SCEB012

Environment, Climate Change and Land Reform Committee

Scottish Bill

Written submission from The National Trust for

The National Trust for Scotland (NTS) is Scotland’s largest conservation charity, with over 360,000 members, and managing some 76,000 hectares of countryside, including many statutory protected nature sites. We are responsible for the care and management of some of Scotland’s most iconic areas, including over 400 islands and islets such as St. Kilda UNESCO World Heritage Site, Mar Lodge National Nature Reserve, and 46 Munros including Ben Lawers and Ben Lomond, to name but a few. We champion Scotland’s heritage and we encourage people to connect with the places that make Scotland unique while protecting them for future generations. We have brought this experience to the Bill on devolving the functions of the Crown Estate. The Crown Estate is an important land owner and manager in Scotland, particularly in relation to coastal and marine assets. In regard to the Crown Estate Bill, we think the following should be important considerations:  Heritage assets, such as the foreshore and seabed, should be declared inalienable and may be leased but not sold;  Management decisions should be made within a sustainable development framework; and  Ministerial direction should be limited to ensure the primacy of local decision- making.

Questions Does the Bill allow Crown Estate Scotland, or a delegated manager, to appropriately manage the Scottish assets?

The Bill does, by and large, allow for the appropriate management of Scottish Crown Estate assets. We support the devolution of these assets to local authorities and communities, but we believe they should be managed in the public interest, for long- term benefit, by applying the principles of sustainable development. Managers should also be responsible for considering their asset as part of the Scottish Crown Estate as a whole, to ensure it remains largely intact. We therefore agree with the development of a National Strategic Management Plan which should be passed by the after appropriate scrutiny. Part of the demand for the devolution of the Crown Estate has been prompted by a perceived lack of local accountability. Therefore this national plan must not be too restrictive, and allow for sufficient local flexibility and decision making. As noted from a consultation in 2003: “The consultation responses we received confirmed dissatisfaction regarding the management of the sea bed. In particular, the tension between the Crown Estate Commissioners on the one hand and harbour and local 1

SCEB012 authorities on the other was evident.1” Proper devolution and local control offers an opportunity to rectify these problems and ensure decisions are made in the best interests of the local community. Indeed, it is explicitly stated by the that “following this transfer [of the Crown Estate], responsibility for the management of those assets will be further devolved to local authority areas such as , Shetland, Na h-Eilean Siar or other areas who seek such responsibilities.2” The Bill allows for this to be upheld, however, with scope for significant Ministerial direction in terms of asset management. While a national plan is useful for maintaining a national perspective in asset management, Ministerial powers to direct specific investment and management activities are likely to tend to reduce local decision-making and accountability, as well as tie management decisions more closely to Parliamentary cycles. We agree that there should be a strong presumption against managers selling off the Estate, and that it is in the public interest that long-term environmental stewardship is put ahead of any short-term, potentially damaging economic activity. We would therefore prefer that management be done within a framework for sustainable development, rather than this be listed as one of the possible outcomes, as at present. Specifically, long-term and sustainable management is of importance to assets such as the seabed, and the habitats and species it supports, which must be managed with environmental protection as a core principle and not be allowed to be degraded for short-term commercial gain. It would therefore be preferable for heritage assets, such as the seabed and the foreshore, to be declared inalienable and protected as a national asset for generations to come. This would mean that such an asset could only be sold in exceptional circumstances. Are the powers to allow the transfer of the management function appropriate?

The power to transfer the management of an asset lies with Scottish ministers, though there should be a provision that Ministers are required to devolve asset management as far as practically possible as outlined in the Smith Commission. The creation of Crown Estate Scotland means that there is the potential for duplication of effort across public bodies if asset management is not devolved further. The Crown Estate Scotland, under current proposed legislation, will be another public body rather than an independent organisation as the Crown Estate UK is currently. It is therefore highly likely that central Crown Estate Scotland managers will be performing similar roles to those already undertaken for similar public assets in other agencies, such as Scottish Natural Heritage and the new Forestry and Land Scotland. It would be worth investigating whether assets could be delegated to already existing public bodies where appropriate to improve public efficiency.

1 Report on Law of the Foreshore and Sea Bed, 2003 https://www.scotlawcom.gov.uk/files/7212/7989/6603/rep190.pdf 2 The Smith Commission, 2014, http://webarchive.nationalarchives.gov.uk/20151202171017/http://www.smith-commission.scot/ 2

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Are the managers’ powers and duties as listed in the Bill appropriate?

Yes, though there may be conflict between what are likely to be competing objectives for Crown Estate assets. We would prefer that management decisions be made within a framework of sustainable development, rather than sustainable development as only one possible outcome. Currently, the business plan suggests management should be made with an aim towards being better “able to deliver Scottish Ministers’ objectives, increase profit, generate capital growth and manage risk”3. This implies managers will be more likely to make decisions based on short- term economic gains rather than a sustainable, long-term vision. Indeed, there is a potential conflict between the Crown Estate’s objective to “maintain and enhance the value of the estate and the return obtained from it” and sustainable development/good stewardship of land. The “Estate in Land” duties may irreconcilably block the Crown Estate from holding only land from which it can derive public benefit on behalf of the nation. Some assets that should remain part of the Crown Estate may never make a monetary gain, or only will when managed in a particularly environmentally or socially detrimental way. To ensure that this does not happen, we would like the requirements of good management to be protected in order to ensure environmental stewardship of the portfolio in line with the relevant UN Sustainable Development Goals. Heritage assets should be declared inalienable. Strategic management decisions should always make reference to the national Crown Estate, to ensure that non-profitable assets are not sold-off when they have other, non-economic, value. The Bill proposes significant powers of direction from Scottish Ministers, which could potentially hinder devolved managers. While it is important to ensure the Crown Estate is run with the national picture in mind and restrict fragmentation of the Estate, Scottish ministers are given the power to direct managers towards particular investments and management action; Section 35 confers a general power of direction on the Scottish Ministers in relation to the exercise of managers’ functions. The Minister will have the power to strip the local manager of his control and revert management to the Crown Estate Scotland. This would appear to take away local decision-making and undermine the ambition to properly devolve the management of assets. It is right that managers be allowed to retain up to 9% of gross revenue in order to invest for example in their asset. The ability of ministers to direct funds from one asset to another to cover shortfall is a means of mitigating the risk to non-profitable assets of sell-off. However, it would perhaps be more appropriate for Crown Estate Scotland to be responsible for the re-direction of funds. As a public body, Crown Estate Scotland will be required to ensure all transactions, budgets and financial documents are made public and that actions are transparent. It is unclear whether the proposed ministerial power to direct funds between managers would be transparent or will be subject to any public or Parliamentary scrutiny. Further,

3 Crown Estate Scotland 2017/18 Business Plan, www.crownestatescotland.com/maps-and- publications/download/83 3

SCEB012 investment and shortfall mitigation should be done within the context of the long-term viability and prosperity of the Crown Estate, not within the context of political cycles. Should any additional power or function of the Scottish Crown Estate not currently provided for in the Bill be included?

Environmental Impact Assessment screening, with EIA statements as necessary, should be applied to all relevant developments. The Crown Estate, in becoming a public service authority, should be a relevant agency under the Community Empowerment Act, and should take a leading role in applying the Land Rights and Responsibilities Statement, and the forthcoming guidance on best practice in engaging with communities over land use. The Scottish Crown Estate should use the UN Sustainable Development Goals and the National Performance Framework as references to ensure that it pursues and supports sustainable development of these assets.

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