Islands Bill: the devil is in the detail

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Andy Johnston says the Islands Bill is an encouraging start for double devolution in Scotland – with, perhaps, more to come.

The Islands (Scotland) Bill was published last week. There aren’t many surprises as its contents were heavily trailed. At its heart is a desire to ‘island proof’ the formation of policy and delivery of public services in Scotland.

The Bill is in six parts:

  • Definitions
  • A National Islands Plan
  • Duties of Authorities
  • Representation of communities
  • The Scottish Island Marine Area and licensing
  • Legal provisions

Legal provisions and the size and nature of electoral wards are important, but don’t represent the really interesting parts of this bill: the plan, the licensing regime and the duties of authorities. 

As ever with these types of mainly ‘framework’ legislation, the devil is in the detail of implementation and the challenge is to try and divine the really significant policy.

My impression from an initial read through of the bill and its policy memorandum is that the new licensing regime could really change things, giving legislative responsibility to Island local authorities. A local authority will have to apply for the licensing power and then can licence development activities offshore for 12 nautical miles. If the licensing regime is not adhered to, local authorities can issue compliance and remediation notices. It isn’t specifically stated what constitutes development in this context but the policy memorandum mentions transport, fishing and energy – big drivers of economic and social wellbeing in island communities.

The part which most closely aligns to the aim of Island proofing is the part on duties of authorities. There are 66 authorities named in the schedule of the bill. From transport through education, local government and all the way up to the minister. These authorities will ‘have regard to Island communities’, and an ‘Island communities impact assessment’ must be developed and reported on. It is to be hoped that each of these authorities take their duty seriously and actively build the views of Island communities into their assessments. However, you do worry that after a community has contributed to 66 assessments, read the annual reports and provided feedback there won’t be much time left for work or socialising.

I think in some ways the National Islands Plan (NIP) is the least significant of the measures in the bill; as far as I can tell it’s owned and controlled centrally. When I heard there would be a NIP, I assumed it would be led by the Islands themselves through their local authorities. The minister would approve it and then hold the Island councils to account for its delivery. The reality is the complete opposite. The minister develops the plan (consulting whoever they choose) and the Island communities hold the minister accountable.

I worry that this approach has several flaws.

Firstly, the potential for lack of ownership by Island communities risks making the plan something that is being ‘done to them’. The effects of this are well known. The minister might then end up defending the consequences of the plan to stakeholders who arguably have more knowledge, interest and political capital invested in the outcomes. Community leaders could turn their frustration on to the minister rather than working constructively to develop solutions and the NIP might eventually become a totem for disillusionment with government.

Secondly, it’s inevitable that the NIP will be a political priority for a finite term and as politicians move on then civil servants have to take over and the plan becomes an administrative task rather than a dynamic process of improvement for Island communities. It will be fascinating to see how the NIP is developed and how communities and councils are involved and indeed linkages to other plans eg NHS and council plans. 

So, if there’s a part of the bill I personally would consider changing it would be to shift the ownership and governance of the NIP. It should be possible to develop a NIP which is a partnership between Island communities and national government and a document that can evolve as circumstances change rather than risk ossifying it in an administrative reporting regime.

The Islands (Scotland) Bill may disappoint a little in its approach to devolution but the policy memorandum offers hope. However, it hints at the Scottish Government’s commitment to further devolution across the country that will benefit islands. Perhaps this bill marks a watershed: a shift in power within Scotland.