Sea Fisheries (Shellfish) Amendment (Scotland) Bill: Stage 2
I will first call Jamie McGrigor to move amendment 1 and speak to amendment 2. I will then call Tavish Scott, the proposer of the bill. The Deputy Minister for Rural Affairs with responsibility for fisheries, John Home Robertson, will also be given the opportunity to speak. I will then call any other member who is present, whether or not they are a member of the committee, although I think that only committee members are now present. Any committee member may speak if they indicate that they want to do so.
I shall allow a winding-up speech on behalf of the mover of the amendment and, following the debate, I shall ask Jamie McGrigor whether he still wants to press amendment 1 to a decision. If he does not, he may seek the agreement of the committee to withdraw it. If it is not withdrawn, I shall put the question on amendment 1. If any member disagrees with the amendment, we will proceed to a division and a show of hands. If amendment 1 is not pressed, or is disagreed to, I shall put the question on amendment 2. After we have dealt with the amendments, the committee must decide whether to agree to each section and the long title of the bill.
Section 1—Permitted fishing implements in several fisheries
I ask Jamie McGrigor to move amendment 1 and to speak to amendment 2.
I am glad that amendment 1 has been grouped with amendment 2, because they perform basically the same function.
I stress my support for the bill. It is very good and should have been introduced a long time ago. I hope that it will clear up differences between shellfish farmers and fishermen—especially fishermen who felt that, by being kept out of areas, they had been slightly hard done by. The whole point of the bill is to clear up those differences and I support that.
The purpose of my amendments is to save the Scottish Parliament time. The type of equipment that creel fishermen use, and what it is made of, changes as time goes on and technology progresses. I would hate this Parliament to be bothered by having to amend an act constantly, or having to spend time legislating for the use of new equipment. The purpose of the amendments is to save the Parliament's time by allowing fishermen to use equipment as long as it is used in the spirit of not damaging the scallop beds or whatever lies underneath. That would go a long way towards solving the fishermen's problem.
I have been asked to lodge the amendments by fishermen's associations, all of whom are slightly unhappy about having to follow specified rules. They think that they will be limited as to creel improvements and feel that they may be unable to use improved technical equipment.
I move amendment 1.
I appreciate Jamie McGrigor's opening remarks. He was a signatory to the bill in its initial stages, and I appreciate his support.
I do not accept amendment 1, however, principally because of what Jamie McGrigor said latterly when he talked about the spirit of not damaging what is underneath. The spirit of not damaging is a difficult thing to define in legal terms, and the amendment would increase the scope for argument—albeit unintentionally, I am sure.
The logic behind the wording in amendment 1 is that other, non-damaging fisheries techniques might be invented in the future, as Jamie McGrigor has suggested, which could be used without amending the act. However, as his words illustrated, amendment 1 would provide plenty of scope for argument between fishermen and the shellfish grower with the several order over what is or is not damaging and would undermine the whole reason for the proposed bill, which is to reduce conflict, not increase it. As a result, the amendment should fall. It would not be a major problem to revise the terms of the several order if a new non-damaging fishing method were to be devised.
Furthermore, I draw the committee's attention to its fourth report and endorse paragraph 9, which says:
"It has been suggested that the Bill should not require fishing implements to be specified in the Order, as the Order should permit any instrument which does not cause damage, or is used in such a way as not to cause damage. However, we consider that such a provision would create a degree of uncertainty in the Bill, and provide room for legal argument regarding which implements could be regarded as ‘non-damaging'. Having an implement specified in the Order seems preferable to us in order to protect against ambiguity."
I ask the committee to maintain its position on that particular measure and not agree to the amendment.
I am more relaxed about amendment 2, although I have been advised by SERAD that it is effectively a duplication of measures and wording that are already in the Sea Fisheries (Shellfish) Act 1967. I am sure that the minister will be able to elaborate on that. If the committee decides that such duplication has occurred, however, Mr McGrigor might not wish to push amendment 2 to a division.
I, too, congratulate Tavish Scott on introducing this constructive piece of legislation which, if passed—although I must not be too presumptuous—would be the first members' bill to get through the Parliament and would certainly be very useful for people farming shellfish on various parts of our coasts, not least the Shetland Islands. Perhaps that is where the interest arose, and, if so, why not?
As we cannot have both the amendments that Jamie McGrigor has very properly lodged, we will need to address them separately. Amendment 1 would remove the requirement to specify in the several order the nature of the gear that is either permitted or banned. Mr McGrigor expressed admirable concern at the possibility that the Executive might need to come back to Parliament year after year with new regulations defining what is permitted. I am advised that it should not be beyond the wit of our officials and lawyers to describe fishing with a creel, which to all intents and purposes is what we are discussing, and in such a way that it stands the test of time.
However, if the committee accepts the amendment and removes the requirement to specify in the order what kind of equipment is permitted, we will be left with the wording:
"any implement . . . which is used in a manner intended not to . . .damage".
Committee members will recognise that such wording opens up all sorts of possibilities for creative lawyers if cases come to court in future. As the phrase "any implement" might include a trawl, someone might be able to go to court and argue persuasively that they did not intend any damage. As a result, amendment 1 could do quite a lot of damage to the bill and my strong advice, on behalf of the Executive, would be to reject it, even though I understand the spirit in which it was lodged.
As for amendment 2, we—along with Tavish Scott—feel that it is not really necessary. Although I understand what Jamie McGrigor is after, section 7 of the 1967 act refers to "any person" who "knowingly" carries out various actions, which means that there has to be intent before someone can be convicted. I would therefore argue that the point behind the amendment is covered in the principal act.
It is up to the committee whether it wants to take a belt-and-braces approach, by having the reference to intention as provided for in amendment 2, but my advice is that it is not necessary. The concern that Jamie McGrigor has raised is covered in the main legislation. That is the best advice that I can give to the committee at this stage.
Thank you. Do any other committee members want to speak to the amendment?
Although it pains me, I agree with the minister and Tavish Scott on this subject. Given that the purpose of Tavish Scott's bill is to remove any potential for conflict, it would be a pity to leave that potential in the bill. We considered that matter when we reported at stage 1. Paragraph 9 on page 2 of the report states:
"we consider that such a provision"
alluding to the suggestion taken up by Jamie McGrigor
"would create a degree of uncertainty in the Bill, and provide room for legal argument regarding which implements could be regarded as ‘non-damaging'."
Out of the 15 or so submissions that we had, only one referred to Jamie McGrigor's concern. I do not think that it is a huge issue among fishermen's organisations. I suggest that the committee sticks to its guns and vote against the amendments.
It pains me too to say that I must agree with every word that Richard Lochhead said.
So much pain in one day.
Anything that could make amendment 1 ambiguous would cause problems and could end up in court action and the like. I do not think that that is the intention of the amendment. We should stick with the original wording because it is specific, clear and would not give rise to any conflict.
I agree with Richard Lochhead and Rhoda Grant. I understand the spirit in which Jamie McGrigor submitted the amendments. I hope that Jamie will not press the amendments rather than take them to the vote because I do not think that there is support on the committee for them.
There has been enough pain already, convener.
I spoke earlier about the spirit in which the amendments were lodged. I am slightly surprised that members of the committee think that an "implement" would be used to damage shellfish. After all, this order is not to protect shellfish growers. It is to allow fishermen to fish in areas where they have not been allowed to fish, except for mid-water fishing. Therefore one would think that they would be allowed to use equipment, which changes from time to time. I do not see what the minister's argument is about.
As far as I understand it, the amended section would read "in the case of several fishery, an implement of the type specified in the order and which is used in a manner intended not to damage, disturb or injure in any manner shellfish of the description in question." I would have thought that that was sensible.
Suppose that an implement such as a creel is changed and is less damaging, but does not fit the description in the specified order. Someone would have to come back to Parliament and go through this palaver all over again in order to be allowed to use a specific piece of equipment. That is what I am trying to avoid.
There was something rather misleading in the text that Jamie McGrigor read out. He read out what he understood to be the effect of the amendment, leaving in a reference to the order. The trouble is that his amendment would leave out the provision for an order specifying the nature of the equipment.
When I spoke to the clerk to the Rural Affairs Committee, we agreed that a reference to the order would be included.
I am sorry, but it is not.
On a point of order. I thought that Mr Home Robertson and Jamie McGrigor were summing up, rather than entering into another debate.
I apologise. I was trying to clarify matters.
Do you have any further comments, Jamie?
No, none. I have been sent the text of the bill as it would read if my amendments were agreed to. Under my first amendment, section 1 would read:, "in the case of several fishery, an implement of a type specified in the order and which is used in a manner intended not to damage". The words "of a type specified in the order" would, therefore, remain in the bill.
That is the second amendment.
No, it is the first amendment. If it is not, what I have been sent is entirely wrong.
It has been pointed out to me that, although that may have been first amendment that you lodged, the two amendments have been printed in reverse order, as that is the logical order for them to follow.
In that case, I must apologise. I had no idea that the order of the amendments had been reversed. In the circumstances, perhaps I should seek to withdraw the amendment.
That would be a good idea.
Are you indicating that you wish to withdraw amendment 1, Jamie?
Yes.
Amendment 1, by agreement, withdrawn.
Amendment 2 not moved.
Sections 1 and 2 agreed to.
Long title agreed to.
Stage 2 of the bill is now complete. As the Deputy Minister for Rural Affairs said, this is the first member's bill to complete stage 2 in the Scottish Parliament. We congratulate Tavish Scott on his achievement. Well done.
Hear, hear.