Subordinate Legislation
Scallops (Luce Bay) (Prohibition of Fishing) Order 2010 (SSI 2010/375)
We have before us a motion to annul a negative instrument. Before debating the motion, we will take evidence on the order. I welcome to the committee Richard Lochhead MSP, the Cabinet Secretary for Rural Affairs and the Environment; David Brew, head of sea fisheries; and Eamon Murphy, policy manager for fisheries reform, marine environment and the sea fisheries council in the Scottish Government.
Agenda item 3 enables members to ask questions about the content of the order before we move to a formal debate on it. Officials can contribute under this item, but cannot participate in the debate. I invite the minister to make a brief opening statement.
The Cabinet Secretary for Rural Affairs and the Environment (Richard Lochhead)
Good afternoon—I notice that it is nearly lunchtime. I will take a few minutes to explain the rationale behind the Scallops (Luce Bay) (Prohibition of Fishing) Order 2010 and invite members to endorse the approach that the Scottish Government is taking to reconcile a number of conflicting interests in relation to a complex matter.
Luce bay in the south-west of Scotland is an area of European importance and has been designated as a special area of conservation under the European Community habitats directive. It is a large, shallow inlet and bay and contains sandbanks, mudflats and reefs that support a wide variety of plants and animals. Special areas of conservation represent the best examples of their particular habitats and are, therefore, given a high level of protection under the directive.
The directive requires us to take appropriate conservation measures to maintain Luce bay’s habitats and species and to avoid damaging activities that could significantly disturb those species or cause the habitats to deteriorate. That said, sites such as Luce bay are not no-go areas. Various activities, including fishing, can continue, provided that their nature and level are not inconsistent with the protection of the habitats. On that basis, creeling and scallop dredging have continued to take place in Luce bay since the site was designated. There have been no recent reports of intensive dredging or large numbers of vessels fishing in the bay.
The situation changed radically and unexpectedly in the last week of October, when the Isle of Man Government introduced a byelaw that excluded at least 14 over-300 horsepower Scottish scallop vessels from Manx waters from 1 November. The Isle of Man’s action was taken with the approval of the United Kingdom Government but against the clearly expressed wishes of the Scottish ministers. In 2009, the excluded vessels landed scallops from Isle of Man waters worth £750,000 from fishing that was concentrated in the month of November.
Luce bay would normally be opened to scallop fishing at the same time as Isle of Man waters. The landings from the area are worth about £200,000 over the season, which usually lasts from November to February. However, the new Isle of Man byelaw raised fundamental concerns about the potential for all UK scallop vessels excluded from Isle of Man waters to divert their fishing effort to Luce bay. That would have meant vessels capable of catching £750,000-worth of scallops in the space of a few weeks swamping the smaller Luce bay fishery with excessive fishing activity.
Special areas of conservation will form a key component of Scotland’s ecologically coherent network of marine protected areas. The Isle of Man byelaw posed a real and present danger that displaced vessels could cause actual damage to the site and fatally undermine our approach. Were that risk to materialise, we might find ourselves in breach of European law and subject to infraction proceedings by the European Commission. In the circumstances, I judged that the possibility that displaced fishing effort by those who would not normally fish Luce bay might cause damage to the environmental features of Luce bay and to the local scallop stocks was too great a risk to run. The decision was made, therefore, to close the site to scallop dredging on an emergency basis to avoid immediate possible damage. Our intention in extending the closure until 28 February was designed to give sufficient time to consult on and put in place statutory fisheries management measures to ensure better protection of the habitat and species, and compliance with European law.
Balancing the interests of different fishermen and ensuring that short-term advantage does not cause longer term detriment is a hugely complex issue where inshore waters and scallop dredging are concerned. I regret that the decision that I felt obliged to take at short notice in response to the actions of the Isle of Man was unwelcome to those who have traditionally dredged for scallops in Luce bay.
Since I took the precautionary step of extending the Luce bay fishing ban, my officials have had an opportunity to undertake discussions with local fishermen as well as with the associations representing nomadic scallop fishermen in Scotland and throughout the UK. In the light of those discussions, and once the peak Manx fishing season is past, I believe that it may be possible to find an agreed way of permitting fishing in Luce bay without an unacceptable risk of environmental and conservation detriment. I therefore propose to lift the ban on scallop dredging at an earlier stage than originally envisaged in the order before the committee today. In the course of the next fortnight, my officials will seek to agree with the relevant stakeholders statutory zoning proposals that will permit fishing to resume in sea areas where there is least risk to the integrity of the protected habitats.
If further discussions prove inconclusive, I am minded to revoke the order no later than 8 December on the basis that the risk of displaced fishing effort will have significantly diminished by early December. However, I would do so on the clear understanding that continued self-restraint on the part of scallopers will succeed in restricting fishing effort to historic levels. If that expectation were borne out in practice, there would be no further need in the short term to call a halt to scalloping in Luce bay, and those who have traditionally used its sheltered waters in the winter months could continue their traditional fishing patterns.
Finally, I should explain to the committee that whatever course we adopt for the current winter scalloping season, it is clear that we shall need to undertake as soon as possible a full public consultation on long-term statutory fisheries management measures for Luce bay.
It is a little difficult to phrase what I want to say as a question. First, I hope that the cabinet secretary recognises the economic importance of local scallop fishing to the economy of the south-west of Scotland. There is anecdotal evidence of a significant drop-off in revenues to local shops and harbours. A large number of fish processing operations also depend on the scallops that are brought in.
Secondly, I hope that the cabinet secretary will pay attention to the weather argument. The local fishermen who use Luce bay do not use it by choice. In fact, they are exempt from the Isle of Man byelaw and are still allowed to fish there. Normally, in good weather, they go to the Isle of Man. It is only when bad weather and prevailing winds prevent them from doing so that they like to use Luce bay and, of course, the weather is especially bad during the exemption period from November to February. That argument was brought home to me because I happened to be in the Isle of Man this weekend on other parliamentary business and, of course, the hulk of the Solway Harvester is still moored in the harbour at Douglas. That is a reminder of why fishermen from the local area want to use Luce bay if the weather is bad.
I also hope that the cabinet secretary realises that the period leading up to Christmas is the most important one, both because of the weather and because scallop prices are higher. He promised a resolution by 8 December, and it is vital that he sticks to that so that, if the weather turns out to be bad, the local fishermen have the opportunity of going into Luce bay during that period.
Minister, what happens between now and 8 December? Can the local fishermen access Luce bay from today if they want to?
Do you want me to respond to both questions, convener?
Yes, please.
On Alasdair Morgan’s points, I realise that the issue is important for scallop fishermen in the south west and the Luce bay area. We felt that we faced an urgent decision. We consulted fishing organisations. Perhaps we could have done better and spoken to more of the local fishermen directly, but it is always difficult in such circumstances to know who represents the wider sectors.
We felt that we had a case for taking an emergency step because, had there been significant displacement from Isle of Man waters once the fisheries reopened on 1 November, significant damage could have been done to not only the marine features but the stocks in Luce bay. The local fishermen would, of course, not have thanked me for that. I was trying to strike a balance in an emergency.
The Luce bay scallop fishery is worth about £200,000 a year to the local scallop fishermen who use those waters. I recognise that, although that is not a major fish in the context of Scotland’s scallop fishery, it is an important fishery on the doorstep for the local fishermen.
On John Scott’s point, we have been in discussions with all interests over the past couple of weeks since we put the emergency order in place. We have spoken to local fishermen—my officials visited the area and had a meeting with them. We have not only spoken to the local fishermen, who perhaps felt that they were not consulted enough when the original decision was taken, but maintained contact with the wider fishing organisations, such as the Scallop Association.
We have—we hope—reached agreement that there will be no fishing in Luce bay between now and 8 December. The order will stay in place, but I give a commitment today to revoke it on 8 December in the hope that, by that time, we will have agreed statutory zoning to identify the areas that should be avoided—those where the marine features are most likely to be harmed. We are now working on that with the local fishermen, and the industry has helpfully offered to introduce a voluntary zoning if we do not have the instrument ready to put the statutory zoning in place for 8 December.
Obviously, I cannot speak for every fisherman in Luce bay, but I think that they are relatively content with the order being in place until 8 December.
Is there no way that the industry, given the fishery’s importance to local fishermen and their relatively small number, could bring the statutory zoning into place voluntarily before 8 December? We are talking about livelihoods.
We are talking about livelihoods. We do not want to give too much of an impression that the area is being intensively fished. To be fair and to keep it in perspective, I am not trying to demean Luce bay’s economic importance to those who are involved but, although it is important, they spend only some of their time fishing there.
The prospect of the fishery being closed well into next year understandably exercised a lot of people, so 8 December offers much comfort to those who felt that they would be excluded throughout the winter season. There will be ample opportunity for them to have their catches beyond that date, which also provides us with comfort that the potential for big displacement in the meantime might not be realised.
12:45
Cabinet secretary, Alasdair Morgan’s points were quite convincing, but I would like a little bit of reassurance. You are confident that the marine priority features in this special area of conservation are secure. I take it that some monitoring will be done to ensure that, if there are unforeseen developments such as more boats moving in, those priority features will be properly safeguarded.
Scallop management is quite complex in Scottish waters, and in the Isle of Man and UK waters. There is a domino effect, in that when a byelaw is made in one area, it has a knock-on effect, potentially in Luce bay in this case, and elsewhere. There has been a seasonal closure in Luce bay since 2002 for stock conservation purposes.
The designation in 2005 of Luce bay as a special area of conservation could have led to extra protection for marine features earlier than today, but because the seasonal closure was already in place for stock conservation purposes, that reduced the amount of intensive fishing activity in the area. A by-product of the seasonal closure was some protection for marine features.
We now have to have a proper review to see where we go from here. Local fishermen and my officials will sit down with maps to discuss where the best fishing areas are and how we can zone Luce bay to avoid damaging the marine features.
I welcome the cabinet secretary’s comments. The order might have been an overreaction, but I appreciate the circumstances in which it was made and, obviously, further work is being done that has allowed the cabinet secretary to make his comments.
It is also evident that the order is a response to the Isle of Man scallop fishing byelaw. I was interested to note the papers that were circulated to the committee. One was a letter from you, cabinet secretary, to the convener, and attached to it was an explanatory note that was prepared by officials. I was a little alarmed by some of the language in that note because it was drafted by officials as opposed to the minister, who clearly has the scope to operate in a more political environment. A couple of statements leap out of it:
“Defra has chosen to support Isle of Man interests over those of the UK”.
I am interested to hear the justification for that and whether you believe that officials should be putting a statement like that into the public domain. The note also says that
“The proposals are also clearly discriminatory”.
Again, I would appreciate hearing your justification for that statement, and for the assertion that
“in 2008 and 2009 the right of veto was successfully deployed by Scotland”.
As I understand it, no such veto was deployed, but you might want to comment on that.
I certainly share your disappointment at the introduction of the byelaw, but I think that the tone and nature of the document that was prepared by officials, not least in the run up to some pretty difficult and important EU negotiations on sea fisheries, suggests that the relationship between your officials in Scotland and their DEFRA counterparts is not sufficiently positive and constructive, and that those negotiations will be made even more difficult.
It is worth going over the background to the Isle of Man byelaws. Since 1991, there has been a fisheries agreement on scallop management across the whole UK. For the past three years, the Isle of Man has wanted to put in place byelaws in its own waters that would affect queenies—queen scallops—and king scallops, and we have been in negotiation with the Isle of Man. Because of the constitutional arrangements, the UK Ministry of Justice has to give the green light to Isle of Man byelaws, which are seen as international negotiations, and the Ministry of Justice down south takes its advice from DEFRA.
We managed to reach agreement on, for instance, queen scallops, and new arrangements were put in place that were agreed between all the Administrations. However, there was no agreement on many of the issues relating to king scallops, which led to where we are today. Previously, all Administrations in the UK had to agree to any new measures. For two of the three years for which the Isle of Man has been trying to get the byelaw in place, we were listened to and were able to maintain the fisheries agreement that has been in place since 1991. This time around, DEFRA felt that it wanted to support the Isle of Man in going ahead with the byelaw irrespective of the Scottish Government’s views. DEFRA felt that the issue had been going on for three years and it wanted to support the Isle of Man for the reasons that the Isle of Man was giving it.
My contention is that we all want to protect scallops in the Isle of Man’s waters and in the waters around our coasts, but we have yet to receive any scientific evidence that the measures that are being put in place—which, in effect, exclude only Scottish vessels—are the right thing to do for conservation. The vessels that remain able to fish in the Isle of Man’s waters will be able to fish as much as they want. Without scientific evidence, we are not sure how that will reduce overall fishing pressure.
I share many of your misgivings about the byelaw and, along with the industry, have made representations to the UK Government. However, I find distinctly unsettling the tone of the document that has been prepared by your officials. I appreciate the fact that this is a line that you can and will deploy, but I find it unacceptable for officials to make statements such as
“the right of veto was successfully deployed”.
It was not. Through negotiations, the matter was agreed and the Isle of Man backed down.
The proposal is clearly discriminatory. You can argue about whether there is a scientific basis for the exclusion, but the significant presence of Scottish vessels in those waters means that it will inevitably—however it is sliced—affect Scottish vessels more. The suggestion that DEFRA has chosen to support Isle of Man interests over those of the UK is, frankly, ludicrous. That may have been an unfortunate use of language, but it is not out of keeping with the rest of this briefing note. That is where my misgivings lie. It is a highly politicised note from your officials. If it had been in the letter from you to the convener, I could have either accepted it or taken issue with it. What I find deeply unsettling is the fact that that tone is being taken by officials at a point at which the relationship between Marine Scotland officials and DEFRA officials will be put under pressure going into the negotiations next month.
I will reflect on the member’s point. It is a matter of debate whether the explanatory note accurately reflects the situation or whether it uses inappropriate language.
You referred to a lack of consultation with the local people at the time when the order was being drafted. I am slightly surprised at that. The minutes of the Solway Firth partnership meeting with Marine Scotland that took place last week, which was also attended by some of the skippers and harbour masters, state:
“Marine Scotland had made a commitment in October 2009 to working with the fishing industry to develop a sustainable fishing agreement to ensure sensitive habitats at Luce Bay were avoided.”
That was over a year ago. I am surprised that, a year later, nobody knew who to consult.
As I said in my opening remarks, given the diverse nature of many of the fisheries around Scotland’s coasts, we sometimes get it wrong and do not consult as many people as we should, or the right people.
But a commitment was made, over a year ago, to consult those particular communities and fishermen. I understand that it can be difficult to know who to talk to in an emergency situation, but there was already an agreement that conversation with those people would take place. That commitment was made over a year ago.
As I am sure that the committee is aware, some of the issues take a long time to get off the ground and progress. We are where we are, and we have to make sure that that happens.
I am concerned about the long-term position of the Isle of Man and the lack of scientific evidence to back up the imposition of the byelaw. I appreciate that this might be speculation, but what do you envisage happening next year and the year after? Will we face a similar situation next year?
That is a good question. Over the past few years, the Welsh have put in place new regulations in Cardigan bay and Northern Ireland has introduced new measures. Today, we are discussing new measures in Scotland and what might happen in one part of Scotland. So there is obviously a strong case for a review of how we manage the scallop fishery in our waters. It is diverse and, as I said, there are always domino effects when one country puts measures in place. Within the fisheries limits, all countries can fish in each other’s waters.
We have to do two things. First, we are having on-going bilateral discussions with the Isle of Man Administration to find out whether there is a better alternative to the Isle of Man approach that would not discriminate against Scottish vessels, as in our view the current situation does. Secondly, the fisheries agreement that has been in place since 1991 has in effect been disregarded. We must negotiate with the rest of the United Kingdom on what will replace that. That will be an opportunity to consider the wider UK situation. Within Luce bay, I have given a commitment to have a short-term arrangement on zoning to allow the fishery to reopen. However, as I said, we will obviously need a wider review of management measures in Luce bay.
We move to the formal debate on the motion to annul the Scallops (Luce Bay) (Prohibition of Fishing) Order 2010 (SSI 2010/375). I remind everyone that officials cannot participate in the debate. I invite Alasdair Morgan to say whether he wants to move his motion.
On the basis of the commitment by the cabinet secretary to revoke the order by 8 December, I will not move the motion.
As no other members wish to speak, do we agree to make no recommendation on the order?
Members indicated agreement.
Fishing Boats (EU Electronic Reporting) (Scotland) Scheme 2010 (SSI 2010/374)
We will take evidence on the made affirmative instrument. Along with the cabinet secretary, I welcome Allan Gibb, head of sea fisheries compliance and licensing with the Scottish Government. I ask the cabinet secretary to make a brief opening statement.
I will be delighted, having looked at my watch and heard everyone’s stomachs rumbling, to keep my comments briefer than I expected. The scheme allows Marine Scotland to provide grant assistance to skippers towards the cost of installing electronic log book software. The new legal requirement is set out in the Sea Fishing (EU Recording and Reporting Requirements) (Scotland) Order 2010 and came into force on 31 October 2010. The instrument that we are considering allows the Scottish Government to contribute financially towards the cost of electronic log books, up to a maximum of £2,000 and involving EU money and domestic resources. The log books will mean less bureaucracy on board vessels and will allow real-time transfer of information between vessels and the shore on catches and so on. It is a compliance measure, but the introduction of electronic means brings extra benefits. We are delighted to have the opportunity to help with financial support to ensure that that goes ahead.
I welcome the scheme. The supporting paperwork suggests that the response to the consultation was pretty low. One hopes that that was not because of a low level of awareness or a likely low take-up of the funding. Can you offer reassurances in that regard?
There is a phased introduction of the order on electronic log books. The first tranche involves larger vessels. Some larger vessels already have electronic log books and I can assure the committee that the others are well aware that they have to have them installed and of the timetable. I am confident that the boats that are affected are well aware of the issue.
I invite the cabinet secretary to move motion S3M-7397.
Motion moved,
That the Rural Affairs and Environment Committee recommends that the Fishing Boats (EU Electronic Reporting) (Scotland) Scheme 2010 (SSI 2010/374) be approved.—[Richard Lochhead.]
Motion agreed to.
That concludes the public part of the meeting. I thank everyone for attending.
13:00
Meeting continued in private until 13:59.