Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, March 20, 2018

Official Report 622KB pdf

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Subordinate Legislation

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Conservation of Salmon (Scotland) Amendment Regulations 2018 (SSI 2018/37)

Agenda item 3 is evidence on the Conservation of Salmon (Scotland) Amendment Regulations 2018 from the Cabinet Secretary for Environment, Climate Change and Land Reform, Roseanna Cunningham, and the Marine Scotland officials who have been involved in the construction of the instrument: Dr John Armstrong and Simon Dryden, who gave evidence to the committee last week. In addition, I welcome Jackie Baillie MSP and Liz Smith MSP, who have joined the committee for the item. I invite each to declare any relevant interests.

I have none, convener.

I have no interest that is registrable.

We will move to members’ questions on—

Convener, I thought that I was going to get to say something at the outset.

If you want to say a few words, please do so.

Thank you. I think that it would be helpful to remind people about the background to the regulations. The regulations were first introduced in 2016 against a background of threatened infraction proceedings from the European Commission and more general concerns about the downward trend in salmon stocks in our rivers. The number of wild salmon in our rivers continues to be an issue of concern, and the regulations were introduced alongside other conservation measures after a lot of discussion with a wide range of stakeholders.

The impact of the regulations was not universally popular then, and I am aware that they are not universally popular now. As Richard Lochhead, who introduced the regulations, stated to the then Rural Affairs, Climate Change and Environment Committee, we need

“to manage the exploitation of salmon, not just because it is a protected species under the habitats directive but because ... that is the right thing to do. Salmon is synonymous with Scotland”.—[Official Report, Rural Affairs, Climate Change and Environment Committee, 9 March 2016; c 2.]

That is a good reminder that salmon is a protected species under the habitats directive.

The regulations that are being considered today, which are the third set of measures that have been introduced, cover the 2018 fishing season. They reflect a great deal of work, in consultation with stakeholders around the country, to develop and improve the scientific model and the quality of the data used in that model. They also reflect the fact that the number of salmon returning to our rivers to spawn still shows a downward trend year on year and has reduced from about 25 to 5 per cent.

Although there is a clear need for additional research into the complex range of factors that are involved, we must take decisive action. It is imperative that we take a precautionary approach to determining whether and where stocks can be exploited. If we do not follow such an approach, there is a danger that, yet again, we will face infraction proceedings because we are failing to protect—and failing to demonstrate that we are protecting—our special areas of conservation. Doing nothing is not an option.

We will never have a perfect model, because scientific modelling does not work that way, and there will always be uncertainties. We try to minimise those, improve the assessment process year on year, where possible, and take a sensible approach to protecting our salmon stocks for future generations of anglers.

I am confident that we are using the best available data and scientific advice. For the 2018 season, we have assessed more than 45,000km of Scottish water and more than 171 rivers and river groupings. We have had catch returns from more fisheries than ever before; we have made improvements to the modelling process in discussion with fisheries’ interests; we have consulted more than 1,500 stakeholders and had representation from 192 of them; we have, as in previous years, responded to concerns that have been raised; and we have made adjustments to river gradings in a small number of cases, where that was shown to be appropriate.

Can the modelling be further improved? Yes, it probably can. In the coming financial year, we will continue to invest in order to help with the assessments and, in spring 2019, we will consult local biologists on the complementary model.

We must be clear that the responsible management approach that we are taking is not unique to Scotland; nor are we alone in being so concerned about the health of our salmon stocks. Earlier this month, the Environment Agency launched a consultation on proposals to introduce mandatory catch and release on 32 of the 42 salmon rivers in England, and it proposes to introduce byelaws that would last for 10 years. Ireland has taken the decision to close fishing entirely on a number of its salmon rivers. We have not taken that decision, and our conservation measures allow rod and line fishing to continue in all of Scotland’s salmon rivers. However, they require that any salmon that are caught be returned to the water immediately where that action is indicated in a local area. Anglers can continue to fish; they simply cannot kill the fish on 122 rivers in Scotland.

I know that there is a challenge for anglers and fishery managers alike, particularly when it comes to grade 3 rivers, but we must protect fish ahead of fisheries; otherwise, what we do will be counterintuitive and, in the longer term, will jeopardise angling in a far greater way.

Our approach gives our salmon the best chance while we continue the research and continue to tackle the wide range of pressures that are impacting our stocks. It is the right approach and the precautionary approach, and that precautionary approach is one that the committee would rightly urge me to take across the entire range of my portfolio.

Indeed, but why is there no formal right of appeal against the decisions that are reached in the area?

We did not feel that there was a necessity to introduce that right, as we take on board any extra data or scientific input such as a difference in wetted area. We look at any evidence that is brought to bear and discuss it with the local stakeholders.

Some of the initial proposals in respect of the regulations for this year were amended before we got to the stage of drafting the regulations. There were some original proposals for rivers to be categorised in a particular way, and changes were made to that. The process is on-going.

However, there is dissatisfaction out there. Perhaps predictably, people are not going to be happy about some of the decisions. Would it not help to defuse the situation if a formal process was available, with strict criteria to be followed? People would not be able to object just because they did not like the decision but would need to have a scientific basis for objecting. Is it not worth looking at that option going forward?

My initial response is to remind the committee that, for us, this is an annual process, so we would be doing that almost annually. As I said, in England, there is a consultation on bringing in byelaws that would last for 10 years. That is not our process.

Simon, do you want to add to that?

It is perhaps worth clarifying that we discussed the model with local biologists who represent all the regions of Scotland and we have on-going meetings with them. We will meet them at least three times each year with the sole purpose of discussing the modelling process and the data that we have and trying to enhance it. It is because of our discussion with the local biologists that we have referred to changes to a national egg target and an attempt to have regional egg targets.

The local biologists told us that they are far more confident about the outcome of the model for the 2018 season than they were about the model for the 2017 season. The local biologists, whom we might call the scientific experts, are signalling to us that the model has moved forward, although we acknowledge that they would like it to move one crucial step further and talk about egg targets as well as, separately, a juvenile model. We are responding to both of those asks.

You noted that in evidence last week. Another thing that came up last week was the issue of peer review, and it was indicated that that was being considered. Cabinet secretary, can you expand on that in any way?

I saw something come in last night in respect of that. We are happy to build peer review into the process if that makes people feel happier about the way forward. That represents an improvement to the current process, and I think it is something that we would be prepared to do.

Okay. Thank you.

I open up the discussion to colleagues. Alex Rowley will be first, to be followed by Finlay Carson.

Cabinet secretary, the picture that you paint of the waters of Scotland and wild salmon is pretty bleak, in many ways. I did not get the feeling, from the evidence that the committee took last week, that we are on top of the issue. There seem to be a number of failings, one of which is to do with engagement with the fishing organisations that run and manage the waters. It seems that a top-down process is being adopted, and I am not sure that it is the right way forward.

We must assume that none of those organisations would want to allow fishing to take place in waters that would end up with no salmon in them whatsoever. However, those organisations have been indicating, through writing to members of this committee, their unhappiness about the whole process. There are questions about that and about the impact that the current decision could have on the wider management of the waterways.

You have said that better data needs to be provided. Last week, I was not left confident that the steps that are being proposed are going to achieve the outcomes that were being suggested. There is a question about engaging more closely with the organisations that are responsible for the day-to-day management of rivers and being able to give them a greater say. There is also a question about having a top-down approach that states, “This is how we’re going to tackle this problem.” By your own admission, cabinet secretary, we are not tackling the problem, because every year fewer salmon are coming back. The situation is urgent, and what is proposed through the regulations will not tackle it.

I indicated that we have consulted over 1,500 stakeholders and that 192 of them made representations directly, which were both supportive and non-supportive. I think that that is pretty extensive.

There is a difference between consultation and proper engagement.

What do you propose should be put in place instead of that?

I suggest that the organisations that are responsible for the day-to-day management of the rivers be engaged more so that, instead of just objecting to the proposals, they become part of the solution.

We are engaging directly with some of the organisations that you have referred to. For example, for the river Endrick, we have met the Loch Lomond Angling Improvement Association on several occasions and have had several meetings with the Loch Lomond Fisheries Trust. We have discussed the situation in detail with the trust’s biologist and, from a biological perspective, she is content with the grading that we propose, albeit that she has concerns about wider factors. Nevertheless, she is content with the specific model.

I have met a lot of angling clubs, such as the Alness Angling Club in Cromarty, and I am going to a meeting in Falkirk tonight at 8 o’clock to have discussions with the Falkirk Municipal Angling Club. We take every opportunity to have such meetings. However, there must be a balance between talking and getting feedback and addressing the issues. We feel that, with the merger fund that we have announced and the £500,000 of funding for the wild fisheries management tool, we have a lot of positive activity going on.

It is worth reminding the committee that the regulations each year are based on a rolling five years of data. We are not looking simply at the situation between last year and this year; we are looking at five years’ data. We need folk to remember that and to understand the science. A lot of the data that we base the regulations on is meant to come from organisations in any case. The catch data therefore comes directly from the organisations.

I think that I am right in saying that, in this instance, a good year dropped off and a bad year came in.

That might continue to be the situation. My understanding is—again, I can be corrected by the people who are the experts here—that it will be 2020 before that problem period starts to phase back out again.

When we talk about the wild fisheries stocks in total, we should be aware that regulation is only one aspect of dealing with the conservation issues and that there are many other aspects to conservation. Wild salmon come under a range of pressures and we need to tackle those. Last week or the week before, I announced money for the north-east rivers to help with goosander predation. People do not usually think about such predation as being part of the problem, but it is, and we are funding work on that.

There is a huge range of pressures and, at the end of the day, that is felt in terms of fish numbers in the rivers. The regulations are one aspect of a range of conservation measures that we are working across in order to get fish stocks into a healthier state.

Not the least of such measures is the banning of netting, which has happened in some parts of the country.

I do not really want to talk about netting.

11:15  

When we introduced the measures, in 2016, we also introduced a prohibition on the retention of salmon in coastal waters, which, in effect, meant that coastal netsmen could not operate.

At all.

We have been paying compensation to them for a three-year period while we review the science and then the prohibition.

I should have declared a constituency interest in that issue.

My colleagues and I take salmon health very seriously and do not need to be reminded that we are here to look after the salmon population. Why has the Scottish Government, by its own admission, not made satisfactory progress or investment in data collection? That would go some way towards addressing our concerns?

We continue to improve data collection. Some of the data collection depends on the returns from the rivers, which are getting better. Last year, there was a higher level of returns from rivers. It may be that, because of the heightened discussion around the subject, people are more inclined to fill in the returns than they were previously. We depend on the returns coming in.

Is there not a lot more to it than that? It is not just about rod catches. For example, in some rivers, the number of fish that are being caught has gone down but the river grading has been revised up the way. We are not talking just about rod catching.

Way back in 2015, the Rural Affairs, Climate Change and Environment Committee tried to emphasise how important it was to get better scientific data. That improvement has failed to come about. Here we are, in 2018, in the same position and with real concerns that the regulations that are being introduced do not have a sound scientific basis.

I do not think that that is true. The science has been getting more effective over the years. Dr John Armstrong is probably the right person to talk about the scientific details. Data collection has also been getting better. As I suggested, there is not a perfect model. We continue to refine the way in which we think about the matter, and we will continue to engage across the board.

The model that is used is very sophisticated, even by international standards, because we collect a lot of data in Scotland, as we have done for many decades. In the 1950s and 1960s, we started tagging smoults going out on the North Esk, looking at adult returns and developing fish counters. We also have some traps on tributaries of the river Dee, where we count fish out and look at the numbers coming back in.

We have a deep understanding of the population dynamics of salmon, which is why we are in a position to apply the models. Without that science, what option would we have? If I were to be precautionary, I would say that the only option would probably be just to stop exploitation. However, we can get a reasonable idea of where stocks are sufficient—although there is always some uncertainty in biological models—to allow some exploitation. It is because of the science that we already have that we can run the system, although that is not to say that it cannot get better.

The model is not peculiar to Scotland either. We have not somehow invented our own model to suit our own purposes. Norway has broadly the same modelling system. It is important to say that we have not created a vehicle that is only for Scotland and that we are sharing our expertise, too.

I want to ask about the evolution of that model, away from catch data. There has been a bit of criticism of such data and its variability and comment about anglers going out in the rain, for example. All sorts of points have been raised directly with me, through letters, which it has been useful to have. As regards moving the model forward to one that is based on egg targets and monitoring of juveniles, and the welcome commitment to peer review that so that it can be tested to destruction, will that be in place for next year?

The intention is that it will be able to inform next year’s assessment. Does John Armstrong want to give more detail on that?

Sure. We want to construct that model, but we certainly need data to go into it. As my colleague said, there is a fund that will enable the collection of appropriate data, so that has to happen. In Scotland we peer review internally, in a sense; the salmon liaison group, which has representative biologists from rivers trusts around Scotland, has an intense look at what is happening. The right process would be for the group to have a look at the proposed models, which we would then discuss with it to make sure that it was happy—that is a form of peer review. We would have to see how we could then best apply that. That is the process that I was envisaging.

I said earlier that the approach that we are using is a standard one that is used elsewhere, such as in Norway. It has been peer reviewed in a number of places and, while we are looking at peer reviewing the tweaked version for Scotland, it might be helpful for us to track down the peer reviews of that standard model.

That would be useful. On the back of the concerns that Alex Rowley raised, I have a quick supplementary question about how we support fisheries trusts and associations in the future. The point has been raised with me that the River Forth Fisheries Trust cannot access Scottish rural development programme funding, although it does a lot of fantastic work in riparian areas on non-native invasive species. I raise the issue of the eligibility of the trusts and associations for grant funding and the suitability of such grants to support the excellent work that they both do.

That is a wider point. We have just spent an hour and something talking about the likelihood that, in not very many years’ time, there will be no SRDP funding and we will have to depend entirely on what the new funding settlement set-up will be and what new money might be made available. We constantly look at the issue of supporting people through that process.

I know that Finlay Carson was not particularly happy with the FishPal process, but money was made available through that. As I indicated, we put money into the north-east fisheries to support work that they are doing there. Therefore, it is not the case that we do not do that; it comes back to our friend the budget issue of just how much money is available to do it.

As was indicated, there is a category of salmon fishermen whose practices have been stopped completely, so money is going to compensate them for what is effectively the end of an economic activity for them.

We can look at whether there are other potential funding sources and ways in which local groups can perhaps tweak what they do to bring it into a category that relates to a different grant or fund. However, at the end of the day, we will end up in a situation in which there is a finite amount of money and decisions will have to be made about where best to spend it.

I suppose that we all want to protect salmon and their rivers and other habitats. It has already been acknowledged that salmon are under a range of pressures, the least of which, in my view, is angling. Of course we share the cabinet secretary’s concerns, but the instrument is flawed. It is based on poor science. No one appears to have confidence in the science, which has not been peer reviewed and might not stand up to that level of scrutiny—that is the whole point of peer review. Even witnesses at the Rural Economy and Connectivity Committee last week were unhappy when issues were raised about the quality of the science.

We accept the intention of the instrument, of course, but even the cabinet secretary has essentially admitted that it is insufficient and inadequate. It should almost have been an affirmative instrument—I appreciate that the process does not allow that in this case. However, given the level of discussion and debate around the issue, the uncertainty and the untested science—notwithstanding the protective principle that we adhere to in this committee—we feel that the whole thing is utterly flawed.

I do not know how to respond to that. The fact of the matter is that the proposal is only one thing that we are trying to do in respect of salmon numbers. I do not pretend that it can be the only solution—of course it cannot be. However, there are some figures that the committee perhaps needs to think about. In 2016, around 5,500 salmon were retained by anglers. However, in the preceding five-year period, the average was around 15,500. That is a significant reduction. I accept that a lot of anglers will not be happy at not being able to take more fish, but, by this mechanism, they will make a contribution to salmon survival. Anglers will not solve the problem on their own, any more than these regulations and the categorisation of the rivers will solve the problem on their own, but we have never put forward the proposal as a single solution to the problem of salmon numbers. I am well aware that there are many pressures on salmon, and I have already indicated where we have invested money to deal with other pressures on salmon.

We need to address the pressures, but we also must take steps that will reduce pressure in the short term in order to ensure that, in the longer term, there are healthy fish stocks for everybody, including anglers. That is where we are. I am not a scientist, so I have to rely on the advice of scientists, which is that the proposal is the way forward. It is what is happening in Norway. The situation in England is likely to be even more restrictive and, as I indicated, Ireland has shut rivers to any sort of fishing because of the scenario that we are looking at. What we are doing in Scotland is a lesser step than that. If we had not introduced the measures that we have introduced, there is a chance that we could end up in the same position as Ireland.

I note that colleagues are agitating to get in. We will get to everyone, but I have rather a long list in front of me.

I will make two quick points. First, I was pleased to see that the Nith is a category 1 river this year, and I was pleased to open the salmon season there by toasting the river. You will be glad to hear that catch and release will continue to be practised on the river, cabinet secretary. That is testament to the management on that river.

Unfortunately, parts of the Nith further downstream, and also the Annan, are category 3. When I wrote to the Government last year, I was told that discussions were under way with the fisheries boards of those two rivers in relation to a bid for money for a fish counter to cover them. Will you give us an update on that?

11:30  

The Annan and the Nith were unable to put together a joint proposal to bid for fish counters to cover both catchment areas, so the Nith is proceeding on its own and, I understand, has put in a bid for funding through the fisheries local action group.

Thank you.

My second question is about haaf netting, which is a unique fishing practice on the Solway. There are very few haaf netters—they are probably even more endangered than salmon. In 2016, the First Minister made a commitment that haaf netting on the Annan would become a historic fishery. In Scotland’s guidelines on the North Atlantic Salmon Conservation Organization implementation plan 2013-18, it says that consideration is given to

“the heritage value of the fishery; where fishing methods are unique to a very small number of locations, consideration is given to retaining a residual fishery and/or permitting a low level of catch.”

Given the First Minister’s commitment and the unique nature of haaf netting, will you give us an update on where we are in ensuring that this unique practice, which dates back to Viking times, can continue?

We have provided grant funding to the Royal Burgh of Annan common good fund, to help the burgh to promote haaf netting as a cultural activity. Under the current legislation, haaf netting is permitted only in the Solway; it does not go beyond that area.

All fishermen, in all kinds of fishery, are having to take a share of the effort of the work that we are doing to conserve salmon. We are helping to promote haaf netting as a cultural activity, but ultimately the issue is killing fish. The regulations do not ban angling; they ban killing the fish in certain rivers, which is what it comes down to.

As you said, all fishermen are affected, whether they are anglers, netters or haaf netters, but do you concede, as the Government’s guidelines and the First Minister have conceded, that haaf netting is different? It affects a very small number of people and dates back to Viking times. In the context of Scottish culture and the United Nations Educational, Scientific and Cultural Organization’s definition of “intangible cultural heritage”; is not that human activity worth preserving?

Money is going into that.

It is fair to say that the Loch Lomond Angling Improvement Association waited a considerable period—something like 18 months to two years—before there was any engagement with the Scottish Government, which appears to have amounted to a tick-box exercise.

Last time round, I think that Mr Dryden acknowledged that the data is incomplete. Despite a meeting with the Loch Lomond Fisheries Trust, the Government is unable to identify all the proprietors and does not know the catch data because there is not data on all returns. The improving model and methodology appear to me to amount to guesswork, and the three hand-drawn maps look as if they have been done by a five-year-old. I struggle to see the approach as evidence based.

The Loch Lomond Angling Improvement Association provided catch returns dating back to 1956, when one less fish was caught than was recorded in 2016. In 1956 the association had double the number of members and there seemed to be no shortage. Can the cabinet secretary or Dr Armstrong explain that?

Dr Armstrong is probably in a better position than I am to explain it; whether he can do so is another matter.

I would have to look at the detail of the data. It is difficult to say what the situation is just on the basis of what Jackie Baillie said.

Okay, but do you accept that in the 1950s there was considered to be a lot of salmon and a lot more members fishing, yet the catch return from then is equivalent to what it is today?

Simon Dryden wants to come in on that.

In the 1950s we had a strong coastal netting fishery, which caught a lot of the salmon that were returning to rivers. With high returns, we would anticipate that taking away the coastal netting fishery would lead to catch numbers going up, but we have not seen that.

Let me put the reverse position to you. At the Rural Economy and Connectivity Committee, our colleague Gail Ross raised a question about the River Leven—not my River Leven but a River Leven elsewhere—in which everybody agrees that catches have substantially declined. Evidence was given to the committee that although salmon had not been caught there over a number of years, the fact that one Pacific salmon was caught there last year means that it is now graded as a grade 1 river. Does that not seem, to use the words of one witness, entirely “bizarre”?

I hope that I can answer that. The 2017 season’s catches have not yet been published and have not gone into the model. If the River Leven has just had a very poor season, that will not yet be reflected in the model. I saw, and understand, the evidence that John Gibb gave.

It might help to say that the catchment area of the River Leven in Inverness-shire is very small. Its catchment area, which is just over 26,000m², is only 6 per cent of the River Endrick’s catchment, so it is a very small system.

According to the assessment done by our model, the River Leven had a 100 per cent likelihood of reaching its conservation limit in four of the past five years. In one year—2015—it had zero catch, so it had four years at 100 per cent and one year at 0 per cent. That gives an average over the five years of 80 per cent.

In 2016, roughly only 38 salmon were caught, which we say represents about 10 per cent of the salmon that went up the river, so our model would say that approximately 350 to 400 salmon went up the river in 2016. That represents enough salmon to meet the egg target, and our model says that it did that with 100 per cent certainty. Thirty-eight is a low number of salmon, but it is that small because the wetted area is so small.

I think that your model flies in the face of local experience and expertise, which is what people are concerned about.

My final question is about the equality impact assessment. A letter from a constituent, Peter Lyons, has been shared with the committee. He is disabled and has severe mobility problems; he fishes in the Loch Lomond river system, and he is unable to fish elsewhere. He has clearly described the problems that he has encountered. Will the cabinet secretary or somebody else tell me who completed the equality impact assessment, when they did it, who they consulted in doing it and whether it was just a desk-based exercise?

I do not think that a formal equality impact assessment was done for these regulations. Notwithstanding the expression of surprise on Jackie Baillie’s face, I think that she probably already knew that.

No, I did not.

A formal equality impact assessment process is not done for these regulations, although equalities are taken into consideration. I remind everybody that the practice of angling is not barred—it is the taking of fish that is stopped.

In the case that I have supplied to the committee, the taking of the fish is something that this constituent requires to do; otherwise he will end up capsized and in the water, because he has only one arm. Very specific protected characteristics are involved here that have not been considered. We were led to believe by the cabinet secretary’s predecessor and officials that there is an equality impact assessment, but clearly one has not been done.

There is not a formal one. These regulations do not go through the normal, formal process for equality impact assessment, if I am correct—or perhaps I am misleading the committee. Equalities are looked at, but not in the formal sense of an equality impact assessment being done.

Mr Dryden, is that the case?

Yes. We have not been able to find the equality impact assessment that was said to have been done at the time of the 2016 regulations. As a result of the comments from Ms Baillie, we have looked at the equality impact assessment for the 2018 regulations. The process is that you identify whether you believe that it is necessary to carry out an assessment.

As the cabinet secretary said, we have looked at the situation and on balance do not believe that we need to take the process further. The first stage of the process allows us to say that we have looked at the issue and do not believe that we need to take it further.

On John Scott’s point, I can count how many people are in a room. I can possibly count how many sheep are in a field. I suggest that it is hard to count how many fish are in the sea or a river.

No one disagrees that wild salmon are under pressure. No one likes change, but we have to change. If we agree to annul the regulations today, how many rivers will it affect? How many people have objected? Could we exclude the objectors to let them fish?

I understand the cabinet secretary’s point that anglers are simply catching the fish. They are not taking the fish home to eat but are putting them back into the river. Why are people objecting?

I suppose that, if people are accustomed to doing something in a certain way over a long period and it is proposed to change that, in general people will find that challenging. For a lot of the rivers that we are talking about, anglers will openly say that they know that there are issues and for that reason they have been voluntarily catching and releasing and only taking perhaps one fish a season, as a nominal amount.

My response would be that often for anglers it is the activity of angling that is important, rather than the killing of the fish. Unlike some other jurisdictions, we are not stopping the fishing. We are stopping the killing. In many places, an angler might have taken only one fish over a season.

I understand that angling is a sport that many people enjoy, like many other sports. For those in the areas where the local rivers are to be categorised as no-take zones, it is difficult. However, the issue is about the longer term and the anglers of the future. It comes down to having decently stocked salmon rivers in Scotland for all anglers.

The point that I am trying to make is that, if we agree to annul the regulations, we could affect every river in Scotland. I am on your side.

I understand.

The point that I am making is that, if we agree to annul the regulations, every river in Scotland will be affected. Only a few anglers’ associations object. My question is whether we could exclude them.

I get the science. I get that we need to do something. I have never fished a day in my life, but I get that the excitement is about catching a fish. Doing that and then releasing it should give people satisfaction. That would conserve stocks and maintain the sport.

Why can we not allow that? Can we exclude the objectors and not affect every river in Scotland?

11:45  

If we say that all that has to happen for an area to be excluded is for someone to object, I suspect that this would be the only year in which a handful of objections are made. Next year, everybody would object everywhere and we would be back to square 1. From a national governance perspective, that is not a particularly helpful way forward.

It may be that Richard Lyle is being deliberately provocative in putting that forward as a solution so that I have to say that it would not work.

You have got it in one.

Good morning again, cabinet secretary. I have five questions. I will try to be brief, because some of them have been partly covered already.

We appreciate the response that we received following last week’s evidence-taking session, which details the scale of the concerns that were expressed. It states:

“With regards to the content of the responses received, many sought to criticise the general modelling approach taken”.

It goes on to say:

“Many of these issues have been addressed at the time the conservation measures were first introduced”.

I was a member of the Rural Affairs, Climate Change and Environment Committee at that time. What were the issues that were addressed then, in 2016?

Unfortunately, I was not the cabinet secretary at the time, so I am afraid that I was not intimately involved in the work on the first set of regulations. I do not know whether either of my colleagues was involved in those conversations.

I will attempt to describe what I believe we have addressed. The first time round, we had a lot of regions. We have moved to 171 groups, which means that we have far more granularity.

I am sorry—you have moved to 171 groups from what? I am looking for a ballpark figure. That was going to be my next question, so if you could answer it, we would be down to three questions. That is an important issue to understand. When the first set of regulations came before our predecessor committee two years ago, we were reassured by officials that there would be more granularity.

I am sorry—I have those figures. In 2016, we assessed approximately 100 regions. My maths is not good enough to give you an exact number. In 2017, we moved to a position of greater granularity—the figure was around 150. This season, the figure is 171.

Is this work in progress? Is there a lot more that needs to be done?

It is not the case that a lot more needs to be done. We use the phrase “rivers and assessment groups” because there are some groups. I think that there are fewer than a dozen groups out of the 171. That means that we are assessing at an individual river level in about 160 of those cases.

That is helpful, because that needed to be clarified.

I have been salmon fishing with a fly—I have not caught anything since my father died, which was a long time ago—so I have a limited knowledge of the subject. I understand that there are many rivers, regardless of their grade—this is true even of some grade 1 rivers—on which catch and release is practised, but we need to take stakeholders with us, and that is what worries me.

This is only a personal view, but I think that there has been only quite poor improvement in the science and data arrangements and modelling since 2016. I find the gaps in the science disappointing. I want to make two points, one of which has already been made, so I will be brief. With regard to the egg estimates, I understand that Marine Scotland science

“is looking to develop more focussed, regional targets for egg deposition, taking account of local habitat and conditions, which will allow for more accurate estimates of abundance in future years.”

What progress has been made in that regard over the past two years? I would welcome a response on that.

I will cover the other issues. Fishing effort has been highlighted to me particularly. How is that being taken into account? I hoped that the issues around juvenile fish would have been developed much more than they have been. The numbers of fish counters has increased from six to only eight. Therefore, I have concerns about the lack of progress on the science. Will you comment on any of that?

I will start with fish counters. They are large structures that go in rivers, might cost something in the order of £100,000 to install and take a lot of effort to run. It is a major undertaking to install fish counters, but we will certainly have a look to see what opportunities exist.

What look have you had so far? I understand that planning permission is needed, and that it is complex to install them, in that we must take into account how far the salmon can leap, but going from six to eight in two years does not seem like much of an improvement.

In introducing those extra counters, we have been examining what is already available in Scotland. It will be a major leap to proceed to a network of counters. It will require substantial planning and finance.

You are removing barriers to salmon on some rivers. To what extent do the counters present barriers? Is there a conflict in the two approaches?

There is. One has to be careful because it is necessary to obstruct salmon to some extent to count them. We are working with SEPA and Scottish Natural Heritage to examine existing barriers to determine what potential there might be for installing counters in barriers that might be removed. That would give us a balance between improving things by taking a barrier out and putting a counter in to take the opportunity to get more information.

Do you have any comments on my perception that the progress on the science is disappointing?

Sure. I will comment on juveniles. The models that are being used for using juveniles are sophisticated. There is nothing in existence at the moment that would do the proper job for Scotland. Our team has been developing models using geographic information systems coupled with population dynamics models. That work is very advanced. In fact, I anticipate that we will publish or peer review it this year. That process is well under way, and we are pleased with the progress on that. I am afraid that it takes time; such matters are not easy to deal with.

On the more general adult model, there has been a lot of development on how we can better understand the relationship between flows and catches, which reduces a lot of uncertainty. We now have methods that enable us to account for fish that are coming into rivers out of season, which was an issue of particular concern on the Earn, for example. There are substantial developments and the team that has been working on that has put in a huge amount of effort.

I understand that, if you are not involved in the technical side, you imagine that things can happen at a faster pace than is realistic but I assure you that there has been a lot of progress.

Will one of you comment on effort, please?

Where one has counters and catch data, one can best deal with effort changing. We have tried to collect effort from fisheries, but it is extremely difficult to do in any realistic way. I do not disagree that having additional counters will improve the quality of modelling.

Ownership issues are a real concern, and committee members raised the matter last week. Will you give some clarification about riparian owners? Why has that issue not been able to be addressed? It has been an issue in the constituency of my friend and colleague Jackie Baillie and, I believe, elsewhere.

Do you mean identifying the riparian owners?

Yes. The current situation makes for flaws in the assessment.

I am sorry that, at the previous meeting, I did not pick up on the term “riparian owners”. The heritable salmon fishing rights do not necessarily reside with the riparian owner—the owner of the riverbank. Indeed, as I think we put in our response to the committee, the Loch Lomond Angling Improvement Association has some ownership of heritable angling rights.

We can approach the local landowner but when they say that they do not have the rights, where do we go? We have made—

Can I stop you there? Is it seriously the case that the landowner would not know who had the rights to the fishing? I find that very puzzling.

When they buy the property or the land, often salmon rights might not be discussed.

I understand that—

The fact is that when we ask—

There are going to be people accessing fishing through their land—

If indeed that is happening, the landowner might be asking the angler, “Do you have the salmon rights here?” or, “Please can you tell me who you got permission from to fish here?”

We have established that when Registers of Scotland put ownership rights on to its electronic system, salmon rights were not transferred. If we go to Registers of Scotland to check those rights, we would need to get out the paper records to identify who has the salmon rights.

In terms of stakeholder confidence, that might be useful, because there are gaps, and that does not help with the collection of robust scientific data.

Finally, on the business and regulatory impact assessment, in terms of costs and mitigations, you have highlighted the Annan common good, which is in my and Joan McAlpine’s region. Concerns were raised in 2016 about the possibilities in relation to that and the gain in terms of stakeholder confidence, which is an important issue. Could you highlight what has been done there?

Briefly.

I suspect that the question is about how much money has been spent on doing things in the past two years. Is that what you are asking?

I am interested in what has been done to support the common good fund in Annan, for example. It has highlighted to me that it has lost money because of its grading in 2016. Are there any other examples that you could highlight?

Several things have happened with the grading on the financial side. The Crown Estate has reduced the lease levels for its fisheries that are being leased by angling clubs to take account of grade 3.

The national assessors have zero rated netting stations that are in a grade 3 area, so that they no longer pay a salmon levy. We have just announced this month an additional £500,000 for this coming financial year to accelerate research into the pressures on salmon stocks and to do substantive activities in-river to try to improve the situation. A significant proportion of that funding will go to local trusts to enable them to collect the data and supply it to us.

We will now hear from the ever-patient Liz Smith.

Thank you, convener. I am grateful for the opportunity to put on the record why I have been unhappy about this instrument. My comments very much reflect the considerable engagement that I have had with anglers and fishing experts in my area of Mid Scotland and Fife, which has persuaded me that the model dataset that is being used to determine the categorisation of our rivers is flawed.

I listened carefully to your committee meeting last Tuesday and to the Rural Economy and Connectivity Committee meeting last Wednesday and I believe that there is a general concern across Scotland and across the political parties.

I stress at the outset that I think that the angling community recognises its responsibilities on fish conservation, in line with the EU habitats directive, and that it also recognises the important responsibility that the Scottish Government has in this respect, which Roseanna Cunningham set out earlier. There is no doubt that protection of fish species is vital and it is important to put that on the record.

Secondly, the cabinet secretary is right to say that it would never be possible to have perfect knowledge of every single river across Scotland. That said, the overriding concern is the absence of sufficiently robust scientific analysis to underpin policy making. We need analysis that can provide a comprehensive overview of the river system in Scotland, that can stand the test when it comes to peer review and that can be used objectively as a basis for the right to appeal policy decisions.

12:00  

The anglers are quick to recognise the important evidence on egg deposition that has been produced by biologists. Marine Scotland asserts that it uses an established methodology, which is employed by other countries such as Norway, Ireland, England and Wales. However, in relation to the claim made by Marine Scotland that there is an important Scottish dimension to be considered, the anglers are very clear that the current assessment of sustainability in Scottish rivers depends on two sources of data on numbers of fish returning to rivers, which are unsound.

They make the points that, as only eight rivers have data counters, it is very difficult to extrapolate results for other rivers and that the current Marine Scotland method of analysis only complicates things further. Furthermore, there is the issue of rod catches, which apply only during the fishing season. They argue that Marine Scotland does not take sufficient account of fish runs before or after those dates or of uncaught fish during the season.

Assurances have been provided to the angling community on several occasions, including in 2016, that improvements would be made to the modelling. However, the angling community feels strongly that such improvement has been insignificant. There have also been significant delays in engaging with the angling bodies, which two other members, including Jackie Baillie, agree has been a problem.

In January 2017, the minutes of the salmon liaison group stated that action was being taken to convene a productivity/habitat quality group to develop individual river targets, but that did not happen in the way that was intended.

At last week’s committee meeting, there was a clear admission from Marine Scotland that there are significant inadequacies in the modelling process. That was also put to Marine Scotland on 23 September 2015 at the Rural Affairs, Climate Change and Environment Committee in extensive questioning by my former colleague Alex Fergusson and by Mike Russell, so the current concerns should be no surprise.

The concerns go well beyond our rivers. They relate to the sustainability of local economies, tourism, the leisure and sporting industries and the declining membership of our angling clubs. It is vital that those concerns are balanced against the important need to conserve fish stocks—it is perhaps not easy to reconcile those. However, we would be better placed to make that judgment if the data and methods on which policy is based rests on the best international science and is open to peer review.

Marine Scotland has acknowledged that there are issues still to be addressed and therefore the instrument is a real problem. We need to take urgent action to address the situation to ensure that future policy is on a sound footing.

Do you wish to respond, cabinet secretary?

I have not yet moved the motion, convener.

Let us put that thought on hold for a moment. Do you wish to respond, cabinet secretary?

We can go over and over the issues about science: the changes have already been made and will continue to be made and the model is not a one-off for Scotland but is similar to models that are used elsewhere. I hear what people are saying and I do not want to leap to the next bit, but we have to take action. As I have said from the outset, there is nothing perfect about the situation and I doubt whether we will ever have a perfect system, but it is one that continues to be refined.

We now move to consideration of motion S5M-11020, which asks the committee to annul the Conservation of Salmon (Scotland) Amendment Regulations 2018 (SSI 2018/37). It should be noted that the Scottish Government officials cannot take part in the formal debate. I remind the committee that substitute members have the right to vote. Although non-committee members cannot vote, they can speak in the debate. The motion will be moved and there will be an opportunity for a formal debate on the instrument. Procedure allows for that debate to last for up to 90 minutes.

On the basis of the comments that I have just provided to the committee, I move,

That the Environment, Climate Change and Land Reform Committee recommends that the Conservation of Salmon (Scotland) Amendment Regulations 2018 (SSI 2018/37) be annulled.

Do any members wish to speak on the issue?

With the greatest respect to my colleague, I am against this. Do we sit and count every salmon that goes up and down a river? It has been suggested that we annul this secondary legislation. I love conservationists, but when it comes down to the local area, they are against conservation. Let us be clear: if we vote this instrument down we will put wild salmon in Scottish rivers at risk, and woe betide us when anglers have nothing to fish. I am against the annulment.

Thank you for that, Mr Lyle, and for your brevity.

I will try to be equally brief, but I suspect that I might fail.

All rivers are different and I do not think that we should look for a one-size-fits-all solution. I refute Richard Lyle’s comments; all the anglers who I have spoken to are conservationists. They absolutely understand the need to conserve salmon stocks, and I think that everybody around the table would agree with that sentiment. What they argue is that we should do that properly and base it on evidence.

Successive Scottish Governments have told us that evidence-based policy making is important. However, in the case of Loch Lomond and the Endrick system, the evidence is entirely lacking. There has been limited and late engagement, which I have previously described as 11th hour, 59th minute—and I am probably being kind. That is an indication that people are not serious about the categorisation that has been arrived at.

People who have decades of experience, including witnesses to the Rural Economy and Connectivity Committee and local anglers who understand their river systems, have said that the science is flawed. It is depressing that, two years on, we are back here having the same arguments that we had previously because the matter has not been fixed.

To me, the so-called improving model and methodology amounts to guesswork in the case of Loch Lomond and the Endrick. If we look at the Endrick, we see that there is no data on catch returns, officials are unable to identify all the proprietors and, as I indicated earlier, they are relying on hand-drawn maps that a five-year-old could have done better and are calling that science.

It is also clear that no equality impact assessment has been thought through. Mr Dryden recognised that no consideration has been given to people with protected characteristics, because the process stopped at the very first stage and was desk-bound. The case of Peter Lyons, who submitted evidence to this committee, perfectly describes the lack of consideration that was given to equalities. In my view, that is a fatal flaw in a Parliament that prides itself on taking equalities into consideration.

Overall, I regard the process as disappointing. I do not have a vote, but I urge and encourage committee members to support the motion to annul. The Loch Lomond Angling Improvement Association has been around for 118 years—certainly longer than this Parliament. It engages in a low-cost activity that is predominantly engaged in by working-class men, 40 per cent of whom have protected characteristics. They care passionately about conservation but reject the categorisation because it is based on flawed science— there has been little consultation, there is a lack of data on catch returns, the owners have not been identified and we have hand-drawn maps.

I urge the Scottish Government to take the time to do this right and work with local anglers such as those at Loch Lomond, who would happily work with the Government. It is not about making sure that we make the process perfect, but it is, surely, about making it more accurate and better, which requires evidence that is not currently there.

I, too, will support annulment today, with a heavy heart. I believe very strongly in the precautionary principle and I completely acknowledge the respect for anglers and others involved who also believe in conservation. However, I am not reassured about the level of science-based evidence and I am concerned about the lack of peer review.

I acknowledge that these are difficult issues, but I do not think that things have moved forward quickly enough. I understand that we would revert to the previous Scottish statutory instrument in the meantime, so we would not be leaving Scotland without the serious protection that it needs. I am prepared to be corrected on that, but, assuming that that is correct, it is important that we move forward and take stakeholders with us. There is a great deal to do.

I thank Jackie Baillie, Liz Smith and the association for coming to the committee and for providing all the detail, which has enabled us to test the order to destruction.

To a certain extent, we are where we are with the state of the salmon stocks in our rivers in Scotland. Even on rivers that have a particularly high grading—grade 1 rivers—the vast majority of anglers are still catching and releasing. On that basis, it is important that the gradings of the rivers are accurate and that they reflect the science. It has been heartening to hear how the scientific model is improving, particularly with the evolution of the model to include more and better data on eggs and juveniles and the important commitment that has been given today that robust peer review will be in place for next year.

It is disappointing that we still do not know who actually owns the salmon rights on a lot of the rivers. That is a concern. Indeed, it could be a barrier to making the science even more robust if we cannot get access to the rivers to improve the model.

At the end of the day, the precautionary principle has to win out because of the state of the stocks that we have in our rivers in Scotland, and on that basis I will not be voting for the motion to annul.

I certainly understand the concerns that a number of angling clubs have, which have been raised this morning and in correspondence. However, I also understand the Scottish Government’s stance, and I am sure that it is not taking the conservation measures for the fun of it or to be awkward.

For me, this is a no pain, no gain scenario, and let us not forget that there was a real and imminent threat in 2016. It is important to remember why we are at this stage. As the cabinet secretary stated in her opening remarks, action had to be taken in order to avoid EU infraction proceedings. Granted, there is an argument that things were rushed, to a degree, in 2016, but the Scottish Government was in effect bounced into taking the measure.

If the motion to annul the regulations is agreed to, will that not take us back to square 1 and put previous conservation measures at risk? Let us not forget the salient point that was made last week that salmon numbers will increase as a result of the downgrading of category 1 and 2 rivers to category 3. To paraphrase a point that the cabinet secretary made earlier, I think we have to be careful what we wish for. Otherwise, we might end up in a situation like the one that Ireland is in, which is surely not what anybody wants. I will oppose the motion to annul.

Regardless of whether the motion is agreed to, I hope that the cabinet secretary will recognise that a fair bit of concern has been raised—based on the evidence—last week and this week, and there is a wider concern out there. We all take Scotland’s rivers and the health of salmon seriously, but there needs to be far better engagement with anglers and associations. They cannot be seen as the problem; surely they must be seen as part of the solution. There is a real weakness there.

It is important that we get that message out, which is why I will support the motion to annul. No matter how that goes, there is a real message here. More needs to be done, and if that means that we need more resources, the Government needs to say so. Generally, the committee has not been happy about this, given the evidence that we heard last week and today’s discussions.

12:15  

I have a great deal of sympathy with angling clubs around Scotland. There are a lot of anglers and other fishermen in my area. However, as I said to the cabinet secretary, it works both ways. The Nith has a category 1 status as a result of its catch-and-release policy, as well as its improved modelling and counting methods and management. If the regulations were annulled, the Nith would go back to having a category 2 status. All the expectations of local people about improvements in tourism, and the strong message that having a category 1 status sends out, would be lost.

If the argument is that there are concerns about the current data, why would we go back to the previous situation when presumably, by the same logic, the data was worse? I accept that the data needs to improve—we have had a wide-ranging discussion on that today—but I do not think that the way to do that is to go back to the previous situation. I think that we need to continue the engagement and to continue to improve the modelling but, for the reasons that I have given, I will vote against the annulment of the instrument.

I speak in support of the motion to annul the instrument. I support the precautionary principle and all that Mark Ruskell has said in that regard, but I am afraid that I do not feel that the science is sufficiently robust. Too many lives are involved. An awful lot of decisions and lives would be affected by what is almost an arbitrary decision.

I think that the instrument should be annulled and that the data should be re-examined. The Government could then come back with another instrument that was based on a better interpretation of the science that is available to us, or on a more realistic understanding and evaluation of the inadequate science that is available to us.

Although I appreciate the evidence that Jackie Baillie and Liz Smith have provided, it is worth remembering—as I know, as somebody whose constituency has quite a lot of rivers in it—that very few interest groups have raised concerns. It is just a few interest groups that have serious concerns about the issue—or, at least, have flagged it up.

That is why I would be far more in favour of tightening up the process for appeals and looking at the methodology for next year rather than supporting the motion to annul the regulations. The concerns that have been raised about the regulations are legitimate and who knows which interest groups for which rivers will be concerned in subsequent years, but as things stand, only a small number of interest groups have raised specific concerns.

This is a very difficult decision, because it will have an impact on some of my constituents on the Nith and the Bladnoch, which is moving to category 3. The status quo is absolutely not acceptable; in effect, angling clubs are almost competing for a river categorisation that is based on what most angling and river boards consider is poor science. Something needs to change; the difficult thing is how we send out that message.

I would like to have had some more guarantees from the Scottish Government on how we are going to move forward. However, on the basis of the evidence that we have heard from angling associations and from people around the table today, I will support the annulment of the regulations.

Like others, I have concerns about the level of data that informs the categorisations. However, I remind colleagues that the measures in question are among a number of conservation measures that are being utilised and, like Mark Ruskell, I believe that the precautionary principle overrides everything.

In its recent report on the environmental impacts of salmon farming, the committee bemoaned the apparent absence of the precautionary principle as that sector expanded, and it called for that principle to be front and centre going forward. Whatever legitimate reservations we have about the accuracy of the basis for the decision that is proposed in the instrument, surely that approach needs to apply here, too. It is also the case that the proposals do not stop angling; they merely stop the killing of fish.

To pick up on Kate Forbes’s point, I note that a number of rivers have gone from grade 1 to grade 3 and that that appears to have been accepted. I think that the vast majority of anglers get that the measures are needed. Given that and the commitments that we have had around changes in the approach to the science and peer reviewing, I will not support the motion to annul.

To pick up on Alex Rowley’s point about what will happen if the committee decides not support the motion to annul, there needs to be improvement in the approaches that are taken. I share Kate Forbes’s view: eventually, as the science and the data improve, I would like a formal right of appeal to be established. I think that that would bring greater equity to the whole process, albeit that it would have to be founded on the science.

On that note, cabinet secretary, I invite you to respond to the debate.

I do not want to rehearse all the arguments about the development of the science and the model over a number of years. Both of those areas will continue to develop. I do not come from a science background, so I find it difficult to be drawn into discussions about science at this level. I am impressed and surprised by the level of scientific knowledge that is claimed by so many committee members. I gently point out that, with science, other scientific opinions are always available and that it is always necessary to balance those. That is something that will never change.

I have indicated that I will provide the existing peer review data for the generalised model that we use. I acknowledge what has been said about peer review data for the more specific, tweaked version and will make sure that that is also available. However, it will also be very good to have the background peer review information.

I utterly refute the notion that what has been undertaken is somehow an arbitrary exercise; there is nothing arbitrary about the exercise at all. The decisions were made on the basis of what we take to be a real understanding of what is happening in our rivers and the changes that are taking place there. I reiterate what I have said on a number of occasions this morning, which is that angling is not banned on any river and that it can continue; it is the taking of a fish and killing it that might be banned on some rivers. We just need to be clear what we are talking about.

I confirm that if the regulations were annulled, we would simply revert to the position for the 2017 season, which would mean that the killing of fish could take place on 49 rivers where we believe that it is not sustainable. That could damage the health of salmon. In addition, anglers would be able to kill and keep salmon that were caught in four special areas of conservation that we consider should be catch-and-release fisheries, so there would be some real issues there as regards the habitats directive. Furthermore, annulment would unfairly impact river systems where the gradings have risen for 2018, as they would remain catch-and-release rivers despite the fact that our assessment is that the health of those rivers has got to a point where they can move up to grade 1. The rivers involved are the River Clyde, the North Uist lochs and the River Nith, which we have heard about. People need to understand the reality of annulling this year’s regulations. I strongly request that the committee does not proceed down that road.

I invite Liz Smith to wind up and to indicate whether she wishes to press or withdraw the motion.

I think that the first job of any committee in the Parliament is to ensure that we scrutinise policy and decision making. Obviously, the most important part of that is to ensure that we have a good evidence base. I must congratulate the committee on working very hard to ensure that the evidence base is accurate.

I have followed the issue with considerable interest, and not just because of the approaches that I have had in my local area. Like the cabinet secretary, I am not a scientist, but I have gone into considerable detail on some of the points that have been raised with me by people whom I consider to be experts in the field. It is clear that they have pointed to significant problems with the data, which is not sufficiently scientifically robust. Regardless of whether the motion to annul is successful, that is the key point: there are considerable issues with the data that is being used.

I press my motion to annul.

The question is, that motion S5M-11020, in the name of Liz Smith, be agreed to. Are we agreed?

Members: No.

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Scott, John (Ayr) (Con)

Against

Dey, Graeme (Angus South) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)

The result of the division is: For 5, Again 6, Abstentions 0.

Motion disagreed to.

I seek the committee’s agreement for me to approve the final report to Parliament recording that decision.

Members indicated agreement.

I thank the cabinet secretary and her officials for their attendance.

At its next meeting on 27 March, the committee will take oral evidence from the Committee on Climate Change and we will also hear from stakeholders on the Scottish Crown Estate Bill.

The committee will now move into private session and I ask that the public gallery be cleared.

12:26 Meeting continued in private until 12:43.