Official Report 180KB pdf
Aquaculture and Fisheries (Scotland) Bill: as amended at Stage 2
I welcome members to the seventh meeting in 2007 of the Subordinate Legislation Committee. I have received apologies from Murray Tosh and Euan Robson.
Section 19 inserts new section 5F into the Diseases of Fish Act 1937. Legal advisers have no concerns about the narrowing of the scope of the power concerned, and the Executive has responded to a technical point raised in relation to the section. Do members agree that the section appears to be okay?
Sections 25A to 25G, on fixed-penalty notices, contain new powers that were added at stage 2 and which are subject to the negative procedure. Are members content that the Executive has made its case for the general framework approach in those sections?
Section 25A, "Issue of fixed penalty notices", contains the power to specify by order offences for which fixed-penalty notices may be issued. The section enables a British sea-fishery officer to issue a fixed-penalty notice when that officer has reasonable grounds for suspecting that a person has committed a "relevant offence". The power to make an order will be subject to the negative procedure.
I want some clarification on why this approach has been taken in section 25A, while in other parts of the bill, such as section 4, terms have been listed and defined, which means that any future changes will require amendment. You have not included a list of offences in section 25A—will you explain why not?
The key issue is that sea-fisheries offences change a lot. The annual December fisheries council often comes up with new regulations that have to be implemented through legislation. If we were to list all the relevant offences in the bill, it would be almost impossible to keep up with annual changes to the body of legislation that comes from Europe, particularly at the December council.
You said that that would be "almost impossible", but the committee sees statutory instruments all the time that change things annually. Why would it be almost impossible to do so in this case?
Have I misunderstood? That is the point. The list will be in secondary legislation because that is the best vehicle for making annual changes.
We can make changes to primary legislation through statutory instruments. The original determination of a list is in primary legislation, and changes to that are then made.
The Executive's view is that the secondary legislation approach is the most appropriate, not only for flexibility in deciding what constitutes a relevant offence and keeping up with changes to legislation but because defining "relevant offence" will be relatively technical.
Will you explain the nature of the offences that you think will be covered?
At stage 1, we provided an initial list of the suggested offences, on which we consulted. They are relatively minor offences, and it would be a bit exhausting to go through them orally.
Could you perhaps tell us what type of minor offences would be included?
Certainly. The minor offences that we envisage are, for example, the landing of undersized fish and shellfish, minor breaches of by-catch regulations and lesser licence condition offences, as opposed to more serious offences that involve large quantities of species and large amounts of money.
How can we be reassured that the term "relevant offence" would not cover anything more major?
Before I answer that question, I would like to set out a preamble to clarify the policy. The key tenets are that any alleged offender should have not only time to seek legal advice and the information that they need to seek the appropriate legal advice but, of course, full recourse to the courts. In other words, this is an extra option available to fishermen over and above the current situation. We would not add more major offences, but there would be nothing sinister if we did. The option of going to the courts will always exist.
Okay. Do members have any other questions?
I have a point of clarification. Would the order introduce or take away offences as a category of offence, or would it amend offences? Undersized fish were mentioned—what would happen if the particular size of the fish was adjusted but the offence of landing undersized fish remained the same?
The order would not amend offences—it would either add offences to or remove them from the list. It would do nothing to change the offences, because the offences are set out elsewhere in legislation. The order would purely list them.
Will you also say a little about why the order should be subject to the negative rather than the affirmative procedure?
I refer back to the earlier point that deciding what is considered minor is a fairly technical exercise following straightforward criteria. We consulted on the list of offences that we shared with the committee, and the feedback that we received was entirely uncontroversial. We believe that that adds to the argument that the negative procedure is appropriate for the order.
Do members want to raise any other points?
It strikes me as an appropriate balance, given that we know that offences will change every year.
I am less convinced than Ken Macintosh. We always have to be careful when it comes to offences. I would not want to create an unnecessary administrative burden but, with the ability to create new offences, it is preferable to err on the side of caution and to be upfront rather than to make changes through a negative instrument. I am not entirely comfortable with the section, and I am not sure that the correct balance has been struck. I would not push the point if the committee was otherwise minded, but I have some reservations.
It was important that we got on record the range and type of offences, the reassurance that they are minor, the need for flexibility and the reasoning for the use of the negative procedure.
That is helpful, but as a matter of principle we have always been careful about offences.
May I clarify one point? Mr Maxwell said that there was a risk of creating offences. The system will not create any offences.
I asked whether you would be adding offences or just making technical changes, for example to what constitutes an undersized fish, and you said that you would be adding offences.
We would be adding offences to the list of what was defined as a "relevant offence", but those offences would be provided for elsewhere in statute through the normal process.
Sorry—I am confused.
Perhaps the Executive's legal adviser could elaborate.
I will try to put David Ford's point in a different way. The specification of relevant offences will define which existing sea-fisheries offences will be open for disposal under the administrative penalties scheme—that is, the offences from which alleged offenders will be able to escape prosecution by accepting the offer of a fixed penalty. The power that we are discussing is a power to determine which offences fall within the scope of the scheme—the offences in relation to which alleged offenders will have the additional option. It is not a power to create or modify existing offences.
That is helpful.
Thank you.
I thought that you were going to ask some questions on that, convener.
The central question is whether the power in section 25B(3) is intended to cover the matters that a notice must state, and if so, what level of specification of particulars will be required.
Section 25B(3) just contains a power on how to bring in the notice—it is about the how rather than about the content of notices. As you know, the required content is set out in section 25B(1), which states:
Section 25B(1) states:
I am not quite sure what you are asking. The key tenet of the policy is that the alleged offender will be given enough information for them to be able to seek legal advice. We should remember that the default position is for the person to go to court, in which case we would need a sufficient evidential base to prosecute the case. Similarly, we would not pursue an administrative penalty if we were not clear about the details of the alleged offence. An administrative penalty is not a vaguer option. The same evidential base will be required as for a court case. The fixed-penalty notice will include all the circumstances of the case, just as a court case would consider all the circumstances.
Sorry—I do not know whether it is my hearing, but I am not picking up the sound of your voice very well. That is not your fault—it is just the equipment. However, I gather that you are reassuring us that the particulars that would be specified in an order are very much what we would expect. Is that what you said?
That is right. We are not seeking to introduce any short cuts. The same evidential base will be required as for a court case.
Sorry. I was a bit slow in picking up that point.
We suggested seven days because that is the most likely shorter period that we would think appropriate.
I suppose that that is why the bill does not specify a minimum period. You want that flexibility.
Yes.
Section 25C is on the amount and payment of fixed penalties. Section 25C(1) confers on Scottish ministers a power by order to prescribe a scale of fixed penalties. Why did the Executive not opt to restrict the power by stating a maximum penalty?
Again, I return to one of the fundamentals of the policy. We are not imposing a new penalty but providing an option for skippers. They will always have the option to go to court. The idea is to set penalties that are a little lower than what the courts might impose. That will free up the court system and give people an incentive to discharge their responsibility.
Are there any further questions on that?
Yes, I have a question on the same issue. I understood what was said, but I would have thought that the normal procedure would be to stipulate the figure and then amend it to reflect the changes in the value of money, which is the phrase that is often used, or to reflect other changes. The maximum would normally be stipulated and subsequently changed, rather than not being stipulated at the start.
That is an option, but it is not one that the Executive has chosen to pursue.
Why?
Because we think that the most important thing is to track what the courts are doing and to keep the penalties in kilter with the court system.
Our approach here is somewhat different from the normal run of figures that we might fix, in that we are considering an option that is available to alleged offenders, rather than a level of punishment. It is in that sense that David Ford argued that the levels are, to an extent, self-regulating. It is in the interests of the Scottish ministers to set the fixed-penalty offer at a level that is appropriate and acceptable. If the level were set too high, nobody would accept the offers and the system would fall into disuse. It is an option that is available to alleged offenders; it is not anything compulsory. That more flexible approach is favoured by the Executive, rather than ministers being required to make amendments by subordinate legislation in each case.
Can you think of any examples of an option to choose a fixed-penalty notice when no maximum has been specified?
I cannot give you an accurate answer off the top of my head, I am afraid—we would have to write to you.
Can you give me examples of a maximum that has been fixed?
There are a number of fixed-penalty regimes in existence, such as fixed penalties for traffic offences.
I would have thought that such regimes were the norm. That is why I asked the question. It does not strike me as normal not to fix a maximum—in fact, I would have said exactly the opposite. I am curious about why you have chosen this particular approach for the bill. I find it slightly curious.
If a clear maximum is not specified, is it not normal to use the affirmative procedure, rather than the negative procedure?
That comes back to the fundamental point that we are not setting a mandatory fine. The penalty is an option. It is always open for someone to say that they do not want to pay it. They can say within the first minute of receiving it that they would rather go to court. Because of the fact that the payment is optional, we believe that it would be excessive to use the affirmative procedure. The matter technically lands within the court system, and we think that the negative procedure is sufficient and appropriate.
It could be argued from the point of view of good subordinate legislation that, following the normal way of drafting, if there is not a clear maximum, the affirmative procedure is used. Would Alastair Smith like to comment on that? Is that not the procedure that you would normally use if there was not a clear maximum?
I am perhaps being slightly obtuse, for which forgive me, but I am not sure what it is that would be specified by means of an affirmative instrument in this case. Could you assist me on what particular aspect you think it would be better to specify?
It is the amount, obviously. Section 25C(2) states:
My apologies. That was clear enough—I was being obtuse. Without notice, I cannot really say what the normal rule would be, or whether there is in fact a consistent pattern. As has been said already, payment of a penalty will not be compulsory for anybody, and the provision here does not run parallel to provisions in which the maximum limit for a fine to be levied on conviction is set, for instance. If somebody is not happy with the level of a fixed penalty, they will have no obligation to pay it, and they may—as at present—take the matter to a prosecution in the sheriff court.
That is exactly the point. In other examples of fixed penalties, people may refuse to pay, choosing to have their day in court. If they disagree with the issuing officer's decision to issue a fixed penalty, they can go to court. Why are the arrangements different in this case?
They are not different. People will be able to go to court.
But you have not set a maximum. I asked you to give me an example of where there are similar arrangements elsewhere. I accept that it might take some research but, off the top of my head, I cannot think of any, and nor can you.
Perhaps I am being very dim, and I apologise—I am no lawyer—but section 25C(1) says:
I have another question, which might elaborate on or clear up the matter a little bit. Section 25A(2)(a) uses the phrase,
No. As we have said, ministers would set a scale of penalties that would relate to what the courts are doing. However, the scale would not say, "This offence has a maximum penalty of £5,000"—or £50,000, or whatever. It would draw on a recent analysis of cases in which it would have been noted, for instance, that courts had been awarding penalties in the region of £1,000 to £2,000 for a certain offence. That would result in a scale of penalties of between £1,000 and £2,000.
You said that the scale would "relate to what the courts are doing" in respect of offences at a particular time. Could you help us a little bit with that? Is that a normal procedure?
I am sorry—is what a normal procedure?
I am sorry. Forgive me. We are fairly new to this compared with you. Obviously, you have all the knowledge and expertise in this area. You said that, in fixing the penalty, you would consider the penalties imposed by the courts for similar offences. I asked whether that is a normal procedure when fixing penalties. Can you tell us a bit more about that? That is the important point when it comes to how the penalties are to be set.
I cannot speak for other regimes. I have to confess that I am surprisingly blinkered in my approach, and I really know only about sea-fisheries offences. We think that this approach would work. I go back to the point that Alastair Smith discussed earlier. If the administrative penalties were set too high, or higher than experience in the courts indicated was appropriate, there would be no incentive to use the system, and the provision would not achieve its aim of freeing up the court system and making life easier for alleged offenders. The point is that we would revise the system and keep the levels of administrative penalties updated on an on-going basis, so that they would stay within sensible boundaries, according to the policy.
All that I am trying to get at is how you are going to set the amount by looking at what is happening in the courts system at the time. It is that mechanism that I am looking for.
I will try to clarify the matter, as I did the analysis on the penalty levels. Section 25C(1) states:
It is important to remember that, although there will be an element of discretion for the British sea-fisheries officer, their decision will be very much constrained by the scale that is set out in the order. The assessment of the levels of fine that are imposed by the courts for specific fisheries offences will be carried out periodically when amendments to the scale that is set out in the order are being considered, and the scale will be subject to parliamentary scrutiny. The exercise that was gone through prior to the production of these proposals for the bill showed that there was a wide consensus on the issue and that the proposals were not particularly controversial. It is on those bases that the decision was taken that the negative procedure provided a sufficient level of scrutiny.
Okay. We need to decide whether the order that introduces the scale should be made an affirmative instrument or left as a negative instrument.
I do not think that that is the only thing that we need to decide. I have one further question. Mr Gibb talked about the need for flexibility if a December fisheries council changed the status of a species because it had become more at risk. I accept that that is what happens, and it seems perfectly reasonable to want to react speedily. However, if the fine has to be determined on the basis of what the courts are doing, how do the two things fit together? If a December fisheries council changes the rules on a species, how can there be flexibility if the Executive has to wait for the courts to determine the new level of penalty that is appropriate?
I understand the point—we might have to wait six to nine months before one of the new cases came to court. We would track the cases closely and the sheriffs and procurators fiscal would be advised that there had been a change in the status of the stock. However, it should not be assumed that there would be lots of offences. Ideally, there would not be and everyone would be fishing responsibly and sensibly. If there were not lots of cases going to court, that would mean that people were abiding by the rules.
The principal aim in setting the fixed-penalty offers is to set amounts that are acceptable and that establish the appropriate balance between imposing a reasonable penalty for the offence and providing the alleged offender with a sufficiently attractive alternative to proceeding with prosecution. The principal basis on which the scale will be set will be the fines that the courts hand down, although that will not be the only factor to be taken into account.
I accept your last point, but you seem to have introduced a new element. Up to now, you have said that the figures will be based on the fines that the courts are handing down—the penalty offers will be slightly lower so that they are attractive. You now seem to be saying that, although that could be the case, there is another way of doing it and that ministers may change the scales on the basis of something else, without waiting for the outcome of court cases. Can you clarify exactly how that will work?
We are not introducing anything new in that context. It is already our policy that recovery stocks or stocks under any monitoring and implementation plan will be treated slightly differently within the scale and will move up one level on the scale purely because they have been identified by the Commission as stocks under recovery.
I see what Mr Maxwell is saying about the picture becoming slightly less straightforward. Allan Gibb referred to the December fisheries council. It is important to remember that, in taking decisions on the status of stocks, the December fisheries council not only has an effect on the seriousness of offences but routinely introduces entirely new offences. The prescribed scale system that is proposed would set out a list of the offences that attracted each level of penalty, which would have to be modified as the relevant offences were modified. Therefore, there could be a need to amend the instrument that set out the levels of the fixed penalties if new offences were created. In such cases, it would not be possible to be guided directly by what the courts had imposed, because the offences would be newly created. The level of fine that the courts have imposed will not be the only factor that ministers take into account. Naturally, ministers must extrapolate, interpret and read between the lines to make a good estimate of an appropriate level of fine. It will be appropriate to adjust that in the light of experience of whether that level of fine is acceptable and effective.
I will ask Allan Gibb another question. You said that having a scale of fixed penalties was a new approach in your department.
The approach is new to fisheries legislation.
In other areas in which such an approach works, what is the norm for orders? Are they subject to the negative or the affirmative procedure? Perhaps Alastair Smith has more information on that.
I do not have that information ready to hand. I do not know the procedure that applies to fixing levels and I would have to write to the committee about that.
If fisheries legislation is taking a new approach, it is pretty important to find out what happens in other fields.
It should be possible to provide an answer by close of play tomorrow, if that is acceptable.
Okay. What are members' views?
I do not oppose in principle the suggested way in which the system might operate, but that is different from how maximum fines have been set before and from the norm. It was right that we explored that.
The question is half for us and half for the lead committee. The use of the regime for fisheries is new and the regime comes with some flexibility that may raise questions for us. The key is that a maximum needs to be set in legislation not for a range of fines but for a range of fixed-penalty notices. The maximum fixed penalty will be set by order, so the extra protection of setting a maximum in the bill does not seem to be required. The fixed-penalty notices will be alternatives to criminal proceedings. They will be another way of dealing with criminal offences that are specified in legislation.
As this is a new way of proceeding in this area, and we have no background information about how it operates in other areas, is there perhaps a case for saying that the first order at least should be affirmative?
I do not feel particularly strongly about it. You have called for the officials to find another example in which this sort of regime is used. If we have that, that is fine. It sounds as if there may not be one, in which case we would be introducing one. I do not feel particularly strongly either way. I am not sure what protection would be afforded by introducing the affirmative procedure for the first order, but if the committee felt strongly that that should be the case, it would not be the end of the world.
I tend to agree with Ken Macintosh. I would like some information on the kind of regime that is being introduced here and whether it applies elsewhere. Ken is right to point out that it is a policy question as much as it is a question for this committee. You say that time is short on this one.
Our responsibility is to ensure that we have got the procedure right, and whether the use of the negative procedure is correct.
If we can be reassured that there are precedents for this type of system and procedure, I would be happy to go with the negative procedure.
Would you agree with that, Janis?
Yes.
Shall we leave it until we receive information on whether there are precedents in other areas?
We do not have another meeting.
If we felt strongly about it, the convener could move an amendment at stage 3.
We would have to decide that now.
Leave that with me to decide, based on what we get back.
When is stage 3?
Next week.
The amendments must be done by Friday.
We have done manuscript amendments before.
The other option is for the response that we receive tomorrow to come before the committee next week, although the only option left open at that point would be the manuscript amendment.
That is the only choice.
Shall we see what the feedback is and consider the issue again next week?
Section 25C(3) is the prescription of address and methods of payment. I have no points on this. Do members have any points?
No.
Section 25E is on the intimation of non-payment. I have no points of concern. Do members have anything?
No.
Section 27 inserts new section 2C into the Diseases of Fish Act 1937. That section has been amended to require ministers to
No.
Section 29 confers on ministers the power to make payments in respect of fish destroyed. I have no comments on the power; do members have comments?
No.
Section 35(1) confers on ministers the power to make incidental and other provisions. On 6 February, we discussed a similar issue during our scrutiny of the Transport and Works (Scotland) Bill, as amended at stage 2. The Executive's position is that where it does not intend to confer on ministers a power to amend the act itself, it does not want to insert wording to that effect, because that might create ambiguity. Do members have questions for officials?
I have no further questions. My opinion has not changed since our discussion and I think that all members have made their position clear. I do not agree with the suggestion in the annex to our papers that the approach that we considered would cause confusion elsewhere.
There would be nothing wrong with our drawing the issue to the attention of the lead committee.
That would be fine.
Are members content to do that?
We move on to the schedule. Paragraph 1(d)(i) makes a consequential amendment to section 9 of the 1937 act, which addresses a problem that we identified at stage 1. Are members happy with that paragraph?
Ruth Cooper wants to comment on a matter that relates to our earlier discussion.
For clarification, my colleagues have pointed out that the committee can lodge an amendment and then withdraw it, rather than be pushed into lodging a manuscript amendment—I should have thought of that. What members decide to do depends on how strongly they feel about the matter. You could lodge an amendment, which you could withdraw next week on the back of the response that you receive.
To be honest, it will be difficult for us to decide our approach until we have received a response from the officials. That is the problem.
I thank David Ford, Allan Gibb and Alastair Smith for the clarification that they have provided, particularly on section 25C. We are much more aware of how orders would be made under that section and of court processes in relation to the scale of fixed penalties—although it took us a long time to get there. It would be helpful if Alastair Smith could provide the information that we asked for as soon as possible.
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