Environment and Rural Development Committee, 05 Oct 2004

Meeting date: Tuesday, October 5, 2004

Official Report 289KB pdf

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Subordinate Legislation

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Ethical Standards in Public Life etc (Scotland) Act 2000 (Modification of National Parks (Scotland) Act 2000) Order 2004 (Draft)

Agenda item 2 is subordinate legislation. We have three instruments before us, all of which are subject to the affirmative procedure, which means that we must formally approve them before they can either come into force or remain in force. There are three motions, in the name of the Minister for Environment and Rural Development, Ross Finnie, who is with us this morning, inviting us to recommend to the Parliament that the instruments be approved. I welcome Ross Finnie and his officials and ask him to address the draft Ethical Standards in Public Life etc (Scotland) Act 2000 (Modification of National Parks (Scotland) Act 2000) Order 2004.

I do not know how controversial the instrument is going to be. The Subordinate Legislation Committee considered the instrument but had no comments to make. I ask Ross Finnie to introduce his officials and to make some brief opening remarks on this piece of subordinate legislation. We will then move on to factual questions and points of clarification from members.

Morris Fraser will stand in for now for the officials coming in behind us, who will give us support if we get into difficulties.

I do not think that the instrument will be controversial. Nevertheless, a difficulty has emerged in the fact that the Ethical Standards in Public Life etc (Scotland) Act 2000 and the National Parks (Scotland) Act 2000 are at odds with each other over the issue of a member declaring any interests at a meeting. This statutory instrument is necessary to resolve those difficulties.

The Ethical Standards in Public Life etc (Scotland) Act 2000 sets out the broad framework for securing the observance of high standards of conduct by councillors and members of public bodies. Along with the National Parks (Scotland) Act 2000, it was one of the earliest acts to be passed by the Scottish Parliament and it gave ministers powers to introduce codes of conduct for members of devolved public bodies. Both national park authorities were added to the list of bodies in schedule 3 to the Ethical Standards in Public Life etc (Scotland) Act 2000 and so were required to have in place their own codes of conduct for their members, which had to take account of the terms of the model code of conduct that was approved by Parliament.

Section 5 of the model code provides for the circumstances under which members should declare an interest at meetings. However, in the course of the authorities' drafting their own codes, it came to light that the process that board members of national parks are required to follow under the National Parks (Scotland) Act 2000 when declaring an interest at a meeting is inconsistent with the provisions regulating the procedure that members of other public bodies are expected to follow under the model code under the Ethical Standards in Public Life etc (Scotland) Act 2000.

As things stand, members of a national park authority are required to act in accordance with the procedures that are set out in paragraph 18(1) of schedule 1 to the National Parks (Scotland) Act 2000, which states that any member who is in any way interested in a matter that is brought up for consideration at a meeting

"must disclose the nature of the interest"

and can take no further part in the meeting. The terms of that provision are clearly much narrower than those in the model code of conduct under the Ethical Standards in Public Life etc (Scotland) Act 2000, which states that a member can continue to attend a meeting and participate in both discussion and voting if they feel that,

"in the context of the matter being considered,"

their

"involvement is neither capable of being viewed as more significant than that of an ordinary member of the public, nor likely to be perceived by the public as wrong".

There is a clear inconsistency between the two procedures, which needs to be remedied. As things stand, members of national park authorities cannot bring their expertise to the table and that is unsatisfactory.

We have consulted the Standards Commission and the national park authorities from the outset and the organisations agree that the only sensible way to proceed is to remove paragraph 18 from schedule 1 to the National Parks (Scotland) Act 2000 in relation to members of national park authorities.

Thank you, minister. That is a helpful outline of the statutory instrument's objective. As it is fairly straightforward, no member seems to have a point of clarification or a question and we move to the formal debate.

Motion moved,

That the Environment and Rural Development Committee recommends that the draft Ethical Standards in Public Life etc. (Scotland) Act 2000 (Modification of National Parks (Scotland) Act 2000) Order 2004 be approved.—[Ross Finnie.]

Does any member want to make a statement?

This is a very sensible change. Too often in public life we disqualify those with genuine expertise in a subject from contributing to debate or discussion on those subjects on which they have expertise. In a small country such as Scotland, we can ill afford to take that route, so I am delighted that the minister has made the change, which I hope will be constructive for the national park authorities.

The committee seems to agree broadly with those sentiments. There are no other comments, and there does not seem to be a need for the minister to wind up.

Motion agreed to.

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Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2004 (Draft)

The Subordinate Legislation Committee has considered the instrument and its comments have been circulated to members. I invite the minister to introduce the next set of officials and to make any opening remarks.

I do not think that there are any new officials; we seem to have lost officials this morning. The satellite monitoring on which Richard Lochhead has said that he wants to question me does not seem to be working. I apologise.

The instrument is purely technical; there is nothing of substance or politics to discuss.

I think that members have read their papers on this occasion; I see some members nodding in agreement. We do not usually put subordinate legislation through this quickly, but on this occasion it seems to be quite straightforward.

If I ask a question, will the minister write back to me as opposed to having to answer today?

Yes, but are you sure that your question is on the draft Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2004?

No. I am sorry.

Motion moved,

That the Environment and Rural Development Committee recommends that the draft Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2004 be approved.—[Ross Finnie.]

Motion agreed to.

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Fishing Vessels (Satellite-tracking Devices) (Scotland) Scheme 2004 <br />(SSI 2004/379)

The Subordinate Legislation Committee has considered the instrument and copies of that committee's comments have been circulated to members. As with the previous statutory instruments, I intend that members should ask for any clarification or raise any points directly with the minister before we move into the formal debate. I invite the minister to introduce his officials and to make any opening remarks before we move on to questions.

I am joined by Ewen Milligan from the fisheries division.

As members will be aware, the monitoring of fishing vessels' position using satellite technology has become an increasingly important aspect of fisheries management control. It was first introduced in 2000 for vessels of more than 24 metres and it is now to be phased in for all vessels of 15 metres or more in length.

Satellite monitoring underpins the control arrangements in many of our fisheries, including those in which geographic separation is important, for example the pelagic fisheries, and the cod and haddock fisheries in the North sea to which spatial management applies. However, experience of operating control systems here and elsewhere in the European Union has shown that they can be vulnerable to deliberate interference or manipulation. Consequently, under a revised European regulation that was introduced in December 2003, vessels must have a terminal fitted that does not permit the input of false positions and is not capable of being overridden.

As the new tamper-resistant terminals will have no function other than fisheries control, we felt that it was appropriate to provide 100 per cent grant funding for them. Grants will be available to cover the purchase and installation costs of terminals that are sourced from an authorised provider and will also cover the cost of a three-year warranty on the satellite equipment that is provided. The statutory instrument gives Scottish ministers the powers to implement the scheme, which is fairly straightforward and broadly similar in content to other fisheries-related grant schemes that the committee has seen in the past.

I have no objection to the scheme as such and I welcome the 100 per cent grant, but I have concerns about the process that officials will follow if they decide that the scheme might have been breached and decide to try to recover the funds from the boat owner. The instrument says that the appeal process is limited to "making written representations". Is there a general trend in the Executive towards imposing administrative penalties on fishermen who breach regulations? I understand that there is a lot of concern about that.

We have not taken a general policy decision on that. There are some pressures from the European Union in that regard, but we monitor the situation, because there are limits on the application of administrative penalties. As you are aware, one of the great difficulties with breaches of the law in fisheries regulation is that they take place at sea and it is often difficult, if not impossible, to obtain the corroborating evidence that is required as a test in Scots law. I regard that test as important, so I am slightly reluctant to move towards more management operations. We must bear in mind the relative costs and the severity of the penalty that might be applied, but we have come to no firm decision on the matter and must keep it under review.

I might pursue that later.

I seek clarification from the minister. When the Subordinate Legislation Committee considered the instrument, it seemed to uncover some circularity in how it will operate, which is reflected in another Scottish statutory instrument on fishing. My understanding is that the instrument gives officials powers to enter premises or vessels to find out information about how other officials have not been allowed to gain access to vessels or premises. How has the minister addressed that circularity? It is an outstanding issue to which we have been asked to give some attention.

I ask Ewen Milligan to address the technical aspect of the question.

The powers in the instrument—such as the power to enter into premises where documents that are relevant to the application might be held—are a fairly standard set of powers that would be found in any instrument that deals with fisheries matters. We do not accept that there is any circularity in those powers.

The Subordinate Legislation Committee's 33rd report states:

"Paragraph 9 obliges any applicant, or any employee or agent of any applicant, to give to an authorised officer such assistance as that officer may reasonably request in order for that officer to exercise the powers conferred by paragraph 10 … Accordingly, should there be reason to suspect that an applicant failed to comply with a reasonable request from an officer for such assistance",

the officer may

"exercise any of the powers under paragraph 10 to ascertain whether … the applicant failed to comply with the obligation imposed by paragraph 9."

It is not the person who is assisting the officer who is exercising the powers, but the officer who is empowered by the instrument. Anyone acting to assist the officer under the scheme's enabling provisions is not directly empowered by the instrument; it is the supervising officer who would invoke and carry out the powers available under the instrument.

Is that helpful?

Yes, that is helpful. It will be useful to see how the instrument works in practice. If it does not work, it will have to be reviewed.

If we drift to the person assisting, that does give rise to an interpretation of circularity. As Ewen Milligan has explained, it is the principal officer who is empowered, so the problem that you envisage would not arise in those circumstances.

That is clear. Thank you.

I welcome the instrument, which I am sure every reasonable individual will support. I have three short questions on how the industry and fishermen will benefit. First, are there safety benefits for the crews of fishing boats? Secondly, what are the benefits for stock management? Thirdly, over a period of years, will the instrument help to give us a clearer picture of the process of determining the state of stocks and where exactly they are to be found?

There are no safety benefits as such. It is a sad fact that any regulatory procedure is brought about by a minority, not by the majority. Originally, we wanted to proceed with combined satellite instruments, with both a navigational use and a tracing use. Sadly, because their use was manipulated, not just in Scotland but elsewhere in the EU, a minority brought about the revised regulation, which then required us to have tamper-proof instruments for satellite monitoring purposes only.

The regulation is intended entirely for the benefit of stock management, to ensure that persons are not wrongfully and unbeknown in an area for which they do not have the appropriate licence or permit and are not carrying out fishing activities illegally outwith their own regulatory provisions.

In the sense that we are—[Interruption.]

I am sorry, minister. Could somebody please switch off that mobile phone? Thank you.

Please continue, minister.

In so far as we will know more about other landings, and in so far as information about where vessels have been fishing is entirely accurate, I suppose that we will be helped in building up data on stocks. However, I regret to say that the essential feature of the instrument is that it will provide a more accurate way of pinpointing that persons who are in the required areas at the required times are carrying the required permits to fish. That is another reason why we felt obliged to assist with the cost; that is the approach that we are taking.

If there are no other questions or points of clarification, we move to the formal debate on the motion.

Motion moved,

That the Environment and Rural Development Committee recommends that the Fishing Vessels (Satellite-tracking Devices) (Scotland) Scheme 2004 (SSI 2004/379) be approved.—[Ross Finnie.]

Motion agreed to.

We shall report to Parliament on the three statutory instruments.

Meeting suspended.

On resuming—