Rural Development Committee, 15 Jan 2002

Meeting date: Tuesday, January 15, 2002

Official Report 313KB pdf

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Subordinate Legislation

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Inshore Fishing (Prohibition of Fishing for Cockles) (Scotland) Amendment Order 2001 (SSI 2001/449)

Ladies and gentlemen, welcome back. I apologise to the minister for keeping him waiting, but the convener's need of a comfort break was probably greater than anybody else's. I point out to members that the minister must leave at 5.15, so I would be grateful if we could conduct our business within that time scale.

Agenda item 3 is renewed consideration of an instrument subject to the negative procedure. I welcome the minister and thank him for giving up his time to come here today. The Inshore Fishing (Prohibition of Fishing for Cockles) (Scotland) Amendment Order 2001 (SSI 2001/449) was discussed by the committee on 18 December. Members will have received a copy of the minister's reply to the letter that I wrote following the evidence that we heard from witnesses on that day.

It is fair to say that members were concerned that the scientific basis for the ban, which was explained to them on 18 December, was not clear enough for them to come to a concrete decision. Since then, we have received a considerable amount of extra information: the marine laboratory report, to which the Executive officials referred; the RSPB Scotland research paper on hand gathering; the Solway firth shellfish management plan, which was submitted by Jim Smith from Dumfries and Galloway Council; and other items of written evidence, including a letter from Russell Brown MP, who is the local MP for the area, who opposed the ban. The clerk has also received the responses to the consultation that the Executive undertook before the order was made and those have been circulated to the members who requested them. We have therefore received the further background information for which we asked on 18 December.

I invite Ross Finnie to speak to us.

I apologise if the amount of information that was available was insufficient for the committee's purposes when it first considered the issue. I am sorry if that gave rise to confusion about the basis on which we laid the order.

The matter is relatively complex but I will turn to the essentials. Our decision is founded on the material that is contained in the marine laboratory report, which sets out the position in some detail. As the report explains, the crucial fact is that the reported cockle biomass shows a substantial decline, which has been rather more dramatic in the past year than in previous years. Allied with poor recruitment, that means that the biomass in the fishery is, in the opinion of our scientific experts, now so low that any further fishery exploitation is unsustainable and cannot be contemplated.

I want to make that quite clear. The biomass has reached a critically low point—below even the level at which there have previously been closure orders in the area. According to the advice that I have received, which we place before the committee this afternoon, I cannot underscore heavily enough that we are at a level at which any further exploitation of the fishery is unsustainable.

A considerable amount of time has passed since the report was prepared. In response to concerns that were raised at the committee's meeting of 18 December 2001, during which it was suggested that we had rushed into the measure, I stress that we consulted on the closure in October 2001. The committee discussed the level of exploitation and uncertainty about the biomass. Mr Ewing was concerned about the imprecise nature of the figures. I do not think that the exact amounts are relevant. The issue on which we must focus is that, at the current critical level, any exploitation of the biomass is not sustainable; the issue is not that exploitation might be sustainable at a certain level. The level has dropped to a point at which the scientific advice is that further exploitation of cockles in the area is not sustainable.

We understand the concerns of those involved. Many people have benefited from the improvements that resulted from the closures of 1992 and 1994. We are concerned that some of the pressures on the Solway stocks might be a result of displacement because of cockle stock closures in parts of England and Wales. I deeply regret that, but it is a fact of life.

I want to pick up on one or two other points that were raised at the committee's meeting of 18 December and which I read in the Official Report. At no stage have we suggested that the collapse of the biomass from 13,400 tonnes in May 2000 to 6,400 in May 2001 is solely a result of hand gathering. Additional elements might be natural mortality, predation, the environment or geophysical effects. However, the central argument is unchanged. If we close the cockle bed and continue to monitor it, we might find further information to show that natural elements are at play. That does not obviate the need for our saying that, while stocks are at a critical level—6,400 tonnes of biomass—we cannot afford to take the risk of allowing the fishery to be fished out. The situation has parallels in a range of other areas where sustainable fishing is a concern.

We are aware of the local efforts to produce a regulating order. I will deal with the matter head on. I deeply regret that a regulating order has not emerged, but that is the fact of the matter. I wish that one would, but the process of introducing an order could take several months. In the absence of a formal application, or of that process having started, the option of a regulating order—which might have given rise to a number of possibilities—is, regrettably, not open to me. Therefore, the matter is not wholly relevant. I deeply regret the departure of Mr Geddes and his group from the process. During the past three years, they have been important to it.

It has been suggested that we have been pushing dredging. I do not know where that suggestion emanated from; it is not an Executive policy and I do not think that the suggestion is supported by our actions. As the convener made clear, we are not considering a regulating order or a management plan. However, I put on record that it is a pity that a regulation was not proceeded with.

To summarise, Nick Bailey and the report found that only just over 6,000 tonnes of cockles were left on the Solway grounds in May 2001. The biomass is widely scattered. The evidence is that recruitment is poor and that a significant proportion of what is left is being removed. Such removal would not be countenanced in any other part of the European Union. We received the scientific advice in September and consulted in October. On the basis of the assessment that action is urgent, we firmly believe that we must—with regret—prevent degradation and over-exploitation. In laying the order, we have taken a responsible decision, which is in the interests of a sustainable future for the fishery—that is our objective. I am cognisant of the human impact, but there will be no cockle fishery unless we take suitable action to protect the dangerously low biomass in the cockle fishery.

I thank the minister. Scottish Natural Heritage applied for a temporary closure order, I think, last April—if not, it was in May—which would have stopped fishing on the beds in the summer. If that had been done, closing off the entire bed might have been prevented. Why was the temporary closure order never implemented? Was it held up in the bureaucratic processes to which you referred in relation to the management plan? Had the order been implemented, we might not be where we are.

We are not sure about that. It is regrettable that the report, when it hit the light of day, revealed a much more dramatic fall than there had been previously. There are reports every year and anyone who has read them will have observed a decline. The decline was much more substantial than previously. We must proceed on a scientific basis. SNH expressed concern about that. A solid basis on which to proceed is required to explain a closure order. The report gives us the necessary information.

If the order is necessary to prevent the extinction of cockles in the Solway, we would be crazy to oppose it. Shortly before our meeting in December began, we were presented with information that did not appear to contain any reliable information about the quantities of cockles taken by hand gathering. Do you have a reasonable estimate of the tonnage of cockles taken by hand gathering in each recent year?

Not in all the years. As you know, there is no measurement. I accept that the figure might be somewhere between 1,500 and 2,000 tonnes, which might represent only about 30 to 35 per cent of the total degradation figure, but that is not the point that I am making. Even if the actual figure is at the lower end of that scale, the biomass is at the critical figure of 6,400 tonnes.

I cannot do anything to interfere with natural occurrences, although I would like to find out more, but if natural events are taking place in the Solway firth, a year of measurement may give us some clues as to why. However, now that the biomass has reached 6,400 tonnes, even if natural phenomena are occurring, I cannot take the risk of allowing anything in the order of 1,500 to 2,000 tonnes to be extracted by natural fishing. The biomass has reached a critical level and is in danger of not recovering.

Is the minister absolutely confident that the biomass has been diminished to that extent and that, at May 2001, it was definitely 6,400 tonnes or thereabouts?

Yes. That is the clear opinion. It is not an isolated report; survey work is carried out annually and the same methodology has been applied. One cannot be absolutely precise, but we are reasonably satisfied. The objective is not to close the fishery. The objective of the work is to provide us with sufficient information so that we can be confident about the fishery continuing. The report has revealed a dramatic collapse in the biomass. It would be irresponsible of me not to take prudent action.

I understand that. I am sure that you have been informed that the report was not circulated to members of the committee.

I prefaced my remarks by apologising for the paucity of information.

Mr Robert Geddes raised a specific point in his evidence on 18 December. He said:

"The cockles that we take are 30mm plus. They are old cockles; their removal does not affect rejuvenation".—[Official Report, Rural Development Committee, 18 December 2001; c 2652.]

What is the minister's view on that?

That is slightly partial. One must consider the area as a whole. The report makes clear the dispersed nature of the biomass. For us to be confident about the recovery of the biomass, what is important is not what is removed, but the absence of new growth. The absence of new growth against the background of critically low biomass and the absence of evidence of class in 2001, 2000, 1999 and 1998, contribute to what is quite a complex issue. The report gives the opinion of our scientific people in relation to how one judges the viability and sustainability of the cockle biomass.

I listened with care to that answer. It is unfortunate that it differs from the view of Mr Geddes and the scientists with 50 years' experience whom he employed. Their assertion was that the removal of old cockles would not affect the position or threaten the biomass. If the minister is saying that he is absolutely sure that that assertion is misplaced, we are left in the position of having two sets of scientific advice, which seem to be diametrically opposed. We are in the unfortunate position of being asked to effect a ban that might put out of work 80 people and cut the money that pours into the rural economy.

I am sorry. I was trying to talk about the total situation. I do not wish to get into a personal argument with Mr Geddes. However, I have to say that if one considers the biomass as a whole, the removal of older cockles contributes to its deterioration. Nick Bailey could perhaps confirm that. There is a conflict between the two views.

I agree with Fergus Ewing's comments. Is not having a fishery that employs 80 people as hand rakers, who have a system whereby they pick up only the two-year-old cockles, preferable to reintroducing boats, which in many cases seem to have caused the problem in the first place? Boats drag everything on board and although the cockles are riddled, a great many are damaged and fall back onto the sea bed. Does the shellfish management plan seek to reintroduce boats rather than look after the more important interests of local hand pickers?

I am sorry, but I have to interrupt. The discussion is not about the pros and cons of the management plan; it is about the proposed ban on all cockle fishing that was introduced on 1 January.

Okay. In that case, is the hand pickers' method of fishing, which is to pick up two-year-old rather than one-year-old cockles, sufficiently detrimental to force the minister to close the fishery? The one-year-old cockles breed the best. The evidence does not seem to show that, in the past, hand pickers have done the damage; it seems to have been caused by boats and tractor dredgers. If that is the case, I ask the minister to keep the fishery open to local cockle rakers, who otherwise will be put out of employment. I understand the conservation issues, but the hand pickers are not the cause of the problem.

The difficulty with Jamie McGrigor's assertion is that boats were banned in 1992 and tractors in 1994. I return to my original proposition, which is that hand pickers are contributing to the reduction. The problem may not be simply local—displacement from other areas may be taking place. There is no suggestion that we should revert to the past scenario, as boats and tractors are banned.

We can argue about the odd tonne here or there, but the report revealed that the biomass has reached a critical level. Although I appreciate that a management order is not what is in front of us, such an order could have given us the power to give a local management group the specific controls to do what needs to be done. We do not have such an order, so we are faced with the proposition that, in addition to local hand gatherers, outside hand gatherers are involved.

In its present condition, the biomass cannot sustain the fishery. I do not come to that decision lightly. I am extremely concerned that we have reached this point. However, if there is to be a future for the hand gatherers, we have to protect the cockles and take action to ensure that the fishery is sustainable. As Jamie McGrigor knows well, that situation is mirrored in Scotland's other fishing interests.

I am sorry to refer again to the shellfish management plan, but it sets out—

I am sorry but, as neither the Scottish Executive nor anyone else has agreed the plan, there is no point in saying that we are pursuing the plan actively. If someone suggests dredging, I will oppose that. I cannot comment on a draft plan that is produced by other people. I am not about to promote actively a form of fishing that would be more dilatory and damaging to the fishery. My personal view is that I wish to give some sort of future to the local people, but if the biomass continues to deteriorate at the present rate, they will have no future.

I would like to expand on a point that you made about outside hand gatherers. I am sure that Alasdair Morgan and David Mundell would back up the fact that many of this year's problems, in particular with the biomass of the cockle beds, resulted from the number of outside hand gatherers who came into the area. The minister rightly made the distinction between local hand gatherers and outsiders. There may be 50 to 80 local hand gatherers, but this year we have seen scenes of well above 200 people fishing the Solway beaches. That is part of the problem.

I understand that genuine, full-time local hand gatherers require a total allowable catch of approximately 350 tonnes per annum. Would not it be possible to consider a local licensing scheme to protect local jobs, by introducing a local TAC of 350 tonnes? I cannot believe that that would be detrimental to the overall biomass of the area. Has a temporary scheme been considered?

Further applications for an increased TAC might then be received from the other side of the river. It is difficult to give precedence to applications for low levels of catch when we do not believe that the biomass can be sustained without taking action.

The idea of having a regulating order is to establish an overall, agreed management system. No one has a specific right to the cockles. Many interests that have fished in the area in the past would argue that they have a historical right to return there, following its closure to boats and dredgers. We have been working towards bringing the various groups together, so that they can agree on a form of management. Putting in place a fair and proportionate management system that allows for micromanagement on the scale that the member suggested would be very challenging and resource intensive.

In this instance, it is a distinct advantage not to be familiar with the fishery or the area. My view is based firmly on the evidence that I heard at the end of last year and on Mr Finnie's opening remarks. I understood Mr Finnie to say that any exploitation would result in the total destruction of the fishery. Will he confirm that?

Regrettably, we believe that that is a real danger if the biomass falls much below 6,400 tonnes. Although there may be external factors at play here, we cannot contemplate human intervention at the level suggested. That would reduce the stock further.

On the basis of that statement and the evidence that we heard last year, I have no doubt where I stand on this matter. However, I would like to secure two assurances from the minister. First, the decision will have an immediate impact on employment. Will the minister, in conjunction with the Minister for Enterprise, Transport and Lifelong Learning, ensure that local agencies play their full part, in the normal way? Secondly, if an application for a regulating order is made, will the minister and his officials ensure that the order progresses as swiftly as possible through the Scottish Executive Environment and Rural Affairs Department?

I can give an absolute yes to both questions. However, as I have indicated, even with our best efforts, it will take time to put in place a regulating order; local consultation is a lengthy process. Although that is not the matter before us, I wish that we had an order in place. It would help us to manage the diversity of the biomass and would make it possible to consider isolating certain parts of it. A lot of local management control is needed to ensure that objectives are met. It is much more difficult, if not impossible, to do that by general orders of the kind that we are contemplating today.

I understand that the minister has a difficult decision to make. However, given that the view has been formed that 6,400 tonnes is an unsustainable biomass, someone must have worked out a figure for the biomass that would allow some kind of recovery to recommence. What is that figure? The introduction of a regulating order is surrounded by all sorts of problems, and I cannot see agreement being reached on that within a meaningful time scale.

If the survey for next year or the year after that shows that the biomass has recovered to the figure that I hope the minister will be able to give us, is any option open to him, other than simply to reverse the order that is going through Parliament at present? Can a local licensing system be introduced to allow at least some of the local hand gatherers to get back into the fishery, once the figure reaches a sustainable level?

There seems to be a lot of uncertainty about the effects of hand gathering on the sustainability of the crop. Could you put in place a scientific investigation so that, when we discuss this issue again, we will be able to do so with more certainty?

You asked several quite difficult questions. Our position on the matter is that there is no doubt that the removal of older cockles contributes to the imbalance in the biomass. Therefore, without having a precise scientific assessment of the levels, we still say that the removal, fishing or exploitation of those stocks has a detrimental effect.

You asked at what point we would reintroduce or reverse the order. That is a difficult question, without prejudice to the separate question of how we could do that. One can talk about broad levels, but, in the lead-up to today's meeting, Nick Bailey and I discussed the difficulties both of establishing the total and of satisfying the scientific advice that, within that total, sufficient numbers exist within the classes of cockles at various ages to make us confident that the reproductive phase will happen. I am sorry if that sounds vague, but a scientific assessment of the figures must be made. However, it is perfectly possible that, over a period, we could get back to the situation that you and I wish for. There is no point in keeping fisheries closed just for the sake of it; scientific assessment of the situation must be made, and we are carrying that out.

Your key question was whether we could introduce legislation to confer a particular right on a class of people. That would be slightly difficult, in so far as the population has a general right to fish. Of course, that is the purpose of having regulatory orders. In a mini-referendum of those who live in an area, one might find that local people are prepared to promote an order that takes account of the various interests in that locality and that confers specific rights on local people. However, it is much more difficult to do that the other way round. As I understand the situation, that is the difficulty that my officials have been in. I would be slightly depressed if your opinion was that it will be difficult to get those people round to that view, as I seriously believe that that would be by far the best approach to the introduction and implementation of legislation.

That approach would lead to local management control over the fishery, which would allow people to take specific decisions about areas of the biomass, to manage geographic areas and to impose penalties on those who breach the legislation. It would be much easier to take such an approach, which, although complex, would be negotiated at the local level, than it would be to construct a statute that would confer particular rights without giving rise to a precedent for other parts of Scotland.

Given the comments that you just made, minister, and the clear determination to press ahead with a ban that you expressed in earlier comments, might you or your officials not have a role in trying to bring together the interests? That approach, which would fall short of implementing the formal regulatory order, would allow you to see whether a way forward can be found that would have everyone on side, both scientifically and in relation to the development of a future for hand gathering. Once the ban is in place in isolation, how will we sustain the hand gatherers so that they can come back to the fishery when the regulatory order is in place? I do not see mechanisms being put in place to ensure that that happens. One of the frequently expressed concerns is that, if we got to a stage at which gathering was to be allowed again, the local hand gatherers would no longer exist because economics would have forced them out. Large commercial concerns would come in to gather.

You talk about the abstract notion of the minister and officials trying to dragoon in some kind of scheme. I am not sure that that is helpful because, as far as local management arrangements are concerned, what we really want is that the orders be approved by or at least passed through the ministry. I know of some of the impediments to that. Perhaps more knocking of heads together at a local level is needed. As I said, I was slightly depressed by Alasdair Morgan's comment, although I am conscious of the difficulties that have emerged.

It seems to me that the problem must be tackled at a local level. If it is going to be resolved, it has to be resolved from the bottom up, not the top down. That is the danger of ministers becoming involved. Ministers will ultimately have to present regulating orders for approval. We are becoming judge and jury. If that does not work, we will not sustain the fishery. There has to be a slightly bigger effort at a local level.

I appreciate what you are saying. One would wish to preserve the rights of the local people on the matter for historical reasons and for current employment reasons.

Whom do you envisage doing that at a local level? Alasdair Morrison referred to support from agencies. What role will the agencies have in keeping the tradition alive—for want of a better expression—pending a resolution?

I have not heard recent evidence other than the evidence that was given by Dumfries and Galloway Council. We are talking about Scottish Natural Heritage and the Solway Shellfish Management Association. We also have the complication that, to make the order more effective, we have to deal with the Cumbrian side of the firth. Perhaps a new form of local forum is needed to get across the message that the fishery is more likely to open more quickly, at least in part, under a regulating order. I do not wish to pass the buck back, but local members who are present may have a role to play in emphasising that point. The council has played a pivotal role. That its efforts have not resulted in the production of or an application for an order is extremely disappointing. I am not blaming the council. I am merely saying that the situation is disappointing.

On the regulating order that Mr Fleming mentioned, one of the greatest concerns is that if the fishery is eventually opened to boats, only Scottish boats will be able to be boarded because of the interaction between Scots and English law. Boats from elsewhere in the United Kingdom can fish willy-nilly as much as they like. As boats have a track record of only about five years of cockle dredging in the Solway and hand gatherers have a track record of at least 100 years, surely it would be more sensible to have a regulating order that gave more attention to hand gatherers and did not open the fishery to any boat to fish anywhere, which would not be in the interest of conservation.

When we receive an application for a regulating order from a local fishermen's management group, for example, we must take on board a large number of issues, among which are the sustainability of the fishery, details of previous historical rights to the area and a great deal of science.

I mentioned track records.

I am unwilling to go into that sort of detail before we have even seen an application.

I make it clear to Mr McGrigor that the Executive is not promoting an order that seeks to rejuvenate fishing by boat or dredging. That might be in the plan. If so, perhaps other people should tell the people who are putting together the plan that that is a daft idea.

As Neil Fleming has just said, after the plan has been put together, in the regulating order we will have to take account of what is in the best interests of the sustainability of that fishery. If hand fishing is the obvious sustainable element, it will be given more credence.

To clarify Jamie McGrigor's point, unless I am mistaken, the fisheries protection police can board any boat in Scottish waters, but outwith Scottish waters can board only Scottish boats.

My question to the minister is about his earlier comments regarding displacements from English and Welsh cockle beds. Can he elaborate on that? Does that mean that one reason why stocks have gone down locally is because of people coming in from outwith the area? Or is it a question of local people going down to English and Welsh cockle beds and having to come back up?

I do not know. All we know is that there has been a recorded fall in the biomass. Part of that must be accounted for by the degree of fishing. In the committee's most recent hearing, the local fishermen gave evidence that their fishing amounted to relatively little. I acknowledged that it is perfectly possible that, because the Solway firth is close to other cockle areas, which were closed, the fall in biomass in the Solway firth might be part of a displacement process. However, trying to control and manage that without having an order in place is extremely difficult.

In pursuance of Alasdair Morgan's point, would the minister favour a system that ensured that local people benefited from local stocks?

We are back again to the fact that that would be the most likely outcome of a developed regulating order.

Through a licensing system, for instance?

A regulating order that is managed locally will almost inevitably give rise to local management giving preference to those who are party to the management plan.

I have a small question of clarification that follows on from what everyone else has said.

Your view is that if a local management plan were available at the moment, it would have to close the area to fishing altogether, regardless of what was in place, because the biomass is so low.

The answer is clearly yes. There is no question but that the biomass has fallen too low. If a management plan were in place for the clear management of that fishery and if the report in any given year indicated that across the spatial dispersion of the biomass particular areas were recovering more quickly than others, it is more likely that some of those areas could be reopened, with the clear understanding that that could be controlled through the measures and agreement of a local management plan.

I think that members are now content that they have asked the questions that they wanted to. I am sure that the minister and others will have noted the sincere reservations that have been mentioned by many members around the table, but I do not detect—the committee will correct me if am wrong—a desire to oppose the statutory instrument, despite the fairly severe local consequences that it will have.

The minister said—I completely agree—that he would encourage the hand gatherers to get back into the negotiating circle and to participate in drafting the management plan, so that the regulating order can be introduced at the earliest point. Is that a correct synopsis of the committee's position?

Members indicated agreement.

In that case, members have no further recommendations to make to the Parliament on the instrument.

May I suggest that brief comments will be drawn up by the clerks for the committee report, based on the Official Report. That will reflect both the original view, as expressed on 18 December, and the view expressed today following the minister's evidence. Is that agreed?

Members indicated agreement.

Thank you for your time and for explaining things to us, minister.

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Sheep and Goats Spongiform Encephalopathy (Compensation) Amendment (Scotland) Order 2001<br />(SSI 2001/458)<br />Rural Diversification Programme (Scotland) Amendment Regulations 2001 (SSI 2001/484)

Item 4 covers two further items of subordinate legislation. No members have intimated that they wish to comment on the instruments. Are members content with the instruments?

Members indicated agreement.