Implementation of the Islands (Scotland) Act 2018: report

Operation of the Islands (Scotland) Act 2018

Part 1: Key definitions

Islands and island communities in Scotland are, by definition, geographically remote places and are demarcated in the Act as being naturally formed areas of land surrounded on all sides by the sea (ignoring artificial structures such as bridges) and above water at high tide. Islands share many similarities with rural areas across Scotland, and in particular with coastal communities.

As such, the Islands (Scotland) Act 2018 presents Ministers with an opportunity to develop good practices in terms of genuine input across Scotland. For example, the Scottish Government's Carbon Neutral Islands project which will implement strategies to support communities in moving towards net zero in a just way, has a stated aim to inform policy across the whole country, and indeed the rest of the world.

This places Scotland's islands at the forefront of innovation. Good practices can be adapted by rural communities on the mainland to meet their own interests and specific circumstances.

The Act provides that an "island community" means a community which:

(a) consists of two or more individuals, all of whom permanently inhabit an island (whether or not the same island); and

(b) is based on common interest, identity or geography (including in relation to any uninhabited island whose natural environment and terrestrial, marine and associated ecosystems contribute to the natural or cultural heritage or economy of an inhabited island).

This offers an exciting opportunity within the Act for island based local democracy, exploring the role of community councils and local community groups and organisations and this will be a key area of work going forward.

Part 2 – National Islands Plan

The Islands (Scotland) Act mandated Scottish Ministers to present to Parliament a National Islands Plan. Published in December 2019, the Plan is based on the principles that it is fair, integrated, green and inclusive.

Helpfully, the Islands Act obliged the Scottish Government to undertake a consultation to inform the content of the National Islands Plan and to ensure it was shaped by the voices of the different island communities.

The Act provides some guidance in relation to outcomes for island communities that the Plan must address. Section 3(3) lists the following aspects as areas that will need to be improved:

(a) increasing population levels

(b) improving and promoting— (i) sustainable economic development, (ii) environmental wellbeing, (iii) health and wellbeing, and (iv) community empowerment,

(c) improving transport services,

(d) improving digital connectivity,

(e) reducing fuel poverty,

(f) ensuring effective management of the Scottish Crown Estate (that is, the property, rights and interests to which section 90B(5) of the Scotland Act 1998 applies); and

(g) enhancing biosecurity (including protecting islands from the impact of invasive non-native species).

At its heart, the National Islands Plan aims to address all of these aspects and to improve life on Scotland's islands. It sets out 13 strategic objectives and is supported by an Implementation Route Map.

The Act requires that Scottish Ministers prepare a report for each reporting year of the National Islands Plan.

The Act also requires that Scottish Ministers must review the National Islands Plan before the end of the period of 5 years beginning on the day on which the Plan was last published. This work will be planned well in advance and Ministers will fully involve delivery partners and island communities in any such review.

Strategic Objective 1 To address population decline and ensure a healthy, balanced population profile

Strategic Objective 2 To improve and promote sustainable economic development

Strategic Objective 3 To improve transport services

Strategic Objective 4 To improve housing

Strategic Objective 5 To reduce levels of fuel poverty

Strategic Objective 6 To improve digital connectivity

Strategic Objective 7 To improve and promote health, social care and wellbeing

Strategic Objective 8 To improve and promote environmental wellbeing and deal with biosecurity

Strategic Objective 9 To contribute to climate change mitigation and adaptation and promote clean, affordable and secure energy

Strategic Objective 10 To empower diverse communities and different places

Strategic Objective 11 To support arts, culture and language

Strategic Objective 12 To promote and improve education for all throughout life

Strategic Objective 13 To support effective implementation of the National Islands Plan

Part 3 – Duties in relation to island communities

Part 3 of the Islands Act gives island communities a strong voice in relation to policy through the obligation on relevant authorities to have regard to island communities in carrying out their functions and to undertake Island Communities Impact Assessments (ICIA) when required and if not required by making such an assessment or taking such other steps thought appropriate.

An ICIA must take place when a piece of legislation, policy strategy or service will likely affect island communities in a different way than how it would affect communities on the mainland or other island communities.

Scottish Ministers are determined to ensure that this is not simply a tick box exercise and so published a toolkit along with guidance for relevant authorities in December 2020. This guidance provides the tools that relevant authorities need to complete an ICIA as required under the Act. In particular, the guidance is about the Section 7 duty of the Act where a relevant authority must have regard to island communities.

After receiving helpful feedback from partners and communities, this guidance has recently been revised. During the summer of 2022, Scottish Ministers will publish a new, targeted leaflet and accompanying video as an additional learning resource for relevant authorities who are required to complete ICIAs. This will be of particular benefit to those who are completing the process for the first time.

During the consultation for ICIAs, partners told us that robust community engagement was critical so that islanders are given a platform to voice their opinions, concerns and suggestions. The ICIA guidance fully addresses the need to consult island communities in order for a relevant authority to comply with the Section 7 duty of the Act.

The Scottish Government are not obliged to collate or publish all ICIAs carried out by external partners. However, relevant authorities are required to publish them on for example, their own website. A reporting template has been produced should agencies wish to use it. The Islands Team have supported almost 100 ICIAs by working with internal and external stakeholders. This has included a number of ICIA workshops as well as ad-hoc support to help those relevant authorities who are required to complete an ICIA. The team also feed into wider Scottish Government Impact Assessment networks.

All ICIAs carried out by Scottish Ministers are available on the Government's website.

Scottish Government investment through the Island Communities Fund was delivered as one strand of the 2021/22 Islands Programme, providing capital investment for community-led projects that align with community wealth building approaches and support employment, community resilience and contribute to Scotland's just transition to net zero and climate resilient living on islands.

The Scottish Government recently announced that Hoy, Barra, Islay, Great Cumbrae, Yell and Raasay as the six Carbon Neutral Islands that will be supported to become carbon neutral by 2040.

Part 4 – Representation of island communities

Under Schedule 1 to the Scotland Act 1998, Orkney and Shetland are fixed as two of the 73 constituencies for the purposes of elections to the Scottish Parliament: this ensures that their boundaries cannot be varied. Prior to 2018, the Scottish parliamentary constituency, Na h-Eileanan an Iar did not have this statutory protection but the Islands (Scotland) Act 2108 provides this, using the powers transferred to the Scottish Parliament by the Scotland Act 2016. This means that all three island authorities now have the same protection in terms of constituency boundaries, and meet the stated intentions of the Scottish Government set out in Empowering Scotland's Island Communities.

In summary, the provisions under Part 4 are now operational and provide for this protection of the Scottish parliamentary constituency boundary of Na h-Eileanan an Iar from variation (thus placing it on the same basis as Orkney and Shetland).

Secondly, it allows an exception to be made, in respect of areas with inhabited islands, to the usual three or four member ward rule for local government electoral wards and allows areas with inhabited islands to return one or two members instead of three or four.

Part 5 (and section 15) – Additional Powers Requests

Under Part 5 sections 15 (and 21) of the Islands (Scotland) Act 2018, Scottish Ministers are obligated to produce regulations to create a scheme that satisfies the requirements of both these sections.

Scottish Ministers introduced the Additional Powers Request (Scotland) Regulations in 2019 along with Guidance for Relevant Local Authorities.

Under these regulations, an additional powers request is a scheme by which a relevant local authority can request that the Scottish Ministers promote legislation devolving a function to them, or that the Scottish Ministers transfer an additional function, duty or responsibility to them.

To date no Additional Powers Requests have been made.

The Islands Strategic Group was established in August 2016 to build on the work of the previous Island Areas Ministerial Working Group and the Empowering Scotland's Island Communities prospectus.

The Islands Strategic Group is made up of senior local authority partners and is chaired by the Cabinet Secretary for Rural Affairs and Islands.

There is also a National Islands Plan Delivery Group which ensures delivery of the Plan is aligned with local priorities.

Part 6 – Development in the Scottish island marine area

This Part provides a regulation-making power for the Scottish Ministers to create a licensing scheme in relation to any works in or under the sea in the coastal waters surrounding islands for up to 12 nautical miles.

At the time of writing, the Scottish Island Marine Area Licence provisions are not yet in force, and regulations have not been developed.