Rural Affairs Committee, 02 Nov 1999

Meeting date: Tuesday, November 2, 1999

Official Report 293KB pdf

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British Fishery Limits (Scottish Zone)

The committee will hear evidence from Mr Hamish Morrison and Mr John Home Robertson. The background to this issue is as follows. On 29 June, the issue was raised before the committee, which decided to assess the scope for investigation of the impact of changes to the Scottish fisheries zone, following Executive consultation with the industry. At a meeting on 5 October, the committee considered a letter from the Scottish Executive rural affairs department. After discussing that, we agreed to seek evidence from the Scottish Fishermen's Federation and from the minister on the outcome of the consultation.

To that end, we have invited to today's meeting the two gentlemen who sit before us. I propose to begin by inviting Mr Hamish Morrison to make a presentation to the committee.

Thank you, Mr Johnstone. Ladies and gentlemen, it is good of you to invite me here to address you on this subject, which continues to cause difficulty for, and considerable irritation to, fishermen.

First, I shall introduce the Scottish Fishermen's Federation to those of you who are not familiar with that organisation. We represent the eight main fishing associations in Scotland, which, between them, account for around 90 per cent of the country's total catching capacity. What I shall say to the committee today was discussed at our executive committee, which contains representatives of all eight of our associations. That meeting took place last Friday. I do not mean to weary the committee with the history and the ins and outs of this issue, which have been rehearsed in this Parliament and elsewhere ad nauseam. However, I shall make one or two points that I think are important.

Fishermen throughout Scotland have found the introduction of this measure—this new sea boundary for fisheries off the east coast—offensive, in the manner in which it was introduced. Putting it kindly, the implementation was a presentational disaster. There was no consultation before the event, nor was there any explanation after it. Fishermen and their representatives, myself included, discovered entirely by accident that this measure had been enacted.

I wish you to understand that fishermen are routinely consulted by Government on everything that affects them. Before I left the office last night, I checked and found that there are four draft statutory instruments that are currently the subject of consultation between ourselves and Government. We would have expected to have been consulted on the matter of a new line. Oddly enough, during the week that I found out about the new median line, we had a letter from the then Scottish Office agriculture and fisheries department telling us that there was about to be a change to the fishing boundary between the Faeroes and Scotland. The letter pointed out that that change would result in a small loss of territory and told us why it was happening. There was not much need to inform us of that.

The second problem that we have with this measure is that it is illogical. We do not think that it is appropriate to have recourse to an international convention to establish an internal boundary in a unitary state. The way in which the Government chose to employ that convention is inappropriate. The convention is often used where two land masses are opposite, such as inlets, straits or channels. In cases similar to this, where the border runs more or less at right angles to the land mass, the convention is almost never used. We are puzzled by that.

Above all, this matter was unnecessary. There are two pre-existing lines along which the line could have been drawn. We do not dissent from the fact that a line was needed—we have always accepted that—but why generate a new one when there was a choice of two? We went to see the secretary of state and he said that there was no fisheries boundary and never had been. I thought that there was one. The Scottish Fisheries Protection Agency thought that there was a boundary—it used to publish that in its annual report, although I notice that it has not done so this year. Many people thought that there was a boundary, but we must take the secretary of state at his word.

There is, however, another line—a civil jurisdiction line—that creates a perfectly acceptable division between the two countries. We have wondered why, in this day and age and bearing in mind that we are still a unitary state, we need two borders between England and Scotland that are 60 miles apart. Why not use one line, the original jurisdiction line for offshore activities? The fishermen would be perfectly happy to accept that line as marking the division, and I offer that proposal to the committee and to the Government in a spirit of co-operation and in the hope that we can resolve this matter and move on.

Thank you, Mr Morrison. I propose to go straight on to the presentation by John Home Robertson, the fisheries minister.

Thank you, convener. Before I go any further I should introduce the officials who are with me. On my immediate left is Derek Feeley, the head of sea fisheries in the rural affairs department. With him are his colleagues David Ford and Martin Ritchie.

I thank the committee for the opportunity to come and discuss this matter. I served on a select committee in Westminster for a long time and spent a lot of time in the position that you are in today. I am keen to have a good relationship with members of the committee and with our friends in the Scottish Fishermen's Federation. It is entirely appropriate that I am sitting shoulder to shoulder with Hamish. The only thing that I am uncomfortable about is the fact that I am sitting on what are usually nationalist benches. I hope that there is nothing contagious about these seats.

I welcome the chance to address the subject of the east coast boundary, which needs to be clarified. The matter is close to my heart. My constituency is East Lothian and, in the past, I represented part of Euan Robson's committee. I have regular contact with fishermen from Eyemouth and have other direct connections with that part of the country.

The issue has generated a lot of confusing and downright sensational comments to the effect that the English have stolen 6,000 square miles of Scottish fishing waters. That sounds alarming, but there is no truth in it. It would be helpful if all of us could accept, as Hamish did, that when most of us—yourself excepted, convener—voted for a Parliament for Scotland with responsibility for Scottish fisheries, a demarcation line had to be created where none had been before.

I suggest that the most appropriate place to set a boundary line is on a median line. That is what was done. That leaves the Scottish Parliament with responsibility for two thirds of Britain's fishing waters: 127,000 square miles of fishing grounds. That is quite a lot. Most important of all is the fact that the demarcation line does not affect our fishermen's right to fish where they have always fished, whether in the area that we are talking about today or anywhere else.

We should all concentrate on developing the prospects of Scotland's fishing communities in the Scottish zone and elsewhere. That is the important issue. Anybody who read the papers recently might be concerned that our fishermen were being denied access to areas that they had fished in the past. That is not true.

Hamish raised three points. The first was the manner of the fixing of the line. I accept that it is best that there should be open discussion about anything that affects the fishing industry and I spent most of this morning in meetings on different issues that relate to the industry. I look forward to working closely with Hamish and his colleagues. Sometimes I will be able to give them the answer that they want and sometimes I will not, but I want to be open with them.

In fairness to my colleagues who dealt with these matters before the establishment of this Parliament, I will mention a press release that was issued on 8 March 1999. It was circulated to 55 press sources, and I am assured that a copy went to the Scottish Fishermen's Federation. It explains that a boundary is to be introduced, for the reasons that we have been discussing, and says that the boundary that was set out in the draft order relies on the widespread convention of establishing median lines.

I accept that issuing a press release is not always the best way of getting things into the public domain. From my experience at Westminster, I know that one has a better chance of getting things into the press if one marks them "confidential" and leaves them in a wastepaper basket. In fairness, though, that press release did go out. I would have preferred it if there had been a meeting at which the matter could have been discussed face to face. Clearly, a lot of people were not aware of what was happening.

That was stage 1. The order then went through committees of the House of Commons and was considered in committee on 23 March 1999. The report of that meeting is published and is available in the vote office in the House of Commons. Any member from any party can attend committees and can take part in debates. The order was debated and I was aware that it was going through. Because I was satisfied that the median line was appropriate and that there were guarantees that our fishermen would continue to have access to the areas that they had always fished, I was not concerned. The order went through with proper notification and scrutiny in the House of Commons. That is my first point.

My second point concerns the location of the line. I do not accept that a median line is illogical. A median line is the fairest way of creating a new boundary line. I am a little nervous about the question of historic demarcation patrolling lines, because I am advised that, on the west coast, the Royal Air Force was conducting patrols for the Ministry of Agriculture, Fisheries and Food up to a line just north of Campbeltown. If we were to accept the patrolling line on the east coast as the right boundary, we might find that we had surrendered—well, let us not go down that road. That would be pointless. I honestly think that a median line is the best option.

A range of hypothetical problems about civil jurisdiction and oil installations has been flagged up. However, I am satisfied that the median line is appropriate. That has been done in accordance with their responsibilities by our colleagues in Westminster. I hope that, in the light of the evidence, the committee will agree that there is no sensible case for demanding that waters that are closer to the English coast than they are to the Scottish coast should be transferred to the Scottish zone. With two thirds of the UK's territorial and fishing waters, we have quite enough to be getting on with. The most important responsibility for me as fisheries minister, as well as for the Executive and for Parliament, is to ensure that we protect the best interests of our Scottish fishing communities. That is what I intend to do.

Thank you, minister. There will now be an opportunity for members to question the minister. We must be careful about how we conduct our questioning. Comments should be addressed through the convener and there should be no direct argument between witnesses. With that in mind, I shall allow members to pursue their lines of questioning. Mike Rumbles would like to begin.

Why do the minister and the Executive go to great lengths to defend the new demarcation line, when the responsibility for its imposition lies entirely with the Westminster Government? The Scottish Executive had no responsibility whatever for imposing the order, so I am rather puzzled by the minister's attitude.

Mr Rumbles is quite right. The establishment of the boundary line is entirely the responsibility of the Westminster Parliament. Notwithstanding that, if I felt that Scotland was being done down, I would not hesitate in going to the barricades to defend Scottish interests. Since I am satisfied that the line is appropriate, I am content to stick to it.

You do not feel that it should be changed?

I see no reason to change it, for the reasons I have given.

Many local MPs want to change it. Archy Kirkwood, the MP for Roxburgh and Berwickshire, is about to lodge a bill on it. Do you not think it would be appropriate for the Executive to back away and allow Westminster to sort it out?

It would be out of order for anyone in this Parliament to suggest what the Westminster Parliament should do, except for those of us who are members of it, of course. Archy Kirkwood, who is my constituency neighbour, is well able to raise points at Westminster that he feels are of concern.

I would add that I represent Dunbar and, while I have had representations from fishermen there on other issues, I have not had representations on this issue. That is because Scottish fishermen continue to have full access to fish not only the 6,000 square miles we are talking about, but the rest of the United Kingdom waters. That is the important issue, and we have ensured that it is safeguarded.

Hamish, what opportunities have you had to raise the matter with ministers in the Scottish Executive and the UK Government?

The day after the matter was discussed in the Scottish Parliament, we had a meeting with Mr Finnie, the Minister for Rural Affairs, at which Mr Home Robertson was also present. It was decided that Mr Finnie would get in touch with Dr Reid, the Secretary of State for Scotland, to facilitate a meeting between him and the Scottish Fishermen's Federation. That meeting took place, but it did not make as much progress as I would have liked. It was followed by a rather disjointed correspondence that concluded on 15 September, I think, when Dr Reid decided against revisiting the matter at Westminster. After that, I wrote to Mr Finnie to report the outcome of the exchange and that is where the matter was left, until today.

You were kind enough to show me some of that correspondence. John Reid asked you to address whether the change in the boundary made a material difference to the interests of Scottish fishermen. Will you tell us your response?

I made two main points. Mistakenly on my part perhaps, I thought that when a democratic Government made an innovation it had a responsibility to explain what it had in mind and why it was a good idea. That did not happen in this case. There are real difficulties created for the fishing industry. If a fisherman is accused of an offence in the disputed zone, the summons will have to be answered in England. That is not a nationalistic point, but a very practical one as Scottish lawyers and solicitors do not have the right of appearance in English courts. As a result, fishermen have to go to a degree of time, trouble and effort to defend themselves whereas, before, such prosecutions would have happened within Scottish jurisdiction.

Secondly, perhaps in the very near future, different fishing codes might arise either side of the new boundary, because why else would we have such a division? A different code might include aspects such as conservation measures, net sizes, and gears. The problem with this line—"elegant geometry" though it may be, as Mr Home Robertson says—is that it intersects the Berwick bank, which means that someone might be obliged to change gear halfway through a tow. I am sure that even non-fishermen will understand the impracticality of that.

Furthermore, there is the whole question of who will be consulted or compensated, if that is what it comes to, when oil and gas structures in that zone are decommissioned. In the longer term, Scotland's present constitutional state might develop to the point where we have an independent Scotland. The federation has no view on whether that would be likely or desirable, but it has to take into account the fact that, if such a situation arose, fishing rights would indeed be reassigned. The boundary line would then become an influential component in such a decision.

Those are the short-term, middle-term and long-term risks to which Scottish fishermen are exposed by this measure.

That is helpful. I want to take up two points with the minister. The first concerns the rights of appearance in English courts of Scottish lawyers. What is the current practice for offences committed by Scottish fishermen in the English zone and vice versa? Secondly, on the different fishing codes, what is the difference between Scottish and English legislation on mesh sizes and so on?

Although I would love to address all Mr Morrison's points, I will focus on the two that Mr Macdonald has highlighted. I have to tell the committee that all these anxieties are hypothetical. The question of the prosecution of offences is perhaps all the more hypothetical. According to all the information that we have been able to trawl through, if I can use that verb, there have been no cases of anyone being prosecuted for offences in such an area. However, more often than not, people are prosecuted for fishing infringements in the port where they land, because that is where the fisheries officer does all the detailed work on the fish that have been caught. If any evidence comes to light at port that a Scottish boat fishing in a boundary area has broken the rules, the prosecution would take place in that port. We are enforcing European law, which applies right across the board.

However, that is very hypothetical, as no such incidents have happened yet. I suppose that fishermen might be hauled into Berwick magistrates court instead of Duns sheriff court over something flagrant such as a hot pursuit—those towns are only about 11 miles from each other. However, although I take the point about rights of appearance for Scottish solicitors, we are not talking about a very big deal.

There will be no difference in fishing codes. It would be ludicrous for the department to create difficulties by stipulating different mesh sizes on the Scottish section of the Berwick bank. That would be madness. I cannot imagine that anyone with my responsibilities would contemplate such a proposal. As a result, that point is equally hypothetical.

I would love to talk about gas and independence, but I have not been asked to.

Minister, are you in a position to give us any indication about how the boundary was drawn up? Did the Government say to civil servants, "We accept that we need a boundary because of legislation. Draw the line and come back with it", or were the civil servants given more of a steer about how to draw up the boundary? Furthermore, who precisely came up with the boundary line?

At the time, I was not a minister at Westminster. I was not directly involved, so I honestly do not know. That is something that you could pursue with Westminster, if you wanted.

Regardless of that, you will accept that we are now in the situation of having two boundaries: one for the order that we are discussing and the other for the Civil Jurisdiction (Offshore Activities) Order 1987. Do you think that that is a sensible or sustainable position, and can you think of any precedent for it? Are there any other two jurisdictions for which there are different boundaries?

Off the cuff, I cannot think of any. Civil jurisdiction is an internal UK matter, but the Scottish Parliament has separate responsibilities for fisheries. I put to you again that the point about civil jurisdiction is somewhat hypothetical. As far as I know, there are three decommissioned oil installations in the area that we are discussing, which was certified a couple of years ago as safe for normal commercial fishing. There are two further installations in the area, which will be disposed of in the same way. There should be no question of vessels getting snagged on them and there being consequential proceedings for civil compensation.

We are being told that both boundaries are hypothetical. The fisheries boundary is hypothetical, because nobody gets arrested offshore, and the Civil Jurisdiction (Offshore Activities) Order 1987 is hypothetical, because everything has been dealt with. However, the fact is that there are two jurisdictions. Both exist because on one side of a line Scots law or regulations that are made by the Scottish Parliament apply—in that sense, they are analogous. Why on earth do we not have the same boundary for both?

That is outwith my responsibility, which is for fisheries. However, if someone were to say that it was anomalous that territory that is closer to England than it is to Scotland falls under Scottish jurisdiction, I might be forced to agree—although that is none of my business.

If I may press you on that, are you suggesting that the new fisheries boundary be adopted as the civil jurisdiction boundary?

I am suggesting nothing at all. I am just saying that there is a civil jurisdiction boundary that places territory that is closer to England than it is to Scotland under Scottish jurisdiction. That is not a big deal, because it does not affect anyone significantly, but if someone wanted to do some tidying up, they might reach different conclusions. I do not know.

There are various principles that can be applied in drawing up boundaries. Do you agree that the fact that the water is closer to one piece of territory than to another is not the only determining factor?

There are various ways of fixing boundaries. The most straightforward and the commonest is to take the median line, which has been used here. That seems to me to be fair, particularly given that the decision does not impinge in any way on access to fisheries.

Is the median line the most common way of fixing boundaries between adjacent states rather than opposite states?

My understanding is that it is the most common way of fixing boundaries. I am not briefed to go into enormous detail. I am not sure how boundaries are fixed between certain American states, and so on.

In pursuit of that point I would like to bring up something that Henry McLeish said, when he was UK minister, in a committee debate on the order in question. He said:

"Certain devolved functions may be exercisable within the territorial sea, such as the enforcement of criminal law".

He also said:

"The boundary that is specified in this draft order does not automatically apply to such functions, but it provides an obvious line of demarcation for the exercise of appropriate functions by Scottish Ministers or public authorities in future."—[Official Report, House of Commons, Third Standing Committee on Delegated Legislation, 23 March 1999; c 5. ]

He was clearly indicating that, although the boundary was only intended to apply to fisheries orders, it might establish a precedent for boundaries in other areas. Is it the Executive's view that that should be the case?

I have no doubt that Mr McLeish meant exactly what he said, but I am here to talk about the fisheries boundary, which I think has been set on a correct median line. Given that that does not impinge on our fishermen's rights to fish, there is not a lot more that I can say.

Thank you for allowing me to be here today. I think that the minister will accept that, prior to the new boundary being established, there was very little in the way of dispute over, or even discussion of, the old custom-and-practice boundary. Will the minister also accept that the boundary was included in the annual reports of the Scottish Fisheries Protection Agency, among others? Could he explain why it was not seen to be appropriate to use the boundary that was acknowledged in public documents, and why the median line was used instead?

No doubt Mr Home Robertson will be aware of the references in the Scottish Fisheries Protection Agency's annual reports. People are baffled as to why the custom and practice line that was established by public documents was changed. Can the minister enlighten us as to why there should be any need to change from what was acceptable previously?

I am grateful to my constituency neighbour for raising those points because of his use of terms such as established boundary and custom-and-practice line. There was no boundary. There was a limit to the patrolling area of the SFPA on the east coast as on the west coast. Earlier, I mentioned that our neighbouring authorities patrolled much further north on the west coast, but that is no big deal. There was no boundary, but it became necessary to introduce one when most of us voted to establish this Parliament because we had to take responsibility for fisheries in Scotland. It seems to me to be perfectly appropriate that the median line approach was adopted.

My constituents were accustomed to what they considered to be a boundary. The nub of the issue is that, had there been consultation prior to the introduction of the median line, it would have been clearly established that they were accustomed to a boundary. Although technically there was no boundary, to all intents and purposes all of those concerned knew where they stood. If one accepts that there was no line there previously, one must accept the median line, but a number of us do not accept that there was no line there before.

The minister will be aware that this is a matter of confidence among members of the fishing community. We have heard that the Scottish Fishermen's Federation has real concerns, particularly about the future. The minister is saying that all this is not a matter for consideration—that there are no serious issues, that there is no effect, that in practical terms it does not matter, that we have established a line and that there will be no practical or financial impact on fisheries. If that is accepted, and if it is accepted that there has been a loss of confidence in the fishing community, why cannot the boundary line be changed? If it is all insignificant, why cannot the boundary be put back where it was, to restore confidence in the fishing community?

Anything can be changed, but not by this Parliament. The Westminster Parliament could change it, if it decided to do so. If somebody could take groans to colleagues in the Westminster Parliament and suggest that the median line is in some way unfair, that could be a concern, but it is not a matter for this Parliament. That is something we must accept.

I used to represent a chunk of Mr Robson's constituency. I still live in his constituency and I have a lot of good friends in Eyemouth. I fully understand that alarm has been raised in some areas. People have suggested that our fishing waters have been stolen. The implication is that our people may be denied access, or may be subject to harassment by the Royal Navy, or may be subject to different regulations. Put in those terms, the situation sounds alarming. Mr Robson says that there are real concerns in the fishing industry, but I put it to him and the committee that although there are perhaps hypothetical concerns in the fishing industry and, in certain circumstances, problems could be created, it is my job to ensure that problems do not arise—and that is what I intend to do.

I have two quick remarks to make, although I am conscious that other members want to participate in the discussion.

I accept what the minister says about it being for Westminster to make any change. That is well understood—the order was made under the Scotland Act 1998—but it must be made clear to the minister that if all this amounts to nothing in particular in the Executive's view and the Westminster Government's view, and it is not a significant matter, it should not be a problem to change things back. If practical concerns were at issue, there would be an argument to restore the boundary to its former position. Without those concerns, that argument cannot be deployed to say that the boundary line must stay where it is. That is the point that I am trying to address.

I accept what the minister says, particularly about Westminster and misconceptions in some quarters, but it is wrong to use the argument that, as it does not amount to much, we will not change the boundary. That is an argument for putting it back where it was, to restore confidence.

Be careful: you must not believe your own rhetoric all the time. You are saying that the boundary should be put back where it was, but it was not where you think it was—there was no boundary. Yes, the Scottish Fisheries Protection Agency patrolled down to that line, just as people from the Ministry of Agriculture, Fisheries and Food patrolled up to another line elsewhere. That was not the boundary. There are all sorts of lines on maps, but they are not all boundaries. There was no boundary. There had to be a new boundary as a consequence of the fact that we have a Scottish Parliament, and that boundary is the median line. Provided that the boundary does not impinge on the rights of our fishermen, no useful purpose would be served by stoking the matter up further.

I have a brief supplementary question. The minister rightly says that it is a matter for Westminster. If the Scottish Executive were to say to the Secretary of State for Scotland that it felt that a reversion to what people previously understood to be the boundary would be a good thing, I am sure that the Secretary of State for Scotland would take that seriously. Would the minister and the Executive be prepared to make those representations?

This committee will reach its own conclusions on the matter. As I think I said earlier, if I felt that this arrangement gave rise to any difficulties of any kind, I might well seek to return to it, but I do not feel that. The preface to your question was right—where the boundary lies is a matter for the Westminster Parliament. It set it; it could change it. I can see no useful purpose in doing so.

If there was not a boundary before, how is it that drift net salmon fishing was banned in Scottish waters but not in English waters? What was the difference between Scottish waters and English waters?

The fishing industry is about 15 times more important to the Scottish economy than it is to the English economy. Is it not extraordinary that Scottish fishermen were not consulted? The boundary was set just before the Scottish Parliament came into being. Why was it rushed through Westminster two months beforehand? Fishermen would obviously have been consulted if the Scottish Parliament had debated it.

What happens if the policies of the Scottish and Westminster Parliaments differ on the fishing laws and directives from Europe—about mesh sizes, for example—which change all the time? Would fishermen have to change their gear if they went from one sector into another?

What will happen to fishermen who have had lucrative sub-contracting work with the oil and gas industry? The industry has a non-poaching agreement between England and Scotland, which it may lose. There are practical issues to consider. I am, however, very glad to hear you say that anything can be changed. That is a start. I hope that we can go back to Westminster and sort out what appears to have been a bad mistake.

You have asked an awful lot of questions; I will try to remember them, but please jog my memory if miss anything out

Of course. I am sorry if asked too many at once.

Your final point was about taking the matter back to Westminster. Reading the Hansard report of the committee that deliberated on this, I notice that a number of your party colleagues suggested that the line had been set too far south and ought to go further north, so please be careful on that one.

I do not agree with them at all—I have to make that very clear. I was fully aware of where the line was—it went out from Marshall Meadows and had done since 1100 and something. English ships were always kept behind that line whenever they sent regents up to try to rule Scotland. When they were pushed back, there must have been some sort of boundary. Their support ships fished too, so there were fishing boats.

Good Lord—the idea of Royal Navy vessels fishing—but let us leave the regents out of it for the time being and try to focus a little.

I fully accept that fishing is a very important industry for Scotland. That is why it is such a good thing that this Parliament and this Executive have so much responsibility over such a wide area. I have already acknowledged your point about consultation. In fairness to my predecessor, Lord Sewel, a mass of consequential regulations and statutory instruments had to go through Parliament as a result of the establishment of this home rule Parliament. I cannot tell you the total number, but there were an awful lot. I do not blame anybody for the fact that some people missed some of the information that was going around.

I have given an undertaking to Hamish Morrison and his colleagues that we will ensure that we consult them on anything that affects the industry in the future. As I have already said, we spent the morning doing that on a couple of issues that will directly affect the Scottish fishing industry. I look forward to working with it closely.

I appreciate what you say about Lord Sewel; he was certainly overworked. He did not have much time for agriculture either, at that time. [Laughter.]

I am not commenting on that. [Laughter.]

Surely it must have been known that this was going to cause a riot and a rumpus.

It did not cause a riot.

You cannot say that Lord Sewel did not have time so he just put it out of the way and forgot about it.

That is not what I suggested. Everything was done by the book—a press release was produced and a statutory instrument was published. Anyone who wanted to know about this had access to it.

But it was during the election campaign, at which time people tend to be busy, as Lord Sewel was.

I have acknowledged that, as far as I was concerned—

But we did not have any Scottish—

Please allow the minister to answer the questions.

I want open consultation on this. It was in the public domain. It went through a committee of Parliament and was not done in secret. A lot of people did not notice it and if anything like this were to happen in future I would have a face-to-face meeting with the Scottish Fishermen's Federation and other people about it.

I reject the suggestion that it was sneaked through in secret—it was not.

I have a supplementary question on this subject. The minister said that people knew what was happening. Is it not the case that the people on the committee in the House of Commons did not fully appreciate the consequences of the legislation when they were debating it?

For instance, Robert Smith, one of the MPs on the committee, expressed concerns about the complexities involved, including the terminology. Russell Brown, the MP for Dumfries said:

"When I picked up a copy of the order and looked at the co-ordinates . . . I was totally confused by some of it." [Official Report, House of Commons, Third Standing Committee on Delegated Legislation, 23 March 1999; c 11]

Is it not the case that the committee did not appreciate what it was passing?

Read the whole story. I would always advise Mr Lochhead to do that to get issues clarified. Certainly the statutory instrument included a list of map references which, considered by themselves, would have been virtually incomprehensible, but a map that showed the line was available with it. Reading the text of the statutory instrument would be entirely baffling. In the presence of Mr Lochhead, I will refrain from using the term boring as he might put words into my mouth again. The text of the statutory instrument would be difficult to follow, but the map with it was clear and showed where the line is.

The minister has said that there is a lot of confusion surrounding this issue. Part of the confusion relates to a comment he made in Parliament on 3 June. He said that

"after 300 years we have at last achieved a Parliament with responsibility for the whole Scottish fishing industry and 140,000 square miles of our adjacent waters." [Official Report, 3 June 1999; Vol 1, c 251.]

In May, the fisheries minister for the UK Government in Scotland, Lord Sewel, said, in response to this issue, that 140,000 square miles of the British fisheries limits had been transferred from the UK Government to the Scottish Parliament. In his opening remarks, however, the minister said that 127,000 square miles had been transferred to the Scottish Parliament. He also mentioned 127,000 square miles in Parliament on 7 October. I am confused by the figures and perhaps my colleagues on the committee are as well.

Is it the case that, since the Scottish Parliament was established, we have lost a further 13,000 square miles of Scottish waters, or was that a mistake by the Scottish Executive?

That is a fair cop. I was initially advised that the total area of the Scottish zone is 140,000 square miles. Subsequent clarification, or more precise measurement, has lead to advice that it is 127,000 square miles. Whether someone was measuring in nautical miles and somebody else was measuring in terrestrial miles I cannot tell you, but I am assured that 127,000 square miles is the correct figure. It is two thirds of Britain's fisheries and it is quite a lot to have responsibility for.

Does the minister accept that ministers can make mistakes in connection with this matter?

Yes, and Opposition spokesmen sometimes make mistakes too.

I am anxious to understand in more detail the exact concerns of the fishing industry. Mr Morrison, I would like to address some of the points that you raised. I will paraphrase the answers the minister gave in a letter to the convener to find out how you feel about those issues and what your views are on the minister's responses.

You mentioned the risk of being prosecuted in England. The response that we have had is that offences would be detected at the point of landing, rather than at sea, and that offenders would be tried at the point of landing rather than where the offence took place.

The second point is in respect of collisions. We are told that the location of the collision is not the only—or even the most important—consideration, but that the home or business addresses of the parties might be the overriding concern. Does that reassure you?

There was a bit of confusion as to how many former oil and gas installations are in the area. The minister advises us that there are three decommissioned installations and two that are still in use which will be decommissioned at some other time. We had advice that general compensation for loss of access was unlikely because there was not likely to be a loss of access. Rather, legislation would centre on damage. What are the industry's anxieties on that issue?

Finally, my understanding of the definition of the limits is that it refers to the purposes of the Scotland Act 1998, which brought this devolved Parliament into being. Presumably everything would be up for renegotiation in the event of a change in constitutional arrangements for Scotland.

That is quite a range of subjects. First, I will deal with the specific examples that I gave of situations that concern us. The minister said that those were hypothetical. He is quite right: all risks are hypothetical. That does not meant that you do not take out insurance against them. We would be doing less than our job if we did not try to ensure that risks facing fishermen are headed off as far as possible. That covers oil debris, changed fishing codes and the issues that Dr Murray raised. I agree that the risks are hypothetical, but I repeat that all risks are hypothetical. We should look to their consequences and cover ourselves against them. That is all that we are trying to do.

Some of the other points that were raised are not terribly relevant—for example patrolling. The minister talked about aviation patrols. The Scottish Fisheries Protection Agency publishes the surface lines to which it works in its annual report. I know that it works to those lines; it always has and it still does. The idea that the agency never went further south than Campbeltown would be a great relief to some of my friends—if only that were true. [Laughter.] But come on, we are trying to be realistic here.

I return to what I said earlier. A ridiculous situation has arisen. There are two boundary lines between England and Scotland that are 60 miles apart and are separate and distinct. Where is the logic in that? In order to clear this up, the fishermen are perfectly willing to accept not the old fishing line, but the civil jurisdiction line.

We are quite happy to live with the line that is enshrined in statutory instrument 2197, the Civil Jurisdiction (Offshore Activities) Order 1987. That suits everybody's purposes perfectly well and would allow us to clear the matter up so that we can move on.

The minister insists that the median line is the fair way of drawing the boundary. Of course it is where there are opposing landmasses, but the situation is certainly not as clear and straightforward as that in cases of what is known as lateral adjacency. Everyone must first agree on the basing points from which the median line is to be measured. One need only look at the coastline of England and Scotland to realise that there is endless scope for disputing what would be a sensible base point to use in drawing the line.

I understand the concerns about differences in fishing codes. If codes were different in England and in Scotland, there could be problems. Would not that be a problem regardless of the location of the line?

The point that I was making was that the line runs through the Berwick bank, which is an important fishing ground. The old line—I beg your pardon, I ought to say custom-and-practice line—was well clear of any discrete fishing banks.

Regardless of the hypothetical questions that have been raised, the boundary has now been in place for more than six months. What losses has the industry sustained in that period because of the boundary?

As far as I know, there have been none at all. Nor have there been any boardings or prosecutions. I believe that that is a dividend of the high profile of the issue. I believe that it will be a long time before any vessel is boarded.

It is quite a long time since any vessel was boarded in the area in question anyway, because we have very law-abiding fishermen in our part of the world.

Earlier, I asked the minister why the Scottish Executive is defending the line so enthusiastically when its imposition was entirely the responsibility of Westminster. He replied that he could see no disadvantage to the Scottish fishing industry. With Hamish Morrison sitting right beside him, I would like the minister to take as much time as he likes to list the extensive advantages the new line gives the Scottish Fishermen's Federation.

It gives neither advantages nor disadvantages.

So there are no advantages whatsoever?

Nor are there any disadvantages.

The Scottish Fishermen's Federation and other bodies representing fishing interests are registering protests, are they not?

I refer back to my constituency experiences and, going a little further afield, to my contact with people in Eyemouth. I apologise to Mr Robson for referring to that, but there are certainly issues that are of concern to fishermen. Nobody from my constituency has expressed—

Let me get this right so that I understand your line of argument. Do you recognise the fact that the Scottish Fishermen's Federation and the whole industry are up in arms about the issue, whether you agree with them or not?

With respect, that has not been my experience. I know that there is a political agenda and I make no complaint about that. Opposition parties and individual members are quite entitled to express opinions and I know that some sectors of the press have been making much of it. However, individual fishermen have not complained to me or, as far as I am aware, to my department.

I recognise that there are pressures within the Scottish Fishermen's Federation and that Hamish Morrison is quite rightly expressing that fact.

Are you saying that you can identify no advantages whatsoever?

The establishment of this Parliament will be of considerable advantage to Scottish fishermen, if I have my way. The proportion of the population involved in fishing is much greater in Scotland than it is in the rest of the United Kingdom.

Forgive me, minister, but that does not answer my question. I asked about the line, not the Parliament.

With respect, Mr Rumbles, we cannot have one without the other. If the Scottish Parliament is to have responsibility for the fishing industry, there has to be a demarcation between Scottish and English waters.

Yes, but my question is quite specific: can you, as the minister responsible for fisheries, identify any advantage whatsoever in the positioning of the line?

I can identify the advantage that the Scottish fishing industry gets from having a Scottish zone and if there is to be a Scottish zone, there has to be a boundary. There is neither advantage nor disadvantage in terms of the location.

Then why defend it?

Would it be in order for me to ask a question of a member of the committee, convener?

Given that you are a member of the Parliament, I suppose that it would be appropriate.

If the line is not placed on a median line, where should it be placed, Mr Rumbles?

The Scottish Fishermen's Federation, Euan Robson, members of this committee and I have bombarded you with advice that people in Scotland are unhappy with the location of the line. I understand that you do not have responsibility for the matter and my point has always been that the matter should be addressed to Westminster.

What I fail to understand is why the Executive is attempting to defend the indefensible. You said that there were no advantages in the placing of the line.

Do not put words in my mouth.

Earlier, you said that there was no advantage and then you got a civil service note—I noticed that. When I asked you directly if there was an advantage to the placing of the line, you were silent for a while and then you said no.

There are neither advantages nor disadvantages. There has to be a line and the median line is a fair line to choose. It would be a grand affair if we could shift the line down to Newcastle but I suspect that our colleagues in England would be unhappy about that.

With great apologies for taking so long, I invite Irene McGugan to ask a question.

I want to pursue the issue that Mike Rumbles is pressing you on, minister. We have heard Hamish Morrison state the number of organisations, agencies and fishermen he represents. Not one of the people he represents supports the new situation. Can you tell us the name of anyone in the industry who is content with the situation?

I have no doubt that many in the industry would love to shift the boundary further south. They are entitled to suggest that, but I have not yet heard a cogent case for shifting the boundary.

With respect, that does not answer my question. People are lining up to tell the committee their objections to the moving of the boundary line. You have implied that people are content with it, but you cannot name them and we are not convinced that they exist in any great number.

You said that the boundary line has been moved, which is an example of the use of language that has created the problem that we are dealing with. It is not true to say that the boundary line has been moved because there was no boundary line before.

That is semantics. I asked you to identify anybody in the industry who is content with the new situation.

No one has expressed that view. it would be wonderful if we could have even more of the fishing waters, but I see no sensible case for arranging that.

The important thing for our fishermen is that they have access to all their historic fishing grounds. Under the principle of relative stability, they will continue to have that access; it is my job to ensure that.

Were records checked, to determine who fished mostly in the disputed area—whether Scottish or English vessels?

We lack information on that. There has been light policing of that territory, and there is precious little evidence of boardings or sightings of vessels from any country in that area. We do not have detailed information on that.

Not even from the Scottish Fisheries Protection Agency, which patrolled that area?

That is what I was referring to. Would it be in order for Mr Feeley to comment on that?

Yes.

If the question is whether we know whether Scottish or English vessels have fished in that area, the answer is that that information could be established by examining prior records of catch statistics. That information could be made available, although such things are always dependent on the accuracy of the record that is provided by the fishermen.

It would have been sensible for that information to have been factored into the equation when the line was redrawn, to determine which nation's vessels had fished primarily in that area. I am surprised that that was not done.

The decision predates my involvement, so I am unable to say whether such considerations were taken into account.

There will be other areas that are a long way south of the line, which I am determined that we should keep. Determining the balance of fishing effort in an area is not necessarily the most relevant way of approaching the issue.

Does Mr Morrison have a view on whether fishing interest in the disputed areas was primarily Scottish?

I am busy hunting in my notes, as I received correspondence from the Scottish Fisheries Protection Agency on the subject. However, I do not appear to have brought that correspondence with me today. As you can imagine, the issue has generated a mountain of paper. I will send those notes to you.

I return to fishermen's views. Are all Scottish fishermen members of the Scottish Fishermen's Federation?

The figure that I gave was 90 per cent of catching capacity. Members must bear it in mind that many Scottish fishing vessels are less than 10 m in length, and are not typically registered with the Scottish Fishermen's Federation; they tend to be creel men and day-boats. We could, with reasonable confidence, say that, of the 7,800 fishermen in Scotland, around 4,500 use vessels that are affiliated to the federation.

Have you balloted your members on the issue? Have you a feeling of their collective view?

No, we do not operate in that way. The associations are democratic within themselves and have a weighted representation in the federation.

I return to the four hypothetical risks that you identified, relating to appearances in court, different fisheries' codes, oil and gas decommissioning, and independence. Do you agree that the other three would become more significant if the risk of independence were that which we had to confront?

Irene McGugan asked whether the number of boats from Scotland and England were taken into account, as if we were heading for independence. Have you had discussions with the SNP on its intentions on the access of Scottish fishermen to English waters and of English fishermen to Scottish waters, if it were to achieve independence?

Our policy is not to discuss or seek to influence political parties' policies. We deal directly with the Government, although we are at all times anxious to assist all parties to a better understanding of the fishing industry and our policies.

Forgive me if I am misinterpreting what you said earlier, John, but you seemed to indicate that in practical terms the boundary would make little difference. I heard what you said about net sizes and so on, but over time Scottish fishing legislation will diverge from that of England and Wales, in detail or in major ways.

For example, this afternoon we are discussing the Lobsters and Crawfish (Prohibition of Fishing and Landing) (Scotland) Order 1999, which I think is the first statutory instrument to apply to the new boundaries. That order will not have a significant effect in the area that we are talking about, but do you concede that legislation will not be the same in all jurisdictions, so there will be a material difference, whether for good or ill, between conditions and rules applied to fishing on one side or the other of the line?

It could happen, and not only on either side of the line, as some types of regulations might be applied locally. Consideration of regulations on net sizes or gear types for that sector of the North sea would have to be co-ordinated closely with our colleagues south of the border, and in other North sea countries, for that matter. If we move towards regional management of the common fisheries policy, that is a possibility. It is important that there should be co-ordination to avoid the aggravation to which Alasdair Morgan and Hamish Morrison have referred.

Until now I have said nothing as I do not consider myself an expert on the subject, but I can do so no longer. The word "confusion" has been used several times—I am not much less confused than I was an hour and 17 minutes ago.

You have suggested that the concerns raised by the Scottish Fishermen's Federation are largely hypothetical. Where there is a new boundary, any concern about it is bound to be hypothetical, because it has not been there before. You mentioned that oil-related debris has been certified as safe. So was Chernobyl. I do not think that that satisfies anyone's concerns.

There is a fine line between a limit and a boundary. What was previously seen as a limit you suggest was not, although it is obvious that fishermen considered it a boundary, as would most people. Is it not the case that the statutory instrument was hastily drawn up, without consultation—as appears to be admitted by most people—and rushed through, and you are left in the unfortunate position of having to defend it?

It is not my job to defend anything. My job is to take responsibility for the fishing industry in Scotland in the area that we are talking about.

I have acknowledged that I would have liked much more proactive consultation about the designation of the new boundary when it happened, but the line on which the UK Parliament decided is now in place. I have also acknowledged that it would be possible for the UK Parliament to change the boundary, if it thought fit. If I thought that there were some strong reason to make representations for a shift in the boundary, I, not least as a member of the UK Parliament, might well do that.

The oil industry was mentioned. Three sea bed structures were given official sea bed clearance certificates in 1995, to show that they were free of debris and acceptable for normal commercial fishing. Were there to be a problem with those structures, the civil jurisdiction legislation would allow fishermen to raise an action against the company concerned.

I have no further questions. There is still confusion. If the measure was taken because of devolution—I understand that—it seems extraordinary that the Scottish Parliament never got the chance to debate it. I do not know what the procedure is, but if this committee has the right to ask Parliament to debate the matter, the committee should do so.

At the risk of being accused of favouritism towards my own group, we will take Jamie McGrigor.

Given that the way in which quotas are produced changes from time to time, that 5 to 6 per cent of Scottish fishing waters have been lost, and that that percentage is full of rich fishing grounds, will the fact that the catch returns that used to be attributed to Scottish waters will now, presumably, be reported as catches in English waters have any effect on future quota recommendations for Scottish fishermen or boats?

Quotas do not quite work in that way.

I know that they do not at the moment.

There is a UK quota, which is divided among producer organisations throughout the UK. Members of those organisations get a part of the quota.

Perhaps you are alluding to the long haul, when quota trading becomes even more intense; there are individual transferable quotas and so on. That is an important debate, but it would take far too long to go into it here and now.

My only real concern is that if the UK ceased to be a unitary state, the question of quotas would loom large and the boundary would influence how quotas were carved up.

The federation is extremely anxious that the new line should not be regarded as a precedent. It is all very well for people to say that independence will never happen, but it is not so long ago that people were telling me that there would never be devolution. I have to assess that hypothetical situation and calculate the risk. The lost water represents about 20 per cent of area IVb, which is one of the richest fishing grounds in Europe.

We are discussing the location of the boundary rather than the need for a boundary, so we have to ask the minister about the conventions that were used to establish the location of the boundary. Henry McLeish in the House of Commons, and other UK and Scottish ministers, said that international conventions were used to draw up the boundary.

However, as the committee will be aware, at least one political party commissioned a legal opinion, and Dr Iain Scobbie of Glasgow University, who is an expert on these matters, said that

"the justifications offered for the choice of this line have relied on international law. Even a cursory examination of that law clearly undermines these justifications."

Furthermore, Alan Perry of D J Freeman in London—another lawyer, who is internationally renowned and has 25 years' experience in these matters—entered the debate of his own volition by saying that the use of international conventions to defend the new location was "disingenuous in the extreme".

Finally, Professor James Crawford of Cambridge University—again, an internationally renowned expert on these matters of federal and international law—mentioned the dispute of his own volition during a lecture at Edinburgh University last week. He said that the critics of the boundary adhering to international conventions had a fair point and that the boundary was untenable.

The ministers who drew up the boundary said that they did so adhering to international conventions, yet independent legal experts are lining up to say that those conventions are flawed and that that defence of the boundary is flawed. Is not the minister concerned that the ministers got it wrong?

The first point to make is that this is not an international boundary. If I have any say in the matter, it never will be an international boundary. Mercifully, 73 per cent of the people of Scotland voted for parties that want to ensure that we remain part of the United Kingdom.

Given that we required a boundary to demarcate a Scottish fishing zone within United Kingdom waters, and within the European Union, it seemed to colleagues in Westminster that a median line was the fairest and most appropriate to use. Mr Lochhead is right: there are other ways of setting boundaries. However, this way seems sensible. I am sorry to bore the committee by repeating myself, but to my mind the most important thing, from the fishermen's point of view, is to ensure that they continue to have access to all their traditional fishing waters, wherever they may be—even if they are off the south coast of England. That is what we intend to do.

Is it not the case that the ministers who drew up the boundary used international conventions? They chose to do so, and that choice has been deemed to be flawed by independent legal experts. I am not saying that it is an international boundary, but ministers used that basis for drawing it up.

I was not a member of the UK Administration at the time but, like Mr Lochhead, I have read the Hansard report of the committee, and I understand that using the most common means of establishing boundaries at sea—the median line—was the basis adopted. That is what has been done. It is open to the UK Government to change it if it sees fit, but I have yet to hear any strong grounds for making a change.

As the minister is expressing a view on the issue, is he satisfied that it was correct to adhere to international conventions, bearing in mind the independent opinions that are being expressed by legal experts?

I am not a lawyer—mercifully—although from my long experience in politics and elsewhere I am well aware that one can always find lawyers to say different things to different clients, and perhaps even different things to the same client from time to time. I am not saying that that is what has happened here, but it might have.

If we have come to the logical end of the questioning period, it is my duty to express the gratitude of the committee to Mr Hamish Morrison for giving his submission today and answering questions. It is also a pleasure to thank John Home Robertson and his team for coming along and taking part in the discussion. John has a little more to do—he is involved in the next item on our agenda, so we will not let him escape just yet.

As a committee, at this point we must decide how to proceed. I have an idea of how best to do so, but I am keen to hear opinions from the committee.

In view of the length of the agenda and the long session that we have just had, perhaps we should take time to look over the evidence and defer consideration of our next steps until the next meeting—but that is just one opinion.

Is that an acceptable suggestion?

Members indicated agreement.

In that case, we will defer consideration of the issue until our next meeting, when we will decide how we wish to proceed.