Rural Economy and Connectivity Committee

Meeting date: Wednesday, March 29, 2017

Official Report 691KB pdf

---

Subordinate Legislation

---

Shellfish (Restrictions on Taking by Unlicensed Fishing Boats) (Scotland) Order 2017 (SSI 2017/57)

Good morning and welcome to the 11th meeting in 2017 of the Rural Economy and Connectivity Committee. Mobile phones should be on silent. We have no apologies.

Agenda item 1 is consideration of a negative instrument, as detailed on the agenda. The committee will take evidence from the Cabinet Secretary for the Rural Economy and Connectivity. This item has been tabled because a motion to annul the instrument has been lodged.

I welcome the cabinet secretary, Fergus Ewing. He brings with him Jim Watson, the inshore fisheries team leader for Marine Scotland sea fisheries policy, and Tom Robertson, head of surveillance and enforcement for Marine Scotland compliance, both from the Scottish Government. Cabinet secretary, I invite you to make a short opening statement.

Thank you, convener, and good morning, everyone. I am grateful to have the opportunity today to explain why the measures that are contained in the statutory instrument are important to reduce the incidence of illegal commercial unlicensed fishing.

You should all have a copy of my letter to the convener of 20 March, which responded in detail to a number of points, so I will keep my remarks brief.

First, it is important to separate genuine hobby fishermen from illegal unlicensed commercial fishing. It is the latter that we are concerned with. I want to make it crystal clear at the outset that I fully support the right of hobby fishermen to enjoy their hobby. However, I want to have the tools in place to be able to tackle those unlicensed illegal commercial fishermen who hide behind the guise of hobby fishermen.

I accept that the enforcement of fisheries rules is challenging. That is not surprising given that the activity takes place at sea and given the length of our coastline. However—let me be clear about this—the introduction of catch limits for unlicensed fishermen would significantly improve Marine Scotland fisheries officers’ ability to tackle this issue. At the moment, fisheries officers basically have to catch fishermen in the act of selling their catch for gain, which is an extremely difficult task. I am very pleased that Tom Robertson is here today, because he has a wealth of experience that members might well wish to trawl later.

Since being appointed cabinet secretary, I have listened carefully to the views of fishermen on a variety of topics and I know that those in the fishing industry—who, let us not forget, make their living from the sea—feel passionately about the issue. Indeed, both national fishing federations—the Scottish Creel Fishermen’s Federation and the Scottish Fishermen’s Federation, with a combined membership of more than 1,000 vessel owners—fully support the introduction of catch limits, as do our two mainland inshore fisheries groups and our statutory environmental advisers, Scottish Natural Heritage.

The fishing industry recognises that a problem exists and that something needs to be done to address it. Some inshore stocks are under pressure, and we certainly cannot have licensed fishermen taking steps and introducing new conservation measures while leaving the back door open to unlicensed fishing activity.

It is understandable that people will resist new restrictions being placed on their activities. In this case, I am aware of one individual. In any case, although one single fisherman may have little impact on either stocks or the market, the collective impact can be considerable and must be managed if we want to secure a sustainable and profitable fishing industry.

In introducing limits on what unlicensed fishermen can take from the sea, I considered what arrangements are in place elsewhere. It is interesting to note that Scotland is unique among our neighbours in that we currently have no catch limits. For example, Northern Ireland, the Republic of Ireland, Wales, the Isle of Man and many parts of the English coast where shellfish fishing is significant, including the waters that adjoin ours in Cumbria, have all introduced catch limits for unlicensed fishermen to help manage the fisheries. Therefore, in effect these measures are in place elsewhere.

Many of those areas go much further than our proposals, with most requiring permits to be obtained and some also requiring reporting of catches. Catch limits will provide clarity for all as to what unlicensed fishermen may take, and will support targeting of unlicensed commercial fishermen while allowing genuine hobby fishermen to continue fishing. No one wants to stop that.

To close, I want to quote from the west coast regional inshore fisheries group chair, Alastair McNeill, who said:

“To annul the proposed Order would be a retrograde step that is outwith current thinking in regards to inshore fisheries conservation and management aims and objectives.”

That is a view that is also supported by leading fishing representatives such as Duncan MacInnes of the Western Isles Fishermen’s Association. It is clear to me that many in the fishing industry will feel badly let down by Parliament should the measure be overturned today. Thank you for the opportunity to put those points.

The first question is from Mike Rumbles.

I am particularly pleased that Tom Robertson is here, because I have a number of questions that go to the nub of the issue. My first is about enforcement compliance. Since commercial fishing without a licence is already illegal, I would like to know how many convictions there have been in the past year for that illegal activity.

One.

How many prosecutions have there been?

One.

The same one?

Yes.

How many arrests have there been? Are we talking about just one incident?

No, there have been many incidents but only one that we have taken all the way to prosecution.

So there has been only one prosecution.

That is correct.

My next question is for the minister. There are only two options in the impact assessment of the order that the committee was given. One of the options is to do nothing and the other is to make the order, but there are other options that could be taken rather than going forward with the order, such as beefing up the enforcement process. Why is there no option that mentions increasing enforcement, especially as there has been only one prosecution and conviction, as we have just heard?

It would be good if Tom Robertson could explain why there have been so few prosecutions, but my understanding is that it is simply because it is extremely difficult to get evidence. Evidence needs to be obtained to establish beyond reasonable doubt the sale of lobster. Unless you actually witness the sale taking place, how can you do that? I used to be a lawyer in the criminal courts, and I know that proof needs to be established beyond reasonable doubt, which is extremely difficult to do. That is why there are so few prosecutions. I am aware of the one prosecution, and it would be helpful if Tom Robertson could explain what happened—it is quite amusing apart from anything else, but it is also revelatory and shows that the order is absolutely necessary.

Mr Rumbles makes a fair point about other options, and it is absolutely right that members should challenge and probe Government on such orders, particularly when the rights of an individual are at stake. That is a cause close to Mr Rumbles’s heart, and I want to win hearts and minds today, not score political points. It is absolutely correct that options need to be considered, but options were considered. There were two detailed consultations on the issue. I could go into what exactly was proposed in the consultations, but the upshot of the exercise was an overwhelming response from the industry and others—with SNH supporting the industry in this case, which does not always happen—that this is the practical way. It is also the approach that is taken in other jurisdictions. When you think about it, it is much easier to detect somebody who is fishing than somebody who is selling a lobster or, more likely, 100 lobster, worth about £3,000, in a car park beside a hotel or restaurant.

I can tell Mr Rumbles that we did look at other options, and his inquiry is perfectly correct and legitimate, but I am satisfied that the order commands support from the majority of the people who are engaged in fishing and from the wider public. Nobody wants to prevent fishermen from taking one for the pot, but the catch limits that are specified in the statutory instrument would allow one lobster, 10 nephrops, five crabs and six scallops. That is quite enough for a pleasant meal for most families.

I will ask Tom Robertson to comment further.

Just before Tom Robertson comes in, may I clarify something? The consultation to which you referred is the consultation that received 22 responses, none of which came from hobby fishermen. Is that correct?

We ran two consultations, in 2015 and 2016, and everyone with an interest was invited and encouraged to respond—there were two public consultations, not one. A proposal to set catch limits for those who fish from unlicensed boats was consulted on in summer 2016, and you are correct to say that 22 responses were received. Marine Scotland publicised the consultation by circulating it widely among a variety of stakeholders, including everyone who responded to the wider consultation on possible measures in 2015. There were posters in local fishery offices and harbours, and the inshore fisheries management and conservation group, the inshore fisheries groups, the fishermen’s federations and local fishery offices were all notified. The 2015 consultation was extended by five weeks and ran for four months, which is a long period for a Scottish Government consultation. There were 54 responses, which was good for a consultation of that type.

Marine Scotland also contacted, among others, the Scottish Sea Anglers Conservation Network, as the best-placed organisation to reach those who might be engaging in the type of fishing that we are talking about. I was not directly involved in the work, but my officials might be able to add something to help to answer your question.

To answer the convener’s direct question, we think that some hobby fishermen responded, but of course they responded as individuals and they did not say whether they were a hobby fisherman or a member of the public.

Therefore, we cannot be sure at this stage that we have engaged with hobby fishermen.

I will bring Tom Robertson in to answer the question about enforcement, but I must ask you to keep your answer brief.

I will try to explain it as briefly as I can. We can board a vessel at sea, but if someone turns round and says to us, “I’m keeping these for myself,” there is no offence. He could have 100 lobsters at that point, and we do not believe him, but we cannot do anything about it. If we get him at the point of landing, and he says that he is putting the lobsters in his freezer, I have to accept that that is what he is doing. We can get him when he goes to a car park, but the chances are that, if we appear, he will say, “I’ve just landed them on behalf of someone else.” It is very difficult to follow the whole chain through.

The one prosecution that we got was when two gentlemen were caught in a car park in Fife with 147 lobsters. One was asked, “What are you doing with them?” “I’m selling them.” “And you, what are you doing?” “I’m buying them.” “Oh—we can do something here.” I am not trying to make light of the situation but, as things stand, that is the level of proof that we need.

We might come back to that. I will bring in Mike Rumbles; please keep your questions focused.

This is a question for Tom Robertson. The minister said, in his letter to the committee:

“A Registration of Buyers and Sellers (RBS) Scheme has been fully operational in Scotland since 2005 and requires all buyers and sellers of first sale fish to be registered.”

How well is that enforced?

It is enforced very well. We carry out audits on every buyer. We use a traffic-light system: red is the massive shellfish or pelagic buyer, who is audited every year. Others are audited every second year, and others are audited every three years. We have never found evidence of purchase from an unlicensed seller.

So that is not a problem—that is what you are saying to us.

No, it is not that it is not a problem; it is just that buyers do not openly buy from unlicensed vessels. The unlicensed vessels sell under the guise of another vessel, or the sale is just not put through the books. The produce might go to Billingsgate fish market and be disposed of in a cash sale. There is anecdotal evidence that that happens, and we are looking at the issue with our English colleagues.

It is easier to enforce on land than it is at sea, as you said earlier.

It is. Indeed, the only place to enforce is at the point of sale, with regard to commercial fishermen, but it is difficult to get the level of proof that is required for a full prosecution.

That is helpful; it is a point that I will make later.

Before we move to a question from Stewart Stevenson, I have a series of very short questions that will require a maximum of a sentence to answer. They are questions that I cannot find the answer to, but I am sure that the cabinet secretary will have answered them as part of the consultation. How many hobby fishermen are there in Scotland?

09:15  

I am not sure that it is possible to answer that question, because there is no requirement for hobby fishermen to identify themselves in a register. I mean, how many football supporters are there in Scotland, convener?

It is just a logical sequence. I actually see—

All right, but there is a limit. I do not think that the Government wants to spend a lot of money trying to assess information for no particular purpose. We advertised through posters and so on to reach out to people. If anyone can suggest whom we should have consulted in addition to those whom we have mentioned, I would be most grateful. However, we made every practical effort to reach out to all of those with an interest. I strongly suspect that all those on whom Tom Robertson wants to focus will be extremely well aware of what we have been doing for some time.

Sorry, but I was trying to keep the questions focused. I assume that, as we do not know how many hobby fishermen there are, we do not know how many creels each of them has and we cannot quantify the catch that they are making. Is that right, Mr Robertson?

No, I would not say so. There are many hobby fishermen—literally hundreds—who go out from small ports right round the Scottish coast and who have two, three or four creels that are put out singly to catch a lobster here or a crab there or whatever. There are also others we know of who are working 100 or 150 creels.

I am sure that you can see that I am trying to quantify the size of the problem so that I understand it. When you were drawing up the instrument, did you estimate how big the problem is? How many lobsters are being caught and sold illegally in Scotland?

I could not quantify that.

So we do not know the size of the problem.

With respect, when one is framing—

Sorry, cabinet secretary, but I am trying to get quick answers if possible.

Well, I am trying to indicate that some of these questions are not ones on which we can sensibly provide information. After all, we do not frame the nature of criminal offences by reference to how many criminals there might be; we do so because something is wrong.

I have one more question, just so that I understand. How many of each species are landed legally in Scotland? Do you have an estimate of the total amount of lobsters and scallops landed in Scotland?

There is no requirement to report catching limits so, again, that is not, I think, capable of being measured, but maybe Tom Robertson can comment from his practical experience. I know that we have the commercial figures.

I am after the commercial figures.

I think that the total is £83 million, so this is a hugely important livelihood for lots of people we are trying to protect. I ask Tom Robertson to go over the figures.

I am after the numbers of each species; I am not after financial figures.

There was 1,035 tonnes of lobster landed in Scotland along with 12,300 tonnes of nephrops and 3,446 tonnes of scallops.

Thank you.

I want to pursue the issue of health. I judge from what is before me that the order has primarily been brought forward on conservation grounds, which is perfectly reasonable. However, in the cabinet secretary’s letter to the committee, at the bottom of the third page, he says:

“Safety of the public and fishermen is also paramount.”

I have one or two questions on that. Ten or more years ago, there was significant parliamentary activity relating to domoic acid levels in scallops. Of course, if human beings eat shellfish that carry high levels of domoic acid—as they will do from time to time, seasonally—that can result in amnesic shellfish poisoning. My concern as much as anything is whether the order will adequately aid us in preventing people from suffering ill health as a result of eating shellfish, lobsters, crabs and so on that bypass the recording system but nonetheless reach people’s tables, with no audit trail of where the fish have come from. Is protecting the health of people in Scotland part of why the cabinet secretary is interested in pursuing the issue?

That is, of course, one of the factors in the rationale that underlies the measures and our strong belief that it is in the public interest that the order should be supported today.

As Stewart Stevenson clearly set out, toxins are a problem in some areas, and testing of shellfish areas is carried out to ascertain whether toxins exist. Mr Stevenson has been around for as long as I have, so he will remember that, as members of the Rural Development Committee in the first session of Parliament, we engaged hugely with the issue, which was very serious at that point. A lot of tests for toxins that posed a high risk to public health proved negative.

The problem that we are addressing now is the possibility that shellfish may be sourced from areas that are affected by toxins, especially if they are harvested from waters that have not been tested for toxins and classified as safe. Plainly, licensed activity by commercial fishermen has to, and generally will, involve scrupulous observation of the rules, but we have no control over, nor any ability to deal with, the activities of those who are, in the guise of hobby fishermen, carrying out commercial activity. The risk that they are harvesting from waters where they should not be, and that consumption of those shellfish would therefore lead to pretty unpleasant illness, is a factor that led us to introduce the measures.

I hope that I have described the situation correctly.

Yes.

I have a supplementary on the subject. Does the occurrence of toxins vary at different points in the calendar in different parts of Scotland? Does that mean that the situation is not predictable in a way that would enable you to deal with it in other ways to protect public health?

I have not made a study of toxins—I do not know whether Jim Watson has. Do you know about that, Jim?

It is difficult to predict when and where toxins will occur. As the cabinet secretary said, there have in the past been some serious incidents over a considerable period of time.

John Finnie is next. I am afraid that I got the order wrong—it is John Finnie, followed by Rhoda Grant and then Richard Lyle.

Good morning.

Cabinet secretary, you said that stocks are under pressure. In your letter, which provided the committee with a lot of detail, you mention “1,400 static gear ... vessels”, and I am interested in the impact on those who legitimately pursue this activity as a livelihood. You state that

“fishermen have expressed increasing concern about the health of ... fisheries”,

and you refer to

“Assessments by Marine Scotland Science”.

To what extent is the order also a conservation measure?

It is a conservation measure in the sense that those who are carrying out activity in the guise of hobby fishermen are in some cases bringing in 140 lobster, as Tom Robertson said, which could have a very serious impact on stocks and jeopardise legitimate conservation measures.

On the one hand, the measures are obviously designed to protect the interests of commercial fishermen. We have heard that the value of the industry is £83 million, so its importance to Scotland is not inconsiderable, and many people’s livelihoods depend on it. However, the measures are also necessary for conservation. We can influence the activity of fishermen who are going about this as their business, but, by its very nature, it is impossible to influence the activity of those who catch hundreds of lobster, crabs or other shellfish illegally, because they try to avoid detection.

I do not know whether there is anything to add on the conservation aspect.

With regard to conservation, we run RIB—rigid-inflatable boat—patrols all round the Scottish coast, especially during the summer months, when the numbers of hobby fishermen are at their highest. We find that hobby fishermen do not care for size limits and will keep everything. If we come across such a situation, we ensure that the stuff is returned to the sea. Unfortunately, the commercial fishermen who are not licensed and try to avoid us take everything, and that has an effect on conservation.

Cabinet secretary, there is a further reference to fishermen in your letter, which talks about experience elsewhere in the British isles, particularly the success of the North Eastern Inshore Fisheries and Conservation Authority’s operation. It says that that success

“was in part due to policing by fishermen themselves”.

Given the challenges of enforcement, do you see a formal or informal enforcement role for fishermen if the order comes into force?

They are citizens who would be able to draw to the marine enforcement department’s attention what they believe to be illicit activity. They can be the eyes and ears to report incidents, of course.

I should have said that Marine Scotland science assessments indicate that crab and lobster stocks in some areas are being fished close to or above recommended levels, and fishermen have expressed concerns about the health of scallop, brown and velvet crab and lobster fisheries. I apologise that I did not give that factual information.

Fishermen play a part in the enforcement process. Tom Robertson may be better placed than I am to give more information on that.

I will be brief. In the past 15 months, 94 pieces of information and intelligence have been supplied to us. If the measure is approved, I would be very surprised if that number did not double or quadruple, purely as a result of fishermen being out doing their own business and seeing things that they do not think are right. I think that fishermen will very much police what is happening themselves.

Good morning, gentlemen. I am interested in another possible way to address the problem. The register of buyers and sellers seems to work reasonably well for the guys who are licensed. Earlier on, Mr Robertson said that you know about guys who regularly go out with 100 creels but are not registered. Surely you could say to them, “You’re obviously going out and doing this in a professional way, so you should be registered.” You have outlined reasons why they would not want to be registered, but surely you could put pressure on those guys to work legally.

When we come across guys who we know are working a lot of creels, we pay a lot of attention to them, but we cannot sit on top of them the whole time. Whatever they keep, they keep in keep creels at sea. If we find out where the creels are, we go and lift them up, measure what is there and return anything that is undersize to the sea. However, we cannot follow people all the time. As soon as we pay attention to the commercial guys we are trying to target—there are maybe four or five of them, and I suggest that they were or still are involved in the oil industry, so they are not there all the time; they do this in their time off—we find that one day there might be one person, and three days later there will be somebody else, because people work a vessel between them and their time ashore changes.

As things stand, it is very hard. If we caught somebody with 10 lobsters today, he could just turn round and say, “Yeah, that’s one every day for the past 10 days. I’ve kept them in a keep creel.” However, if the measures came in and we targeted him and caught him two days later and he still had 10 lobsters, he could not say that he had kept them for the past 10 days, as we would know that he had already got rid of that 10.

Yes. Okay.

It is very difficult to prove sales. Even with the help of the registered buyers, it is very difficult to prove that people are selling for profit.

Even with the order in place, if someone landed 10 lobsters, they could say, “I’ve caught one a day and kept them in a keep creel. Now I’m taking them home to eat.” There would be nothing to stop them doing that.

Absolutely. There would be nothing at all to stop them doing that, but we would be given the power to target that individual and get him again two days later, and he would lose them.

The order will not stop one-off offences, but it will give us a way of targeting. We could draw a line in the sand on, say, the Tuesday, when the person had 10 lobsters that he took home. If we got him on the Thursday and he had another 10 lobsters, we could say, “Where did you get them? Why have you got those 10 lobsters?” We could then start to put pressure on him.

09:30  

But you would still have to prove when he caught them. He could say that he had been fishing all summer, that he had a keep creel that had 100 lobsters in it and that he was taking them home at 10 a day or whatever.

Absolutely, but I would like to think that my officers would ask the person relevant questions, such as, “Have you got any more?” and “Where do you keep them?”, so that we get to a position where we can draw a line in the sand.

My concern is not about whether something needs to be done—I believe that something needs to be done. My concern is that the limits in the order mean that there would be no more catching one for the pot. If you took one lobster home to a family of four, you would have a fight on your hands. The order would not allow someone to hobby fish because you could not catch the scallops, nephrops, brown crab, velvet crab and lobster all in one go to take home a meal, so to speak. In a way you are outlawing hobby fishing altogether.

Have you thought about other ways of dealing with the problem, such as marking creels? If someone put down a fleet of a hundred creels, you would know that they were at it and could take those creels, whereas if someone put out a fleet of five creels, you would know that they were a hobby fisherman. If creels are marked, you can identify whose they are. Is that not a better way of keeping tabs on things, rather than introducing limits that do not make much sense, even for someone who is hobby fishing? Velvet crabs are seldom eaten here—they are sent abroad, and that is why they are commercially fished—so to include them is almost nonsensical. However, to limit people to one lobster seems unreasonable because they may be hoping to catch enough for a meal, and one lobster will not feed many people.

I do not disagree that something needs to be done, but there needs to be a more sensible solution than fixing the numbers.

We spoke at length about the idea of limits before we introduced them—the same limits are already in place around the country. My officers and I are never going to try and catch Old Willie who takes three lobsters once a week so that he and Jessie can have them for their tea. I am not interested in that. We are trying to draw a line in the sand so that we can target individuals who are commercially fishing.

Old Willie is not going to want to break the law, and if he sees that the order limits him to one lobster, that will prevent him from doing what he wants, whereas a limit of three lobsters would make perfect sense. The amounts seem draconian—they are very low and outlaw pretty much all hobby fishing. I do not think that we want to do that. We want to protect stocks, and we want to protect the fishing industry, in which it is difficult to make a living. The order does not seem to get the balance right.

The limits were proposed following two years of discussions with stakeholders. The proposed limits—one lobster, half a dozen crabs and so on—are consistent with what is in place in many other parts of the United Kingdom and Ireland. As the cabinet secretary said in his opening remarks, we are out of kilter with what is happening elsewhere in Ireland and the rest of the UK.

There are many things that need to be considered and we need to take a commonsense approach. At the end of the day, we have a free for all, which means that your officers need to hide up the back end of the hill with their binoculars so that they can follow a man from his boat to the road and then to where he meets Joe Bloggs in a car park where some readies are exchanged, and, like the secret service, even take photographs—if there is only one officer and no witness—so that what is happening can be proved. Is it correct to say that we are going from the sublime to the ridiculous?

Well, to a certain extent.

Am I right to assume that your officers have a bit of common sense?

Absolutely.

So if old Jimmy has collected three lobsters or whatever, he will not get done, because your officers will know that he does not intend to sell them.

Absolutely.

Do you agree that the order would allow your officers to deal with people who are ripping off the system and depriving true fishermen of their livelihoods?

I agree 100 per cent.

Thank you very much.

Unless there are any more questions, I propose to move on to agenda item 2, which is formal consideration of motion S5M-04500, in the name of Mike Rumbles. The cabinet secretary will be given a chance to participate in the debate on the motion, which is why I did not ask him to make any closing remarks under item 1.

Mike Rumbles will speak to and move the motion, after which members of the committee will get a chance to participate in the debate, as will the cabinet secretary. The cabinet secretary’s officials cannot take part in the debate.

I think that this process is about Parliament and one of its committees doing its work in a non-partisan way. No attempt is being made to make a political point. I might criticise what is proposed, but I am not criticising the cabinet secretary. I think that the proposed approach has come through the system because it is the easiest one to take.

I was first elected to the Parliament in 1999. I have now spent 13 years in the Parliament, and I was on the predecessor committee to this committee in the Parliament’s first two sessions. I have crossed swords many times—and agreed on many things—with Fergus Ewing over that period, but I have never previously been moved to seek to annul a statutory instrument. Why am I doing so for the first time?

When I looked at the final business and regulatory impact assessment that was provided with the order, I was quite shocked by it. Even before it arrived, constituents—hobby fishermen—had raised the issue with me. They were concerned about the fact that their activities were to become illegal. The cabinet secretary said at the outset that that was not his intention, but I am concerned about the unintended consequences of the order.

I will explain what I mean. The “Purpose and intended effect” section of the BRIA starts by saying, “There is anecdotal evidence”. We are changing the law in such a way that a certain activity will be criminalised, and we cannot do that on the basis of anecdotal evidence. In the same paragraph, the BRIA says:

“it is believed there are particular hotspots around the coast”.

Again, that is supposition. Further down, it says:

“The biggest impact of the measure will be on illegal unlicensed commercial fishing activity.”

I do not agree with that; I think that the biggest impact will be on hobby fishermen.

The BRIA goes on to say:

“The consultation was brought to the attention of licensed commercial fishermen”—

of course it would be—

“and their representatives and there was broad support for restrictions”.

Of course there would be broad support for the restrictions among commercial fishermen.

Only two options are presented in the BRIA. Option 1 is to do nothing. We obviously need to do something. Option 2 is the order. The “Options” section repeats that

“There is anecdotal evidence that some unlicensed fishermen will disregard regulations on landing sizes and food safety”.

I believe that the whole issue is about whether we are properly enforcing the law as it stands. We know that a problem exists, but I do not think that the solution to the problem of a lack of enforcement of the law as it stands is the creation of another law that will not be enforced and which will criminalise hobby fisherman.

I thought that Rhoda Grant made a very important point in her questioning earlier when she said, “Okay, Tom Robertson and his team will not go after Mr and Mrs MacSwackle who go out and bring a couple of lobsters in, but Mr and Mrs MacSwackle do not want to break the law.” Are we bringing the law into disrepute if we say, “This law is not really going to apply to you”? Our job is to look at what the Government brings forward and ask whether the law matches the problem or would have unintended consequences.

I have had meetings with commercial fishermen about the issue. I have had meetings with others as well, including some of the people at the table. The commercial fishermen have said to me that there is another, simple way to proceed—it was referred to earlier. That other way is simply to deal with the matter by defining a commercial fisherman and a hobby fisherman. Anyone who takes out five creels is obviously not going to sell what they catch on a commercial basis. That approach was put to me by the commercial fishermen, and it would be a simple thing to do. We could simply define a hobby fisherman as someone who takes out five or six creels or fewer. It would then be easy for Tom Robertson and his team to tackle the issue.

I come back to the fundamental point that there has been one prosecution using the law as it stands. I do not believe for one moment that the order will make a hoot of difference out there in tackling the problem. It will not make any difference: all that it will do is drag hobby fishermen into an illegal activity. That is the problem that I have. If it were not for that problem, I would be very happy with the order. However, I think that the order demonstrates the law of unintended consequences in a big way.

Commercial fishermen have told me that a lot of them started out as hobby fishermen. They have told the Government that they do not want hobby fishermen brought into the situation. The cabinet secretary started off his evidence to the committee today by saying that that is not his intention, but that is exactly what will happen, if we approve the order.

I will reserve my other comments for the end of the debate.

I move,

That the Rural Economy and Committee recommends that the Shellfish (Restrictions on Taking by Unlicensed Fishing Boats) (Scotland) Order 2017 (SSI 2017/57) be annulled.

Thank you. Members are queueing up to enter the debate. Cabinet secretary, if you want to enter, try to catch my eye and I will try to bring you in at the appropriate moment.

I am sorry, but I will first ask about a point of process. It is a long time since I have been in this scenario, but am I not due to come in only at the end, after listening to all members? I have not checked the standing orders, but is that not the process?

You are right that you get to say something at the end, but if you think that you have something to say that would add to the debate, I am, according to the clerks, entitled to ask you to come in.

On a point of order. In the debate, surely members can intervene just as they would in a normal debate.

Yes—the cabinet secretary can intervene if he wants to.

In that case, I will intervene with one point of information. It has been put to me by Mr Robertson that it is impossible to count creels once they are in the water. If that is the case—one can see the logic of that—the alternative mode of creating a criminal offence, which Mr Rumbles has suggested, would not be practicable.

Can I intervene?

I would like to go round some other people.

Let me deal with a few points. On the suggestion that the hobby fishermen might be eliminated from their hobby by the order, we only need to look at what is happening in Northern Ireland or the north of England. Hobby fishermen are still operating—in the north of England, under more rigorous enforcement than is proposed for Scotland.

Let us say that five creels—we could debate any number—should be the cut-off point for a hobby fisherman. A quick estimate—to put a cap on it—is that even with just five creels a person could generate a five-figure income each year, if they filled every creel every day. I am not saying that that is likely, but it is perfectly possible and proper, in general terms, to make money out of hobbies. I used to make money out of my hobby of dinghy sailing; I made a profit every year from the prize money that I won.

09:45  

Central to my concerns about the suggestion to reject the order is the matter of health. I am not prepared to reject the order and take the risk that people will be affected by a very serious condition. The seriousness is in the name of the condition: amnesic shellfish poisoning. Levels of domoic acid over 20mg per something—I cannot remember what the “something” is—can seriously damage the intellectual capabilities of people who have eaten affected shellfish. That is particularly a risk with scallops because they are mobile shellfish and much more difficult to test. We cannot test them by sample as we can test other tethered types of shellfish. The same is broadly true for the whole area that we are discussing. I am not prepared to have on my conscience serious and possibly permanent ill health—although it is created only from time to time and will not affect hundreds of thousands of people. That is one of the reasons why the order is important.

I will pick up one or two other points that have arisen in the debate. It is worth reminding ourselves what the world looked like before a Labour and Liberal Democrat Administration introduced the buyers and sellers registration scheme, which was one of the good things that that Administration did. The situation was that declared landings, in particular of nephrops, at Scotland’s ports were less than one quarter of what was being processed in the factories because there was no control over catching and processing. The registration measure almost single-handedly created an industry that is now perfectly open to scrutiny, and which behaves responsibly and has eliminated the problem. The order that we are debating is of considerably more limited scope and effect, but has a clear parallel with that measure.

I know that you are developing an argument and I do not mean to steal your thunder, but nearly everyone at the table has indicated that they want to speak, so I ask you to keep your comments as concise as possible.

I am trying to keep my comments under three minutes, convener.

I note that you are close to that limit already.

Yes—I am also aware of that.

The other point that I will address relates to anecdote. Fair enough—we can describe Tom Robertson’s staff dealing with two men in a car park in Fife as an anecdote, but it also resulted in a prosecution. The bottom line is that although that was an anecdote, it is not just anecdotal evidence. I worked as a water bailiff for the Tay District Salmon Fisheries Board in 1968 and I made one arrest—this will amuse members—for sniggering, which is an offence under the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. Members can go and look up what “sniggering” means.

The bottom line is health. Purely on the ground of health, and even if nothing else stands scrutiny, I am not prepared to vote the order down.

I am still holding on to sniggering. [Laughter.]

Mike Rumbles is entirely right that the process has been helpful. The letter from the cabinet secretary was informative and the exchanges have been informative. However, I take a different tack from Mike Rumbles: one prosecution is the reason why we have to proceed with the order. I will not reiterate the important points that Stewart Stevenson made about health. We need to strike a balance. We have heard evidence that supports the order. Notwithstanding that, were the order to be approved, there would still be enforcement challenges due to the extent of our coastline.

What drives me, therefore, to support the order is conservation—not just of stocks but, as a consequence of those, of the livelihoods of people. If the Scottish Creel Fishermen’s Federation is supportive of the proposal, I am, too. I have heard sufficient from Mr Robertson to know that he and his staff will have powers of discretion that they will exercise, which is the most important thing. I will leave the matter there.

I just want to bring some balance to the debate. In principle, I have absolutely no problem with the concept of trying to regulate what is very clear to the officials—albeit that it has not necessarily produced numbers of prosecutions—which is that bad practice is very obviously occurring all around the coast. It particularly affects my region, which is West Scotland. There are people out in reasonable-sized boats catching fairly large quantities of some species. A black market exists: we would be failing in our duty were we to pretend otherwise, so it is right that we do something to address that.

However, as Rhoda Grant and Mike Rumbles have pointed out, it is also right to protect hobbyists. There are people who catch and distribute fish locally, among friends and family—possibly either for no charge or for a small charge. Those people do not represent the problem that we are trying to tackle, which is people who operate as de facto commercial fishermen who are evading the regulatory environment to which proper commercial fishermen have to adhere. It is right that we try to tackle that.

It is very welcome to hear that there is some discretion in the enforcement proposals. My only problem with that—to come back to the number that Rhoda Grant pointed out—is that, on paper, people will be breaking the law if they are caught with two lobsters. In practice, on the day, the enforcement agency will take a view and will be able to read the situation, I guess, because that is what it will be used to doing. Often, it will know who the stakeholders are. I have full confidence in the ability of Tom Robertson and his team to do that.

The problem is that the law is black and white: on paper, hobbyists will be breaking the law. I do not want to put them in the position whereby they will break the law by catching two or three lobsters, as we would do by implementing the proposal. However, I want fully to support Tom Robertson and the cabinet secretary in trying to put a stop to the black-market industry. That is why I am struggling with the issue—I do not know whether there is a better way to do that. I want to support Tom Robertson’s proposed measures, but I do not want to sign off legislation that will, on paper, make it illegal to catch two or three lobsters. That is my only concern with the proposal. If someone could address that, I would be very happy to support what it is trying to achieve.

I take the point that Jamie Greene has made. However, at the end of the day, we have laws, some of which we do not like but must adhere to. We need a law. At the moment, it looks as though we could drive a coach and horses through the rules: people can go out and make loads of money and officers cannot do anything about it.

Earlier, Tom Robertson made an interesting comment—to which he cannot respond now, because we are debating the motion—about his officer basically having to nod people away because they gave him a plausible excuse. To enforce the law, we need proof; we have been told that we need to see a transaction taking place. I have seen a film in which the authorities tried to trail people, photograph them and ensure that they had the necessary proof, because a lawyer could have stood up in court and destroyed their case. We have had only one prosecution in which there was proof, because the person stupidly confirmed that they were selling fish and people were buying them.

I do not have a problem with the situation. As far as I am concerned, there will be common sense; there will be officers who will say, “Well, Jimmy. You’ve got three—you should only really take one. Make sure that tomorrow you only take one”, or whatever. I do not see a problem with that; it is much ado about nothing. Some of the questions that have been asked today have really stretched the point.

Jamie Greene has covered many of the points that I wanted to cover, so for the sake of time, I will not repeat them. My point is that the law-abiding hobby fishermen will be stopped in their tracks by the order because they will seek not to break the law; if the law states that the daily take limit is one lobster, that is what they will abide by and they will not take more.

Stewart Stevenson asked about the health issue. The order will not stop anyone from fishing for scallops at any point. When scallop fisheries are closed, that is advertised locally. I hope that the hobby fishermen will pick up on that because the order will not save them from picking up scallops with toxins in them. They would be poisoned, maybe on a smaller scale—although that would not make any difference, so that argument does not hold much water.

From looking at the numbers, it seems that the order will be passed, so I urge the cabinet secretary to come back with more realistic figures so that we do not criminalise hobby fishermen who abide by the law. Although I support what the order is trying to do, it is a very blunt instrument at the moment and will stop people from pursuing a hobby, which I do not want. Perhaps the cabinet secretary could come back with revised figures if the order is passed, or perhaps he could seek to withdraw the motion on the order and come back with revised figures that would make the order workable for everybody.

I will be brief. I, too, have an issue with the order. I accept that there is a problem: I am not sure how big it is, and would dearly love to have a better idea of that, although I understand that activity that is below the radar is difficult to quantify. I just wonder how big the issue is, but I accept that there may be no answer to that.

I agree with much of what Jamie Greene said, which Rhoda Grant backed up. It will be very difficult for officers to use discretion. If the law says that the daily take limit is one lobster, that is the law. I wonder how many officers will use their discretion—or whether they should use their discretion.

That is the point—this is about enforceability. Does there have to be a number? I am not sure. Should the number be one, two or three? We could argue all day about the number and what constitutes commercial fishing, as opposed to hobby fishing. I do not think that a limit is the way to do it. How can we legislate for something that involves a discretionary decision being made at the time? Is there another way of wording the order such that it would say that the decision should be at the discretion of the enforcement officer, or involve reasonable numbers? What is or is not a reasonable catch? By saying that a reasonable catch is one, two or three, a line is immediately drawn, and people will be either on the right side of the line or on the wrong side of it. That is what I am unhappy with. That is not to say that I do not want to address the problem.

That is exactly my position. How can officers sensibly use their discretion if the law says that the limit is one lobster and a fisherman comes ashore with three? In theory, he should be prosecuted because he has broken the law. My problem with the order is that it is a numbers game. Officers should be able to use their discretion, so that is what makes it difficult for me to support the order.

I have two quick questions for the cabinet secretary. If the order is passed today, how will you inform hobby fishermen about the new regulations and the new limits? Also, your letter said that the matter will be kept “under review”. What will that involve?

Cabinet secretary, would you like to answer those questions at the end, in your summing up?

Yes.

Would any other member of the committee like to contribute? I would like to make a contribution, but am happy to give way to anyone else.

10:00  

Taking my convener’s hat off and speaking as a member of the committee, I draw attention to the fact that I have more than 30 years’ experience of wild fisheries management, which is detailed in my entry in the register of interests. Wild fisheries management is all about preserving for the future—making sure that stocks are available for future management and appropriate exploitation. My experience has taught me several things.

I would like to cover some of the points that have been brought up during the debate. I do not believe that engaging with 22 people covers the wide range of feelings that are out there, and what I have heard this morning has concerned me. We do not know how many hobby fishermen there are in Scotland. I checked with the Scottish Parliament information centre and I was told that the number is unquantifiable.

Will you take an intervention?

I will not at the moment: I will after I have developed my argument.

We do not know how many hobby fishermen there are in Scotland, and we do not know how many lobsters, scallops, crabs and other shellfish those fishermen catch, so we cannot quantify the problem. We know that there is a problem, and I support the cabinet secretary’s attempt to solve it. However, I question the evidence that we heard from Mr Robertson this morning about enforcement. My experience of enforcement is that we invariably know who are the bad apples in the creel—if you will excuse that—and therefore we should concentrate on people who are setting 150 creels, which gives a good indication that they are not hobby fishermen.

I understand that the creels cannot be counted when they are in the water, but they can be counted when they are being set. In my opinion, everyone knows who is doing what in fisheries management, and that information is built up over a period of time. For example, in salmon fisheries management we knew that there was at one stage a problem from a certain part of the country, and those people were watched and their movements followed as they moved into fisheries, so that we could identify where they were doing things wrong.

If Richard Lyle wants to come in, now may be the moment, before I carry on.

We have had two consultations taking months and months. At the end of the day, it is not for the Government to force people to reply to a consultation—that is for those people to decide. How does it help to ask how many hobby fishermen there are, and then to go on about fish? How many fish are in the sea? How many fish are in the world? Nobody knows that. Some of the questions that are being asked are really stretching things.

I thank Richard Lyle for his comment, but I do not believe that that is right, which is why I asked the questions. It is a fact that in wild fisheries management, specifically of salmon, an order was placed before the Parliament that banned the sale of rod-caught salmon. That was a way of dealing with the problem of people who were exploiting wild salmon catches and selling them for gain, and it seemed to work.

My problem is that the proposals put forward by the cabinet secretary in the order are not enforceable. I agree with Jamie Greene and Peter Chapman that it is not up to Mr Robertson and his crew to interpret the law—their job is to enforce the law. We cannot ask them to say that some catches are acceptable because they know that the fisherman is somebody who is just catching three or four lobsters for the family. Also, I have not yet understood how they will counter the people with keep creels, who keep the lobsters over the weekend or for a couple of weeks so that they can have a sensible landing for their family and friends when they have a party for which they need more than one lobster. It comes down to whether you believe that you are a one-lobster person or a two-lobster person when it comes to sitting down at the table. I will declare that I am a no-lobster person because I am allergic to shellfish.

I believe that there is another way of doing this—a way that is good for conservation and that will achieve the aims of the cabinet secretary in trying to protect the fisheries; it also provides a way to promote lobster fisheries across Scotland. That is to make it the law that all lobsters that are caught—or any of the other fish—must be tagged by the boat that has the licence to land them, so that there is way of making sure that those lobsters can be identified. In that way, there could not be illegal landings because the lobsters would be identifiable and Mr Robertson could go out with his crew and say, “That lobster came from that boat.” That would be good for the lobster industry, because there would be an identifiable catch from an identifiable boat in an identifiable area.

I am afraid that I do not support the proposal, as I do not believe that it would achieve the aims that the cabinet secretary has set out. That is my argument—I hope that I have kept it roughly to three minutes.

Before I ask Mr Rumbles to sum up, I ask whether the cabinet secretary would like to comment on what he has heard during the debate.

Thank you, convener. First, it is correct that we have parliamentary scrutiny of this sort and I welcome it—Mr Rumbles knows that I mean that sincerely. It has allowed us to have an interesting discussion and debate, which is a good thing. Secondly, I am grateful to my officials. We have seen an illustration of the thoroughness and professionalism of officials, which has been exemplary.

Gail Ross asked me several specific questions. It is right that we take reasonable steps to notify all interested parties of the measure if it becomes the law. We will do that by press release, by advertising in local fisheries offices and by all other practical means. Ignorantia lex non excusat, of course; it is up to the individual to know what the law is—it is not up to the state to have a daily promulgation or news bulletin about the hundreds of offences that there are. However, I expect that it will be fairly obvious to those at whom we are aiming the legislation that the law—if the order is not voted against today—is in place. I suspect that those whom we wish to target will be very well aware of it.

This has been a very good debate, and I will address some of the other issues that have been raised.

Mr Stevenson expressed it extremely well when he said that the measure should be passed on public health grounds alone. With help from my officials, I have evinced that there is a serious problem regarding toxins. Mr Stevenson has gone into that issue. We have control over the activities of licensed fishermen and vessels but we have no control whatever over those who are engaged in criminal activity, and the risk of shellfish poisoning is very serious. The risk of imperilling the whole shellfish industry in Scotland through a serious incident or public health scare is very serious indeed. I convened a shellfish summit last year, and I can tell you that the retailers involved take the matter extremely seriously—in fact, public health is probably the most important issue that we must be seen to tackle if we are to get our shellfish on the shelves of the major retailers. I am in the privileged position of having heard buyers—I will not name them, but I am thinking of two or three who attended my shellfish summit—say that public health is absolutely imperative. If we do not pass the measure today—if any member votes against it—I would, for that reason alone, question whether that is the right thing to do

Mr Finnie set out the conservation case succinctly and well. I indicated that there are pressures on some stocks in some areas and that fishermen report their concerns. We all realise that, if fishing is to be sustainable, there must be appropriate management. That is not the sole tool in the box—there are many, as the committee will know—but it will become an important tool in allowing us to tackle effectively the problem that exists.

Mr Chapman asked how we can measure the extent of the illegal activity that is going on. It is difficult for any Government to measure criminal activity, because, by definition, criminals want to avoid detection, so that is not an easy question to answer—I am sure that members will accept that.

Mr Robertson has informed me that his officers say that, during the summer months, in the north-east alone, 50 to 60 vessels can be observed while his officers are on patrol. The vast majority will be hobby fishermen, but only three or four vessels conducting criminal activity could make a substantial difference. For that reason, the daily catch limit is one lobster, a point that has been raised.

I understand the arguments put by Mr Greene, Mr Chapman, Mr Rumbles and the convener. Looked at from a commercial point of view, however, and I will come on to this in more detail in a moment, what numbers are we talking about? If somebody fishes one lobster a day, that is five lobsters a week. I am informed that each lobster is about 2 kilos, at £20 per kilo. That totals about £10,000 per year, just for one lobster per day. We are talking about a lot of money here and a lot of potential impact on the legitimate activity of those who earn their livelihood from this.

The measure is one that those who earn their livelihood from fishing have been calling for for years. The fishermen want us to do this and I hope that members will bear that in mind. I will give some evidence of that. Alistair Sinclair of the Scottish Creel Fishermen’s Federation, representing over 500 creel vessels, says:

“We have no doubt that implementation will go some way to eradicating the problem of unlicensed fishermen who fish for profit.”

“For many years licensed fishermen, whether full or part time, have made representations to Marine Scotland in respect of those who would abuse the notion of taking ‘one for the pot’ from our coastal waters.”

“The current free for all that exists has created a black market in respect of the sale of fresh seafood.”

“We would urge that you implement the proposed restrictions due to come into force on 17 April 2017.”

These views are echoed by Alastair McNeill, the chair of the west coast regional inshore fisheries group. He refers to:

“great concern among licenced commercial inshore fishermen that considerable numbers of people flaunt the rules by fishing under the banner of ‘hobby’ fishermen yet are selling catches either directly or indirectly into the market.”

Bertie Armstrong of the SFF, representing 500-plus member vessels, says:

“The limits as proposed seem reasonable and given that they are aligned to existing practices in N. Ireland would seem fair and sensible.”

Given that there are jurisdictions in Northern Ireland and the north of England that have similar or even more restrictive levels of catches, is there any evidence of which you are aware that the number of hobby fishermen is being adversely affected by the regimes in Northern Ireland and the north of England?

I could not give authoritative evidence about that. The view that we have heard clearly here is that, for the reasons that we have heard from Mr Robertson, the measures introducing clearly defined catch limits will substantially assist enforcement activity against the illegal fisheries that are carrying on at the moment.

Mr Robertson’s exposition of that was crystal clear. Criminal law needs to be clear. If you say that something is a crime, it must be very clearly defined. The catch limits are very clearly defined. The order will allow enforcement officers for the first time to tackle a problem that all of our fishermen, through their representative bodies, say it is essential that we address. If members vote against the order, they will be voting against the views of fishermen who are better placed to know about those matters than me or anybody else.

That said, Mr Greene and Ms Grant made a point about whether the catch restrictions are too low, and I want to address that specifically. I do not know whether this will help Mr Greene; if he is happy to, he could come in after I have dealt with this part of the argument.

The catch limits were based on discussions with stakeholders and responses to the consultation. Only three of the 22 responses were opposed to the introduction of any restrictions. There were 22 responses to the second consultation, and 54 to the first one, in 2015, which is larger than the response to many fisheries consultations.

10:15  

The main point, perhaps, is that many of the 22 responses were from bodies such as the Scottish Creel Fishermen’s Federation and the Scottish Fishermen’s Federation that represent hundreds and hundreds of members. Although some responses were from individuals, the consultees included organisations that in effect represent thousands of people throughout the country who earn their livelihood in this way. To say that there were only 22 responses does not take account of the whole picture.

Moreover, the request for responses was issued to a large number of other individuals and organisations that, for various reasons, have chosen not to respond. Any consultation process carried out by the Government will, by definition, be limited in scope, but I am convinced that we have reached those who we need to reach.

I acknowledge the genuine nature of Mr Greene’s and Ms Grant’s points and do not in any way impugn them. However, the catch limits are comparable with those already in place in Ireland and elsewhere in the UK, and I am not aware of any upsurge of protest from hobby fishermen there about the limits and their operation. We are doing what has already been done elsewhere.

The sale value of a lobster, or six crabs, or 10 langoustine, or six scallops is £40 to £50. These are high-value fisheries products. On a weekly basis, we are talking about a lot of money.

Finally, the catch limits will apply only to fishing from an unlicensed vessel for the named species; they will not apply to fishing from the shore or to species such as mackerel or cod. The species that we are dealing with are those that are under great pressure and of greatest value to inshore commercial fishermen.

I have tried to answer some of Mr Greene’s points.

I appreciate that. I will not speak on behalf of other members, but there is very little in your argument to disagree with. There are public health benefits, the benefits to fishing communities and commercial fishermen, and the environmental benefits. I do not have a problem with any of that. As I said, my issue is simply with the catch limits—with one lobster being legal and two being illegal. One means that you are a hobby fisherman and two means, by presumption, that you must be acting commercially and illegally. That is the only problem that I have and it is the only reason why I would be minded not to support the order. I certainly do not have a problem with the public health issue, and I think that everyone round the table wants to support the fishing industry. To be honest, cabinet secretary, the numbers are the only reason why I have been struggling with the order.

I understand that; Ms Grant perhaps expressed similar views. I strongly disagree. These measures are in force elsewhere and do not appear to impair hobby fishing. In any event, the approach that is taken by the enforcement division is a practical one. Mr Robertson has indicated clearly that his target here is those who are plainly operating on a commercial basis. As I understand it, the approach would be governed by discretion. I think that Mr Finnie made that point. Given his experience in the police, he will be aware that there is an element of discretion in how those involved in enforcement of the law go about their business and that that is governed by common sense and fairness. Anyone listening to Mr Robertson would agree that that is how matters will be dealt with. I hope that members will be satisfied that that answers a legitimate point that they have raised.

You said that the criminal law is an exact science but you went on to say that officers can use their discretion. The two things do not hang together. It is either an exact science or you can use discretion. I am not sure that we can square that circle.

Perhaps because I have spent most of my life as a practising solicitor, I can do precisely that, for the simple reason that I did not say that law is an exact science. I said that the framing of any criminal offence requires to be carried out in such a way that the activity that is criminalised is precisely defined. That is entirely different from the separate question of the approach that is taken in applying enforcement practice in relation to those laws.

Would the cabinet secretary take an intervention on that point?

Of course.

Sorry; Richard Lyle can go on, but I will just say that—

On a point of order, convener.

Okay.

Two members have asked the cabinet secretary to take an intervention. I would like to ask him about a point that he has just made.

Yes, and you are absolutely going to. I am trying to say to everyone that, although there is no official time limit for the debate—

There are 90 minutes for the debate.

We have 90 minutes, but we are not there yet. I am just asking people to keep their questions and answers as brief as possible. I appreciate that Richard Lyle wants to ask questions. Please understand that I will bring you in, Richard—I just wanted to draw members’ attention to the time.

I have lost the thread now.

Cabinet secretary, you were previously a lawyer. Is it correct that police officers may stop somebody and give them a caution but not charge them? In this case, is it correct that Tom Robertson’s team could stop someone and perhaps say, “Jimmy, you’ve got three but you should only be taking one—we’ll caution you, but we won’t charge you, and you should remember this the next time that you are out doing your hobby fishing”?

That is a reasonable summary of the sort of approach that our enforcement officers take. It is a very important point and, with respect, I genuinely feel that it goes to the heart of the objections that some members have. I understand why members might have such objections—they have expressed them perfectly clearly and legitimately.

Members have heard directly from the head of enforcement that he will proceed with discretion and common sense. That is correct—a degree of latitude and discretion in these matters is necessary. For our law enforcers, whether they are Marine Scotland enforcement officers, police officers or people operating in other capacities in enforcing the criminal law, an element of common sense is, of course, necessary. It is perfectly obvious that the activities with which there is a real issue are serious commercial activities, and are entirely different from hobby fishing. We, as lawmakers, are obliged to place our trust in the law enforcers and recognise that, although there may be theoretical objections—which have been perfectly well stated—we need, in practice, to give people such as Tom Robertson and his colleagues a bit of discretion in how they go about their business.

Can I come in on that point?

If you want to.

I want to emphasise a point that I made previously. The issue is not about discretion on the part of Tom Robertson and other officers. It is about a person deciding not to break the law. Most people are law-abiding, and their hobby activity will be stopped by the order, because they will seek not to break the law in the first place. It is not a matter of asking officers to use discretion. People will actually desist from hobby fishing because they are in danger of breaking the law.

I respectfully disagree with that. I do not recognise such a scenario as realistic, although I absolutely respect the member’s right to subscribe to that or any other view if she wishes to do so. We are talking about daily catch limits—the limits are not annual, weekly or monthly, but daily. Hobby fishermen are quite entitled to pursue their hobby on several days throughout the year, as they undoubtedly will, and to bring in a fairly handsome catch of a variety of different shellfish, which would, for most families, provide the basis for a particularly pleasant meal.

Taking your admonition to be relatively brief, convener, I will draw my remarks to a close by saying that I think that it would be a big shame if the Parliament rejected the order. There would be a lot of understandable concern and possibly anger among those whose legitimate activities we need to protect.

The idea that we should tag lobsters would seem to me to involve an entirely new bureaucracy. It would be completely unnecessary and criminals could easily get hold of tags and do it themselves. It would of course be widely open to abuse, and there would have to be a new policed system of tagging lobsters—goodness knows how much that would cost. I am surprised that the idea has been proposed, but there we are—everyone is entitled to their view.

Cabinet secretary, will you take an intervention?

Yes, of course.

My suggestion was based on a suggestion that was mooted about the tagging of wild salmon, which was supported by the Scottish Government. A Floy tag to go on a wild salmon costs less than 50p and putting a number on it costs even less than that. Putting a tag on a lobster is no different from putting a rubber band round its claws, so I think that your comment was slightly disingenuous. My proposal was not to increase bureaucracy. Would you care to say why you think that it would increase bureaucracy and why it would not be a cheap way of ensuring that we know where lobsters come from?

I was just expressing my view. As I said, I respect other people’s views and I was offering mine. I am not here to talk about wild salmon issues, although I appreciate that the convener is well aware of those issues because of his interests in those matters.

However, as you have suggested introducing an entirely new system of tagging every lobster that is caught in Scotland, it is reasonable for me to argue that that would involve devising tags, getting somebody to manufacture them, purchasing them and finding a method of administering the system that would ensure that criminals did not get hold of the tags. I do not know how one would do that, because criminals are quite deft and agile at getting round the law. I am just offering my comments. Whether or not they are disingenuous, I do not really care, but I will certainly not be bringing in a new scheme that I think would be incredibly bureaucratic, impossible to enforce and of no benefit whatsoever.

To get back to my final remarks, rarely have I had the opportunity to speak to a statutory instrument that has so many good reasons to support it, on the grounds of public health, conservation, economy and protecting people’s livelihoods. On each of those grounds individually, it would in my view be sensible to support the measure but, taken as a whole, they make the case for the order absolutely compelling. I therefore have great pleasure in urging members to support the order and to reject the motion to annul that Mr Rumbles has reasonably brought forward.

Thank you, cabinet secretary. I will invite Mike Rumbles to respond to the debate in a moment. Before he does so, I ask him to confirm that he intends to press the motion.

I confirm that I wish to press it.

Thank you. Would you like to briefly close the debate?

I would like to address some of the points that members and the cabinet secretary have made.

The cabinet secretary said earlier that he was advised that five creels would be difficult to see at sea. Of course they would, but that is not what we are proposing; we are proposing an alternative proposition. By definition, five creels can be easily seen on boats leaving the harbour.

Stewart Stevenson made a point about health, but the issue is not about health. That was answered by Rhoda Grant, so I need say no more on that.

John Finnie said that there has been only one prosecution. That is because the people involved coughed up. They obviously did not realise that they were breaking the law. I thought that there was an element of humour in that.

Will the member take an intervention?

I will if I have time, but I want to go through a number of points.

It is at your discretion.

I will come back to John Finnie if I get through all that I want to say. I want to address a number of points that members have raised.

Enforcement is clearly not effective. We have had one prosecution because officers came across two guys selling lobsters. We have heard no evidence of prosecutions, charges or anything. We do not have effective enforcement of the current law.

Jamie Greene said that the black market exists—of course it does; I agree with him. He said that the issue is how we tackle it. That is the whole point of the debate about this order.

10:30  

May I intervene, convener?

It is up to Mike.

I will come back to Jamie Greene; I am trying to be as helpful as I can be.

Richard Lyle said that we need a law. Yes we do, but we need the most effective laws. He said that all this is much ado about nothing, but I assure him that a lot of hobby fishermen disagree with him.

Rhoda Grant made a telling point, with which the minister did not agree. The problem is that what she said was common sense, and common sense is not common. We have talked about people who break the law, but there are many, many law-abiding people, and if the law says that they can catch only one lobster, that is what the law says. That is what the order says. It will criminalise activity, and many law-abiding people will stop doing what they do, which is not what we want.

Peter Chapman argued that it is difficult for officers to use their discretion. He is absolutely right. The law is the law. That is the problem.

Will you take an intervention?

I will take interventions at the end of my remarks, if I may.

Edward Mountain, our convener, spoke in a personal capacity, because he has 30 years’ experience of wild fisheries management—I must know very little about the subject compared with what Edward knows. He said that he did not think that it was good enough to engage with 22 respondents. Of course, only 10 respondents supported the order in full. He said that we cannot quantify the problem and that we need to concentrate on those who are breaking the law. I could not agree more. We are not enforcing the current law. There is another way. Edward gave his view on tagging. I do not know anything about tagging, but it is an option that could be explored.

The minister said that it is right for this parliamentary committee to act in the way that we are acting. I am pleased that I lodged the motion to annul, because we are doing what committees are supposed to do: considering whether orders that are made are fit for purpose and offer the most effective way of changing the law. An order such as the one that we are considering changes the law, and if a bad order is made, only the eleven members of this committee stand in its way.

Gail Ross asked how fishermen can know that there is a consultation. I have talked to fishermen, and they did not know that there was a consultation. Hobby fishermen, by definition, are not necessarily part of an organisation. That is why only 22 people responded to the consultation, of whom only 10 supported the order.

The minister said that no one should vote against the order, on the health ground alone. I am afraid that I do not accept that. First, let me make clear that we are not voting against the order. A vote for the motion to annul is not a vote against the order. There is a lot of misunderstanding about what we are doing today—I see Richard Lyle shaking his head, but it is true. What would happen if we rejected the order today is that the order would be referred to our colleagues in the Parliament, so that it could be considered in more detail. There is a problem with the terminology. A vote for a motion to annul an order does not annul the order; it means that the committee says, “This stops now,” and the order is then referred to the Parliamentary Bureau and put on the programme for a debate in the Parliament, when we can all examine the issues in detail and get the benefit of wider input from across the country. That is an important point to make.

We are told that commercial inshore fishermen want the order. I do not question that. Of course they do. If I were a commercial fisherman, I would want it. However, that is not our job.

The minister said that criminal law needs to be clear. I could not agree more. That is absolutely true. However, the crimes in the current criminal law have not been tested in the courts. The minister then said—and if I may be slightly contentious here, I have to say that this was interesting, coming from him—that the rest of the UK does what he is proposing. England, Wales and Northern Ireland all do it.

We have a super system of scrutiny in the Scottish Parliament. I think that this is the best system of scrutiny that any of our Parliaments has. Here in Scotland, we hold the minister to account and we do our duty to do the right thing. We are not a rubber stamp, as can so often be the case elsewhere.

If anyone wants to intervene, I am happy to give way. I am conscious that I stopped people commenting.

From past experience, I can give an example of how discretion can be exercised, and its purpose. For instance, it is against the law to drive above certain speeds in certain situations. Many people would commend the approach that Police Scotland takes of stopping a driver who is just exceeding the limit, giving them a warning and providing some educational advice as to why it is important to stick to the limits. That is the sort of approach that could apply here. Similarly, the police service will target areas where they know that conduct of that nature takes place constantly. That is how discretion is applied, and that is how I envisage it being applied by Mr Robertson’s office.

It is an interesting point.

It is a fact.

No, it is an interesting point, but it is a false analogy. I want to respond to John Finnie.

I am listening.

You must let Mike Rumbles make his point, Mr Finnie.

My point is that John Finnie is making a false analogy. If somebody is stopped by the police for speeding in a car—let us say that they are doing 67mph in a 60mph zone—it is because they are breaking the law; there is no question about that. If the policeman gives the driver an admonition and says, “Don’t do it again,” and the driver then does it again—bang—he is prosecuted; that is why people do not do it. If you say that people can take only one lobster but they say, “Oops, I’ve taken two,” and are told not to do it again, if they take two lobsters the next time they will be criminals and the law will be enforced, as the speeding law is enforced, so the analogy does not apply.

I am aware that I stopped Jamie Greene coming in.

Enforceability and discretion are the crux of the matter. I do not want to do nothing. That is my problem with the order. I think that we should do something. We should empower the agencies to tackle what is a very serious problem, and I want to do my best to support that effort and the communities affected.

However, I have a problem with the black and white rule that one lobster is fine but two are not. I appreciate that there will be a huge amount of discretion available to individual policing officers, and I trust their judgment, because they know the issue inside out. It is a difficult position, as the minister has said, and I am inclined to go with Mike Rumbles’s proposed annulment, but I feel that by doing so I would be doing nothing, which would be to do an injustice to the cause of tackling the issue that we are trying to tackle.

I agree 100 per cent with what Jamie Greene has said. I do not want us to do nothing. I absolutely do not want that, but I want us to avoid doing the wrong thing. It comes down to the question of whether the order will solve the problem. I see Stewart Stevenson nodding his head, but I disagree with him. It is fair enough for him to disagree; he can make his own judgment, and that is the whole point of the scrutiny. We have a law at the moment that says that it is against the law to fish commercially in an unregistered vessel, and we have not really seen a lot of enforcement. There has been one incident involving people on a quay who, stupidly, admitted to the offence. That is the point that was made. The law is not being enforced. The answer to that lack of enforcement has been to produce another law that will have the unintended consequence—

Will Mike Rumbles take an intervention?

I would like to bring the discussion to a conclusion, but you can take an intervention if you want to, Mike. It is up to you.

Of course.

The officer told us in his evidence that they cannot do anything out at sea, because they have to see the stuff being sold before they can do somebody. People have to be trailed. I just do not get Mike Rumbles’s point.

The commercial fisherman have said to me, “This is not the way forward.” They have told me at meetings that the most effective way of dealing with the problem is actually very simple. It is a simple matter of definition. What is a commercial fisherman? If you define a commercial fisherman as being one who takes more than five or six lobster pots out of harbour, you could easily enforce the law. What we are doing here, however, is creating a new law that will have unintended consequences. That is why I moved a motion to annul the order.

Whatever way the vote goes, we are doing our job as a committee. That is really important. I am pleased that partisan issues have not come out in the discussion—in fact, I do not think that there are any in this regard. Most statutory instruments that come before us are given a cursory glance, because most of them are technical in nature and are not particularly controversial. However, that is not true in this case. The order could affect thousands of people across Scotland, and I lodged the motion to annul because of my concerns about that. That is the great benefit of the system that we have in the Scottish Parliament.

If members support the motion to annul, that will simply say to the minister that the committee has problems with the order and that it would like the Government to allow the whole Parliament to consider it. That is all that we are asking the Government to do. We are not asking the minister to withdraw or revoke the order. If members vote for the motion, we will simply be asking the bureau to programme a discussion about the order in the chamber, so that it can be properly examined. Please do not just rubber-stamp the order.

As the motion has not been withdrawn, we will move straight to the vote.

The question is, that motion S5M-04500, in the name of Mike Rumbles, be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Grant, Rhoda (Highlands and Islands) (Lab)
Mountain, Edward (Highlands and Islands) (Con)
Rumbles, Mike (North East Scotland) (LD)

Against

Chapman, Peter (North East Scotland) (Con)
Evans, Mairi (Angus North and Mearns) (SNP)
Greene, Jamie (West Scotland) (Con)
Finnie, John (Highlands and Islands) (Green)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The result of the division is: For 3, Against 8, Abstentions 0.

Motion disagreed to.

The committee will report to the Parliament accordingly.

I suspend the meeting to allow the cabinet secretary to leave. I thank him for the evidence that he has given to the committee.

10:43 Meeting suspended.  

10:46 On resuming—