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Agenda item 4 is stage 1 consideration of the Aquaculture and Fisheries (Scotland) Bill. In our first evidence session on the bill, we will hear from officials on the content of the bill and associated documents. I should tell the committee that it is not for officials to answer questions on policy decisions; instead, they are here to offer clarification on the bill and its associated documents. Discussions on policy aspects should be left for the minister. We intend to look at the bill in considerable detail and will take evidence from stakeholders throughout December, with a final evidence session with the minister in the new year.
Clearly they interact with each other because they are both in the same place. Fish farming activity takes place in the freshwater and marine environments where wild fish stocks also live, and interaction happens by virtue of the fact that they are neighbours. At the moment, there is a regulatory framework for managing the siting of fish farms and considering the implications of siting individual farms in various places; Marine Scotland has an inspection regime for fish health; and the Scottish Environment Protection Agency monitors discharges into the marine environment.
So there is a framework in place at the moment. In the absence of the bill, what would be the implications for wild fisheries of increasing aquaculture production in accordance with the Government’s targets?
As you say, a regulatory framework is already in place and working well, and we have a successful aquaculture industry that has been growing for the past decade or so. The purpose of the bill is to take us to the next stage. The Government supports the aquaculture industry’s ambitions to grow, and there are pressures from the European Commission and its common fisheries policy to increase aquaculture production across the European Union, partly to become self-sufficient and reduce the importation of fish products from other parts of the world and partly to contribute to global food production, which is clearly an issue given the rising population and the limited land resources on which to grow protein.
What are the implications, then, for wild fisheries?
The implications of growth?
No—the implications of aquaculture.
Wherever there is an industrial input, there must be an impact of some sort. As you will be aware from the written evidence that you have been sent and various media reports—I also understand that you have been out and about visiting various stakeholders—interpretations of the actual and perceived impacts of aquaculture on wild fisheries differ. The Government is keen to ensure that any impacts are managed and mitigated to an acceptable level, and a key issue for the committee in its consideration of the evidence will be the extent to which there are actual rather than perceived impacts and the evidence base in that respect.
I have anecdotal evidence from a netsman on the north coast who in the past year has caught in the region of 100 salmon that were originally from an aquaculture source. That is the impact on wild salmon as monitored by a netsman; I presume that the impact on rivers might be similar.
The impact of escaped farm salmon on wild stocks has recently been the subject of a study, which found no evidence of a substantial impact of one on the other. However, there continue to be concerns about introgression, mixed breeding and farmed animals taking up the space that wild fish are in.
The fact that, in the previous year, that same netsman caught only six fish that had come from escapes suggests that there is an urgency for the technical measures to work.
Yes. We can provide you with data on escapes over the past decade. You will see from that information that, generally speaking, they have reduced considerably. There was a single incident last year during the Christmas storms in which a whole fish farm in Shetland was washed away. I had interesting conversations with the then minister on hogmanay as to what we would do about that. One of the issues was that, although 300,000 fish escaped, we simply do not know how many of them escaped live into the wild environment. That skews the understanding behind the numbers, but it is clearly in everybody’s interest to reduce escapes from aquaculture.
We will move on to some of the different parts of the bill in a minute but, first, we will have another question related to the policy memorandum from Graeme Dey.
Good morning, gentlemen. Will you outline for us all why new legislation is necessary to achieve the purpose of the bill as outlined in the policy memorandum when, for example, the Aquaculture and Fisheries (Scotland) Act 2007 provides for a statutory code of practice on aquaculture? Could the measures in the bill not have been achieved by amending or replacing that code?
Some of them could have been but, to date, ministers have preferred that the industry have its own code and for that code to be flexible and updated, as opposed to there being a statutory code, which, by its nature, can become out of date quickly. The preference was for the industry code to continue but to introduce statutory requirements about how aspects of it should be used.
We will move on to sustainable development issues.
The assessment of sustainable development in the policy memorandum has been criticised in some of the written evidence that the committee has received. In his submission to the committee, Professor Colin Reid, who is a professor of environmental law at the University of Dundee, states:
Ministers consider that the policy memorandum and other documents cover the area. One of the issues is the question of what is sustainability. Ministers’ position is that they want to encourage a sustainable, growing industry that minimises its impact on the broader marine environment. The economic benefits for local communities, through jobs, income and cohesion, are a by-product of getting that right. I think that what concerns most stakeholders is the question whether growth is environmentally sustainable, and I think that ministers would say that the documents that accompany the bill are perfectly adequate.
Will you expand on that? What analysis was done on that in the context of the bill? You said that ministers think that the documents are adequate. It is for ministers to explain that in detail, but can you help me to understand the process of analysis? Concern has been expressed, particularly in view of the national marine plan being delayed until 2014 and the need to consider everything in the context of the EU marine strategy framework directive. I am puzzled as to why a professor at the University of Dundee, to mention but one person, would raise such concerns.
I think that I am right in saying that the individual in question has expressed similar concerns in relation to other bills and accompanying memoranda, so the concerns are not specific to aquaculture and fisheries.
Good morning, gentlemen. The convener has already highlighted an example of a potential clash in the far north; I represent the far south, where the Galloway Fisheries Trust, the Nith fisheries, the Tweed Foundation, the Tweed Forum and so on have been doing a huge amount of work on wild fisheries. Of course, that work is not just environmental but economic in nature in recognition of the fact that these fisheries are large economic drivers in very rural areas. The concern, therefore, is that both the environment and the economy might be damaged not just by escapees but through certain unintended consequences such as the spread of sea lice and so on from fish farms. How many of those economic, environmental and social impacts have been taken into account in the bill’s development?
At the most basic level, the Government’s purpose is to create sustainable economic growth, and everything that the Government does and that civil servants do to support Government is viewed through that lens. Ministers absolutely recognise the economic benefits that come from wild fisheries and want them to be enhanced. The Government has made it quite clear that aquaculture growth and the protection of wild fisheries are not an end in themselves but are two areas where the sectors very often—though not all the time—share the same space. We need to consider them hand in hand when we examine the issues, the impacts and the interactions. I think that it is reasonably clear that, as part of meeting its wider social responsibilities, the aquaculture industry has in some well publicised instances been very supportive of the work of some of the wild fishery boards and trusts.
We all share that view but what potential negative impacts have been identified in the work that you have done so far? I have already mentioned sea lice and escapees, but have you identified any others?
As I have said before, any activity has its risks. You have outlined two of the key issues that the aquaculture industry must continue to work on and get better at. Evidence and research from around the world postulate the actual impact of aquaculture on wild fisheries, and we are looking at that evidence carefully, because it helps us to develop not only our policy position but the broader management and regulatory position. Although there are risks, the issue for Government and the broader government that manages and regulates the aquaculture industry is to ensure that any such risks are properly managed and mitigated.
I will press the point for a specific answer. I listed two risks. What other risks have you identified in your research so far?
You identified the two key risks. More broadly, there could be other potential risks of disease. The management of disease falls under the fish health inspectorate’s regime and is part of the regulatory regime that we manage.
We will turn to the issue of delegated powers.
Good morning, gentlemen. I have no problem with the bill. It amends the Fisheries Act 1981, which is 31 years old—some of us are older than that. However, I have a problem with the delegated powers memorandum.
The primary reason why ministers seek the enabling powers is the technical nature of the provisions that will ultimately be implemented. Ministers are seeking enabling powers, on the back of which further consultation is under way even now with stakeholders on what their implementation will look like. It is not unusual for enabling powers to be used to implement something such as technical standards, which are by their nature technical and can move apace and require further amendment.
Will we cover every section that needs an enabling power or will we have a get-out-of-jail clause?
I am sorry; I do not follow the question.
Will you cover every enabling power or will the approach be open ended?
The enabling powers that are being sought are specific. Ministers’ policy position is that the enabling powers will be used when appropriate and when the detailed consultation and development work has been done. We will have a detailed product to bring back to the Parliament and we will say, “The purpose of this detailed secondary legislation is X, Y and Z, and this is all the work that has been done to support it.” There is no suggestion of having a single enabling power to introduce sweeping regulations.
Good morning, gentlemen. If I put section 3(1)(a) of the bill together with section 3(2)(a), I am left with the impression that the provisions are about technical requirements for the containment of fish. Most of what I have seen written down suggests that that is to do with materials for things such as pens and nets.
In relation to the technical standards, the development process has taken place over a number of years through a sub-group of the ministerial group on aquaculture that brings together the industry, the gear manufacturers, the vets and the insurance companies. The development process is continuing with a broad church of people who are ultimately involved in making this happen.
The primary purpose of the conversations with the industry and other stakeholders is largely to discuss equipment for the prevention of escapes.
I think that I understand that, but I want to pursue the issue. I am grateful to Mr Cowan for pointing out that we are talking about the process from egg to finished fish. What I am trying to check is whether you believe that what is written down in the provisions in question is wide enough. It seems to me that it is if it were necessary to prescribe the tray on which the egg is first placed to hatch. I am just asking whether that is the intention—it would make perfectly good sense. I am not suggesting that everything in the bill or everything that happens out there should be regulated; I am merely asking whether the provisions are wide enough to cover that, should it be necessary.
We would move on the basis of risk, if that is the essence of the question. It is not the intention to micromanage the farming of the fish but, as with all the other elements of the incremental approach that we are taking, if a risk were identified, we would discuss that with the industry and would consider how we would deal with it.
I have a question about the other issue that was highlighted as a risk—sea lice. I believe that all the councils in the aquaculture zone, SEPA, environmental NGOs and other stakeholders favoured publication of sea lice data at individual farm level. How could one take forward those concerns? Sea lice are obviously a big risk. The Association of Salmon Fishery Boards has asked for the issue to be dealt with in the bill. How can wider communities, angling associations and others in rural areas be reassured on the issue? On the back of that, I cannot understand why it is necessary for the farm-level information to be commercially secret. Perhaps you could expand on those issues.
The first point to make is that there are powers in the 2007 act for ministers to require the provision of environmental data, so new primary legislation is not required. After discussions with stakeholders, ministers have taken the view that there should be greater disaggregation of sea lice data. Last week, the Scottish Salmon Producers Organisation published an article on its website indicating that from 1 January 2013 the disaggregation of sea lice data would move to between 25 and 30 areas around Scotland as opposed to the current six. Ministers support that further disaggregation but recognise that in some instances there are commercial confidentiality reasons why it might not be beneficial to the industry given their responsibilities as public limited companies.
I think that we are now straying into consultation stuff with regard to part 1. After all, the issue is not just the delegated powers that we have been discussing. I believe that Alex Fergusson has a couple of questions on these matters, so it might be an idea to give him a chance to ask them and see whether we can come back to the previous point.
Thank you, convener—you have given me something to ask.
I will ask Jeff Gibbons to respond to that question.
We certainly discussed the issue with stakeholders before the consultation was published and the responses analysed to ensure that they were aware of the methodology that was adopted, which is common across the Scottish Government. We made it very clear that, although many of the responses were tick-box exercises, they were still registering views that we took on board and reflected in the accompanying documentation. We also decided that, in our response to the consultation, we would provide further detail on how we would deal with the issues that were not going to be progressed through the bill but might be progressed through, for example, enabling powers that we already had or even voluntary means.
Are you able to give examples of issues that were raised under the heading “interest group responses” that have been included in the bill?
I think that the issue was more about addressing some of the concerns that were raised. The responses raised two prominent concerns: first, the application of fixed penalty notices and the rationale behind that policy initiative; and, secondly, strict liability. In many ways, the responses merged the two proposals, which indicated some confusion about the approach that was being taken. Indeed, concerns about the application of and the rationale behind the strict liability policy enabled us to reflect on whether our existing powers were sufficient or whether there was evidence to suggest that they were not working in practice. On that basis, ministers took the decision that there was no case for progressing the matter.
So, despite the fact that the responses were not included in the consultation analysis, you can put out the message that responding in such a way is not a waste of time. I think that it is important for people to know that.
Absolutely. Indeed, we sent the additional documentation that we produced on fixed penalty notices to individuals instead of representative bodies to ensure that the message got out and was understood.
Will you talk me through the process by which the Government decided not to deal in the bill with some of the key issues that were raised and were included in the analysis? As Claudia Beamish mentioned, one major negative impact of fish farming is sea lice. It seems to me that the opportunity has been passed by to include provisions in the bill on, for instance, collecting data on sea lice and on deaths and movements of fish, and to include powers to prescribe a lower sea lice threshold. I imagine that there was a considerable response to the consultation on those issues, but that opportunity seems to have been passed by.
It was self-evident that many of the individuals who took the time to respond to the various proposals in the consultation were not clear that the proposals did not all relate to primary legislation. We acknowledge that we needed to get that point across. There was some confusion and a belief that the natural progression would be for the proposals to move to primary legislation. However, some of the questions in the consultation were about how we could proceed using existing powers, or whether we needed to use existing powers or could achieve the level of data that we might require using alternative means.
Can you say that the bill as lodged and in the form that we now have it has changed much from what you originally envisaged because of the consultation responses?
I can, because we did not consult on the bill. That was one of the issues. We consulted on proposals. There was initial confusion about that. Although there was not a bill in its understood form, people thought that the proposals constituted a bill, but that was not the case.
That is a key point. The bill is part of a package. We have the existing regulatory framework and the propositions in the bill. If the powers in the bill are granted, we will have further detailed consultation on secondary legislation. We can use existing powers and regimes differently to achieve different outcomes and, where appropriate, we have the potential to put in place voluntary measures, rather than legislation. The bill is part of a package; it is not the only thing.
That is useful. Thank you.
We will move on to issues regarding part 1 of the bill. Angus MacDonald will kick off.
Sorry, convener, but can I ask a question on that last point for clarification?
Yes.
For my personal clarification, are you saying that, rather than include provisions in the bill, you will rely on information on sea lice and the like coming voluntarily?
We are saying that in relation to data on sea lice and data generally, there are currently powers in the 2007 act for ministers to make regulations to require data to be provided. Ministers have taken the view that no other primary legislation is required for that purpose and that their preferred way forward is the voluntary provision of information in order to try to encourage openness and transparency between neighbours. That is the approach that ministers have chosen to take at this point in time but there are powers within the 2007 act for ministers to come back to the Parliament and seek regulation if that is necessary.
Is that voluntary provision approach working at the moment?
That is the point that I and Jeff Gibbons just raised. There have obviously been discussions between Government and stakeholders on what could be put in place. A proposition is out there now that is subject to further discussion. As stage 1 of the bill progresses and we get towards stage 2, what the proposition is and what will be provided will become clearer. Stakeholders will have the opportunity to take a view on whether that is appropriate from their perspective and then the debate will continue. So we are in the process, but we do not have the final product just now.
Does the proposition include a question about whether it would be more appropriate in the view of stakeholders to see the issues around sea lice, disaggregation and so on within the bill?
No, because as I said, there is existing primary legislation that provides powers for ministers to come back to Parliament for regulation, so from the Government perspective there is no need for further primary legislation in order to do any of that. The issue for Government and for Parliament generally is whether the voluntary approach that is being advocated provides stakeholders as a whole with a solution that is acceptable or whether we need to come back and consider that through further regulation.
It is probably worth adding that we welcome what the SSPO put forward last week. We see that as a constructive development. In that context, the voluntary way forward seems to be working but clearly we will keep an eye on that.
We will now move to questions on part 1 of the bill.
The bill proposes to introduce a legal requirement for fish management agreements or fish management statements for all fish farms. It also provides for inspections of farms and the taking of samples, or whole fish, to determine the origins of fish escapes. What are the main differences between the FMAs and FMSs in the industry code of practice and those proposed in the bill?
The industry code of practice contains provision for farm management areas to be put in place amongst their members in a non-legislative way, if I can put it like that. So although the majority of production in Scotland is covered by people who are signed up to the code of practice, not all of it is. The bill seeks to put that element on a statutory basis so that every fish farmer, irrespective of whether they are a member of the SSPO, is required to have an agreement or a statement and those statements must have as a minimum the items that are specified on the face of the bill. It takes what is essentially the non-statutory basis that the majority of farmers currently sign up to and puts it on a statutory basis that requires all fish farmers to sign up.
If the bill goes through, will there be a strict timescale for signing up?
We have to consider transitional arrangements, as we do with all new legislation. Given that the majority of fish farmers currently undertake that type of arrangement, we do not anticipate that for the majority it will be a huge burden to revise their agreements so that they comply with the new law. We will work with the industry to understand the gap for farmers who currently have no agreement and the timescale for putting one in place.
Part 1 provides for the possibility of setting legal technical requirements for fish farms and for measures to be put in place to control and monitor wellboat operation. In the financial memorandum, the modifications that are needed to wellboats were identified as accounting fro some of the most significant costs. What modifications are proposed? Are the costs proportionate?
The key aspect of the wellboat provision is the installing of a filter that will stop sea lice going back into the marine environment, whatever their stage of development. Ball-park figures suggest that retrofitting a wellboat with a filtering system could cost in the order of £500,000. In recent years, some wellboats have been built with the capability to retrofit such a system; other, older wellboats do not have that capability. In Norway, some wellboats are being built with the equipment installed.
If we are commissioning new wellboats, it makes sense that they should have filtering equipment. You said that modification could cost £500,000. Off the top of your head, how much does a new wellboat cost?
In the order of £12 million to £15 million.
I hope that some will be built in Scotland in future and not just in Norway.
That would be welcome economic development.
In its submission to the committee, Europharma Scotland said:
The Government, through Marine Scotland Science, will consider the best way of achieving the policy intention. The provision in the bill is about getting the specimen; what is done with the specimen downstream will be subject to technological advances. There is not a one-stop-shop approach, whereby we say, “We’ll take the specimen and do this and only this with it.” We will take the specimen and consider the best way of identifying where the fish came from, given what has been developed and is in place in the market.
We are discussing the technicalities of the bill at the moment and it is very useful to have your views. We will get stakeholders’ views in due course. Let us move on to part 2, which deals with salmon and freshwater fisheries.
Part 2 deals with governance by the district salmon fishery boards. It includes provisions to allow the introduction of a carcass tagging scheme, which would make it an offence to sell salmon that are not tagged. It allows for inspectors to enter salmon fisheries to take samples of fish, to tag fish or to carry out monitoring or analysis. It also gives ministers more powers in relation to conservation measures, to rules on baits and lures and to annual close times. In addition, part 2 provides for the possibility for Scottish ministers to change the rules on consenting introductions, under particular circumstances.
The consultation on part 2 was largely in two parts. The first part was on improvement of management arrangements, carcass tagging and that kind of stuff. It went into that in some detail. The second part was on good governance, openness and transparency in the operation of boards. The consultation paper was not as detailed as the bill, but we struggle to identify where the requirements in the bill are any more onerous than the requirements on other public bodies or bodies that have been created by statute.
Have you had any follow-up from those bodies in response to that?
Yes. The ASFB is on the stakeholder reference group for the bill. We have met it both as part of that group and separately, and we have heard the same concerns that have been outlined to you. You have also received a couple of responses from individual boards, but I do not think that any great concern has been expressed in those. There are concerns at the margins about the practical implications of some of the proposed provisions for some of the smaller boards, but the Government’s position is that, for a statutory body with a number of powers at its hand, what is suggested in the bill is entirely reasonable.
As part of the consultation process, was any consideration given to the proposal from netsmen’s organisations that their management be transferred to inshore fisheries groups?
That issue did not form part of the consultation process. However, as you will be aware—it is stated in the policy memorandum—the Government is committed to doing more work on the management arrangements for the wild fish sector. I expect that questions about the movement of particular sectors, or sectors within sectors, will form part of that consultation. I expect that the Government will want to take views on the matter during the next stage of the process.
There is a conflict between river fishermen and netsmen, who feel that they would be better managed within inshore fisheries groups than by the fishery boards.
Yes.
Why did you decide not to include that in the bill?
The first and primary reason was that it was not specifically consulted on in the consultation paper last year. The consultation paper was based on three things. In relation to the management of fisheries, the issue was what work had been undertaken that would enable us to propose legislation. For example, a lot of what is in the bill came out of the mixed-stock fisheries working group recommendations. Work had been undertaken that enabled us to take a view, consult on that view and come to Parliament with it. The second area for consultation was what could be done to improve openness and transparency in the operation of the boards as statutory bodies. The third issue on which we consulted was the Government’s commitment to do more in this area within the lifetime of the current Parliament. The questions were what we could do in the consultation paper at that point in time, what we could bring into the bill and what other issues regarding the sector might be covered in the second stage of the process.
You said that you will consult on the issue that the netsmen’s organisations have raised regarding their management. When are you likely to do that?
I said that the Government is committed to a two-stage process in the sector. The next stage is to consider what further areas need to be looked at in relation to management of wild fisheries, and the place of the netsmen within that management regime is an area that I expect ministers will want to look at. However, we have not yet discussed with ministers the scope of the review. Given that it is a key issue for the netsmen, which has been raised with the committee both during your visits and in evidence, I expect that ministers will want to look at it. I cannot commit the ministers to that today, but that is what I anticipate.
When will that happen? When will they look at it?
I think that we will scope out what the review might look like during stages 1 and 2 of the bill, taking account of the views that have been expressed. I suspect that there will be a consultation in the latter half of next year, with a proposition for a bill coming after that. This session of Parliament runs until 2016, and I expect the first part of the process to kick off during the bill’s passage through Parliament.
I will return to salmon fishery boards. There is undoubtedly a school of thought, if I can put it that way, that the way in which further regulation of the salmon fishery boards is covered in the bill is almost along the lines of saying, “We’re bringing in further regulation of the aquaculture industry, so we’d better do something about the other sector as well to balance up the regulatory programme.” I am not saying that it is a widely held view. What is it about that sector, specifically, that makes you believe that it needs further regulation? Many people believe that it works reasonably well.
The main issue from ministers’ perspective is that those bodies are established by statute and have powers given to them by that statute. The question then is to what extent ministers, Parliament and the general public can be assured that the powers are being used appropriately and that the boards are undertaking the responsibilities that have been assigned to them through the statutory provisions.
I am grateful for that explanation. I have a number of reservations, but they are probably better addressed at stage 2 and through amendments rather than now. Thank you for that explanation; I appreciate it.
I will pursue that matter. I entirely respect the idea that any organisation or individual that has a statutory power is responsible for how that power is exercised and needs to be accountable for it. However, I am conscious that some of the river boards are very small. I am getting the message that, if we come along and say, “This is the way it’s going to be regulated. You need to do X, Y and Z, and if you don’t, you might finish up in jail”—I am exaggerating slightly—people will say, “Actually, I already do this more or less voluntarily. This isn’t worth the candle. I’m going away.” The small boards might simply cease to exist. Is that understood to be a possible consequence of what is proposed?
As with everything in the bill, ministers want to be proportionate; this is not about imposing disproportionate burdens on small organisations. Ministers fully recognise that many boards are very small and that the work is undertaken voluntarily by people who have an interest in trying to improve fisheries in their areas, as is the purpose of the boards.
Two little technical points arise immediately from pages 18 and 19 of the bill. First, there is mention of “audited accounts”. Some organisations can find it incredibly expensive to get audited accounts and it can be a complicated process.
That is a technical aspect of the bill that we are happy to examine. You could simply put a notice up on a website.
In which case, people would be grateful if that simple solution was set down and made clear.
What submissions were made on openness of salmon fishery boards when you were making up your mind about how to proceed with that section?
Yes, well. [Laughter.]
I look forward to discussing that with stakeholders, and I thank you for that hint.
Part 3 deals with sea fisheries and will bring Scotland into line with the rest of these islands in terms of marine enforcement powers. It makes it possible for sea fisheries officers to detain foreign vessels in port in cases of alleged offences, and allows enforcement officers to inspect and seize objects that are connected with commercial sea fisheries where an offence is suspected.
We met fisheries representatives from the Scottish Fishermen’s Federation and the Fishermen’s Association two weeks ago; there are no issues of concern around that part of the bill from the sea fishing industry.
Part 4 deals with shellfish and will amend the Water Environment and Water Services (Scotland) Act 2003. Are any difficulties expected in the transposition of the shellfish water directive provisions into the WEWS act?
No—it is a straightforward transposition. For reasons that we do not fully understand, the European Commission has decided to let a regulation lapse. Although it will probably be replaced in time, it leaves a gap in management of shellfish waters, which is not healthy for our industry or the environment. Ministers are taking the opportunity now simply to transpose what is currently in an EU regulation into domestic law, which should be relatively straightforward. Again, no issues of concern have been raised in relation to that.
What effects will the amendments to the shellfish-related order-making powers have on wild shellfish harvesting and shellfish farming?
The effect is to continue the existing protections that are in place—it is not to bring in any new protections obligations. It is simply to ensure that the existing framework can continue when it drops out of the Commission’s regulation.
We will move speedily on to part 5, on which Graeme Dey wants to ask you a question.
We have already covered the generality of my intended question, but I would like to ask about a specific case. Anglers have expressed concern that rod licensing could be introduced through secondary legislation, using the powers that are contained in section 50. Regardless of whether that is a policy that the current Government might pursue, would it be possible for such charging to be introduced?
As I understand it, ministers would have to change the whole management regime for angling to enable that to happen. What you describe is, essentially, what happens through the Environment Agency in England, where there is a completely different management regime.
Clarity on that would be helpful.
We understand that there have been no prosecutions of aquaculture businesses under existing rules. In that case, why is there a need for the fixed-penalty notice provisions?
There are instances of non-compliance at one level or another. The move creates an additional disposal option for compliance officers and the extension will ensure a consistent approach. There is no suggestion that a raft of fixed-penalty notices will suddenly be issued; the move is simply a natural progression from an existing disposal option that our compliance officers have, under their current powers.
The move is not an extension of the fixed-penalty scheme to aquaculture; it is an extension of the fixed-penalty scheme to other marine activities, including aquaculture.
Is it fair to suggest that the fixed-penalty notice is one where the person who is not complying has to opt out rather than opt in? In other words, it is perhaps not so easy to get the evidence that you want to have in order to bring a criminal prosecution but, if you use a fixed-penalty notice, the person who receives it has to think in default about how they are going to get out of it. Is that the case?
That is not at all the case; it was one of the concerns that was raised about the original proposal. The leaflet that we forwarded is clear about the level of evidence. There is no dilution of the evidence that will be required and it will be up to an individual whether to accept it. Thereafter, reporting processes are followed, up to the level of the procurator fiscal. There is no question of there being a lesser standard of evidence or of a confetti approach being taken. The notice is an option.
The key issue is that individual inspectors would not and could not hand out fixed-penalty notices on the spot. If an inspector uncovers an instance of non-compliance that they think warrants a report, they send a report to a central unit that considers reports from across Marine Scotland’s activities. That unit identifies whether there is sufficient evidence to enable a report to be made to the procurator fiscal. That is the first test. If there is sufficient evidence, the question is whether to submit a report to the procurator fiscal or to offer a fixed-penalty notice. It is only after a matter has passed the test of whether there is sufficient evidence to submit a report that we move to the question how it should be dealt with.
That brings me back to the original point. If there have been no prosecutions, why are we expecting circumstances in which the new provisions might apply?
The new provision is not pre-empting a raft of fixed-penalty notices, as I said earlier. That is not to say that cases have not necessarily been reported to the procurator fiscal, and the procurator fiscal has chosen not to progress them. Procurators fiscal have the option of choosing a fixed-penalty notice or another disposal. The move provides to our compliance officers a common set of options across the range of Marine Scotland’s work. It provides an alternative that is almost accepted practice elsewhere in the criminal justice system. It is a stepping stone towards deciding whether the offence is sufficient to go to the procurator fiscal.
Over the past couple of decades, there has been adopted the general policy position of moving to non-court disposals wherever feasible in order to free the justice system from having to deal with the more minor regulatory aspects of non-compliance.
Thank you for your evidence. As the officials in charge of the bill, you have provided us with a lot of bait and lures to play in front of the forthcoming sets of witnesses. It is useful to know the technical background, and we appreciate your efforts to enlighten us. We will follow up the issues with gusto.
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