The purpose of this item is for the committee to consider the delegated powers in the Aquaculture and Fisheries (Scotland) Bill. The committee is invited to agree the questions that it wishes to raise with the Scottish Government on the powers. It is suggested that those questions be raised in written correspondence. On the basis of the responses received, the committee would expect to consider a draft report at its meeting on 18 December 2012.
The code of good practice recommends good practice measures for fish farming, and one intention of section 1(2) of the bill appears to be that farm management agreements and statements will require to reflect such good practice. Does the committee agree to ask the Scottish Government to explain why it is considered appropriate to enable the code to include any recommendations that the SSPO determines, which the agreements and statements must reflect so far as possible, as there is no provision that the code or any later document shall specify good or best practice measures that are to be reflected in the agreements and statements?
Section 3(1) creates a power for the Scottish ministers to make regulations that prescribe technical requirements for equipment that is to be used for and in connection with fish farming. Further provision can be made to ensure that such requirements are complied with. Section 3(4)(b) provides that the regulations may
Failure to meet the minimum requirements, which are to be prescribed by regulations, shall attract the criminal penalties and other official enforcement measures that will be set out further in the regulations. Does the committee agree to ask the Scottish Government to explain why, in regulations that are subject to parliamentary procedure, it is considered appropriate that persons apart from the Scottish ministers could be given functions in relation to prescribing those requirements?
Section 3(6) provides that the regulations could provide for continuing offences and for any such offences to be punishable by a daily or other periodic fine of an amount that is to be specified in the regulations. Unlike the provision in section 3(5) for the maximum penalty for a single criminal offence, section 3(6) states no maximum daily or other periodic fine. Does the committee agree to ask the Scottish Government to explain why that is considered appropriate and whether a maximum penalty could be specified in section 3(6)?
Section 9(1) enables provisions to be made to prohibit or control the movement of any commercially damaging species that are present or suspected of being present in any body of water. Section 9(2) provides for the matters that may be contained or provided for in an order under section 9. That section makes no provision for any maximum time for provisions to apply for or about the prohibition or control of the movement of species and so on, and nor does the list of matters that may be included in an order, as set out in subsection (2), include provision as to the authorised period of the controls.
Section 14 provides a power for the Scottish ministers to make control schemes for the control of commercially damaging species on fish and shellfish farms. The relevant orders would not be statutory instruments and would not be subject to parliamentary controls.
Section 20 of the bill amends section 44 of, and inserts new sections 46A to 46G into, the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, to introduce good governance obligations on district salmon fishery boards. It is suggested that we ask the Scottish Government to explain why the power in section 20—in new section 46F of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003—is necessary in so far as it enables any modification, including repeal, of section 44(1) of the 2003 act, which provides the “basic” requirement for a district salmon fishery board to prepare annual reports and audited statements of accounts relating to the activities of the board and an annual meeting to consider the report and accounts. It is also suggested that we ask how it is envisaged that the power will be exercised.
I think that we need a bit more discussion on that. One thing that has certainly struck me since I have become involved in the work of the committee is that, whichever Government is in power, we seem to be always looking for ways to make it more difficult for people to get things done.
I absolutely agree with you, and the Rural Affairs, Climate Change and Environment Committee might also agree with you, but I suggest that that is a policy decision, which will be informed by the question.
If we start drawing people’s attention to the issue, they will inevitably start asking questions and we will end up with the affirmative procedure.
I want to back up Bruce Crawford’s very sensible comment. Why has the affirmative procedure been chosen here?
Why should it be affirmative?
Yes, why should the affirmative procedure be used for something relatively modest?
Forgive me, but I do not understand that comment.
Paragraph 96(b) in our legal brief suggests that we ask the Scottish Government,
Even if the order modifies the basic requirements in the original act?
I am talking only about new section 21A(3)(c) in relation to part 5.
Forgive me, but I think that I am talking about section 20 here.
Are we on paragraph 96 of the legal brief, or have I jumped the gun?
I think that you may have jumped the gun. Let us just make sure that we know where we are. I am talking about section 20.
Am I on section 22 of the bill? You are forewarned for when we get to section 22.
You will appreciate that I cannot tell you which section you are on.
I apologise, but John Scott knows where I am. I will come back to the point later.
In wondering why we need the affirmative procedure, I was talking about the suggestion in paragraphs 85 and 86 of our legal brief.
Did you say paragraphs 95 and 96?
No, paragraphs 85 and 86. I wonder why we need an affirmative instrument.
I think that the same issue applies here.
Let me stick with where I am. At this point, we are talking about section 20 of the bill.
And the same point applies.
I think that we have taken the point, but I return to my earlier point that section 20 appears to have the power to modify the basic requirements in the act.
Perhaps our clerks can give us the reason why they are happy that the affirmative procedure is required here.
Does the legal adviser want to add to what has been said?
Essentially, because the additional governance requirements are specified in the bill, in principle any amendment to them is a textual amendment of the bill. The power in section 20 of the bill to amend section 44(1) of the 2003 act relates to something that was an initial requirement in the 2003 act. As a matter of principle, the affirmative procedure may be appropriate for such textual amendments. The recommendation was made on that basis.
Are we comfortable with asking the question? Lots of points have been noted on where that might lead, and I am sure that they will be drawn to the attention of the Rural Affairs, Climate Change and Environment Committee.
Section 22 of the bill will insert a new section 21A into the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. The regulation-making power in the proposed new section 21A(1) of the 2003 act will enable the Scottish ministers to put in place a statutory scheme for carcass tagging of wild salmon. New section 21A(3) states that the regulations may make
I am sorry about my earlier confusion. This is the part that I wanted to address.
I will just restate the principle. Negative procedure is appropriate unless the text of an act is being changed, in which case affirmative procedure is appropriate. That has been our default position.
I am not sure whether Bruce Crawford sat on the committee that discussed the 2003 act when it was a bill, but I did and I suggested that fish should be tagged to the ridicule of the then Government. I am delighted to see tagging being introduced even at this late stage.
I can confirm that it is being talked about.
Were you on the Transport and the Environment Committee at the time, Bruce?
I cannot remember, John. You have a much better memory than me.
With respect, I do not think that that is any part of our intention. The question is being asked in principle—
I can see the question but if we ask it and draw the issue to the attention of the policy committee, and we end up with an affirmative procedure, that is where it might end up. However, I accept the question.
Section 28(3) will insert a new section 33B into the 2003 act that will enable the Scottish ministers to make provision by regulations to recall to ministers, or restrict, district salmon fishery board functions when consenting to the introduction of salmon or salmon spawn into inland waters, under the proposed new section 33A of the 2003 act. Does the committee agree to ask the Scottish Government to clarify, in relation to the powers in section 28(3) of the bill, how section 33A(3A) was added to that act? Section 33A was added by the Aquaculture and Fisheries (Scotland) Act 2007, but that addition did not include a subsection (3A).
Thank you.
Does the committee agree also to ask how it is envisaged that those powers will be exercised, and in relation to which functions they will be exercised, beyond the list of matters that can be covered in regulations in section 50(3)? Given that those are significant new powers to impose charging across a wide range of fisheries and fishing functions, the committee might ask why the affirmative procedure would not offer a more appropriate level of parliamentary scrutiny of the exercise of the powers rather than the proposed negative procedure, in particular for the selection of the specific functions to which the charging regime would apply.
The power in section 51(2)(c), which seeks to insert new section 25(2B)(a) into the Aquaculture and Fisheries (Scotland) Act 2007, will permit any amendment of the definition of “relevant offence” for the purposes of the fixed penalty notice provisions in that section 25. Does the committee agree to ask the Scottish Government whether, given that the delegated powers memorandum does not explain why the power to amend the definition of “relevant offence” in any way is required, the scope of the power could be drawn more narrowly?
Thank you for your patience.