Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 (SSI 2000/7)
Members have been informed that there is an additional item on today's agenda. A motion for annulment has been lodged against the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000, and the Deputy Minister for Rural Affairs, Mr John Home Robertson, is here to participate in the debate on that motion. He will not be entitled to vote. We have another guest, Robin Harper, who is here to deal with a later item on the agenda.
Standing orders allow us up to 90 minutes for a debate on the annulment of a motion. Mike Rumbles will be glad to hear that I do not propose to take a full 90 minutes.
Hear, hear.
I have set aside 30 minutes for this item. We are not required to take the full 30 minutes—if we make faster progress, I will be happy to move to a vote when it seems logical to do so. I ask Richard Lochhead to move the motion.
I thank the minister and his officials for coming along to our meeting this afternoon. I would have preferred not to lodge the motion that is before us. In moving the motion, I draw the committee's attention to the procedural anomaly whereby I had to lodge a motion to annul the whole statutory instrument when I am—and, I believe, the fishing industry is—opposed to only one small element of it.
To a certain extent, we are rehearsing arguments that were gone through at our previous meeting, when I voiced two concerns about the order. The first related to the transportation of sales documents from the quayside, and the second to the extension of the powers of the fisheries officers at the ports. A few days ago, I wrote to the minister to ask whether there was any possibility of concessions, so that I would not have to lodge the motion that is before us. I was delighted that the minister gave the industry and myself assurances on the transportation of sales documents; I believe that the committee has a copy of the letter that I received from the minister.
The one outstanding issue is the extension of the powers of the sea fisheries officers, who will be able to obtain warrants from the sheriff to search fishermen's premises. The fishing industry opposes that, and I sympathise fully with its reasons for doing so. We must bear in mind the fact that the provision was not included in the previous order, and that we have been given no justification for its inclusion in the new order. I have been informed by the Scottish Fisheries Protection Agency that, even if the power had existed since 1993, there are no circumstances under which it would have been used. I have also been informed that it is unlikely to be used if it is introduced under this order. That begs the question why it should be included in the order, given the on-going concern in the industry about the number of regulations that impose a burden on our fishermen. In the past, the minister has agreed that we need to review the number of regulations that our fishermen come up against. The regulation that we are debating today is not required by Europe, but is being applied unilaterally by our Government. As members will be aware, there is an on-going concern that the Government is overzealous in its application of regulations to the industry.
There is also a general concern about the delicate relationship between fishermen on the ground and the fisheries officers. I understand that a good working relationship exists between fishermen and inspectors at the moment, and I would not want that to be jeopardised. If the power is granted to fisheries officers, it will turn them into another police force. Fisheries officers tell me that even if they were to use the power that the order would give them, the police would be there when they did so. It is almost 100 per cent certain that, if the power to obtain a warrant to search a fisherman's premises is used, the police will be there in any case. The police have the power to get the warrants at the moment; the fisheries officers do not. Again, that begs the question: why does the order contain the new power?
I have posed some questions and I am keen to hear the committee's views and the minister's response to those questions.
I move,
That the Rural Affairs Committee recommends that nothing further be done under the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 (SSI 2000/7).
I invite the Deputy Minister for Rural Affairs to address the issue, before I open the subject to other committee members to develop points or ask questions.
I thank the convener for his welcome and Richard Lochhead for raising the issue.
I welcome the committee's interest in this statutory instrument. It is important that committees should scrutinise subordinate legislation properly; I confess that that does not always happen at Westminster. In my experience, statutory instruments can go through on the nod without anyone examining them properly, so I welcome the clear intention of Scottish Parliament committees to do a thorough job. That is an important part of their function and ours in the Executive.
When the order landed on my desk, my first questions were whether the industry had been consulted fully and whether there were any outstanding objections. I rebut Richard Lochhead's suggestion that I am deliberately seeking to be overzealous in enforcement action against the fishing industry—quite the opposite. The answer that came back was that the industry would prefer to do without bureaucratic hassle but that, because there must be restrictions on the catching and landing of fish, everybody understands the need for appropriate control procedures.
European Council regulation 2846/98 requires every country to implement certain measures to comply with our duty to stop the marketing of black fish. This statutory instrument has been drafted to fulfil that obligation, following consultation with fishing, marketing and processing interests.
Industry representatives have expressed understandable concern about the apparent requirement to produce and carry large quantities of paper, which could obstruct busy marketing and processing operations. However, my officials have assured the industry repeatedly—we did so again by letter last week—that we will not require people to generate and carry documentation with consignments of fish in and around markets and local processing premises. Nor will such paperwork necessarily have to be carried when loads of fish are being taken further away, although, as Mr Galbraith explained to the committee on 18 January, it might be wise for hauliers taking fish outside the UK to be able to produce at least basic documentation that shows the place and date of consignment.
What is essential is that the relevant information is kept in an appropriate format by the merchant, so that detailed documentation can be generated if required. There is a good reason for that requirement: we all know that it has been far too easy for over-quota black fish to be trans-shipped on to lorries, and that our sea fishery officers have not been able to take action once vehicles have moved inland. The European Union is right to insist on action to tackle that problem, and this regulation will give Scottish fishery officers the powers to require hauliers or merchants to prove that fish on their vehicles have been sold through an authorised outlet. Most of the fish exported from Scotland goes by road either to or through England, so that traffic will be subject to identical regulations in any case. It is probably better for people to deal with their own enforcement agencies.
I have discussed the matter personally with people from the Scottish Fishermen's Federation and with fish merchants. I spoke to Bob Milne in Aberdeen last week and was able to reassure him that our fishery officers will not require documentation to be carried with consignments of fish. I got the impression that he and his colleagues were satisfied with that assurance. However, I emphasise that we have a duty to impose effective controls to stop the movement of black fish, and I will not shirk that responsibility. If I have understood Richard Lochhead correctly, I think that he supports that position.
I accept that.
The subject of power of entry to premises has never been raised with me at meetings with the industry, although I am advised that it was included in a written list of points submitted by the SFF. My instinct is always to give priority to civil liberties, and I understand that the reinstatement of that power could give rise to certain anxieties. However, I am satisfied that the Scottish Fisheries Protection Agency would seek to use that power only in extreme circumstances. Authorisation would be required from the agency's chief executive and, as Mr Lochhead has said, a warrant for such action would have to be obtained from the sheriff. I am assured that the measure complies with the European convention on human rights—we are getting used to that one. In addition to the police, Customs and Excise officers and Inland Revenue officers have similar powers.
Frankly, I do not want to see the powers exercised, but I accept that circumstances may arise in which it is necessary for fishery officers to obtain material that is held on private premises in relation to illegal landings of fish. Richard Lochhead said that he could not envisage any circumstances in which that would be necessary.
The fishery officers told me that.
Nobody wants to use the power, but it was used in a case in 1991-92 because it was the only way of obtaining the information required to secure a successful prosecution. After that, the power lapsed because, due to an oversight, it was not included in the last round of regulations. We are reinstating a power that existed before.
In conclusion, if we are serious about conserving Scottish fish stocks, I am afraid that we must accept the responsibility for reintroducing the powers that were in place until 1993. Honest fishermen have nothing to fear, but we must give our fishery officers adequate powers to deal with the illegal black fish trade. I hope that the committee will endorse the regulation.
I shall now allow anyone who wishes to speak for or against the motion to do so. If any members want to seek clarification, they should address their questions to the minister. His officials are on hand to advise him, but questions should be addressed to the minister alone.
I want to ask Richard Lochhead a couple of questions, as he lodged the motion.
First, does he recognise that the Executive and the Parliament have a duty to control effectively the black fish problem? He said that the Government—I assume that he means the Scottish Executive—is overzealous in its regulation of the industry. Indeed, the minister referred to that comment. Will Richard enlighten us on those two points: first, whether we have a duty to control the black fish problem; and secondly, what examples there have been of the Executive's overzealous regulation of the industry.
The statutory instrument is full of regulations that are aimed at ensuring that there are no black fish. The fishing industry in Scotland accepts that we must implement those regulations. There are many regulations; I am highlighting one particular controversial measure for which I believe there is no need.
There are other examples of the Executive's overzealousness in controlling the industry. We are not debating that today; we are debating the particular element that I have singled out. I could cite designated ports given the introduction of satellite monitoring, which we will be discussing later, as an example of a regulation that we could do without, but my concern centres on this particular controversial measure. I would be happy to debate at any time the number of regulations on the fishing industry. Today, however, we are trying to decide whether, of all the regulations in the document, this one is needed, or whether it will worsen the atmosphere at the quayside by extending to fishery officers the sort of powers that are currently available to the police.
Richard's later comments are revealing. He seems to be in favour of stopping black fish so long as that does not involve powers of entry, satellite monitoring or designated ports. That is an interesting proposal for dealing with black fish and I would be interested to know what methods it would leave us with.
In common with other committee members, I received a letter on documentation from the Scottish Fish Merchants Association. Like the minister and other members, I have had discussions with that association, and I have tried to represent its concerns and discuss with the minister how they might be answered.
Apparently, the association had legitimate concerns that the form filling that might be required under a pedantic interpretation of the legislation would impose an unnecessary burden on buyers and processors, which would be an inhibition of trade and bad for the Scottish fish processing industry.
It is worthy of note that the minister was able to answer those concerns and to make clear that the way in which the regulations would be interpreted, in relation to documentation, would be sensible and based on what was required, rather than on a pedantic interpretation. In other words, there will be no requirement for an Aberdeen fish merchant who buys fish at Aberdeen harbour and takes it 100 yards up the road to the nearest fish processing plant to show documents to a fishery officer. That is sensible.
It is clear, from conversations I have had with the Scottish Fish Merchants Association over the past two or three days, that the association is content with what the minister has said and with the interpretation that has been put on the order.
In contrast, I have not been approached by anybody from the industry, or seen any written expression of concern from any part of the industry, on the powers of entry of fishery officers. In our discussion two meetings ago, I asked the officials from the Scottish Executive rural affairs department about the industry's views and they confirmed that sectors of the industry had given different views; there was no general view.
We all recognise the important relationship between fishery officers and the fishing industry. I like to believe that that relationship is generally in good order, as was described. However, anyone who knows the fishing industry will know that that has not always been the case. There have been occasions in the past when fishery officers have been subjected to significant intimidation while carrying out their work. That is by no means typical of the Scottish fishing industry, but it would be foolish to suggest that fishery officers are somehow overzealous, bureaucratic officials who impose unnecessary regulations and abuse their powers, at the expense of innocent fishing vessel operators and catchers.
The truth is that the vast majority of people who work in the Scottish fishing industry are honest, do a decent day's work and, as a consequence, enjoy the protection of the law. We want to keep it that way. There is nothing in the order that in any way takes away from the civil liberties of those people who are going about their lawful business in the fishing industry. There is no reason why the committee should support Mr Lochhead's motion.
I would like some clarification about the removal of the order in 1993. The removal has been referred to as inadvertent, which makes it sound as if it was an administrative oversight. Is that what happened? If so, could it be inferred from that that the powers have not really been missed or needed for seven years? If they had, efforts would have been made to reinstate the order much sooner.
I too am genuinely puzzled about that. Ms McGugan will not be surprised to hear that that was one of my questions on the subject. The removal appears to have been a genuine drafting oversight; I grant you that that is surprising. I understand that, because of the fallback powers—that the police could be called in if necessary—it was not regarded as a big deal at the time. However, there was that case, in the year immediately preceding removal, when the powers were necessary and were used.
There is a case for extending the power to fishery officers, who know fisheries legislation better than the police. Now that we are introducing new regulations to fulfil the wider EU law, this is seen as an opportunity to put back something that was left out by an oversight back in 1993.
Richard Lochhead's motion seeks to annul the entire piece of subordinate legislation, not just the section with which he disagrees. What would be the consequences of that annulment? What would the implications be for our relationship with the fishing industry in the rest of the UK, and indeed in the rest of the European Union?
If we were to throw out the baby with the bath water on this, we would be in impossible territory. We would not have effective controls in place in Scotland and that would make us look ridiculous in relation to the rest of the European Union and our colleagues elsewhere in the United Kingdom. Our colleagues south of the border would immediately take a close look at shipments of fish from Scotland. We could not get away with that. If the order were to be thrown out, we would have to reinvent it immediately, because we would be in breach of a range of European laws.
That is the point, is it not? It would be possible for the minister to bring back an amended version tomorrow if he so wished. I realise that some speakers have cleverly moved the issue on from what we are talking about today—the extension of the powers of sea fisheries officers—to the wider debate. We are not here to talk about the wider debate; we are talking about one particular power. I am putting forward the case that the minister should bring back an amended version of the order.
I started by asking Richard Lochhead whether he believed that we had a duty of effective control of the black fish problem and whether he could give us examples of the Executive's overzealousness in its regulation of the industry. I do not think that he answered those questions; all he did was point to the number of regulations. When ministers get things wrong, I am more than happy to give them a hard time, but it is different when they get something right.
The letter to Richard from the minister says:
"It would not be the intention to use these powers, other than in the most exceptional circumstances and the requirement to apply to a sheriff for a warrant provides protection against their unreasonable or excessive use . . . similar Orders are being made for other parts of the United Kingdom."
It is remarkable that Richard has brought this particular issue to the committee—I am surprised that the committee is dealing with it. I do not think that Richard has made clear the reasons why he is doing it; to me, it is an open-and-shut case.
I like to try to put discussions in context. Perhaps the minister's officials could confirm this, but if I remember correctly—and it was a guess on the part of the Scottish Fisheries Protection Agency—the agency's own figures show that the tonnage of black fish landed in the fishing year 1997-98 was roughly 30 per cent of the total tonnage.
By definition, the figure is a guess—we cannot measure black fish. It is not properly accounted for, but in the past it has been a serious problem. At present, we are worried about the fact that there is evidence of over-quota landings of nephrops. We need to tackle that.
I want to rebut one of Richard's points. He seems to be trying to portray the Executive as keen to impose draconian controls on the fishing industry just for the hell of it. That is just not true. I would be far happier if we could do without all this stuff. I would far rather—if I dare say so in the presence of the chief executive of the Scottish Fisheries Protection Agency—not have to spend so much money on enforcement. However, I am afraid that it is necessary to do so because of evidence from the past.
There has been a lot of black fish landing. It is no good agreeing on measures to control the exploitation of fish stocks in the North sea and around our coasts, if we then shirk our responsibility to enforce those controls. That is what this is all about. I would be a lot happier if we could do without the power, but we need it—that is why it is in the order.
The minister and a couple of other contributors suggested that this measure is essential to combat the black fish trade. If that is the case, why has it been used only once in 10 years? Why is the head of the fisheries agency telling me that he could not envisage a situation since 1993 in which the power would have been used and that he could not envisage it being used in future, if it were reintroduced?
My argument is that this will cause the delicate relationship between fishermen and fisheries officers to deteriorate. If the power were invoked and something were to go wrong, such as a search being carried out at the wrong place, enormous damage would be caused to that relationship.
Those powers would be invoked only if fisheries officers could persuade their superiors and the sheriff that the only way they can get the information they require is to gain access to premises. I do not want that to happen, but from time to time it might be necessary. It is appropriate that fisheries officers have powers that they might require, subject to checks and balances.
Can the police conduct the searches?
The police can conduct those searches—and may have done so—but you will agree that they might have better things to do.
Fisheries officers are specialists. They know the difference between one species of fish and another and they know how to read the records of fish merchants whereas the police might not. Just as it is appropriate for the Inland Revenue to have such powers in relation to enforcement of its regulations, it is appropriate for fisheries officers to have powers in relation to their areas of knowledge.
I would like to ask a question in relation to that.
This seems to be degenerating into a question-and-answer session between one member of the committee and the minister. The committee as a whole must take a view on this. I do not think that that is happening.
We have heard the main arguments and members of the committee should get a chance to express their views. After that, we can move to a vote.
Does anyone want to contribute to the debate?
I want to pick up on a point that Mike Rumbles touched on. I do not agree with everything the minister says, but I do agree with him on this occasion.
I must be wrong, then.
You are wrong only in so far as you suggest that the Government of 1993 could possibly have made a mistake.
I know that you referred to this point in your letter, but will you confirm on the record that everything in this order will also be put in place in England and other parts of the UK?
That is the whole idea. It is basically the same order and we will have the same rules across the UK.
If there are no further comments from members of the committee, we will move to a vote. Only those who are members of the committee may vote.
The question is, that the Rural Affairs Committee recommends that nothing further be done under the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 (SSI 2000/7).
Are we agreed?
No.
There will be a division.
For
Richard Lochhead (North-East Scotland) (SNP)
Irene McGugan (North-East Scotland) (SNP)
Against
Alex Fergusson (South of Scotland) (Con)
Rhoda Grant (Highlands and Islands) (Lab)
Alex Johnstone (North-East Scotland) (Con)
Lewis Macdonald (Aberdeen Central) (Lab)
Mr John Munro (Ross, Skye and Inverness West) (LD)
Dr Elaine Murray (Dumfries) (Lab)
Cathy Peattie (Falkirk East) (Lab)
Mr Mike Rumbles (West Aberdeenshire and Kincardine) (LD)
The result of the division is: For 2, Against 8.
Motion disagreed to.
I thank the minister for taking part in this debate. It was as new an experience for us as it was for him, but I am sure it will not be the last time it happens.
Would it be helpful if I stand by when you deal with satellite monitoring?
If you want to, you may remain for the next item on the agenda—that would be extremely useful. The next items are the four statutory instruments. We have called them a, b, c and d. Item d is relevant to the two officials and the minister who are present, and it has been suggested that we deal with it first to allow us the benefit of their assistance if necessary.