Environment and Rural Development Committee, 15 Mar 2006

Meeting date: Wednesday, March 15, 2006

Official Report 297KB pdf

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Subordinate Legislation

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Solway Firth Regulated Fishery (Scotland) Order 2006 (SSI 2006/57)<br />Inshore Fishing (Prohibition of Fishing<br />for Cockles) (Scotland) Order 2006<br />(SSI 2006/58)

Under agenda item 2, we have two instruments to consider under the negative procedure: the Solway Firth Regulated Fishery (Scotland) Order 2006 (SSI 2006/57) and the Inshore Fishing (Prohibition of Fishing for Cockles) (Scotland) Order 2006 (SSI 2006/58). The Subordinate Legislation Committee has considered the two orders and has no comments on either. I understand that Elaine Murray and Alex Fergusson are particularly interested in this agenda item. I do not know whether committee colleagues have any issues they wish to raise on the orders, but I know that the local members have one or two anxieties. I invite Elaine Murray to kick off.

I want to raise two issues about the orders. One is that the Solway Shellfish Management Association is granted the power to issue licences to cockle fishers. There has been much anxiety in the local community about the way in which the licences have been issued. Only 100 of the 300 cockle fishers have got licences, which has led to a lot of resentment on the part of those who have not received licences. There have been a number of allegations about fraudulent papers being used to obtain licences. I know that the committee cannot do anything about that, but it is an issue of concern.

My second issue of concern is around policing of the fishery. The SSMA will police the fishery when it is opened—as I understand it the Scottish Fisheries Protection Agency will have no role in policing. We have 200 unhappy cocklers, who could be tempted to fish illegally. Obviously, I would in no way condone that, but they might be tempted to fish illegally, and there may be only two SSMA officers to control it. That is possibly a recipe for a certain amount of trouble when the fishery reopens.

I agree with everything that Elaine Murray has just said. Furthermore, not only were 100 hand-gathering licences issued, but a number of licences were issued for harvesting by boat, and exactly the same problems occurred. I will quote briefly from a letter from a constituent who did not apply for a boat licence but who wishes to do so:

"I would … like to point out that the majority of the … licence holders have not fished on the Scottish Solway for at least a minimum of 14 years".

It is important to emphasise that the letter refers to the Scottish Solway. The writer goes on to say that to him it seems

"ludicrous that the criteria is laid out to accommodate fishermen whom have not been near the Solway for years and exclude the fishermen that have fished here on a daily basis for … 25 years."

That is part of the problem with how the hand-gathering licences were issued, but it applies equally to the boat licences.

I want to add another issue to the mix. Once or twice in the Parliament I have tried to bring to ministers' attention the fact that, whether we like it or not, much of the shoreline belongs to private owners. There has been a considerable lack of consultation with the owners who, after all, will be affected by fishermen accessing their catches through pick-up points, by vehicles travelling across farmland and so on. There has been a horrible lack of contact with landowners, whose deeds enshrine their right to fish the coastal waters. There is a debate over whether that right includes cockles, which grow naturally in the area. That is a growing problem.

Elaine Murray and I are both aware that the committee cannot do much about the situation at this stage, but we want to lay out the concerns that have been raised locally with both of us, because we may not have heard the end of this.

On Alex Fergusson's last point, I seek guidance from the convener or from the clerks about what the committee can do. Reasonable concerns have been articulated. How can we shed some light on how licences were granted to individual cockle fishers? What assurances can we get on the policing issues that the two members raised? Are Elaine Murray, Alex Fergusson or the clerks able to assist us?

The only option for the committee is to annul the order, but that would not necessarily solve the problem.

There has recently been a history of poaching in the area. As the SFPA currently has jurisdiction, it can deal with poaching when it is alerted appropriately.

If the fishery does not reopen, the SSMA is likely to go bust, because it is dependent on the money that it gets from the issuing of licences and from the landing of cockles, and it has been waiting for the fishery to reopen for a long time. If the order were annulled we would have to go back to the beginning and get a new organisation to regulate the fishery. Everything would be put back for a considerable period of time. We would not solve the problem by rejecting the order.

A written answer suggests that the Minister for Environment and Rural Development is inquiring into how the licensing was conducted. I understand from my discussions with the SSMA that it based its decisions on a number of criteria, the most important of which was an ability to prove some sort of link with the fishery, which was dependent on invoices indicating that people had sold cockles from the fishery in the past. The question is whether some invoices were faked. It is easy to write out invoices that make it look as if someone has been selling cockles when they have not been, but providing invoices seems to have been the principal criterion on which the licences were issued. That is one of the bones of contention.

It is some time since cockles could legally be sold from the Solway; the fishery has been closed for many years. Much anecdotal evidence suggests that some of the form filling for applications was not as it should have been.

I will be guided by what Elaine Murray and Alex Fergusson say with regard to the order, but is there any way that we can ask those with the power to do so to take remedial action to tidy up the monitoring process?

It is clear that neither of the local members wants the instrument to be annulled. From the representations that they have made to the committee, it is clear that they want the issue to be looked into properly. It would seem appropriate for the committee to write to the Minister for Environment and Rural Development asking him to investigate and to take remedial action. He should consider the powers that are available to him, because there is a lot of local disquiet. The issue must be properly investigated so that people can have confidence in the process, which they clearly do not have now.

Members may be aware that an amendment will be lodged to the Police, Public Order and Criminal Justice (Scotland) Bill that will give policing powers to local associations, in conjunction with the SFPA. I presume that that will provide a good opportunity for you to raise issues about policing and the efficacy of what will happen. Local grantees, as they will be called, are to be given powers to board vessels, examine gear and catches, and so on. Some of the concerns that have been raised will be debated when the amendment is discussed.

I have a point about process. I have a strong feeling of déjà vu. Sometimes when a Scottish statutory instrument comes before the committee, although there is a concern about it no one wants to take the nuclear option and prevent it from going through. However, there is a need for a debate on this issue.

I do not have a full sense of the issues on this occasion, but matters are being raised that perhaps need further investigation. How can we ensure that, in future, issues to do with SSIs are brought up in advance? It may be that members should contact the committee or encourage their constituents to contact it well in advance so that we can have a proper debate and determine whether we need to lodge a motion to annul. We need to learn from such situations and establish how we can deal with them. This is not the first time that we have been in this position.

The instrument is already in force, which makes things even more difficult. I was keen to invite Elaine Murray and Alex Fergusson along to tell us their concerns. Other members have placed local concerns on the committee's agenda, which is appropriate. Neither member is suggesting that a motion to annul the instrument should be lodged. The question is how we should take the matter forward. I propose that we write to the Minister for Environment and Rural Development about the concerns of Elaine Murray and Alex Fergusson and bring the matter back for the committee to follow up at a later date. What do you think about that?

I welcome that suggestion. The licences were issued only a couple of weeks ago, but it quickly became apparent that there was a lot of disquiet. At that point, I wrote to the SSMA and to ministers about the concerns that were raised with me. It would be helpful if the committee backed that up with similar correspondence and investigated the issues.

I agree. It strikes me that the minister will appear before the committee next week. I have written to him and I await his reply, but I wonder whether there is an opportunity for the committee to put some of the concerns to the minister in person next week. I am aware that the committee has a huge agenda and, as former convener of the Rural Development Committee, I understand that members will be reluctant to add further items, but a face-to-face session with the minister might bring an urgency that is lacking in written communications.

Mark Brough is whispering in my ear. He helpfully suggests that, as the committee has a busy agenda next week, we should ask the minister for feedback on the matter and circulate it to colleagues. I will then take members' views and decide whether to put the matter on the agenda. That will leave me a bit of flexibility, because there will be no guarantee that the matter will go on next week's agenda. We can ask for a swift response. That might be the best way forward.

For clarification, are the licences issued for a period of one year?

They are for five years.

We cannot do much about it if the first batch has been issued.

No. I checked that.

I would have seriously considered lodging a motion to annul the instrument were it not for the fact that annulment would have led to a cockling free-for-all on the Solway firth, and the possibility of fatal accidents. We would move heaven and earth to avoid that. I hope that the fact that the order is now in force will mean that that will not happen, although it is not guaranteed.

There are a number of points to be clarified. The instrument states:

"A licence shall be valid for a period not exceeding 12 months".

That is interesting. The SSMA told me that licences are valid for five years, so if they are valid for only 12 months that is surprising. The SSMA certainly seems to think that they are valid for five years.

We should clarify that point. It seems that different information has been given.

To summarise, there are issues about the process, issues about the application of the criteria, concerns about the validity of the applications that have been made and concerns that people who have fished the area in the past have been excluded, which surprises people locally.

There is also the concern, which I mentioned, about the lack of consultation with and inclusion of private owners of the foreshore.

They are concerned about the implications of access by people who have been given licences.

Yes. The owners need to be included in all the discussions.

Okay. I think we have captured all the points. I thank our two colleagues for being eagle-eyed.

To return to Mark Ruskell's point, it is important to get on the committee's agenda local concerns about instruments that we are considering. In this case, no motion to annul has been lodged, but we want definitive answers and action. Do colleagues agree?

Members indicated agreement.

I return to Maureen Macmillan's point about stage 2 of the Police, Public Order and Criminal Justice (Scotland) Bill. As she pointed out, the bill will allow the SFPA to enforce regulating orders such as the one that we are considering. The Justice 2 Committee expects to debate amendments to the bill at its meeting on Tuesday 18 April. Members are welcome to attend that meeting or to pass any comments to the clerk of that committee, Tracey Hawe. We might want to do so, given the discussion that we have just had. That is an appropriate way of feeding our concerns into the system. Given Alex Fergusson's concerns about what might happen in the area, it is vital that the enforcement issues that we have raised are on the agenda when the Justice 2 Committee discusses amendments. Fortunately, Maureen Macmillan is also a member of the Justice 2 Committee. We trust that she will ensure that she is informed about the issues when the Justice 2 Committee discusses them in April.

We could defer the decision on the Solway Firth Regulated Fishery (Scotland) Order 2006 until next week. Alternatively, shall we move on and ensure that we get the response that we seek from the minister?

Members indicated agreement.

Do members agree to make no formal comments on either of the orders?

Members indicated agreement.

We will have a short suspension to allow the Deputy Minister for Environment and Rural Development and her officials to come to the table.

Meeting suspended.

On resuming—

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Foot-and-Mouth Disease (Slaughter and Vaccination) (Scotland) Regulations 2006 (SSI 2006/45)

Item 3 is also subordinate legislation. The regulations are to be considered under the negative procedure. The relevant extracts from the Subordinate Legislation Committee report have been circulated to members. Colleagues will note that amending regulations will be introduced to correct an issue that the Subordinate Legislation Committee identified. Last week, we agreed to take oral evidence on the regulations from the Deputy Minister for Environment and Rural Development, because the content relates closely to issues that we are about to discuss at stage 2 of the Animal Health and Welfare (Scotland) Bill. It will be useful to discuss the regulations before we get to the detail of stage 2.

I welcome the deputy minister. I invite her to introduce her officials and make some brief opening remarks, before colleagues ask questions or comment on the regulations.

I have with me Neil Ritchie, Deborah King and John Paterson from the Scottish Executive and Charles Milne, the chief veterinary officer.

The committee asked me to explain the background to the regulations and how they relate to the Animal Health and Welfare (Scotland) Bill. The foot-and-mouth disease directive was agreed at the European Council in September 2002 and had to be introduced into domestic legislation by July 2004. That was an extremely challenging timetable, given the size and complexity of the legislation. Like other United Kingdom Administrations and several other European Union member states, Scotland has taken longer than expected to finalise the transposition.

We have split the implementing legislation into two parts. Until the Animal Health and Welfare (Scotland) Bill has completed its passage, we will not have the appropriate domestic legal base to meet the expectation in the directive that we should have powers to undertake preventive slaughter and vaccination. Had the bill been enacted, we could have made a single order under the Animal Health Act 1981 but, as it is, we have produced the regulations under section 2(2) of the European Communities Act 1972. The majority of the directive has been transposed through an order under the 1981 act, for which there is no requirement for parliamentary procedure.

The committee asked specifically about the treatment of wild animals and rare breeds. European legislation requires us to respond to finding foot-and-mouth disease in the wild animal population, therefore the Executive must have powers to respond to such a situation. We cannot predetermine how we would deal with an outbreak in the wild animal population, as that would depend on factors such as the epidemiology of the disease, the location and the type of animal infected. Any planned response would have to take into account biodiversity issues, be based on expert advice and be agreed by the Standing Committee on the Food Chain and Animal Health.

The transposition of the directive has allowed us to introduce greater flexibility to support rare breeds. As with wild animals, the Executive is committed to controlling a disease outbreak with as little slaughter as possible. The directive provides for exemption from slaughter for rare breed animals, even on infected premises. We are committed to protecting rare breed animals but, for the safety of other animals, certain conditions must be met if they are to be protected. First, they must be pre-registered on the Great Britain rare breed register—managed by the Rare Breed Survival Trust—which is a list of breeding nuclei of at-risk native species. Secondly, animals will be declared exempt only if a veterinary risk assessment has been carried out, exemplary biosecurity arrangements are in place and it has been demonstrated that the animals pose no risk whatever of further spreading disease.

The regulations are, like the Animal Health and Welfare (Scotland) Bill, important to our preparedness to respond to an outbreak of exotic disease in Scotland. As always, our aim is to respond quickly and robustly to disease and to minimise its impact on the Scottish economy, society and environment.

Thank you, minister—we were particularly keen to have clarification of the rare breeds issue, which was raised during stage 1 consideration of the Animal Health and Welfare (Scotland) Bill. Your comments help us to understand the regulations and the requirement on the Executive to put them in place.

As colleagues have no questions—a rare occasion—are we content with the regulations and happy to make no recommendation to the Parliament?

Members indicated agreement.

We will have a short suspension to allow the officials to change places—the deputy minister will stay for the next item.

Meeting suspended.

On resuming—