would be over-governed, with three layers taking decisions about our day-to-day lives. How has that panned out?
Well, a week may be a long time in politics, but a decade is, in one sense, a blink of an eye for new ways of working. But the recent proposals for ship-to-ship transfer of oil in the Firth of Forth showed key differences between the two upper tiers of government – and the potential for more.
The proposal, by a company from the North East of England called Melbourne Marine, was new to the Forth Estuary, although such transfers had been done off the south coast of England, and are commonly carried out in sheltered waters around the USA. However, campaigners – a combination of local authorities led by Fife Council, the Royal Society for the Protection of Birds (RSPB), and individuals – argued that there was a better, safer place to do the transfers in Scotland: Scapa Flow in Orkney, a natural harbour that would lessen the risk of widespread pollution.
The plans needed two levels of approval. First, the Oil Spill Contingency Plan for the Forth had to be amended so that proper measures would be in place if the worst happened and the heavy crude oil that would make up the bulk of the transfers spilled into the estuary. This was granted by a UK Government agency, the Maritime and Coastguard Agency (MCA).
Second, and more controversial, approval needed to be given under the Harbours Act by the harbours authority, Forth Ports. The authority had been privatized under the Thatcher Government and was now Forth Ports PLC, a commercial operator that would stand to gain millions of pounds per year in licence fees if the proposals went ahead. Campaigners claimed that the company was hardly the best choice to decide impartially on the licence application. Forth Ports denied this, claiming that the two processes could be kept separate (see sidebar, “Where’s the harm?”).
When the proposals first became public, campaigners raised concerns through the UK Parliament. A deputation from Fife Council met Steven Ladyman, the Minister of State for Transport, to express concerns that the proposals would have potentially disastrous consequences for a marine environment garlanded with almost every type of environmental protection available under European law.
Alex Thomson, then Deputy Leader of Fife Council, said, “We risk losing sensitive, protected natural sites and risk significant impact on the economy of the areas surrounding the Forth Estuary should there be an oil spill.”
A recent European Court judgement had found that the UK Government had not implemented the Habitats Directive properly, and new regulations were needed. It emerged that the Civil Service had draft regulations to cover ship-to-ship transfer of oil since 1999, but these were never enacted. As Holyrood and Westminster tried to clarify whose responsibility it was to legislate, campaigners turned to the Scottish Parliament, seeking a local solution.
The initial signs were promising: following a Parliamentary debate, further representations were made from Holyrood to Westminster. In the meantime, campaigners were told, draft Scottish regulations to fix the problem with the European Court decision would be produced as soon as possible.
Step forward B. Linden Jarvis. As a shareholder of Forth Ports PLC, Mr Jarvis might well have been expected to support any moves that would increase the company’s profit margin – or at least not actively oppose them. Instead, Mr Jarvis lodged a petition with the Parliament’s Petitions Committee, which called on the Scottish Parliament “to consider and debate the implications of proposed ship-to-ship transfers of oil at anchor in the Forth Estuary, specifically focussing such consideration and debate on the likely impact of such operations upon wildlife, tourism, local authority funding of clean-up and how it may use its powers within the 12 mile tidal limits to protect the local ecology, scenery, environment and areas of special scientific interest and habitat within the estuary”.
In February 2007, the Environ-ment and Rural Development Committee at Holyrood heard evidence from Mr Jarvis and others. Crucially, it was at this point that Melbourne Marine’s new owners, SPT, were shown to have been involved in an earlier oil spill in 1995, an incident in the Gulf of Mexico.
On the face of things, not much changed in the immediate aftermath. But with the election campaign under way, the parties noticed the column inches being devoted to the issue. Within weeks of the election, the SNP – as part of their understanding with the Greens – agreed to legislate. The snappily titled Conservation (Natural Habitats, &c.) Amendment (No. 2) (Scotland) Regulations 2007 came out at the end of June, and provided that the Scottish Ministers could call in the proposals and ensure that they had undergone a proper environmental assessment.
So far, so good, but with Holyrood saying that they could only go so far in terms of their powers, the issue rebounded back to Westminster. Mark Lazarowicz, an Edinburgh Labour MP, produced a private member’s bill to regulate ship-to-ship operations. It wended its way through the Westminster machine and was scheduled to receive a second reading on 25 January this year.
Campaigners girded themselves for action once more. Because of the arcane procedural rules relating top private members’ bills at Westminster, there was a real chance that the bill would be lost if either not enough MPs turned up, or if it was “talked out”. Then, at the last minute, there were two more twists: Lazarowicz’s bill was withdrawn in return for an undertaking that the Government would bring in their own legislation. Then, days later, Forth Ports announced that they wouldn’t be giving approval for ship-to-ship operations as to do so would not be “in the best interests of the company and its shareholders”.
This last development took everyone by surprise. However, with the company perennially the subject of takeover rumours, many commentators saw this as a tactical withdrawal to ensure that the company’s books were kept clean for any new owner’s due diligence lawyers.
The proposals for ship-to-ship transfer of oil in the Forth estuary, and the campaign against it, demonstrates a local issue with Scottish – and, indeed, UK-wide – implications. How the governmental structures dealt with it is instructive for that reason.
At Westminster, although Parliamentary questions were asked, no actual legislative action took place despite there having been draft regulations on the slate six years previously. Indeed, campaigners are still waiting for the promised consultation on revised regulations some months later.
At Holyrood, in comparison, debates were secured rapidly – and thanks to Mr Jarvis’s intervention, the key players were hauled before a Parliamentary Committee for close questioning. All parties responded to the issue with interest and, post-May, the minority Government that the proportional representation system produced was able to push through regulations that extended those already introduced by the previous administration. Things moved at Holyrood relatively quickly,when compared with some Westminster procedures.
Of course, it can be argued that proposals centring around the Firth of Forth were always going to create more debate in Edinburgh than in London. The Scottish Parliament should have been more responsive than Westminster, people might say: that’s why it was set up in the first place.
But that’s not the whole story. Despite having been crafted on the Westminster model – replicating Prime Minister’s Question Time, for example, with one for the First Minister – Holyrood seems to have the capability to be more proactive than its southern big brother. And whilst engagement with individuals on a crusade is not an invention of the Scottish Parliament, the Petitions Committee is a useful extra weapon in the armoury of campaigners who feel the politicians have failed to listen.
Therein lies the rub. What the story of the ship-to-ship proposals might also tell us is that the boundaries set by the Scotland Act are more blurred than we thought. Arguing that the other legislature is the right one for changing the law is an easy way of ducking the issue, or simply passing the buck. The new Parliament – its laws subject to judicial review in a way foreign to Westminster, and continually having to cross-check its legislation against Human Rights law – is perhaps understandably cautious in its early years. But caution can lead to stagnation.
The SNP would argue that there’s a clear constitutional answer to such concerns: independence. Nevertheless, even if the Scottish people consider that unpalatable, a ten-year review of the Scotland Act, and where the boundary line of powers between the Parliaments actually lies, would seem sensible.
The issue of ship-to-ship transfer in the Firth of Forth rumbles on, albeit in a lower key. The current proposals may have been dismissed, but with the global market for oil increasingly moving to the Far East, these are unlikely to be the last. While Forth Ports PLC might consider approval not to be in the best interests of its shareholders at present, the shareholders – and their interests – can change. If the proposals do come back, how will they be dealt with next time – and by whom?
Perhaps it’s time to move on
from our grumbles about the cost of the building, and consider how Holyrood can add value to the governance of Scotland. Do the political structures and processes inside the building need to be evolved even more innovatively than Enric Miralles’s architectural vision?
Where’s the Harm?
The proposals would have seen tankers enter the Firth and carry out transfers of Russian crude oil from five smaller tankers into one ultra-large crude carrier, or mother ship. The proposals were for up to 105 transfer operations each year with each mother tanker capable of taking up to 500,000 tonnes of oil at a rate of 3,000 tonnes per hour.
Ship-to-shore oil transfers already take place in the Forth at Hound Point, as does sophisticated loading of oil-related products at Braefoot Bay. The Navy carries out ship-to-ship refuelling on the high seas. What was so harmful about these proposals?
Campaigners pointed first to the Firth of Forth being one of the most heavily protected European sites for all sorts of birds and other wildlife. The potential for an oil spill in an estuary that is home to internationally significant populations of seabirds, as well as dolphins and whales, was always going to raise concerns.
Secondly, the oil involved was mainly what’s called REBCO, Russian export blend crude oil. Unlike refined oils, which form a multicoloured slick across the top of the water that can be skimmed off, REBCO turns into balls of tar and goes on interacting with the environment for many years after.
Even the commercial alternative, Scapa Flow, drew attention to difficulties with the proposals for the Forth. Campaigners contrasted the Orkney site, where there is a natural harbour that can contain any spills, and where the fees that the tankers pay would go to the local authority – and thereby to Council Tax payers – instead of to Forth Ports PLC. There was a strong suspicion that Scapa Flow was not the preferred option because the authorities there would insist on deballasting (i.e. getting rid of the foreign seawater used as ballast, which contains all sorts of non-native organisms) outwith the harbour area. This would increase the time factor involved in each transfer, thereby increasing cost.
A report by independent experts to Fife Council in June last year highlighted mistakes, inconsistencies and serious omissions in the information that, so far, had backed up the proposals for oil transfers in the Firth of Forth. Particular concerns related to: the risk assessment that had been carried out; proper definition of weather criteria in which operations would be allowed to take place; making sure that suitable tugs were available at all times; ensuring that any counter pollution vessels were capable of responding to any spills; and guaranteeing that the design and operation of the vessels involved in the transfers were compatible.
Another serious concern was whether the environmental consequences of oil spills had been properly assessed with regard to the Habitats Directive, particularly in view of the protected nature of the Firth of Forth under various European designations.
– Keith Stuart Cameron