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We have a number of items of subordinate legislation to deal with. The first is the Shetland Islands Regulated Fishery (Scotland) Order 1999, SSI 1999/194. The order is laid under the negative procedure, which means that unless a formal motion for annulment is agreed, it will come into effect. No such motion has been lodged, so the purpose of today's discussion is for the committee to examine the instrument.
Yes.
We have with us Tavish Scott, the member for Shetland, who has asked to address the committee on this issue.
Thank you. It felt for a minute as though facing my esteemed colleagues would be like facing the inquisition, but thankfully John Munro has joined me on this side of the table.
We have present Mr Neil Fleming and David Cassidy of the Scottish Executive rural affairs department, who will also speak to this instrument if that is required. In light of the report by the Subordinate Legislation Committee, should we ask them to address us on this issue?
Yes, it might be helpful if they talked about the specific points that were raised by the Subordinate Legislation Committee.
I thank the witnesses for coming. As you will have heard, we want to understand the order with specific regard to the points that were raised by the report of the Subordinate Legislation Committee. They are of particular concern to us, as we are required to take that report into account before we give our decision.
I was going to speak about regulating orders in general and on the progress towards this order in Shetland in the past few years, but Mr Scott has fully explained the background.
Do members have any questions?
Are you satisfied that the drafting matters that have been raised will not open up the producer organisation to legal action that might otherwise be avoided?
That is my understanding.
The department has answered the questions that the Subordinate Legislation Committee highlighted. As Tavish Scott mentioned, we should not allow the matter to detract from the effect of what is happening. The Shetland Shellfish Management Organisation has been empowered to do something that Scottish fishermen have sought. We are allowing the organisation to do it, which sets a first-class precedent. I hope that this hiccup will not interfere with the launch of the initiative.
No one is disagreeing with the intention of the order, which is conveyed in its generality. It is only when one gets down to the nitty-gritty of what might happen in certain awkward situations that there is problem. We are considering legislation, and I want to be reassured. The committee should not be put in the position of being the villain, with people saying that we are holding up a perfectly worthwhile scheme just because somebody made a drafting mistake. However, if the only way not to be seen as the villain is to agree to something with drafting mistakes in it, I want to know what will happen about the errors—or however we categorise them—if we do that. Will the mistakes remain in the order for the next 10 or 15 years in the hope that they will never be of significance, or will another order in which the drafting errors are sorted out replace this one? If so, when could we look forward to seeing that?
This is the start of a developing process and, as this is the first order in Scotland, lessons will be learned. I am sure that if there is an amending order within the first few years, the points raised will be taken on board.
Dumfries and Galloway, for example, is to seek a similar kind of order. Can we expect that order to be different and not to be subject to the four criticisms to which this order has been subject?
There is no doubt about that. There will be a separate order for Dumfries and Galloway, which will deal specifically with cockles—and, perhaps, mussels. The points raised will certainly be taken on board at the drafting stage.
I was trying to work out whether the issues raised were insoluble problems or problems to which people knew the answer. If people know the answer, there is surely nothing to prevent another order from being introduced in a fairly short time scale to replace this one, or have I got the wrong end of the stick?
The procedure would be the difficulty. The legislation would require us to advertise again and, even if there was only one valid objection, to set up a local public inquiry to consider what may only be small objections. That could add greatly to the time involved.
Yes, but if the order goes through, nothing will be held up in the meantime. The Executive will have to balance the cost of bringing forward a replacement order against the likelihood of anything proving to be of significance in the drafting mistakes.
The view taken, which is shared by the local organisation, is that the points raised about the drafting are not of substantial concern and that it would, therefore, be inappropriate to go through the process required for an amendment of substance. The view is that the points raised can be lived with and given effect according to the local organisation's understanding.
For the record, then, are we being advised by our officials that none of the drafting errors is ever going to lead to a substantive challenge in a court of law, which might prove the instrument defective?
No such assurance can be given. Whether such a challenge would be successful is another issue. The view is that it would not.
I take Alasdair Morgan's point, but the danger is that, if this gets knocked back today, a new order will take a further two years, because the process has to be gone through again. At the hearing last August, two objections were made: one was from a local person and was dealt with at the inquiry; the other was from a national fishing organisation that has stated clearly that it will object to all these regulating orders irrespective of whether they are in Shetland or in Alasdair's part of the world. The concern is that things will be put back a couple of years. People have waited five years as it is.
Notwithstanding Alasdair's comments, it would be helpful to make a move on this now, rather than delay it further. Tavish is the local MSP and he knows the importance of this to the industry there. We should give weight to what he says. We have heard that these issues are not substantive, and that is important.
As there are no further questions, I thank the two representatives of SERAD for their assistance.
That is a good idea.
I suggest that we consider that a little. We are in new territory, and I would not want any appended report to be seen as a comment from this committee. I am not sure how firmly we can draw the distinction. The officials made the point that these are not issues of substance and, having read the documents, I share that view. I would therefore be cautious about a report that said anything other than that we had no recommendations to make.
Could we state in our report the fact that we had questioned the officials and that we felt that no issue of substance was being raised? That would make it known that we had addressed the issue. To pin another report on the back would make it appear that we were giving that report a fair amount of credence. We need to make it clear that we have addressed the issues and are satisfied that there is not a problem.
The clerk has just pointed out to me that the report of the Subordinate Legislation Committee is already in the hands of the Parliament anyway.
So we need say nothing other than that we have no recommendation to make.
If the committee wishes to comment, it is welcome to do so. The crux of the matter is that the committee is not advising the Parliament to annul the order.
Are members content with the proposal? Do we conclude that the committee wishes to make no recommendation in its report to Parliament?