Petitions

My wife apologises for not being able to attend—ill health has prevented her from coming. I will do my best to represent her commitment to and passion for the cause. She has asked me to read out a short opening address.We, the people, are angry that our Firth of Forth, once known as the Scottish sea, is being threatened by a private company with a duplicitous role. Forth Ports plc must indeed be two faced. How can it possibly entertain ship-to-ship oil transfers and claim to be competent to carry out its duty of care? We are justly outraged that our taxes, work and wildlife can be disregarded so blatantly. It feels as if Forth Ports plc and Melbourne Marine Services, which I understand has been taken over, are thumbing their noses at the people, our Executive and European Union regulations that protect our wildlife. It feels as if we are in the hands of a private company that is prepared to play Russian roulette with the Firth of Forth and that does not care what happens to the environment and the beauty that it destroys. When we elected our Scottish Executive, we gave it our trust and power, which we now expect it to use. Please say no to the proposal.

I oppose the plans of Forth Ports and Melbourne Marine Services, primarily on environmental grounds. The ship-to-ship transfer of huge quantities of heavy grade Russian export-blend crude oil—REBCO—in the centre of the Forth estuary, close to the Fife and East Lothian coastline and beaches, would surely be dangerous and irresponsible and would invite damage to our coastline and fine estuary.The estuary is a beautiful and highly sensitive environment. It has considerable marine life, which is regenerating, that includes seabirds, seals, whales, dolphins and porpoises—the many recent sightings have been widely publicised. The estuary also contains the Isle of May, the Bass rock and many special protection areas and marine environment high-risk areas.Forth Ports and Melbourne Marine Services—now SPT Marine Services, because it was recently taken over and now has a Norwegian parent company—claim that great care will be taken. It appears that the Maritime and Coastguard Agency in Southampton has approved the oil spill contingency plan submitted by Forth Ports, although it called for many amendments and voiced many reservations in its initial report, which was published on 14 July 2006. The MCA repeatedly said that Forth Ports must have serious regard to the European Union habitats directive, which states clearly that European protected species—such as whales, dolphins and porpoises, all of which are present in the Forth—must not be threatened.Forth Ports says in its submission to the committee:"Forth Ports is required to comply with the Habitats Directive."The company goes on to say that its responsibilities include"the prevention of pollution and nature conservation."How can Forth Ports square those responsibilities with allowing ship-to-ship oil transfer in the estuary? However great the care that was taken, a grave danger would remain. Even a small spillage can cause great damage to marine life and the environment, given the nature of REBCO, the speed with which it sinks and the difficulty of recovering it. If damage were to occur, the clean-up in the Forth estuary would be the responsibility not of Forth Ports but of the local authorities—Fife Council, East Lothian Council, and City of Edinburgh Council—and, ultimately, the taxpayer.The benefits of ship-to-ship oil transfer to the Scottish and local economy would be negligible. The oil would simply be transferred from Russian tankers to vast supercarriers, for onward shipment to the far east. The operations would bring to Scotland only the serious probability of damage to its environment, marine life and coastline. Scotland would also incur the cost of the clean-up.A viable and vastly superior alternative for ship-to-ship transfer exists at Scapa Flow, in an enclosed harbour with slow tidal waters. The area has 20 years' experience in such operations. Costs are lower and all the income goes to the local authority, Orkney Islands Council, which has responsibility for clean-up. The deballasting of tankers at Scapa Flow has to take place at sea, so that inland waters are not polluted with alien and damaging species. That is not the case in the Forth estuary: Forth Ports already allows deballasting. Under the ship-to-ship oil transfer plan, such operations and pollution would increase hugely.I am also opposed to the plan as a shareholder in Forth Ports. The short-term benefits to Forth Ports that would come from licensing fees and the securing of a complete supply line under its control, from the Russian Baltic to the far east, would be considerable, but in the medium to long term those benefits are far outweighed by the risks. The plan is opposed by every party in the Scottish Parliament, by every local authority, by every environmental body and by the public. When the inevitable spillage occurs, there will be a huge public backlash against the company. There will probably also be a legal claim against the company as the instigator of and policing authority for transfers.As well as running in the face of mounting opposition among the public and parliamentary and other public authorities, Forth Ports is contravening the Conservation (Natural Habitats, &c) Regulations 1994 by threatening European protected species. It faces penalties on that count. In addition, Fife Council is threatening legal action against the company if it proceeds with the plan. It is known that Forth Ports is likely to be the target of takeover bids from international corporations and syndicates, as it is the only remaining significant public trading port company. Who will be responsible when there is a spillage? Who will be the owners and directors of the company?I appeal to the committee, the Scottish Parliament and the Scottish Executive not to allow the plan to proceed, to implement the legislation that is necessary to prevent it and to demand that Forth Ports applies to the Scottish Parliament for a licence, in view of the threat that the plan poses to European protected species. As a resident of Scotland and a Forth Ports shareholder—like four other members of my family—I appeal to the company to remember its duty of care and to withdraw this dangerous, highly contentious proposal in the interests of Scotland and of its environment and coastline. I call on all members not to run the risk of converting the great, beautiful Firth of Forth into the oil of Forth.

I believe that 95, 96, 97 or even 98 per cent of the time the operation is safe, but if something went wrong there could be a large spillage. There are seven or eight factors that can cause spillage, including changing weather conditions and the fast-flowing tidal waters in the Forth estuary. It would take only a small spillage to cause harm, because REBCO is heavy-grade crude oil that sinks quickly and is difficult to recover; once it sinks, it spreads to the beaches. The oil is pumped at high velocity, so if there were a valve failure or anything of that sort there could be a sizeable spillage, in which case the damage would be enormous. In Scapa Flow there is a totally encircled harbour, with huge experience and umpteen emergency vessels and tugs on immediate call; the situation is much more secure. In the Forth estuary there are vast tidal waters and ever-changing weather conditions, so the situation is much more dangerous. One small spillage in such a highly sensitive environment would be extremely damaging.

Do you believe that that would apply in the Forth estuary if thousands of tonnes of oil were spilled and it sank and spread to the beaches? The oil would be bound to affect marine life. The situation that you describe could not possibly apply in the Forth estuary.

But the transfer at Sullom Voe is not ship to ship; it is at the quayside. It is ship to ship at Scapa Flow but in an encircled harbour.

I do not believe that to be the case. I must also dispute the point about ship-to-ship transfer at Sullom Voe—I understand that it is just at the quayside.

May I come in on that question, convener?

First, the accident that Mr Brocklebank mentioned involved a much lighter crude oil, so it was easier to clean up and dispose of than the Russian oil would be.Secondly, if there is an accident at Scapa Flow they can easily block off the harbour. I agree with Linden Jarvis on what would happen if there were an accident in the Forth. Ship-to-ship transfers are 97 to 98 per cent safe, but we must think about what happens in an accident—the pumping rate, the length of pipes and the amount of oil. If there were a spill in the Forth, we would have, first, to notify Briggs Marine Environmental Services Ltd, which would have to load up the safety equipment, take it to the accident site and spread it out. We are talking about a delay of two, three or possibly four hours before we could start to protect the coastline and everything else. In our view, that delay would be unacceptable.

I strongly suggest that there should be a delay—and I know that my wife would probably do that even more strongly. It is time to stop, think and check. We need to stop the transfers before they happen. We are talking about a big expanse of water that contains a lot of good wildlife, so it is worth taking a bit of time to think about the transfers. I would say, "Slowly, slowly."

Yes.

Certainly. As it appears to my wife Mary and a lot of other people, the situation could continue and nobody has the power to stop it. The Secretary of State for Transport in Westminster admits that he has no power, while the MCA admits that it can consider only oil spill contingency plans—it cannot stop the transfers. Because this is not a devolved subject, the Scottish Parliament cannot do anything, but using the Conservation (Natural Habitats, &c) Regulations 1994 you have the power. We urge you to use that power to stop such transfers going ahead until such time as the matter is cleared up. I received the papers for the meeting a bit late last night, but it appears that Forth Ports has no authority to stop the transfers—it is a lawful business, so it can go ahead provided it is carried out under correct guidance and policy. What is lacking is the initiative from—dare I say it?—the Scottish Parliament to grasp the nettle and say, "Look, this is our land, this is our water, this is our livelihood. Let's do something about it before it goes ahead."

I question whether ship-to-ship transfers are a lawful business. Surely they contravene the European habitats regulations, in which case they are an illegal business. The transfers threaten European protected species. The European regulations are extremely clear in that respect.

I am not a lawyer and I do not understand how European legislation is transposed into domestic legislation, but if Forth Ports proceeds, the European Parliament can take action against it and I understand that it intends to do so. I know that the matter has been taken to the European Parliament by Catherine Stihler MEP and Alyn Smith MEP and that the European Parliament has already advised that such transfers clearly contravene its regulations. It is not a lawful trade.

Some of the institutional investors to whom I have spoken are concerned, but I am not at liberty to give their names. The answer to the first part of your question is that I wrote to Forth Ports to ask for detailed information and data and my request was refused completely in the letter from the company secretary, which I have with me.

That is right.

It was fairly recent. I am looking in my papers for the letter—the correspondence was in May 2006. I was advised that the legislation—the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004—did"not apply to Forth Ports PLC."Surely it should. Forth Ports stated that the 2002 act does not apply to it because it is a public limited company, not a public authority. The letter continues:"The company is therefore not obliged to provide any of the information requested in your letter."It is signed by Morag McNeill, the group company secretary.

I would not say that it was, unfortunately. I think that there is a live threat of a takeover bid for Forth Ports, which, as I said, is the only remaining significant trading port company. Other major companies have been taken over—the ports of Harwich and Felixstowe have been taken over by Hutchison Whampoa of Hong Kong, and Associated British Ports, which owned the ports of Ayr and Troon, has been taken over by a consortium led by Goldman Sachs. A recent Dow Jones newswire referred to Forth Ports as being very likely to be subject to a takeover bid. I have that newswire with me.

Yes, very.

Definitely not. Any company that was bidding for Forth Ports would carry out a due diligence search. The controversy surrounding the proposal would certainly come to light during that search.

No. I spoke to representatives of the institutional investors' environmental departments, and it was purely on environmental grounds that I addressed them.

It is important but, in the short term, if Forth Ports can show that it has set up a complete supply line from the Russian Baltic to the far east under its complete control, that might add to the value of the company.

Yes, there are big differences. To start with, at Hound point, ships are alongside a jetty, and tugs and safety boats are in the vicinity. If anything happens, they are there within minutes. In the case of Methil, nobody would be there— from what we can understand. Ships would be relying on Forth Ports tugs. If those tugs were doing another job, they would have to finish it before they could sail down to Methil. If they were up at Grangemouth or in the area of the Forth bridge, they might take an hour or an hour and a half to arrive, even sailing at full speed, before they could start to do anything else.

I would like no transfers to be carried out—as would my wife, Mary. If they do go ahead, a tug, a safety boat and equipment—by which I mean the collars that can be put out and inflated to control the spread of any oil—will need to be in place. There will also need to be a facility in close proximity for accepting any crude oil that is recovered. The tanks on recovery boats are of a limited size. If it is not possible just to go ashore and dump the oil somewhere, what will happen to it?

I would not be happy with ship-to-ship transfer in the centre of the Forth estuary. The environment is far too sensitive and the risks are too great. As I have repeatedly said, it takes only a small spillage to cause huge damage. The tidal waters are fast and weather conditions change. It is not the environment in which to do ship-to-ship transfers. Scapa Flow is infinitely better. It is better equipped, there is more experience of doing ship-to-ship transfers there and the environment is far better. In addition, Orkney Islands Council benefits, and it handles the clean-up in every way. The Forth Ports situation seems to me to be dangerous, and unfair to the local councils, community and taxpayers. Forth Ports appears to get all the benefits, but it will not handle any damage or costs of damage.

Are you referring to Scapa Flow?

That would not be a good thing either. Scapa Flow has huge capacity to handle transfers in a much better environment.

Can I come back on that point?

I will be brief. I agree with Christine May that ships can transfer oil outside the 12-mile limit. I have done it many times, so I know what it is all about. Once you are outside the 12-mile limit, you are free. However, I do not honestly think that the company would accept that, because to do it you would have to keep a 500,000 tonne vessel on the move. Fuel would be critical. They might be trying to browbeat you a little, if I may be so bold as to suggest that.Secondly, at Scapa Flow the harbour-master has total control. If the weather is turning bad, he turns round and says, "Stop" and they have to stop. If they do not, they are moved out. In this case, Forth Ports and the harbour-master have no control. They have abrogated their responsibilities to what was Melbourne Marine Services and it has abrogated its responsibilities to the master of the pumping ship—not the adviser, but the master of the pumping ship. The way that agents transfer the use of some tankers, it will be a nightmare to try to trace, for insurance purposes, who was responsible at a particular time. That will greatly delay any recovery of costs.

I believe that Forth Ports is preparing a revised environmental impact assessment at the moment. Scottish Natural Heritage has told me that that is due shortly, although it cannot say when; I do not know what shortly means.

I do not think that they are. Mr Douglas has already made that point. Who actually takes the responsibility for stopping the operation if weather conditions change and become in any way dangerous? I am not clear about who makes that decision and when it should be taken.

It is laid out in Melbourne Marine Service's submission as prepared by Aquatera. I cannot give you the page number offhand but it is in there and it is quite clear that the ultimate responsibility lies with the master of the pumping ship.

The major European protected species that are specified by the directive are whales, dolphins and porpoises. Recently, there have been numerous sightings of whales and dolphins in the Forth estuary that have been widely publicised. I have with me several clippings from the newspapers, but you will have seen them, I am sure.

I cannot understand that at all. The only reason that I can think of is that it enables Forth Ports to have a supply line from the Russian Baltic to the far east under its complete control.SPT Marine Services, the Norwegian parent company that has recently taken over Melbourne Marine Services, is hugely involved in Scapa Flow already, with REBCO and with the soon-to-be-undertaken liquefied natural gas project. SPT are therefore in situ up there and fully involved at Scapa Flow. The harbour-master at Scapa Flow has assured me that it has huge capacity, so there is no reason why transfers by SPT could not be done there. All the income would go to the local Orkney authority—and Scotland—and everything, including a clean-up operation would be under the local authority's control. It would be a vastly superior alternative.

Thank you very much, to one and all.

A number of issues arise from the question. Several countries that are close to where such ship-to-ship operations could take place have indicated that they do not want it happening on their doorstep. I refer to the Scandinavian countries—including Sweden and Denmark—and other countries such as Holland. The United Kingdom and the Firth of Forth were considered as possible sites for such transfers only after those countries had been looked at.Obviously the Firth of Forth environment is precious. It has blue flag beaches and loads of designated sites. At the end of the day, the point was made in many of the submissions that such ship-to-ship transfers will bring no economic benefit to the local authority areas that are adjacent to the Firth of Forth or to Scotland as a whole. We are talking about a holding ground where smaller vessels will come in, offload their cargo to a bigger vessel, and then go on somewhere else. Perhaps others will get benefit, but there appears to be limited economic benefit to Scotland—in particular, the south-east of Scotland. I think that the figure for the jobs that may be created is in the low 10s—it is between 13 and 20 jobs.We should contrast that with the situation in Fife where we have 600 people who are directly employed in the tourism industry, which is a £200 million a year industry. If ship-to-ship transfers were to go ahead in the Firth of Forth and an accident were to happen, it would have a dramatic environmental impact. On the trade versus environment argument, as we heard earlier this morning, other locations are safer for such transfers to take place. The consultation was only on the oil spill contingency plans. We are concerned about that and about the fact that no risk assessment has been made as yet of the Firth of Forth versus Scapa Flow versus anywhere else in the UK or, indeed, anywhere else in Europe. Such a risk assessment should happen. In most of the things that we do nowadays, we carry out a risk assessment—we assess the probability of the risk happening and come to a decision that is based on that proper analysis. In this case, the process is the other way round. A site has been picked and people are saying, "If the oil spill plan is okay, we'll go ahead." In an iterative process like that, the answer can never be no, it will always be yes.I have veered away from the question of trade versus environment slightly. However, given that a risk assessment was not done in the first place, the process has to go right back to that basic ground level.

I ducked your question because I am not competent to talk about the commercial aspects of oil transport. However, in this case, the presence of European wildlife sites means that there can be no trade-off between the environment and business, because it must be shown that there will be no damage to the environment of those sites before the project can proceed.

Local authorities face not so much a potential disaster, but something that they must take on the chin. We are faced with having to deal with any clean-up, but we get no payment to increase our preparedness and we would have to carry out the clean-up at our own cost, while hoping that compensation would be paid at some stage down the line. We are faced with a large risk and are expected to up our resources and preparedness without any direct support.

I will add a tiny bit to what Iain Rennick said. The habitats directive and the Conservation (Natural Habitats, &c) Regulations 1994 (SI 1994/2716) allow the public interest to be taken into account at the very end and only after all the other tests have been passed. The first step is to assess whether there is an impact on the site. In this case, that applies to birds and seals on the Isle of May. If there is an impact on the integrity of the site, the next step is to determine whether there are alternative solutions to the proposal. If there are no alternative solutions, the competent authority may still wish to consent to a programme that damages a European wildlife site. It is enabled to do so in some circumstances only at that point and on the ground that there are overriding reasons of public interest, which is an extremely difficult test to pass.

In reply to the Maritime and Coastguard Agency's consultation, we said that we found the oil spill contingency plan acceptable, but that is obviously different from saying that we find the overall project acceptable. The contingency plan deals with what happens in the event of an incident and what procedures will be enacted to get mitigation and control measures in place to deal with the incident. We were content with the steps that were set out in those plans, but that is different from saying that we are content with the overall proposal at this stage.

The fundamental difference between the proposal and the current levels of oil activity in the Firth of Forth is that it is proposed to transfer large volumes of oil in a completely new location within the firth where there are currently low levels of oil activity. As far as I know, there is no transfer of oil in the location and the only activity that takes place is that tankers sometimes anchor there before moving to Hound point and other places. The location is much closer to the parts of the firth—the qualifying-interest European wildlife sites—that are heavily used by the species of birds that are most at risk should oil be spilled on the water. I am talking about breeding seabirds, principally from the Bass rock and the Isle of May, and wintering waterfowl—such as eider ducks, divers, grebes and scoters—which spend all their time in winter on the water, where they are at risk should oil get there. There is a fundamental difference between the current situation and the situation as it would be should consent be given to the proposal.

We are satisfied that there is a process in place. General duties placed on Forth Ports require it to assess the environmental impact of a project and to reach a decision based on that assessment. We are satisfied that that process is in place and that Forth Ports is going through that process at present. It has accepted its responsibilities as a competent authority under the habitats directive and it is undertaking appropriate assessment. We are content that Forth Ports is following the letter of the law, even if aspects of it may not directly apply at present. We welcome the fact that the issue is to be reviewed by the Executive, because that will eliminate some of the confusion.

Was that specifically in relation to the oil spill contingency plan?

Before approving the project, Forth Ports, as competent authority, has to guarantee that there will be no damage to the integrity of the European wildlife sites. That process is what it is going through at present.

What concerns me is that the Maritime and Coastguard Agency effectively approved the plans on 25 August 2006, yet we now hear that discussion is still ongoing between Forth Ports, which will make the decision, and SNH. I would have thought that that whole process should have taken place before the MCA made its decision last August. What we have now is a process that is done, but has begun again. It is a peculiar way to go about giving the go-ahead.

Iain Rennick referred to the general duty under the habitats regulations, which is what binds Forth Ports in this instance. It is worth pointing out to committee members, if they are not already aware, that in effect a twin-track process is set out by the habitats regulations. Some types of consenting regime are covered by a detailed step-by-step process that is set out in part IV of the regulations. Town and country planning, electricity and most developments that the RSPB comes up against are covered by part IV. However, most marine consents—including ship-to-ship transfers—are covered only by a general duty. That was found to be lacking by the European Court of Justice in respect of water abstraction projects and the assessment of development plans. The Executive and the authorities in England and Wales and in Northern Ireland consulted last year on amendments to the habitats regulations to address specifically those shortcomings. We believe that the UK is vulnerable to further complaint to the European Commission on an interpretation of that judgment. The scope of part IV of the regulations should be broadened to encompass as many consenting regimes as possible.

I understand that a further review will be undertaken, but I am not aware of a firm commitment to take action on the back of any review.We need to level the playing field for all competent authorities. Another thing that would make a difference would be to have a more coherent system for addressing development proposals in the marine environment. Marine legislation for Scotland and the UK would help to level the playing field to ensure that everyone is playing by the same rules.Finally, I am of the opinion that the lack of UK ship-to-ship transfer regulations is not helpful in this case. If regulations provided specific guidance on how to apply the habitats directive, that would help competent authorities in determining consents.

The developer has the responsibility to demonstrate to the competent authority that its proposal will have no adverse effects on the European sites. The responsibility for gathering data to prove that negative, as it were, is on the developer. In this case, that is SPT Marine Services.

We have been involved at various stages in commenting on the environmental statement that informs the appropriate assessment. As part of that process, we have highlighted where we perceive that there are gaps in the data in the environmental statement that need to be filled before an appropriate assessment could conclude that the proposal would have no adverse effect on the sites.

There is an absence of information on some species that are protected in the Forth. For example, information has not been provided on the distribution of such species at different times of the year and in different parts of the Forth or on movements across the area. Filling all those gaps would help an assessment to be made of whether, in the event of an incident, there would be an impact on those species.

That question probably needs to be put to the developer. All that we can do is point out the gaps in the data and in the analysis and ask that those be filled either by existing data or, if required, by a new survey.

Both the likelihood of an incident and its impact if it were to occur would need to be included for an assessment to conclude that a development would have no adverse effect on the European sites.

Yes, we have said that about the environmental statement at various stages. We have said that there needs to be more analysis of what the impact could be under different scenarios.

That is correct. It is entirely appropriate for Forth Ports to consider ship-to-ship transfer and, if it feels that such operations would benefit the company and its shareholders and could be carried out safely, to conclude that it wants to go ahead with the proposal. On the other hand, it is competent for local authorities and other bodies to ask why such operations should be carried out in their back yard, if they feel that, rather than any benefit, there would be only the disbenefit of risk. That is the impasse that has been reached in the debate over the past few years.The present legal framework is not correct. Under regulation 44 of the Conservation (Natural Habitats, &c) Regulations 1994, which relates to the granting of licences, the Executive could play a role by requiring the attachment of conditions, but the harbour byelaws, which for most of the harbours in Fife deal with issues such as bathing and litter in the harbour, are not adequate to deal with the transfer of 500,000m3 of oil between two anchored ships in the Firth of Forth. The legal framework needs to be re-examined.I am not a legal person, but even if the regulations on oil pollution preparedness—which I think were developed in 1999—had come to be, they would have dealt only with ship-to-ship transfer outwith harbour areas and it would not have been appropriate to use them in relation to areas that fell within the confines of port authority control. That concerns me as well. We are where we are but, as someone mentioned earlier, that should not mean that a decision is rushed into. The situation can still be rescued and the issue tackled sensibly.

The RSPB's members have a certain amount of difficulty in understanding the situation in that they perceive there to be conflict of interest. I believe that Fort Ports is under a legal obligation to carry out its duties and that it must separate its responsibilities, but there is an absence of transparency about how it does that. Our members, who to an extent could be said to represent the wider public, find that difficult to understand.

I guess that, ultimately, the Executive would bear the responsibility and infraction proceedings could begin against the United Kingdom Government.

That is my understanding.

All that I can say is that we have had dealings with Aquatera in commenting on the environmental statement.

I had not come across the company before, so I could not comment on its previous experience.

I have no experience of dealing with it, but the answer to the converse of the question is that for most things that we do nowadays, we have independent checks. All the information that has been put forward on behalf of the promoter, SPT Marine Services, should be subject to an independent check by the Maritime and Coastguard Agency or another suitable body to ensure that all the modelling on any spills is accurate. In its submission, SPT Marine Services admits that the chance of something happening is a third higher if it goes ahead with what is proposed. We accept that, but that has not been challenged by anybody else, and we have made that point to the MCA.

We have commented a number of times on where we see deficiencies in that document and have asked for them to be addressed. Some of those concerns remain and have not been addressed.

The RSPB has some knowledge and experience of Aquatera, mainly from the work that it has done on scoping renewable energy capacity in Orkney. It also undertook a big piece of work for Highland Council to examine where renewables facilities could be sited in the Highland region. As far as I am aware, it is a small company based in Orkney, a place where Captain Taylor of Melbourne Marine Services also has strong connections. That might be a link, although that is just speculation.

I am not overly metric, but I think that, for most of the oils that we deal with, 1m3 is approximately equivalent to 2 tonnes—the weight is between 1.8 times and twice the volume.

We have challenged it greatly. As I mentioned earlier, if the vessels can take 500,000m3, the ultimate oil spill could be the complete vessel. We certainly raised that point on several occasions before the MCA agreed that the oil spill contingency plan was okay.That is why I said that the independent check should not just be environmental but should be technical. Fife Council, in conjunction with the City of Edinburgh Council and East Lothian Council, has in the past couple of weeks engaged an independent technical consultant to tie into our on-going legal advice, to challenge from an expert witness perspective some of the points that have come out in the approved oil spill contingency plan.

The plans deal with different scales of spill. We have said that the modelling work needs to consider different scenarios and scales of spill, although the size of the spill does not necessarily determine its impact. As one of the previous witnesses said, a small spill in the wrong location at the wrong time could be significant.

The extent to which the Executive could intervene is unclear. That is one of the uncertainties about the application of the 1994 regulations to the proposal. It is uncertain whether the Executive could intervene and stop the proposal, and it would not be for us to say whether it would want to do so.Ultimately, Forth Ports as the competent authority has the responsibility for taking the decision. It could be challenged in the courts, but that would be the only challenge mechanism if somebody wanted to prevent the project from going ahead.

The three councils to which I referred have been taking legal advice and have employed senior Queen's counsel since December 2005. There are a number of ways that a challenge could be made. Ultimately, only the courts would decide the outcome, but the generic point is that all parties must fulfil their obligations under the different regulations, including the habitats directive.Was the MCA's decision of 25 August 2006 properly made? We are aware of a lot of information that was made available not much before 25 August, and the MCA has now admitted to us that it did not have that information when it made the decision. As I mentioned a few minutes ago, there are a number of technical issues with the competence or otherwise of the arrangements that are in place. For example, tugs will be in place only at the beginning and end of operations, not 24/7 while operations take place. What if something happens in between? Where will the tugs be placed? How quickly would they be able to get to any incident? Weather conditions are another issue.There are many technical issues as well as legal ones. We do not want to go to court any more than anybody else does, but we have done the preparatory work for that and, should operations go ahead, it might be the only way that the technical questions will be answered.

The scope varies according to the scale of the project. Take the decision on the proposed extension of Southampton harbour at Dibden bay as an example. One of the reasons why the Secretary of State for Transport decided that that development should not go ahead was that alternative solutions existed elsewhere in the south-east of England, so I think that, in this instance, there is a strong argument that Scapa Flow would be an alternative location. It is also worth pointing out that Scapa Flow does not have the same level of wildlife interest, so many of the questions that arise in the Firth of Forth simply do not arise there.

It is a normal insurance requirement. What worries the local authorities is that even the smallest of spills would cost them substantial resources, manpower and materials that they do not stockpile. We have no resources; we can only train our staff and put a plan in place. In the end, we would have to fork out taxpayers' money in the hope that the compensation would come through from the International Tanker Owners Pollution Federation under the insurance requirements on the industry. We also know that there have been tremendous delays in those payments coming through in the past. That is a serious concern for the City of Edinburgh Council and I am sure that my colleagues in neighbouring authorities share that concern.

I understand that the local authority has not yet recovered all the costs arising from the vessel accident that happened in 1993 off Shetland—it is a long time from 1993 to 2007. After all that time, an authority should not still be seeking to recover costs.It should be noted that there is no obligation on local authorities to do a clean-up. Under section 138 of the Local Government Act 1972, local authorities have only a voluntary responsibility to do that. The dilemma is that, if the local authorities do not do the clean up, who will? If an incident happens, the normal obligation is for an authority to try to clean up the area as soon as possible. The worry for authorities then becomes the recovery of costs.Perhaps a licence is required under the habitats directive and regulation 44 of the 1994 regulations, or whatever. There may be ways in which to do this, over and above the international rules and regulations. I am not sure, but it would be nice to know that something is in place. The easiest way to ensure that such spillages do not happen is for ship-to-ship transfer not to take place in the first instance.

If a bond were required, it would be an admission that there would be damage to a European site. The bond would therefore come into play only if the proposal passed the final stages that Richard Evans outlined earlier. A bond may be appropriate if there are no alternatives and if there are overriding reasons of public interest why the project should go ahead. In the earlier stages, a bond would not be appropriate because it would be seen as an admission of potential damage to a site.Ted Brocklebank spoke about a case off Shetland. I was not involved in it, but I understand from colleagues that we were very lucky on that occasion. The weather and sea conditions were such that the oil dispersed naturally and away from the shoreline, by and large. Luck had a big part to play in the limited damage that was caused.

I will have to repeat myself because the question is so direct. This matter is very much one of people's perception of conflict of interest. What seems to be lacking in the way in which Forth Ports distinguishes its role as a regulator and its role as a public limited company in making money is transparency. Personally, I do not believe that there is a conflict of interest. The perception that there is one is extremely powerful and I am not sure how to fix it. I think that Forth Ports may find itself in this difficult position because of the way in which things have rolled on since the Ports Act 1991, which enabled private companies to take on the regulatory duties of harbour authorities.

My earlier comment on the Executive's role was in relation to the European sites issue. I apologise. The Executive's role seems to be broader than that.The Executive is responsible for licensing arrangements for a small number of species under the annexes that have been mentioned. Those species are referred to as European protected species. In the context of the proposal for the Firth of Forth, we think that the only European protected species that might be affected are cetaceans—whales, dolphins and porpoises.The question whether the Executive would require a licence depends on a judgment on whether the proposal would lead to deliberate or reckless damage to those species and whether the breeding sites or resting places of those species would be likely to be damaged as a result. Obviously, that judgment depends on data and information as to the presence of such species in the area and whether there are breeding places and resting places that might be affected.Up till now, our role has been to highlight that issue and to argue that the data that are currently presented in the environmental statement are inadequate. We have pointed the environmental consultants to other data sources that we believe should be consulted before reaching a judgment on the issue. That evidence will help to inform the Executive's decision on whether to grant a licence. That is the position that we are in at the moment. We have raised those issues, we have suggested other data sources that must be consulted in presenting that evidence and we are waiting to see whether that is carried out.

We have highlighted that in our comments on the environmental statement and drawn attention to the need for additional data and analysis when they are required so that the impacts can be assessed.

Deliberate or reckless.

The phrase "deliberate or reckless" is obviously crucial. No one would suggest that there would be deliberate or reckless damage to the species in question. If a spill occurred and damage was done, there are provisions concerning whether any legal action would follow. There are exclusions based on whether the event could have been foreseen, what steps were put in place to prevent it, and what measures were then taken to clear it up.Forth Ports and the developers would obviously argue that they are putting in place measures to comply with those requirements. Ultimately, we require further data on the presence of the species in and around the area where the transfers will take place before we can reach a judgment about whether the Executive should intervene.

I cannot give an answer on timescale. As I have said, we have highlighted in our comments on the environmental statement a range of concerns, including the need to address the absence of data. Our last comments were early last year, and the issues have not been addressed since then. I cannot say what the timescale is because we have not been told. Our concerns remain outstanding. We have had no role whatever in the decision on whom Forth Ports will consult as stakeholders. It has a statutory responsibility to consult us, and it has done that. We have not been asked for an opinion by Forth Ports on whom it should choose to consult thereafter.

Once Forth Ports gets to that stage, if we have a concern that the consultation is not wide enough, we will make it known.

The specific sources that we pointed them towards are the Joint Nature Conservation Committee office in Aberdeen, which maintains records about the coast; the sea mammal research unit in St Andrews; and the local record centres in Fife and the Lothians that collect environmental data and are funded by SNH through grant aid. Those centres record, for example, public sightings of cetaceans in the Forth. Those are the main data sources that we would want to be consulted.

It is impossible to say without having seen data from those sources. We have not asked for a further survey to be done because it would be premature to do so in advance of seeing what data exist and whether they are adequate for the purpose.

RSPB Scotland was involved at the outset, when the project was first scoped. The developer's consultant contacted us, and we responded to that approach. We also attended the one or two public meetings that happened subsequently. That takes us back to 2005. In May last year, we met Forth Ports to discuss ship-to-ship transfer and exchanged views on measures that might be needed to ease the way forward and to reach a conclusion on how an assessment should be carried out. However, we are not terribly clear what has happened since then, what is going on, what stage things are at or what account has been taken of the suggestions that we made.

Although the documentation refers to the consultation process being initiated in April 2004, the first indication that Fife Council had of any proposal was when Captain Taylor from Melbourne Marine Services came to see us in December 2004. Until then, we had no idea that any proposals were in the pipeline. I think that Captain Taylor also met some of the elected members of the council, so there were perhaps two meetings. That is all that took place.We were of the firm opinion that there would be no consultation until noises were made about the proposals. I think the 12-week consultation took place in February 2005 after quite a bit of representation from Fife Council and other bodies. There was no further consultation after that, and we heard nothing until July 2006, when the Maritime and Coastguard Agency intimated a number of amendments that would have to be made, and thereafter on 25 August 2006, when it gave approval. There were two meetings of a couple of hours each, the 12-week consultation was carried out and a decision was made on 25 August.

I echo what Dr McLellan said. Like Fife Council, the City of Edinburgh Council learned second or third hand about the consultation and we have had little consultation time.Another issue is that it appears that none of our recommendations to Forth Ports has been adopted in any of its plans. A prime example, about which the committee heard earlier, is the need for an immediate response at the anchorage site should there be an oil spill. We are still waiting for a firm commitment that Forth Ports will have a tug presence throughout the transfer, a counter-pollution vessel on site and that it will even consider booming around the daughter ship. We and other local authorities have made those recommendations, but it appears that Forth Ports has ignored them.

If you mean the environmental impact assessment, we have not been involved.

You have heard from Dr McLellan that throughout the UK it has been assumed that local authorities will prepare for and co-ordinate such activity, even though we have no resources, equipment or materials in reserve with which to do so. We must face the risk and deal with the clean-up—should it be necessary—at huge expense. The committee has heard how long it might take for local authorities to get compensation.

Again, I cannot answer that from a legal perspective but, as I have said, it might help the transparency of the decision-making process if the port authority was not the body that was responsible for the approval of operations.

Nora Radcliffe asked about the proposed UK regulations. I think that their purpose is to ensure that transfers do not take place on the high seas, which is a good thing. The question whether they should extend in detail to harbour authority areas is probably better addressed to Forth Ports. We have indicated to the Department for Transport that we think that clear guidance should be provided on how to apply the habitats directive regulations within harbour authority areas, when that is relevant.

Good morning, convener and ladies and gentlemen. It may be unusual to have four representatives of one organisation here to give evidence, but I felt that, given the range of issues that had been raised, it was only fair to show our seriousness in addressing the issues when we came here today, to try to help the committee.I am not sure where the figure of £9 million has come from, but I fear that it is grossly exaggerated. At the current point in the process, we are concentrating on making the right regulatory decision under existing legislation and our interpretation of it.Mr Brocklebank asked about the benefits to communities. Forth Ports does several tasks that benefit communities generally, including regeneration in Fife, the creation of jobs at Rosyth, the safeguarding of the estuary for navigation and benefits to Grangemouth and to Dundee.We look at the project as a whole. One point that we are clear about is that we do not wish to proceed with anything that is not inherently safe, because our reputation matters to us. Shareholders, other members of the community and people who are interested in our business generally believe that when we say that we will do something, we will do it and see it through properly. We take seriously our role as guardians of the estuary, which is why no final decision has been made on the project that the committee has heard about.

The project would create some jobs. I hope and expect that several jobs might be created locally. I would love to have locally based training in the Methil area, for example, to help to alleviate some of the problems there. One local company—Briggs Marine—has been involved in arrangements that might be used for the oil pollution response plan.If the project proceeds, investment will be made in new towage, in new craft and in training people to handle pollution incidents. I would expect the number of jobs that was created to be less than 40; it might be between 20 and 40. However, I would hope and expect that the project would be of benefit to the local community. Any revenues from the project would benefit communities, because we see our Scottish operation as an integrated whole.

We do not consider the proposal as a trade-off. We are considering whether such transfers could be undertaken safely in the Forth. If the answer is that they cannot, jobs and benefits will not even be considered. We must answer that first question before we ask ourselves what we will do. I do not see the proposal as being a trade-off, because we must fulfil our regulatory functions before we go into such questions.

I hand over to Derek McGlashan, who is our environmental manager.

We have sought advice on the project from various bodies. The committee heard earlier about SNH's and other people's thoughts on the environmental work that the developer undertook. We cross-checked three versions of the environmental impact assessment against advice from various organisations—we have relied particularly on an organisation called BMT Cordah Limited to give us independent advice beyond the advice that SNH provided. On the basis of SNH's comments on Aquatera Limited's interpretation of the precautionary principle and the perceptions of some individuals, we felt that we had to take the process a step further.You heard earlier from Iain Rennick that it is the developer's responsibility to provide us with information to allow us to make a judgment. We felt that it was important that we had independent advice beyond the advice that Aquatera supplied. That was for a variety of reasons, but generally that is good practice. That is why we called on BMT, which is an expert in facilitation, to pull together an independent panel of experts to examine risk and to apply the precautionary principle to the operations from a risk perspective. That panel has assisted BMT Cordah—particularly its Aberdeen office, which specialises in oil—to produce, independently and at arm's length, an appropriate assessment. The brief was clear that BMT Cordah had to make judgments on our behalf, within our statutory remit. Clearly, we did not want a perceived conflict of interests, such as has been suggested in the press, to cloud any judgments. That emphasises the fact that we take our statutory responsibilities seriously.One piece of advice that came out of that was that it was unclear how a vetting process, which we had informed MMS we would like to be in place if the transfers went ahead, would work. We felt that the independent panel did not have enough guidance on that, so we asked another independent shipping organisation for advice on how the vetting process would work and how it could be applied, not just generally, but specifically in the Forth for ship-to-ship oil transfers. All that information has been pulled into the appropriate assessment that BMT Cordah is undertaking on our behalf.

That strays into the outcome of the appropriate assessment, which is on-going, and links to the points that the convener made in introducing us. However, the interpretation of the principle that you have given is broadly the one to which we are working. A little over a week ago, SNH gave us further advice on a draft of the appropriate assessment, which it saw in January. The advice was constructive and useful, particularly in relation to the wording of the test, which was subtly different from the wording that the consultants had applied on the basis of up-to-date guidance that they found on various websites. The consultants have been asked to re-examine the appropriate assessment using the wording of the test that SNH has supplied. The issue comes back to ensuring that we apply all the best practices.

The independent panel was set up to examine the risks that are associated with the transfer process, not to examine the point of the precautionary principle. Various guidance documents have been used to apply that. The independent panel consisted of—

There are two separate issues. There is a panel to inform us of risk, the findings of which are then integrated into the appropriate assessment. The precautionary principle is implicit in the appropriate assessment process. The documents that have been referred to are various Government documents, including the European Commission's own guidance on the precautionary principle.

There is no such thing as an absence of risk. If you pick up your pen, there is a chance that it could impale you—to take the principle to a peculiar level.

The judgment about the absence of adverse effects is made on the basis of scientific information. The test of which SNH has helpfully advised us is that, if we were to approve the transfers, there would have to be scientific evidence that there would not be an adverse impact.

I return to what I said: the panel was set up to assess the risk, not the precautionary principle. The appropriate assessment is being carried out by an independent consultant—a large international firm that has expertise across a range of areas and which has undertaken appropriate assessments for all sorts of activities.

Perhaps I can add to that in order to help members of the committee to understand the process. It is difficult to talk about an on-going process. As was mentioned earlier, when the appropriate assessment is finalised and we have received advice from SNH about it, that appropriate assessment will be released not only to stakeholders, but on the Forth Ports website so that we can take any final comments on it from interested parties. If there are comments such as those that Mr Ruskell has made, we will be more than happy to take them into account before any final decision is arrived at.

We are conscious of the concerns that have been expressed. Over the past two and a half years of consultation and engagement, we have been at pains to listen to factual concerns—not expressions of opinion about whether the transfers will almost certainly cause devastation—that we must, before the process goes ahead, have examined it carefully to ensure that it is inherently safe.We take our ethical and social responsibilities seriously. We are on the Kempen SNS smaller Europe social responsibility index of socially responsible firms. We have had several meetings with institutions—Mr Jarvis referred to this in his earlier evidence—at which we have met not only the fund-management side of the institution that holds the shareholding in Forth Ports, but the social responsibility side, as well, to ensure that the two things are integrated. That aspect is important to us.We have started a series of visits to the Forth and Tay navigation service, to try better to inform people about the systems that are used to manage traffic in the estuary. Some of the questions that are being raised apply not only to ship-to-ship transfer, which will be only a few hundred shipping movements out of 8,000 or 9,000 shipping movements. It is important for people to have that information. I again extend an open invitation to the committee to visit the Forth and Tay navigation service to see for yourselves how we control navigation in the estuary.We are a member of various bodies, including the Forth estuary forum and the Tay estuary forum, and we like to think that we engage with stakeholders as much as possible. However, we could always do more, so we have taken on board some of the comments that have been made in this process. We want to ensure that people are better informed about management of the estuary, and we will continue to take that seriously. We will listen to anybody's comments, take them on board and give them careful consideration.

It is difficult. We have found that when people who have expressed concerns have seen how we manage the estuary, those concerns have diminished substantially. I ask Bob Baker to comment on that, as he has been co-ordinating the visits and he is the chief harbourmaster.The difficulty comes from the fact that a number of views were expressed early in the project, before information was gathered. Those views appear to have been arrived at before the facts were available. When we have been able to engage with people and explain not just what we are doing in this process, but how we safeguard navigation in the estuary, that has helped the perception. Nevertheless, I accept that a number of people around the estuary are concerned about the proposal.