Rural Affairs, Climate Change and Environment Committee

Meeting date: Wednesday, October 5, 2011

Official Report 430KB pdf

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Subordinate Legislation

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Inshore Fishing (Prohibition of Fishing for Cockles) (Solway Firth) (Scotland) Order 2011 (SSI 2011/319)

Item 3 is consideration of subordinate legislation. Alex Fergusson has lodged a motion to annul the order. The usual practice in such circumstances is to take evidence briefly from the cabinet secretary and allow members to ask questions and seek clarification. I will then ask Alex Fergusson if he wants to move the motion, and if so we will proceed to a debate. The cabinet secretary is still with us and I welcome his accompanying official, Eamon Murphy, who is policy manager in Marine Scotland. I invite the cabinet secretary to make opening remarks.

I will be brief, and I will do my best to respond to the committee’s concerns. The order has come before the committee because the Solway Firth Regulated Fishery (Scotland) Order 2006 has expired. Before it did so, a lot of work went on to consider alternative management arrangements for cockles in the Solway, but unfortunately a successful outcome was not achieved and more time is required. We face the difficult choice of having an unregulated fishery or putting in place the temporary order that is before the committee until, first, the stock is deemed to have recovered enough to be harvested, and, secondly, alternative management arrangements for the Solway are identified. That is the current position.

The most recent survey of the state of the stock was carried out in 2009. I am advised that it takes about three years for cockles to reach the stage at which they can be harvested, so we must wait until 2012 to get an up-to-date picture of the stock. We hope to have more scientific surveys in early 2012—or the early summer of that year, at the latest—so that we can have up-to-date scientific advice on the sustainability of the cockle stock.

The exploitable tonnage was around 6,735 tonnes in 2009, but I understand that the figure in 2003-04 was 34,000 tonnes, which gives an indication of the decline in the stock in the Solway. That is why we think that the order is important for conservation purposes. If members have questions about the detail and about conversations that are taking place with local stakeholders, I will do my best to answer them.

I am sure that other members also have questions, so I will not cover everything at this point. I find that the more I read the order and the correspondence around it, the more questions I have. However, I do not for one minute want there to be an unregulated fishery for cockles on the Solway—I think that other members share that opinion.

I have always wanted to do a first, and I think that I must be the first member to lodge a motion to annul in this session of the Parliament. Where we get to with that will depend on the answers that we hear today.

I have a number of questions. The whole situation has arisen from what can only be called the disaster of the Solway Shellfish Management Association, which was put in place to regulate the 2006 order. I think that everybody would agree that it has been something of a disaster, through no individual fault but because of a collective difficulty. Trying to keep all stakeholders on board on such an issue probably inevitably leads to a difficult situation.

Great play has been made of the fact that Marine Scotland has been exploring management options with all the local parties in what—I get the impression—was a fairly urgent exercise that had as its aim the idea of introducing new management procedures. Will you give more extensive detail of whom the discussions have been with? Will you also give us more information on what the proposed aim of the new management regime was to be—or is to be, if the potential for it still exists?

I will address the second point, and I will ask Eamon Murphy, who has been closely involved, to give the committee information on how we have engaged with stakeholders and whom we have spoken to.

We have looked at all the options for the management arrangements of the Solway. That included a continuation of the previous arrangements, considering the whole fishery and not just cockles, and using different types of regulation to protect stocks and allow for local management. I guess that I am trying to say that none of the options was off the table, and I know that officials have been flexible in discussing them. It has basically been a case of trying to find out who is interested and who wishes to take part in the new management regime.

I will bring in Eamon Murphy to give the committee an insight into the discussions that have taken place.

I will also put things in reverse order. First, as always, the long-term aim in the Solway is to put in place a sustainable, exportable fishery. People who know the area will know that in the past it has been boom or bust—it is difficult to predict stock levels and so on. We are setting ourselves quite a task, but that is the aim.

I am afraid that I am in a bit of a difficulty on the discussions. We have had lots of discussion with local individuals, groups and public bodies, but a lot of what is being proposed has a commercial confidentiality element to it. People have proposals and ideas involving aquaculture and mariculture, and several orders under the Sea Fisheries (Shellfish) Act 1967 and other regulating orders are also involved. It would be remiss of me to go into the detail of the proposals and individuals, but I am hopeful that over the next few months we can pursue at least some of the proposals and reach a point at which we can have a public discussion of what they are. To go into details now would be in breach of the confidential nature of some of the discussions that have taken place.

I certainly would not want to press you on issues of confidentiality, but I must say that I find it regrettable that we are not able to know more details in considering the order. I will leave it to other members to ask questions and will come back in later—if I may, convener.

Certainly.

I have a couple of questions about the future management arrangements. What consideration has been given to the methods of cockle fishing that future management arrangements would support? Would they involve hand gathering or the use of vessels, or would there be a mixture of the two, as happened under the 2006 order?

That would depend on the state of the stock. In the past, we have had both kinds of fishing, but the stock is not in a good position at the moment, so we would have to wait until that changed dramatically before both kinds of fishing were undertaken. I know that the question has been a feature of the discussions, so I ask Eamon Murphy to come back in.

It is an emotive subject, but we think that, in an ideal world, the Solway should be able to cater for both types of fishing. If we had measures that dealt with one type of fishing at the expense of another, it would lead some parties to take umbrage and complain. Ideally, the management arrangements would support both types of fishing but, as the cabinet secretary has stated, a lot depends on the stock levels and how patchily stocks are distributed across the Solway. Widespread stocks make it more difficult for vessel fishing to exploit the fishery in an economically viable way.

Surely the experience of the past five years suggests that a sustainable fishery cannot be open to all types of fishing. Am I right to assume from your answer that you continue to consider the possibility of suction dredging, when the Solway is the only estuary left in Great Britain that still allows suction dredging?

You raise two points. I tend not to agree that the regulating order was an absolute shambles. Some circumstances were outwith the grantee’s control, such as stock decline and adverse weather. We learned quite a lot from the regulating order process and it is incumbent on us to put those lessons into practice. The situation was not all down to having two types of fishing.

In line with the commitment that was made in the management plan—after the local inquiry and before the regulating order was granted—the SSMA did a piece of work to compare suction dredging with elevator dredging. As is often the case, that work was inconclusive, but it identified no key differences between the two types of dredging. There is work to do on that. Before we went down the road of suction dredging again, I would like another piece of science that considered how serious the impact of such fishing is not only on stocks but on the wider environment. That is work in progress and must be resolved.

I, too, am aware of aquaculture proposals down on the Solway. Issues have arisen in the past with licensing to farm cockles—with people seeding the beds—because they are classified as wild mammals, or fish animals or whatever. That has always been a problem, whereas other parts of the UK provide such licences—the Humber is one estuary that does that. Has much thought been given to introducing a Scottish statutory instrument that would quash any hopes of cockle farming, as in seeding, for several years to come? That would scupper many people’s plans of even contemplating aquaculture with cockles.

We certainly do not want to do that. We have said that the order is temporary and that we want to obtain more scientific evidence in the coming months. In 2012, we will have much more information with which to decide how to move forward. Between now and then, discussions about potential management arrangements will continue.

If it would help the interested committee members—a contingent of south of Scotland members is here—we could set up a special meeting between scientists, Marine Scotland and members, to hear members’ ideas and let them know exactly what is happening. At that point, we might be able to provide more information than we can today.

That would be useful.

Our predecessor committee considered a motion to annul a Luce bay order, so people could be forgiven for thinking that us Solway characters are a bit awkward. I associate myself with what Alex Fergusson said. The problem is not the regulatory process but the fishery’s management. That is not necessarily totally the SSMA’s fault; the situation was extremely difficult because of poaching and all sorts of other reasons.

Richard Lochhead mentioned the decline in stock to 6,735 tonnes. Mr Murphy said that reopening the fishery had been discussed. Surely the Scottish Government would not consider reopening the fishery at such a stage. If that is so and if the fishery is likely to remain closed, why was the truncated timescale required? Surely the Government must have known that the fishery was not ready to be reopened.

To what extent was the dramatic stock decline due to inappropriate fishing methods? Those of us who heard what was going on on the ground cannot escape the conclusion that the methods that were applied to the fishery were, in some respect, inappropriate. It might be possible to reopen the fishery to hand gathering, for example, but the last thing I want is for the fishery to be reopened but not regulated. I would really not like that to happen, on the grounds of the health and safety of the human beings who might be part of it, as well as the health of the stocks. There is a lot of danger in an unregulated fishery anyway. Were you considering reopening the fishery? If you were not, why was the timescale so truncated?

11:15

One of the challenges was that the discussions over a successor management regime continued into this summer. It then became clear that there was not going to be a successor management regime that people wanted to take part in at this point in time, so we had to put something else in place to avoid opening an unregulated fishery. It was not so much about saying that we wanted there to be a fully active fishery in the Solway. There might have been some activity if there was a new management arrangement to govern it, but we did not have that. We did not want to open an unregulated fishery, so we introduced the temporary order. Some of the issues are clearly interlinked.

I reiterate what the cabinet secretary has said. The Scottish Government is absolutely receptive to any new proposals that are made and is considering proposals for the management and exploitation of the fishery that are already on the table. The answer to the point about whether the order scuppers any of those proposals, whether they relate to aquaculture or whatever, is that it does not. We see it as a temporary measure.

The order does not have a sunset clause because we do not know how long it will take the stocks to recover to the extent that there is a full reopening. However, the situation is relatively straightforward and we can occasionally be fleet enough of foot to unpick temporary orders and amend them quite quickly—in this case, to allow the fishery to be exploited under one of the proposed arrangements.

As an alternative to the current situation, we might have had to put in place an order like the closure order that we put in place last January. We had to withdraw that order because new proposals for a piece of mariculture somewhere on the Solway came up, which meant that we had to unpick what we had done. I guess it was a case of damned if you do, damned if you don’t. At the time, our judgment was to let things run as long as possible, to consider the proposed management arrangements, and then to take action to close the area if necessary—and it became necessary. That is where we were.

The jury is still out on the point about unsuitable fishing under the order. It might be that tonnages, allocations and all sorts of things were out of kilter—there is quite a lot to be learned from the Solway process. However, I would stop short of saying absolutely that the demise of the Solway under the SSMA was down to inappropriate fishing methods. There was a lot of poaching and bad weather, and a dramatic stock decline; unlike previously, the SSMA for the first time had to take account of oyster catcher biomass. There were a lot of problems.

There is a lot that we would sort next time, but I would not put the problem solely down to fishing methods.

I want to pick up on what Mr Murphy has just said about the lack of a sunset clause. As I recall from last week’s discussion, the reason why the order was brought to the committee’s attention was because, on the face of it, it did not state that it was a temporary measure, whereas it is clear that, in theory at least, it is supposed to be. I understand that that is why we had the discussion that we had last week and why we are having this further discussion.

The detail of what has happened and what might happen in future is obviously of concern to members who represent voters in the south of Scotland. However, according to our remit, this is a technical discussion about whether the order is competent because although it is supposed to be a temporary measure, it does not state that it is.

Can the cabinet secretary help the committee to understand what would be the best thing to do? Can he say whether the lack of any language to the effect that the order is temporary can be put to one side in the circumstances, taking into account the informative discussion that we have had?

I sit before you as the minister saying that it is a temporary measure. I give that assurance. The outcome that we want is local management in some shape or form as soon as possible, as well as recovery of the stocks. That is our policy aim. We would all agree that people in Edinburgh should not be managing the Solway fishery and that it should be managed locally, if at all possible. That is the situation that we would like to get to at some point.

I offer the committee, or those members who have a specific interest, a briefing early in 2012 with Marine Scotland, so that we can get your views and update you on the science and on how discussions are progressing with local interests about putting in place a new management arrangement.

It is fair to say that, over the years, a disproportionate number of motions for annulment of instruments in this committee and its predecessors have related to inshore fisheries matters, which perhaps highlights the difficulties that Government, regulators and local authorities face.

A number of my questions for the cabinet secretary have been answered. The concerns that members had last week have been alleviated. Basically, the order is a temporary measure. I see Alex Fergusson smiling, so perhaps that is wrong, but the cabinet secretary has said that the order will not need to be in force for a number of years and there will be an on-going review. Although I come from a landlocked region, I am still concerned about cockles and the issues that Alex Fergusson has raised. However, most of the concerns that I had have been dealt with.

I seek information from the cabinet secretary. What sort of stock levels would have to be reached to lead to the reopening of the fishery, either for hand gathering or for vessels? How realistic is it to expect that, come mid-2012, the figure will be arrived at?

We have listened to the views of our scientists and we will have to commission them to undertake a survey to find out whether the fishery is sustainable. At present, we can only compare the figures from the most recent survey with the history of fishing in the area.

The point that I am getting at is whether we have to get halfway to the 34,000 tonnes that was there previously or close to it, or whatever. I am looking for a general guide.

It is fair to say that we need a dramatic improvement, but I repeat that we will have to take scientific advice on that.

To add to that, another factor that is difficult to predict is that we now must take into account oyster catcher populations in the Solway estuary. It is right to do so because the estuary is important for nature conservation reasons under the birds and habitats directives. A way of calculating that was developed under the SSMA. We set up something called the bird model. One bit of data that must be fed into the model is on oyster catcher numbers. In theory, if there is a larger number of oyster catchers, setting aside what they need to eat means that the amount of cockles needed for a viable fishery goes up. There are fluctuations that are difficult to predict. That makes it all the more difficult and important that we collect proper data through another survey and scientific consideration of the process.

I have a couple of brief points. One difference between the current order and the previous one is that no gathering for home consumption is to be allowed under this one, as I understand it. How will that be policed, given the difficulty of policing any such activities on the Solway coast? Why is that particular provision being brought in? It seems unnecessarily Big Brother-ish, if I may say so.

Given the number of inshore fisheries around Scotland, policing is clearly a challenge and enforcement is not easy. To help us, we have recently deployed in Scotland’s waters smaller vessels such as rigid inflatable boats or RIBs; after all, the big, grey Marine Scotland fisheries protection vessels that everyone is used to would hardly be appropriate for, say, the Solway cockle fishery.

The huge numbers of holidaymakers who stay along the Solway coast and are quite in the habit of collecting a bucketful of cockles for their evening meal will probably not be aware that the order exists. I hope that they will not be handcuffed as soon as they appear on the beach with a bucket and spade. I am sure, though, that that will not be the case.

On a slightly more serious note, the Solway Shellfish Management Association and its trading arm, Solway Shellfish Management Trading Ltd, have been in breach of company law four times in the past six years because of late returns to Companies House—to such an extent, I should add, that both have been fined considerable amounts of money. Although those moneys were eventually compensated for in a grant from Dumfries and Galloway Council, it still amounts to compensation from the public purse. Are you able to guarantee that whatever is put in place to oversee the management of this fishery will not be in a position to breach company law?

That is a good point. I guarantee that we will, as Eamon Murphy mentioned earlier, learn lessons from the previous regime. It is important that we do so.

I certainly think that Scotland has a lot to learn about managing its inshore fisheries—full stop. I intend to undertake work on the issue during this parliamentary session and will certainly welcome input from the committee and members with experience of contentious inshore fishery issues on their own doorstep. We must ensure that we have sustainable inshore fisheries that play a major role in our local coastal communities and benefit not only food production but tourism and a lot of other aspects. We have a lot to do to improve Scotland’s inshore fisheries management in the years ahead.

I thank the cabinet secretary and his official for their evidence and very much welcome the offer to meet interested members at the beginning of next year to discuss this matter.

We move to the debate on the order. Only MSPs may contribute to the debate, which may last up to 90 minutes, and the accompanying Scottish Government official cannot take part. I invite Alex Fergusson to speak to and move his motion.

Or not, I believe.

Indeed.

I am sure that the cabinet secretary and Mr Murphy have taken on board some of members’ frustrations in relation to this particular order. Members are not trying to be awkward. Their frustrations arise from the belief that there is such a thing as a sustainable cockle fishery on the Solway. It might consist of a limited number of hand gatherers or a mixed fishery, but the fact is that, over the period in which the previous order was in force, frustration has grown at SSMA’s inability, for whatever reason, to bring about a sustainable fishery.

By the way, I attach absolutely no blame to Mr Murphy, whom I have met on a number of occasions to discuss the Luce bay closure and cockle fisheries. I think that he is one of the most patient men I have ever met, because he gets a pretty hard time whenever he comes near the Solway and I absolve him of any blame in any of the criticisms that have been forthcoming. I also assure Richard Lyle that I was not laughing at anything he said—I was on a slightly different tangent at the time.

I echo the convener’s welcome of the cabinet secretary’s offer to meet interested members in the new year. It is a very positive step. After all, we all want the same outcome.

Given all that, I do not propose to move the motion to annul in my name. Of course, it is open to other members to do so.

Does anyone else want to move the motion?

Members: No.

In that case, does the committee agree not to make any recommendation on the order?

Members indicated agreement.

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Poultrymeat (Scotland) Regulations 2011 (SSI 2011/318)

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Marketing of Horticultural Produce (Scotland) Amendment Regulations 2011 (SSI 2011/324)

Item 5 is also subordinate legislation. We have two negative instruments to consider, which are listed on the agenda. No motion to annul has been received. I refer members to the committee papers on the matter. Does the committee agree that it does not wish to make any recommendations on the instruments?

Members indicated agreement.