Rural Affairs Committee, 18 Jan 2000

Meeting date: Tuesday, January 18, 2000

Official Report 183KB pdf

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Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000

Item 5 is consideration of another piece of subordinate legislation: the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000. We are considering this order under the negative procedure. That means that, unless a formal motion to annul the order is agreed, the order will come into effect. No such motion for annulment has been lodged to date, so the purpose of today's discussion is to examine the instrument. Mr Robin Weatherston and Mr Philip Galbraith will explain the document to us.

Two explanatory notes are attached to this Scottish statutory instrument as part of committee document RA00/1/3. The first, by the clerks, sets out the key dates for action. The second, by the Scottish Executive rural affairs department, provided at our request, explains the order. There is a third note at the end of the order that appears on all subordinate legislation.

I invite the representatives from SERAD to go over the statutory instrument and explain it to us.

As the order is concerned with the implementation and enforcement in Scotland of a European regulation, it may be helpful to explain a little bit of the background to the regulation.

The requirement to complete fishing logbooks and landing declarations has been mandatory since 1984. In 1993, an EC regulation introduced a community monitoring and control system to deal with the fisheries sector from the producer to the consumer. That regulation introduced sales notes and transport documentation requirements. Since its introduction, the regulation has been amended a number of times. The most recent changes are set out in EC council regulation 2846/98, agreed at the Fisheries Council in December 1998. Those changes require an order to give effect to the regulation now.

The 1998 regulation aims to strengthen and improve fisheries controls and fill gaps in the existing controls. The significant changes for the industry have been identified in the Executive note that we provided for committee members. The changes are: the requirement to complete logbooks for all vessels over 10 m, doing away with an existing derogation for 10 m to 17 m vessels that spend less than 24 hours at sea; the requirement to record catches of all species in logbooks and landing declarations; the mandatory submission of sales notes; the requirement to submit takeover declarations for deferred sales of fish; and documentary requirements relating to the transportation of fish. There are also requirements on fisheries departments relating to data capture, collection and enforcement.

The thrust of the regulation is to ensure appropriate controls on the fisheries sector. It is in line with UK and Scottish fisheries policy and is part of a wider action plan to tackle the generic problem of black fish throughout the European Community. Members will appreciate that we have a legal obligation to implement the regulation in the UK and in Scotland.

That explains the policy background. We have had significant discussions with the industry over the past six or seven months about the practical implementation of the regulation. We have produced guidance notes for use by various sectors in the industry to help them to understand the new requirements. We have taken measures to ensure that the new requirements are in line with current industry practice.

As a result, we calculate that the added burden on Scottish industry will be very limited. Limited changes in practice are required as a result of the order. We cannot expect the industry to welcome the new requirements with open arms, but the measures that we have taken to alleviate the worst effects are appreciated.

The measures in the EC regulation are directly applicable to the fisheries sector, but we need to transpose those requirements into domestic law. In the schedule the order identifies offences against the regulation, sets out penalties for offences and makes provision for enforcement. The order relates only to Scotland, but parallel orders are being made to ministers of the Crown and to Welsh ministers in relation to their responsibilities.

I hope that that sets out the background to the order. I will be happy to answer any questions that you have.

I have a number of concerns about these control regulations. As the committee will be aware, the industry is currently under a great deal of pressure. The last thing that it wants is an increase in control regulations, which means an increase in bureaucracy and paperwork.

I want to make a couple of quick points before developing one point that is of particular importance. The regulation refers to the completion of logbooks for all vessels 10 m or more in length. Is it the case that a new logsheet is on the way already, without this regulation, and is there a danger that the industry will have to go back to square one in a few months' time, once the new logsheet that is already in the pipeline comes into force?

You are right, in the sense that a new logbook regulation is currently under discussion in the European Community. The final form of that has yet to be agreed. We want to ensure that whatever comes out of that negotiation is sensible and respects existing practices, and that any changes that are required are absolutely desirable. In general, the negotiations are to do with the detail of the logbook, rather than the requirement to complete and submit a logbook. I do not think that there will be an implicit additional burden on the industry simply because of the requirement to submit logbooks. Most fishermen do that in any event.

My colleague makes the reasonable point that if and when we have specific proposals on logbooks, we will engage in consultation with the industry, just as we did in the case of the control regulation. Any changes will be discussed with the industry well in advance.

Are you able to give an assurance that, once the new logsheet comes in, the industry will not have to go back to square one?

It is reasonable for me to give that assurance. There is no intention of ripping up everything that is currently done by way of controls and introducing a system that is unrecognisable. That is not a practical option. The absolute requirement to track fish from the sea bed through to its final destination remains. The process, if not the detail of the process, will remain the same.

My second concern relates to the

"mandatory submission of sales notes by buyers and sellers of fish".

Are we talking about one document or separate documents for buyers and sellers?

I think that we are talking about one document submitted by either the seller or the buyer, rather than both.

I have two final concerns. The industry has expressed considerable concern about the requirement for documents for the transportation of fish. As the committee may be aware, a buyer may arrive at the quayside and buy fish from a dozen boats. As things stand at the moment, after the auctioneer has auctioned the fish, the buyer marks his fish and takes it away. Invoicing is done at a later date.

I understand from the proposal, and from some of the concerns expressed by the industry, that the Executive's interpretation of the regulation—as opposed to any instructions it has received from Europe—is that paperwork will have to be completed by both the transporter and the salesperson for each sale or transaction. The paperwork from the salesperson, who is the auctioneer, will have to wait, as he will continue with his auction; he will not stop as soon as he has sold two or three boxes. That means that the transporter will have to wait until the auctioneer has completed his sales before up to a dozen pieces of paperwork are completed, but time is of the essence to the buyers, who must transport the fresh fish to the processors and the marketplace as soon as possible.

Given that the industry does not want more bureaucracy—and this proposal suggests a lot more bureaucracy to me—this measure is extremely unpopular. Are these requirements simply based on the Executive's interpretation of how the EU regulation should be implemented? Could it be that the documents that have to be completed do not have to be carried with the fish?

We understand the concerns that have been expressed about the need for speed in the process of moving fish from market to processing factories or wherever. It is not the intention of the Scottish Executive rural affairs department or of our enforcement agencies to place obstacles in the way of that.

There are some uncertainties about the precise requirements of the transportation documents and we will work with the industry during the first few months of the application of the regulations to ensure that those requirements are clear.

We are more than willing to adopt a pragmatic approach to the implementation of that particular aspect of the regulation. If you do not object, convener, I will ask Mr Galbraith to comment on that, as he is closer than I am to the practical enforcement issues. We understand the problems but we think that perhaps people are misinformed, as we do not think that the proposal will cause major problems. It is quite possible to get round the way in which the arrangements will operate.

Perhaps Mr Galbraith will advise members how we envisage the practical operation of the proposal. I am happy to say more about the policy issues if his explanation does not put members' minds at rest.

I should say first that these regulations relating to transportation documents are EU-wide—they are not simply a result of the Executive's interpretation of the regulations. I strongly recommend that any transporters taking fish to the continent ensure that they have documentation with them, so that they are not held up by checks and so on.

Mr Lochhead is quite right: there is no requirement to carry the documents with fish sold at auction which have entered the marketing chain. However, should fisheries inspectors from anywhere in the European Community inspect a lorry and suspect that the fish have been sold outwith the usual marketing route, they could insist on the production of documentation, so that they can trace the fish back to the source of origin.

For example, if, after auction, one were transporting fish from Peterhead to Holland for resale, one would not necessarily have to have a sales note from each fishing vessel. One would need only an invoice from the fish-selling agent to show that one had bought so many boxes of haddock, plaice and so on from that agent. The inspectors in Holland would be able to check with inspectors in Peterhead, who would, in turn, both check with the agent that he had documentation relating to the sale and trace the fish back to the vessels.

The process may not be as bureaucratic as members might think. During consultations with the industry, it was suggested that fisheries inspectors would be standing at Peterhead market, watching fish being loaded on to a lorry and asking for documentation when the lorry leaves the market. Our inspectors do not have time to do that, so the regulations will be applied very pragmatically.

Inspectors throughout the community think that it will be useful to be able to trace the origin of fish when they suspect that the normal marketing route is being circumvented. We hope that the regulations will be applied equally throughout the community, and I emphasise that anyone who has export markets on the continent should be careful that their documents are in order.

I get the impression that the Executive is being overzealous with this regulation, and that concerns me. Despite the fact that the regulations do not require transporters to carry documentation, you recommend that they do so, saying that it is in their best interests. The message from the industry is that carrying the documentation will make things much more difficult and it will not be in their interests to do so.

In any case, not all transporters go to Europe. I appreciate that some do, but many transporters from Peterhead fish market, for example, go to a processor in Aberdeen, or the Broch, or elsewhere in Peterhead for the fish to be filleted and then go on somewhere else.

The regulation is quite explicit. It requires people to carry a transport document when fish is being moved before first sale. For fish that is being moved after first sale, the regulation requires transporters, if asked, to be able to prove with documentation that the fish has been sold. That requirement exists to prevent black fish from being moved around the country, and to prevent people—when they are stopped and challenged about the origins of that fish—from being able to claim that the fish has already been sold, so they do not have to account for it.

For fish that has been sold, it is quite clear that there is a requirement to prove that the sale took place on the basis of documentation. The documentation does not need to be carried. We are suggesting to the industry that to prevent any delays when people are stopped and challenged, it is in their interests to carry documentation. I have a great deal of difficulty in believing that lorry-loads of fish, worth tens of thousands of pounds, traverse around the country without any documentation to prove that the fish have been sold or to whom they belong. Most reasonable people in the industry would agree with that view.

I want to follow up on that. Richard Lochhead talked about the industry, but it is clear that different views exist within the industry. Would it be true to say that many people—in particular on the processing side, but also on the catching side—will welcome measures that will make it easier to identify the rogue elements who are sidestepping regulations in order to sell fish that has not been accounted for properly?

That would certainly be my interpretation.

Has that been borne out by the submissions that have been received during the consultation process?

Yes.

The compliance costs for Scotland are estimated to be about £300,000. Can you give us any idea who will incur those costs, and why?

Just under a third of those costs will be incurred by fishermen who, we estimate, do not complete logbooks because they are caught by an existing derogation. The vessels involved are those in the 10 m to 17 m range that go out to sea for less than a day. That derogation has been removed by the 1998 EC regulation, to fill a gap in the system.

The bulk of the other costs, which, to be honest, are probably pessimistic, are attributed to transportation costs and relate to the estimated requirements to carry or produce documentation in the case of fish that has already been sold. From recollection, that cost will be about £140,000 out of the £270,000 that we estimated to be the cost to the Scottish industry. That estimate assumes that there will be a transport documentation cost in relation to every landing, which probably errs on the pessimistic side.

My final concern is about the powers of the sea fishery officers. Can you confirm that there has been a change to the paragraph that says

"the sheriff may by warrant signed by him, and valid for one month, authorise a British sea-fishery officer to enter the premises, if need be by reasonable force, accompanied by such persons as appear to the officer to be necessary"?

Where does that text appear?

It is paragraph 7(3) on page 6 of the regulations. Am I right in saying that that would extend the category of those who have powers to obtain warrants—the police and Customs and Excise officers—to include fisheries protection officers?

I understand that the powers of forcible entry under warrant were in the Sea Fishing (Enforcement of Community Control Measures) Order 1993, and were taken out for some reason, which I do not know, but have been put back in. The policy issue that lies behind that enforcement power is that it is relatively easy for records relating to businesses to be taken away from a particular place, such as a vessel, and held in another location, including someone's house, in order to stand in the way of proceedings or investigations in relation to illegal or illegitimate activity.

The power to forcibly enter premises is designed to get round that problem. It is a power that exists in other agricultural legislation to enable access to places when people refuse entry to, or make life difficult for, the enforcement authorities when trying to gain access to material or information. Of course, the power is exercisable only under the authority of a sheriff, so it is subject to appropriate scrutiny.

I am slightly concerned. The department will appreciate that the vast majority of fishermen are honest people trying to make an honest living. To find that a sentence sneaked through in European regulations extends the powers to obtain warrants from the police and Customs and Excise to another service has implications for civil liberties, and for the atmosphere in the industry. Has that measure come from Europe as well? Surely not. Did it come from a unilateral decision by the Government?

The powers of British sea fishery officers stem from the powers contained in the Sea Fisheries Act 1968 and the Sea Fish (Conservation) Act 1967. The order is made under section 30 of the Fisheries Act 1981, which allows any powers and penalties contained in the 1967 and 1968 acts to be applied within any necessary modification to any order that brings into force a community obligation. The powers are available under primary legislation, namely, the fisheries acts.

Can I ascertain for the record, with a yes or no answer, whether this new aspect to the control regulations was in the regulations that this order follows on from?

As my colleague said, the power was contained in the 1993 control order, but when the current control regulation came into force on 1 January 1994, a new 1994 order, a copy of which I have here, came into force, and the provision was dropped, for whatever reason, from that order.

I do not know why the provision was dropped. It may have been overlooked, or it may have been felt that it was a power that we rarely, if ever, used in our inspections at that time. However, because more information is being held on computers, and it can be transferred easily from offices, it may have been felt that the information could be hidden more easily, and that it might be necessary to obtain warrants from time to time to conduct investigations. That is because some people are obstructive when requested to provide documents.

So this is a power that you have lacked for the past five or six years. Has that been a problem?

It has not been a problem in Scotland.

Are there any further questions?

As there are not, I thank Mr Weatherston and Mr Galbraith and invite them to withdraw from the table.

This instrument is laid under the negative procedure, which means that unless a formal motion to annul the order is agreed to, the order comes into effect. No such motion has been lodged to date, so the purpose of today's discussion is to examine the instrument.

Are members content that they have enough information to make a decision on this instrument?

Members indicated agreement.

As members are content, can we conclude that the committee does not want to make any recommendation in its report to Parliament?

Could we have a wee bit discussion about this? My point does not relate to just this order, as I have seen pieces of legislation like this for a couple of years. It seems that every piece of legislation contains more and more power for more and more people to gain access to premises. This committee will not want to roll back the frontiers of the state totally, but I wonder why this provision is being introduced, given that it has not been in place for the past six years and there does not seem to be substantial evidence that it is necessary? Computers have been with us for a few years and there has not yet been a problem. Why are we anticipating this problem by granting powers to apply for a warrant? I see in the regulation that one would have to apply on oath to the sheriff and so on, but is this step necessary? What are the views of other members?

I understand that concern, but I note that similar provision is being made for enforcement orders in England and Northern Ireland as well. Will that measure be included in the legislation that is proposed in England and Northern Ireland?

It depends what our counterparts do in their committees.

I would be very unhappy if the provision applied only in Scotland. I do not have a problem with it if similar legislation is proposed elsewhere.

This is a red herring, given that there appears to be general provision for these powers and that there legal safeguards. The idea that giving powers of access to sea fishery officers to enforce fishery regulations is a threat to civil liberties strikes me as extraordinary. Sea fishery officers are professional people doing what anyone who knows the fishing industry will acknowledge is sometimes a difficult and highly pressured job. The powers that this instrument gives them to deal with the unlikely but conceivable circumstance in which they need access to premises other than a boat or fishing office seems uncontentious.

As members from every party said in the recent fisheries debate, there is a concern that the UK Government and now the Scottish Executive have been overzealous in implementing European regulations on their own fishing industry, which has led to additional bureaucracy and expense.

One would hope that the Executive will not seek to impose unilaterally regulations that will add to those that are coming out of Brussels. I oppose the instrument because of my concerns about the requirement for transportation documents and the extension of warrants to sea fishery officers. These are unilateral regulations for which we have received no justification.

Although the parliamentary structures do not allow the committee to amend this instrument, any committee member or MSP who is concerned about it can choose to move that the instrument be annulled.

So our only option is to move for annulment.

Yes.

Or to seek further information.

Well—

What is the time scale?

We have until 22 February, which is the end of the 40-day period from the laying of the instrument. Any MSP can lodge a motion to propose to the lead committee that the order be annulled. If we cannot report to the Parliament that we are content with the instrument at this stage, we could consider any formal motions that are lodged at a meeting arranged for that purpose. Is that how the committee wishes to proceed?

Say that once more. [Laughter.]

The alternative to reporting to the Parliament that this instrument be accepted is to allow the committee to consider any formal motion that might be lodged before 22 February.

Is that strictly necessary? As you have pointed out, convener, it is open to any MSP to lodge a motion for annulment. To date, no motion has been lodged. If Richard feels very strongly about the issue, it is up to him to lodge a motion and take it from there.

The simple question that I asked before and will ask again is whether members are content with the proposed legislation.

No.

Yes.

If so, can we conclude that the committee does not wish to make any recommendation in its report to Parliament?

One member has indicated that he is not content.

And I would like to find out the answer to my question about whether the legislation will be introduced everywhere else before I say yes or no.

The appropriate way to deal with this problem is to carry over this item to our next meeting, which will allow anyone who wishes to lodge a motion to do so in the intervening period. We can deal with the matter at our next meeting.

Is that necessary?

We have little alternative if members are not content to allow the instrument to go ahead. The time scale for dealing with it allows motions against it to be lodged.

So far, only one committee member has said that he is not content to let the instrument go ahead—not the committee itself.

We must have a vote.

If the committee concludes now that it is content to allow the order to proceed, a motion giving possible grounds for objecting to it could still be lodged in a week's time. The committee might be left in the awkward position of deciding whether to take that motion and debate it, despite having previously decided to let the order proceed.

If a motion for annulment is lodged, the minister has the right to attend to present his case in support of the order.

In that case, what is the point of examining the instrument now? Why do not we examine it in February? This is a procedural issue.

We bring such instruments to the committee as soon as possible to enable members to have as much time to question officials and gather as much information as they can. If members are clear that they want to proceed without considering annulment, they can do so. If they are in any doubt, they have the option to wait to find out whether a motion for annulment is lodged. Members can, if they wish, reconsider the matter in the future.

That is the position in which we appear to be at the moment.

Even if we had agreed unanimously, would it still be open to a member to lodge a motion for annulment up to the final date?

Yes.

Is not it also possible for the committee to lodge a motion for annulment, if all members agree? Must that be done by a member?

The committee could consider a motion in the name of the convener.

If a member lodges a motion for annulment, must that come to the committee?

There is a little doubt about that. I will take further advice on the matter. The committee might come to a conclusion on an instrument such as this and, subsequent to that discussion, another member—not a member of the committee—could lodge a motion for annulment. There might be circumstances in which the committee might not want to consider that motion.

Where would such a motion be considered? If a member lodges with the Parliament a motion for annulment, how is that dealt with?

We will look into this more closely. Some weeks have passed since the matter was raised. If the committee did not want to consider it, the motion would die.

Does that mean that if the committee is content with an instrument, it is for the committee to decide whether to have further discussion of an individual member's motion for annulment or simply to set it aside?

Presumably the bureau can select motions for annulment.

Yes.

I suggest that we postpone a decision on this instrument on the basis that the committee wants to give members an opportunity to lodge a motion for annulment. Would it be in order for the clerk to provide us with a guidance note on the options that are available relating to motions of annulment?

It seems rather messy that we can approve this instrument when any member can until the final date lodge a motion for annulment. It makes perfect sense to have it all explained to us today and to discuss it. Would not it make sense, therefore—for this and for subsequent similar instruments—to discuss it, but agree to postpone approval until nearer the final date? That would allow members to lodge motions if they so wished.

That could be extremely messy as well.

It would not be as messy as having to annul a motion that had been passed.

That is a more logical approach.

How do members wish to proceed? Should we continue consideration of the instrument at the committee's next meeting?

That will not stop anything happening.

Does that meet with members' approval?

Would it be appropriate for the committee to take a view, having heard evidence from the officials? There are, are there not, different stages in this process? Is it not appropriate for the committee, as lead committee, to take a view? We have not expressed concern with the instrument. Is that not something we can formally record at this stage, regardless of whether we are obliged to reopen the matter if a motion is lodged before our next meeting?

I am slightly concerned that we may send out the wrong message if we do not approve the order. So far, only one of us has voiced concerns about it.

I would be concerned if the committee's failure to approve an instrument was interpreted as meaning anything other than that a decision had been deferred until a subsequent meeting.

I cannot see any difficulty with our making a decision on the instrument at a later date.

There is no particular reason to delay. As has been noted, no motion has been lodged and we have no formal way of deducing whether one will be lodged. There is no affirmative procedure. We are not asked positively to endorse the regulation, but to comment if we have an objection. We have no objection, and we should record that formally today on the basis of today's discussion. If a motion is lodged by an MSP, that is a separate stage in the process. This is our opportunity to negate the regulation. If the committee does not wish to take that opportunity, it should say so.

That is not really what we are talking about. We are analysing the situation and considering the opportunities that have been provided to those who wish to object to the order. There is still time for someone who wishes to move for its annulment to do so, and individual members of the committee have indicated that that may happen. Do we want to make a decision based on the limited information that we have at present?

I would like to support Lewis Macdonald's comments. By not getting on with this, we are in danger of encouraging MSPs to lodge a motion when no such motion is before Parliament. That would send out the wrong message. If a majority of committee members believe that we should proceed with this, we should do so.

If there are no problems with a statutory instrument, what is our normal procedure? Do we report anything at all if we are happy with it?

The committee is obliged to report to the Parliament on whether it wishes to make any recommendation. The report would normally read that the committee wishes to make no recommendation to the Parliament.

Can I clarify whether the only other recommendation that we can make to Parliament is to annul the order?

The committee can do that only if a motion has been lodged. No motion has been lodged, so no decision to seek annulment could be taken today.

Could we decide to lodge a motion, if we were so minded?

Yes.

Equally, can we make a report today in which we say that we have no recommendation to make in his matter, having considered it, but that it is open to us to make a recommendation at a later stage? I am not suggesting that we should do that. I want simply to ensure that we are clear about the technicalities.

I have one final point, which may clear this matter up. There are department officials here to whom we can put questions. If we are not satisfied with their answers, are we expected to have a motion in our back pocket that we can simply take out and present to the committee?

As Richard Davies said, any motion would, like any other motion, have to be lodged with the chamber desk. That is why I still feel that given that questions have been raised, it would be appropriate to consider a motion for annulment at the next meeting.

There is no point considering the matter twice if there is no motion for annulment. If we make a recommendation today, we can be finished with the matter. If, however, there is a motion, we can consider it again next week. I do not think that we are saying that we will never consider the issue again, but it saves the matter appearing on the agenda again if there is no motion.

I support your view, convener, that we postpone discussion until the next meeting to give members the opportunity to lodge a motion. There is no point having the opportunity to ask department officials questions if we have prejudged the situation.

The situation does not affect Richard Lochhead's right or ability to lodge a motion. If he does lodge an amendment, it will have to come back to the committee. However, once he has had a look at the order, he might decide not to lodge a motion. If we postpone the matter, we will have to speak about it at the next meeting regardless. We need to tidy things up and make the issue easier to deal with. If Richard Lochhead lodges a motion, we will speak about the issue twice; if he does not, we will not.

If we do that, the motion will have to be lodged before we can hear what the department says in response to our concerns.

Sorry. I did not realise that we were putting anything to the department. I thought that we were going to postpone the matter to see whether a motion was lodged. I am at odds then.

Members may want to hear what the department says in response to concerns before deciding whether to lodge a motion.

We have heard what the department has to say and are in a position to make a judgment on that.

We will have to put it to a vote.

Okay. The motion is, that consideration of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 be continued at the next meeting. Who moves the motion?

I move the motion.

The vote will be done by roll call. When I call out members' names, they should say yes if they support the motion and no if they do not. Members may, of course, abstain.

I want to ask a question before I vote.

Is it correct that the only decision that this committee will ever have to take on this instrument is not to make any recommendation to Parliament?

After the vote takes place, the committee will be required to debate a motion for annulment if one is received before the next meeting.

Members voted by roll call.

For

Fergusson, Alex (South of Scotland) (Con)
Lochhead, Richard (North-East Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)

Against

Grant, Rhoda (Highlands and Islands) (Lab)
Johnstone, Alex (North-East Scotland) (Con)
Macdonald, Lewis (Aberdeen Central) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)

The result of the division is: For 4, Against 6, Abstentions 0.

Motion disagreed to.

As a result of that decision, does the committee agree not to make any recommendation to Parliament, remembering that there is still time for something to be done on this issue?

Members indicated agreement.