Environment, Climate Change and Land Reform Committee

Meeting date: Wednesday, June 3, 2020

Official Report 625KB pdf

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Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: After Stage 2

The third item of business is a session with Government officials, following receipt of a letter from the minister signalling the Scottish Government’s intention to lodge amendments at stage 3 of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill in relation to seal licensing, which we discussed last week.

I welcome our witnesses from the Scottish Government: Mike Palmer, deputy director for marine planning and policy; Michael McLeod, head of marine conservation; and Elaine Tait, marine evidence manager. Thank you all for coming in—virtually—to see us this morning.

We will move straight to questions. Could one of you give us an overview of the policy intention of the proposed change and what it actually means? I am not sure who is best placed to answer that question. We will go to Mike Palmer—over to you, Mike.

The overall policy intention of the amendments is to enhance and improve the welfare of seals. The amendments would do that by prohibiting the licensed shooting of seals in certain specific circumstances and by increasing the maximum penalties that could be applied in relation to killing, injuring or taking seals.

We believe that those purposes are congruent with the purposes of the bill. The amendments would increase the maximum penalties, as I have said. They would not introduce new licensing provisions but would vary the current provisions. For those reasons, we believe that they are consistent with the overall purposes of the bill.

It is not as though the Government is introducing a new crime, because this is about licensing. At the moment, someone can get a licence to cull or manage the seal population somewhere. However, the amendments would mean that those licences would no longer be awarded, because that would not be in line with the requirements of the United States with regard to our exporting fish to it. Can Mike Palmer provide clarification on that?

I should register an interest in that I am the Parliament’s grey seal champion. It is important to put that on the record, so that people do not think that I am trying to hide it. I have an interest in seals, obviously, coming from the largest seal haul-out area in Scotland.

Currently, there are a couple of grounds on which the Scottish ministers—the Scottish Government—can grant licences to shoot seals: to protect the health and welfare of farmed fish in and around fish farms and to prevent serious damage to fisheries or fish farms. As a result, a degree of shooting of seals happens within the fish farm sector and the wild recreational fisheries sector. The proposed amendments would take away those two grounds on which licences can be granted. They would adjust the current licensing regime rather than bring in or take away a licensing regime.

You are absolutely right to reference the US legislation that is coming in to protect marine mammals, because it is another factor, and it has influenced the timing of the amendments more than anything else. The amendments also have the purpose of improving the welfare of seals. We are proposing the amendments both for domestic reasons, to protect the welfare of seals, and because of the broader international movement, which the US regulations have crystallised in a way, to protect marine mammals against injury or killing. The United States has taken that forward by saying that it will not accept imports of commercial seafood products from any fish farm that might have shot or injured seals intentionally.

Those two policy developments have come together and brought us to this particular set of amendments at this time.

That is clear, but when did the US bring in that condition about not accepting fish from other countries? I would like to know when that was and how long the Scottish Government has had to deal with it. We have questions as to timing—why now?

We totally understand that it is very unusual to lodge amendments of this nature at stage 3. We have been on a journey around the US regulations.

Members may recall that, in 2018, during the committee’s inquiry into the impacts of salmon farming, we notified it that we were liaising with the US authorities. At that point, the US authorities were developing their legislation, and we have been in constant dialogue with them since then to clarify and understand exactly what its requirements are and how we need to comply with it. That has been a tortuous journey in some respects, because it is very complex legislation; the various conditions and requirements are wide ranging and needed to be gone into in some depth with the US authorities in order that we could understand exactly what we need to do.

In March—so, really very recently—we finally got written confirmation from the US authorities that they would require us to take legislative action by way of amending our licensing regime. Up to that point, it had not been clear that they would require us to take exactly that set of actions. We are still seeking to clarify some aspects of their requirements, which is why it has taken us until stage 3. We had hoped to be able to lodge amendments earlier in the bill process, but we were not totally clear on some aspects of what was required, even at stage 2.

From our point of view, it is unfortunate that we have not been able to lodge the amendments before this stage; we would have liked to do it earlier. That has been the result of the quite challenging process that we have had to go through with the US authorities to clarify certain aspects of the bill.

Just after we heard in writing from the US authorities what they require, the Covid-19 situation emerged, and that has created a lot of pressure on our resources—we were unable to develop our proposals with the speed that we would have liked. The pandemic has had an impact on us in that resources have been redeployed elsewhere. The US, too, is feeling the pressure from that.

We totally understand that.

Finlay Carson also had questions on the timing, but this seems like a good point at which to bring in Claudia Beamish on stakeholder engagement. I will give Finlay Carson the chance to contact me if he wants to come in on the timing issue, but I will go to Claudia next.

Good morning to the panel. I will leave it to the panel to decide for whom my questions are most appropriate.

I have listened carefully to what Mike Palmer has been saying about timing, but there is concern among committee members about how stakeholders will be affected. In 2018, our committee considered the issues of the shooting of seals and the injury of seals by acoustic devices, which my colleague Mark Ruskell will come on to. I am concerned, in the public interest, about how stakeholder interests will be dealt with.

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I am happy to answer that question. I will give a summary to kick off and then hand over to my colleagues, who will give a bit more detail. Because of the compression of the timeframe, we have not been able to do the kind of formal consultation with all stakeholders that we would like to have done. However, we have made efforts to go out to some of the key stakeholders that we know will be directly affected, particularly in the farmed fish sector and the wild fisheries sector.

I will hand over to Michael McLeod or Elaine Tait, who will give a bit more detail on the kind of engagements that we have had with those sectors.

As Mike Palmer says, we have been engaging with the sectors that will be directly affected by the changes. We have had a series of meetings with them over the past couple of months. After the minister wrote to the committee at stage 2, we wrote to every current holder of a seal licence to make them aware of the proposed changes. We have done our best to inform everyone despite the difficulties with timing and the ability to have stakeholder engagement in the current circumstances.

I have also tried to have conversations with NGOs. Clearly, they have been badly affected by Covid-19 in that a significant number of people are furloughed. However, just before the furlough process kicked in, I informed them that we would be bringing forward proposals very quickly, although at that point we were not 100 per cent sure about that.

Because of the circumstances, we certainly have not had the level and depth of engagement that we would normally aspire to have.

Before Claudia Beamish comes back in, I will just check whether Elaine Tait wants to come in to supplement that evidence.

I have nothing to add to what Mike Palmer and Michael McLeod have already said on the issue.

Thank you—it is always best to check.

I do not know whether there is any further comment on the point that I tried to bring out, which is that the committee looked at the issues in 2018. I appreciate that United States law is important and that we have to get our approach right in that regard, but it is hard to understand why, over the past two years, we could not simply have proceeded and implemented changes on the basis of the concerns that were expressed by the committee and a range of stakeholders outside the Parliament in relation to seals and other marine conservation issues.

I understand the point. We were cognisant of the concerns that the committee raised about the seal licensing regime during its inquiry into salmon farming. We ultimately addressed that point in our responses to the reports of the Rural Economy and Connectivity Committee and the Environment, Climate Change and Land Reform Committee.

When the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill came along, given this committee’s concerns and our resulting policy thinking—which was reflected in our response to the committee’s report—we looked at whether we should use the bill specifically for these kinds of measures. We did that at the outset of designing the bill, but that was before the Covid situation had emerged and before it was clear what would be required in order to respond to the US regulations.

We took the view then that we should do what we routinely do anyway, which is to place the concerns and issues around the seal licensing regime in and among the range of issues that we would routinely consider in terms of amending and improving our primary marine legislation and the Marine (Scotland) Act 2010. That is a process that we routinely go through as part of good governance. However, given the parliamentary timetable and so on and so forth, there was not a defined set of proposals to bring through a set of amendments to the 2010 act at that time. There still is not, because we are still in the process of putting together what might be improvements to the 2010 act at some point in the future.

That was the thinking at that time. Clearly, things moved on with the developments around the US regulations, which forced the timing. We were also very conscious of the pressures on parliamentary time resulting from the Covid situation. Those developments coming together brought us to the conclusion that it would be sensible to draft the amendments now so that we could use this bill. The decision is the result of a set of developments that have occurred since we first thought about the bill.

Claudia, are you happy for me to move on to the next committee member?

I still have concerns, but Mike Palmer has answered as he sees fit. Thank you.

I have the same concerns as Claudia Beamish. We have heard some responses as to why the seal licensing proposals have been brought forward, but my concern is that the bill is a tight one and it was made clear at the outset that it would deal with only certain issues. I believe that the seal licensing proposals are outwith the scope of the bill that was introduced for us to consider. I do not buy the idea that the proposals could not have been raised at stage 1, given that, as we have heard, there have been concerns since 2018. Members lodge amendments during the bill process and a bill will be amended to ensure that we get the eventual law right.

This is not a good way to make law. It is not good governance; we will not get the opportunity to scrutinise the amendments properly and, as Michael McLeod has said, there has not been the depth of engagement that would normally happen. Introducing amendments so late in the day is very disappointing.

Given the committee’s concerns about the welfare of seals, I am really concerned about adverse, unintended consequences of bringing in these new laws. My colleague will raise our concerns about acoustic deterrent devices, but I put on record that this is not acceptable. Although I have listened and I understand the reasons, I still do not understand why something could not have happened at stage 1 to allow us to get stakeholders involved.

Covid-19 will become the excuse for so many things—I do not buy it in this instance. Convener, I do not have another question but it is important to say that I am not happy about this being brought in at stage 3.

Finlay, do you want a response from any of our guests, or are you happy just to leave those points on the record? Mike Palmer may like to respond.

Mike, are you happy that this is the right bill? Is there no alternative legislative vehicle? The amendments are all a bit rushed because of the US requirement, which is not a good reason for making law.

We fully acknowledge and recognise the concerns that Finlay Carson has raised. I have said that the situation is not ideal and that we would have wished to provide more notice. Back at stage 1, it was not clear that the US regulations would require us to go to these lengths. It seemed to us then that any measures about seals would be better done in a future package of marine amendments, alongside other amendments to marine legislation that would be introduced at some point in the future. I am reiterating what I said earlier.

With regard to your question, we believe that this is the right bill. There is a good fit between the overall purpose of the amendments—to improve the welfare of seals while not bringing in a new licensing regime or taking one out—and the purpose of the bill, which is to increase penalties for breaches of due welfare for animals and wildlife. That is exactly what the amendments do; they improve the welfare of seals, which are a species of wildlife, by taking away a couple of conditions in the licensing. That seems to us to be in the scope of the bill and that is the position that we have arrived at.

I will move us on, because we are where we are. The Government has known about the need to prevent the damage to marine mammals since 2017 and it has taken a long time for this licensing proposal to be introduced. I am glad that it is being introduced, but there are potentially consequences that could impact on other marine mammals.

As I see it, if we rightfully remove the licensed killing of seals, the industry could respond in two ways: it could use tensioned nets and seal blinds to prevent the access of seals to aquaculture cages, but it could also continue to use acoustic deterrent devices. There is scientific literature on ADDs and their impact on marine mammals—not only on seals, but also whales, dolphins and porpoises. According to a 2010 study by Northridge and others, ADDs can be detected at more than 14km from the sound source.

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Another paper, which was written in 2014 by Lepper and others, found that commercially available ADDs can cause injury, stress, hearing damage and behavioural disturbance. The same study went on to state that there is a credible risk of exceeding injury criteria for both seals and porpoises.

This year, a study by Götz reported concerns about the new wave of acoustic deterrent devices, which are called “GenusWave”. Will the witnesses acknowledge that there is an impact on marine mammals from acoustic deterrent devices?

We are absolutely aware of the concerns about ADDs. The issue came up in the inquiry that this committee undertook, and it prompted us to undertake a programme of work to look into ADDs and their impacts. We are undertaking government-funded research, so that we can have proper evidence-based development of policy on ADDs and how they should be addressed as a non-lethal deterrent in future.

I will hand over to my colleague Elaine, who can give a bit more detail on our work.

At the moment, a range of non-lethal measures are used by fish farms and the river fishery sector to deal with seal predation. That range of methods includes seal blinds, tensioned nets and also ADDs. As Mike said, we appreciate that there are some concerns regarding disturbance and the potential impact of those devices on cetaceans.

When the committee reviewed the impacts of fish farming, there was talk about various unknowns and uncertainties. We have commissioned research on that, which aims to start to fill some of the key gaps on the extent of ADD use across the sector—including how and where they are used, duty cycles and places in which ADDs are not used—to get a full picture. That means that when we start to move forward we will have a strong evidence base and knowledge about how ADDs are being used.

The effectiveness of ADDs is also part of the project. We will work with the industry to get a feel of their effectiveness. That project will also look at developing science-based industry guidance about how ADDs should be used in order to reduce any potential environmental impact. All that work is on-going and it is due to be completed this year.

As well as funding that research, we are undertaking a review of the current management and regulation of ADDs. That is also on-going and once the review is completed we will set out further details.

Those are the two workstreams that we have at the moment, and we are conscious of the concerns.

I have two further quick questions. Can you tell us when the research started, given that there was a committee inquiry in 2018? Can you foresee any potential unintended consequences that might need more investigation?

The research commenced last summer. It is on-going and will complete later this year. As I said, we are interested in finding out exactly what is going on, so we are not looking at the impact of ADDs in particular. Really, we are looking at efficacy and usage. It is clear that we do not know how these devices are used and, in order to move forward, we need a solid evidence base.

Before we wind up this session, Mark Ruskell will ask a supplementary question.

The US Marine Mammal Protection Act is clear. It prohibits the taking of marine mammals, and it says:

“The term ‘take’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.”

The act defines harassment as

“any act of pursuit, torment, or annoyance which—

(i) has the potential to injure a marine mammal ... in the wild; or

(ii) has the potential to disturb a marine mammal ... by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.”

With due respect to the witnesses, the issue is not about whether ADDs are lethal; it is about their ability to disrupt, annoy and harass marine mammals, whether they are seals, whales, dolphins or porpoises. There appears to be a major issue with compliance with an act that—let us face it—was drafted in 1972. Surely, the compliance issue is not about the extent of the use of ADDs; it is about the nature of that use and their impact on marine mammals. I would like to push our witnesses for a response on that point.

You are absolutely right about the MMPA. We have to achieve comparability with how the US uses its regulations, and it has a process that enables the use of acoustic devices. We will be working towards having something that is comparable in that regard. However, to get to that position we need the evidence base that Elaine Tait outlined, because it is the use that creates the noise in the marine environment, and that is what will determine the level of effect that that noise will have.

I thank our colleagues from the Scottish Government for talking to us this morning. As we have finished our questions, they may leave the meeting.