The National Parks (Scotland) Bill
The Royal Society of Edinburgh (RSE) is pleased to respond to the request by the Scottish Executive Environment Group for comments on the consultation on the National Parks (Scotland) Bill. The RSE is Scotland’s premier Learned Society, comprising Fellows elected on the basis of their distinction, from the full range of academic disciplines, and from industry, commerce and the professions. This response has been compiled with the assistance of a number of Fellows with direct experience of conservation and development issues.
The RSE welcomes the preparation of this Bill to establish National Parks in Scotland. As it was a Scotsman (John Muir) who has been credited with starting the worldwide movement towards the establishment of National Parks, it is indeed timely that, in addition to the creation of a new Scottish Parliament, Scotland will no longer be one of the few countries without a National Park.
The Bill provides a desirable addition to the powers available to protect the natural heritage as there are limits to what can be done under existing legislation and by voluntary agreement. Voluntary arrangements are in their nature somewhatfragile and liable to fail when most needed where there are conflicts of interests. The documentation accompanying the Bill and consultation paper, including the bibliography, is informative and in general is helpful in understanding the Bill and considering its aims. However, in some matters, and drafting points, the consultation paper could be more helpful. These may have some significance since the proposal will be one of the first Bills to go through the Scottish Parliament process, and precedents that are set now will impact on future legislation.
Comments on the specific areas of the consultation document are addressed below:
In relation to the policy background section of the consultation, the RSE is pleased to see an intention to have community involvement at all stages and before plans are too far set. Consultation on plans that are already well formed can become a mere formality. It may be noted that while this document speaks of 'advisory panels' the actual proposed legislation (Section 18) speaks of 'advisory groups'.
Purposes/Aims of National Parks (page 10)
The RSE welcomes the advice that, in the event of any conflict, the greatest weight is to be given to the aim of conserving and enhancing the natural and cultural heritage of the area. Throughout the policy background, however, there is ambivalence on the primacy of conservation, and indeed the first line of the Purpose/Aims of National Parks starts with ‘…social and economic development…’. Unless the prime reason for National Parks is recognised as conservation, why designate them? This lack of clarity over the purpose of National parks does not serve the Bill well.
Composition of National Park Bodies (page 12)
The RSE agrees that the governing bodies of National Parks should be independent with representation from a wide base.
Access Provisions (page 15)
In relation to access provisions, it seems unfortunate to apply provisions of the Countryside Act which are to be repealed and replaced. Constant amendments which are difficult to trace are one of the difficulties of British legislation and to pass legislation which is bound to be changed does not seem good policy. It would be preferable to make the changes as part of the National Parks Bill.
The current proposals for access in the Land Reform Bill will, however, make it very difficult for the National Parks authority to manage access. In terms of the existing legislation, they are able to call on access and footpath agreements on a wide scale and give a ranger service the necessary authority. The new proposals will make it difficult to maintain conservation of the heritage and could impinge on sustainable rural development.
Marine Parks (page 15)
The provision for inclusion of marine areas into National Parks is to be welcomed. Because of legislative complexity, they have often been neglected in conservation terms, despite their importance to Scotland's economy and natural environment.
There is, however, a need for a working party to advise on steps required to set up the necessary legislation to establish marine parks and specific proposals to address the need should be included in this legislation. The legislation outlined on pages 24 and 25 is essentially terrestrial and, where it relates to the sea, it relates to shellfish. Marine National Parks would have implications for a wider range of marine legislation.
Funding (page 16)
It is essential that adequate funding is provided at this stage. It is necessary to see National Park provision in the context of the Scottish countryside as a whole with its existing designations (SSSI’s, NSA's etc.), its land management and the pressures of access and recreation. Scottish Natural Heritage (SNH) has an over-all responsibility to advise government on these issues. It could therefore be constructive and practical to route the National Parks budget through SNH.
Effects on Other Issues/Other Organisation (page 21)
Human Rights: Because an act of the Scottish Parliament must comply with human rights provisions does not necessarily mean that it does do so. Should there not be an explanation of how it does conform and what provisions were considered in drafting the Bill?
Local Government: The statement on whether or not the functions of the planning authority remain with the local authorities or with National Parks and the statement that this will be decided on a park to park basis, is a recipe for ill-feeling. Much better to say at the outset that the local authority will have a strong but not overwhelming voice on the parks committees, that the latter will be the planning authority, and that this will be the case for all parks. Indeed, it would be difficult for a National Park Authority to function effectively without executive planning control powers over the area designated.
Adequate provision should also be made for the notification and consultation of local authorities whose area, while not within the area to which a National Park proposal relates, may be affected by proposals coming from the National Park Authority. An example would be where the rerouting of traffic within the Park affects flows on the roads in adjacent local authorities; another would be where conservation measures taken, say in relation to the marine environment, affect adjacent areas outwith the Park. Such a provision for consultation would not, however, imply that local authority outwith the Park's agreed boundaries would need to be members of the National Park body. Similarly, provision should be made to enable Park Authorities to influence events outside the designated area that may have an impact on the area. For example, the construction of a dam for irrigation, water-supply or industrial purposes upstream from a park; deforestation or changes in use of neighboring land that may affect the fauna balance in a park or alter the pattern of water-run off; or mining operations.
National Parks (Scotland) Bill
The drafting of the Bill could probably be improved in a number of respects to state more directly what is intended. Some suggestions are made in the following sub-paragraphs. In addition, in a number of paragraphs (Sections 2, 4b and also in: 2, 1c; 2, 8b; 3, 2d; 3, 3b, 3c; 11, 1b; 11,1c; 11, 5d.) there is the use of a construction 'as it thinks fit' or 'as (the person) thinks fit'. This in principle places the responsibility of judgement for what is reasonable solely in the hands of the individual body or person concerned. Thus technically the process of consultation or information awareness could be very restricted because it was as the person or body 'thought fit'. A different wording should perhaps be used which creates some imperative for the processes to be widely open, transparent and consultative.
National Park Proposals (Sections 1-4)
Section 1: National Park Proposals
Sub-section (3) sets out the aims of National Parks in Scotland and as such this is a pivotal part of the Bill on which the interpretation of later clauses will largely be based both in law and in subsequent Parliamentary debate. It is essential that careful attention is paid to each of the identified aims -
With regard to 3(b), the aim should not simply be confined to the 'promotion' of sustainable use of the natural resources of each area, but 'to manage and to restore’ the sustainable use of the natural resources of the area'.
With regard to 3(d), 'to promote the social and economic development of the area' could be challenged on the grounds that these are not proper aims and objectives which are likely to be consistent with wider conservation interests or the management of recreational opportunities for the public; the sub-clause should therefore be re-drafted in the following terms - 'to achieve an appropriate balance between conservation, recreation and directly-related social and economic objectives for the area'.
The draft policy memorandum in support of the Bill contains the specific advice to Government on the 'common vision for National Parks in Scotland' including:
These aspects are not directly covered by the current sub-clauses on 'aims'; the following additional sub-clauses should therefore be considered by Ministers -
3(e) - to secure high standards of environmental stewardship within the area consistent with the required international treaties and conventions governing such areas;
3(f) - to provide a focus for initiatives advancing the concept of sustainable development as set out under the prevailing international treaties and conventions.
Section 2: Reports on National Park proposals
Sub-section 1(b) proposes that the technical evaluation of a proposal for a National Park should be undertaken by SNH or any other public body that has the relevant expertise. In this context there is no reason why the word public has any relevance. There are all sorts of organisations, including the universities, that are considered as private sector rather than public sector and it would seem to be a mistake to rule out such institutions.
Section 3: Statements by the Scottish Ministers
With regard to Sub-section 3(a) and (c), it is clearly necessary that a National Park should have the support of local people who live in the park area, but the current emphasis stresses local but almost ignores national interests. Local authorities outside the park area, but adjacent to it, have an interest, and so do the wider public who live outside the park area but who nevertheless form the mainstay of the local economy of the park area, by reason of their visits to it. The people of Scotland (if not the UK) should embrace ownership of the National Park, and not just the people of the park area.
Section 4: Local inquiries
In terms of Sub-section 4 (2), it would be preferable if the Bill set out, or scheduled, the relevant provisions.
Creation of National Parks (Sections 5-7)
Section 6: Designation orders: further provisions
It might be appropriate to include the following additional sub-section:
6 (1) (d) - include a framework statement of the overall strategic aims and objectives for the area prepared by the Government's statutory advisers.
Functions of National Park Authorities (Sections 8-13)
Section 8:Functions of National Park authorities
The drafting of sub-clause 8 (1) is somewhat unclear and should be revised. Something along the following lines is suggested:
'A National Park authority will exercise its own judgement after due consideration in order to
(a) fulfill the aims and objectives set out in 1(3),
(b) carry out any additional or other function required by any other enactment.'
Section 9: Planning functions
There would be merit in specifying the planning Acts, either here or in the interpretation section.
Section 10: National Park Plans
A new sub-clause 10 (3) could be added to ensure the additional aims, identified above, are achieved. This could read as follows:
‘The National Park Plan must include a financial statement which clearly specifies the resources to be allocated to each section of the plan during the initial 3 year period, together with an associated statement identifying the projects to be identified as advancing the concept of sustainable development. The financial statement, and the associated statement on sustainable development, should be reviewed annually thereafter and a report submitted to the appropriate Scottish Ministers.’
The existing draft sub-clause (3) would then be inserted as sub-clause 10 (4).
Section 11: National Park Plans: procedure
The reference to 'persons' in 11 (1)(c) should be amended to include 'bodies' so as to include cultural heritage bodies such as Historic Scotland, as it would be essential to have the input on cultural/built heritage matters at an early stage from the appropriate body.
Section 12: Duty to have regard to National Park Plans
The wording of Section 12 is weak and therefore liable to be ineffective. It will be important that all bodies who may have interests in the land and use of land in a National Park should be required to observe the aims of the National Park and to abide by the National Park Plan.
General (Sections 14-18)
Section 18: Advisory Groups
With regard to sub-section 18 (1), there is no indication that an Advisory Group will be able to commission advice from third parties on specific issues. This may be very important on conservation issues if the Advisory Group does not have the necessary knowledge to give informed advice.
Finances (Sections 19-23)
Section 19: General financial duties
Sub-section 19(3) is far from clear and requires a much better explanatory note to clarify what is intended by the provision. In sub-section 19(4), the term 'surplus' should be defined.
Section 21: Borrowing powers
In sub-section 21(3), the term 'Budget Act' could usefully be defined in the interpretation section and explained.
Miscellaneous (Sections 25-28)
Section 26: Inquiries and other hearings
With regard to sub- section 26(2), there would be merit in inserting or scheduling the relevant provisions.
Section 28: Modification and revocation of designation orders
This section would benefit by appearing earlier in the Bill, for example after section 6.
There is a general statement in sub-section 8(1) followed by some examples in sub-section 8 (2). It might be better to seek a fuller list of potential byelaws (for example, to control the use of metal detectors in the area of the National Park) or have no examples at all, because as it stands, it might be read that these are all that are proposed.
With regard to sub-section 8(3), there would be merit in inserting the relevant provisions of the 1982 Act. Similarly, sub-section 9 would benefit from the insertion of the modified sections of the 1973 Act.
Sub-section 10 would benefit from the insertion of the modified sections of the 1982 Act.
Access to meetings and documents
Sub-section 12 would benefit from the setting out of the relevant Local Government (Scotland) Act 1973 rules on access and documents.
Health and safety at work
Sub-section 13 would benefit from the insertion of the provision of the Health and Safety at Work etc. Act 1974.
Sub-section 14 would benefit from the indication of the effect of the Housing (Scotland) Act 1988, as described in the explanatory notes.
It should be noted that while Section 2 recognises that National Park areas may incorporate nature reserves (with relevant parts of the 1949 Act applying to National Parks in the same way as to local authorities), there is no mention of the future role of designated areas, such as National Nature Reserves, Sites of Special Scientific Interest or Special Areas of Conservation, which may fall within National Parks.
In responding to this inquiry the Society would like to draw attention to the following Royal Society of Edinburgh responses which are of relevance to this subject: National Parks for Scotland (November 1998); People and Nature: A new Approach to SSSI Designations in Scotland (November 1998); National Scenic Areas Review (April 1999); EU policy on Biodiversity (May 1999) and Study of Environmental Planning (October 1999). Copies of the above publications and further copies of this response from the Research Officer, Dr Marc Rands