Marine (Scotland) Bill: Stage 3
Resumed debate.
The next item of business is the continuation of stage 3 proceedings on the Marine (Scotland) Bill. I remind members that, when dealing with amendments, they should have the bill as amended at stage 2—that is, SP Bill 25A. They should also have the marshalled list, which was revised on Tuesday—that is, SP Bill 25A-ML (Revised)—and the groupings, which the Presiding Officers have agreed.
I also remind members that, as with this morning, the division bell will sound and proceedings will be suspended for five minutes for the first division. The voting period for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. All other divisions will be 30 seconds.
Section 98—Seal licences
We come to group 19. Amendment 72, in the name of Elaine Murray, is grouped with amendments 120, 121, 73 to 78, 122, 81 and 82.
As a member of the Parliament who represents a rural constituency, I understand that predator behaviour and, in some cases, numbers must be controlled. Seals are predators. They are also intelligent animals, and a seal that chances upon a large concentration of salmon in a fishery or fish farm will be attracted to what appears to be a captive food source.
Thirty-six per cent of the world's grey seal population lives in UK waters and 90 per cent of those are in the Scottish marine area; 7 per cent of the world's common seal population lives in UK waters, with 85 per cent of those in Scottish waters. The Scottish marine area is clearly important to those species. Moreover, seals are one of Scotland's iconic native species. On the other hand, aquaculture and salmon fishing are important contributors to the Scottish economy. Equally important, fish farming provides a source of nutritious, quality local food.
Seals and fish farms need to co-exist in Scotland's marine area, but the Conservation of Seals Act 1970, which was passed before fish farming became important to Scotland, is not appropriate; neither is the act's title a correct description of the legislation that it contains. Seals can be shot without reason outwith the close season and, in the close season, the netsmen's defence can be invoked as legal protection if someone is caught shooting seals. Therefore, the provisions in the Marine (Scotland) Bill were widely welcomed. They were improved at stage 2 and, I believe, will be further improved today.
Amendment 72 is a variant of an amendment that I lodged at stage 2. Labour members firmly believe that lethal methods of controlling seals should be a last resort when other methods, such as anti-predator nets and acoustic devices, have been tried and failed. [Interruption.]
One moment, Ms Murray. There is far too much noise. If members have a conversation that needs to take place, they should take it outside.
Thank you, Presiding Officer.
Amendment 72 would require ministers, before they issue a licence to kill seals, to consider the damage that the animals had done to a fishery or fish farm, or to a similar facility in the vicinity. They would also have to consider the effectiveness of non-lethal methods of deterrence at that farm or fishery or at a similar facility in the vicinity. The amendment would also permit ministers to require the applicant to supply information so that, in determining the licence application, they would be able to judge whether any non-lethal alternative was possible before they issued a licence.
My amendments 77 and 122 are alternatives to Robin Harper's amendment 120. My colleagues and I have carefully considered amendment 120 and we are sympathetic to the policy intention behind it. The taking or killing of a seal that is at an advanced stage of pregnancy or has dependent pups, which would starve to death, is highly undesirable and should be permissible only in extreme circumstances—for example, when a mass escape of farmed fish would pose a significant threat to the environment and could be prevented by no means other than taking or killing the seal concerned.
The provisions in amendment 120 are broad. It could set in the bill a period of seven months when seals could not be taken or killed. Section 100(3) permits but does not require the species of seal to be specified on a seal licence, so some licences that are issued might apply to grey and common seals. If amendment 120 were agreed to, such licences would be inoperable for seven months each year. Moreover, determining which species of seal is threatening a fish farm can be difficult when the seal is in the water. We therefore feel—with great regret and after much reflection—unable to support amendment 120.
My alternative—amendment 77—would enable ministers to include as a condition of a seal licence any period when seals could not be taken or killed but would not specify those periods in primary legislation. Such a period would be appropriate to the licence and the circumstances of the application.
Order. I am sorry to interrupt again, Ms Murray. The amendments are about important provisions in the bill and it would serve members well to listen.
Thank you, Presiding Officer.
Scottish ministers would decide—on the advice of Marine Scotland and other bodies such as the sea mammal research unit and the Natural Environment Research Council—what conditions on close seasons were appropriate for a licence.
Amendment 122 would enable exemptions from any period of prohibition to be applied for if no other way of preventing an escape that would seriously damage the environment, for example, was satisfactory.
I warmly welcome the amendments in the cabinet secretary's name. At stage 2, I lodged amendments that would have required seal licences to specify the marksmanship skills that were required to avoid unnecessary suffering, the type of firearm that was to be used, the proximity to the seal before it could be shot and the appropriate weather conditions, and to prohibit shooting from an unstable platform. I also lodged amendments on carcase recovery and on the regular reporting of numbers of seals that were taken under licence. I did not press those amendments, because the cabinet secretary felt that they could be improved. He agreed to revise them and to bring them back at stage 3. I am delighted that he has done that in amendments 73 to 76, 78, 81 and 82.
I have considerable sympathy for the policy intention behind Robin Harper's amendment 121. It is difficult to imagine why an application would be lodged to locate a fish farm close to a seal haul-out site. Apart from placing temptation in the way of seals, I imagine that such proximity would cause stress to the fish. However, I understand that some fish farms are located in such places.
I have two problems with amendment 121. What does the phrase
"a site important to seals"
mean? I appreciate that the amendment requires ministers to consult NERC, but that phrase is not defined and could be open to wide interpretation.
I am concerned about the consequences of amendment 121 in practice. For example, a fish farm might be located close to a haul-out site for common seals. Common seals are smaller, have less powerful jaws and can be more easily deterred by anti-predator nets. The fish farm and the common seals might happily exist side by side, but what would happen if a rogue grey seal that could not be deterred by any non-lethal methods targeted the fish farm? The amendment would prevent the fish farm from applying for a seal licence. For that reason, I feel—again with great regret—unable to support Robin Harper's amendment 121.
I move amendment 72.
The arguments for amendment 120 have been well rehearsed. I am sure that members have received many e-mails on the subject, as I have. I pay tribute to Advocates for Animals and the Seal Protection Action Group for their energy.
Amendment 120 is almost identical to a stage 2 amendment that I lodged. After listening to the concerns of the Rural Affairs and Environment Committee and the cabinet secretary, I altered the amendment to allow an exception to the close season rule in extraordinary circumstances, such as the threat of a large-scale escape from a fish farm.
I still hold that we now run the risk of taking a retrograde step in how we deal with seal management. Currently, section 2 of the Conservation of Seals Act 1970 at least allows for close seasons in principle. Only around a dozen close season licences are granted each year. Removing close seasons completely through the bill while also bringing fish farms into the licensing regime is, in my opinion, a pretty poor step backwards for seal conservation.
Seal pups, of both species, are entirely dependent for their survival on their mother's fatty and protein-rich milk. If the pups lose their mother before the natural weaning process has taken place, they will slowly starve to death, not to mention suffer stress and increased susceptibility to pneumonia or septicaemia. To draw a parallel that I have drawn before, we would not do the same to any of our tame farm animals. I and the vast majority of the public find the prospect of shooting pregnant or nursing seals quite barbaric. Such a cruel practice is not tolerated on land. Why should it be any different for animals in the marine environment?
However, I hope that members will vote for the alternative Labour amendments, which are at least something of a step forward, although they do not go nearly as far as I would like.
On amendment 121, let me once more take the opportunity to try to persuade Elaine Murray to change her mind. Again, amendment 121 is similar to an amendment that was lodged at stage 2. The amendment seeks to prevent a seal licence from being granted to any new fish farm or other fishery installation that chooses to set up beside a site that is recognised by the Natural Environment Research Council and Scottish ministers as being important for seals. The wording "important for seals" is a careful definition that will allow the scientists to decide on the matter. On the basis of the scientific evidence—which is the basis on which we wish the provisions in the bill to progress at every stage—the Government can decide whether an area is important for seals and, therefore, whether a licence would fall within the terms of the bill as amended by amendment 121.
Seals are habitual in their practices. They haul out and breed at the same sites for many years. People should not be surprised if seals become interested in the new hypermarket that has been created if someone chooses to place a new fish farm next to a haul-out site. Seals eat fish—that is what they do. People should not then ask for a licence to shoot the seals in an attempt to alter the natural environment so that it is more to their liking. That might seem like a commonsense approach, both from a welfare angle and from a commercial angle, but members would be surprised. An on-going case in Lewis involves a proposal for a new fish farm at Broad Bay right next to the aptly named seals' cave, which is famed as the breeding cave of seals in Lewis. Another case in the Sound of Harris is also causing considerable concern. No doubt the seals are flapping around the beaches there saying, "Here comes breakfast, lunch and tea." The best way to avoid such conflict is simply to keep the species apart by ensuring that seal licences are granted to new fish farms only if they are responsibly sited.
I remind members that assistance is available to fish farms for capital investment, including for non-lethal anti-predator measures such as tensioned nets and the new acoustic seal scarers that I will refer to later. That makes it easier for fish farms to ensure that they have sufficient alternative methods in place so that the need to kill seals should very seldom arise.
I will speak first to Scottish Government amendments 73 to 76, 78, 81 and 82, which deal with seal licences.
The Government amendments provide for a number of things, including: minimising unnecessary suffering; licence conditions on firearm type, weather conditions, safe distances, stable platforms and recovery of carcases for research; the need for ministers to be satisfied as to marksmanship skills; and a review of the licence system every five years. Many of those licence conditions already operate in the successful Moray Firth seal management pilot and it was always intended that such conditions should be part of the seal licence system. However, at stage 2, it was felt that the conditions should be specifically acknowledged in the bill and I made a commitment to the committee to do so. The Government amendments deliver on that commitment. They also reflect the concerns of animal welfare groups.
Amendment 72 was lodged by Elaine Murray, who, as we all recognise, has taken a close interest in seal conservation matters throughout the bill process. It provides that Scottish ministers must have regard to previous damage and/or the effectiveness of non-lethal measures in fisheries or at fish farms before they grant a seal licence. Again, it was always intended that such information would be taken into account before a licence was granted. I resisted the stage 2 amendments on the ground that they were too prescriptive, but I consider that amendment 72 provides a suitable context for putting greater emphasis on non-lethal measures in preference to lethal options, so I am content to accept it.
Robin Harper's amendment 121 provides that Scottish ministers may not grant a seal licence to any fishery or fish farm
"adjacent to a site important to seals",
but it provides no definition of sites "important to seals". Such a definition would be needed for the provision to operate satisfactorily.
I understand the desire to limit potential conflict between seals and fisheries and fish farms, but I have difficulty with amendment 121, as it fails to recognise that a significant number of sites might be considered "important to seals". Such sites could encompass large parts of the Scottish coast and surrounding waters, and would be subject to change, sometimes over short timescales, as seals moved around the coast.
In essence, amendment 121 proposes exclusion zones around sites "important to seals", the number of which could be large. In such zones, fisheries and fish farms would be unable to protect themselves or their fish stocks. That would be the case even when non-lethal measures were ineffective or when management of grey seals was necessary near a common seal site.
The exclusion of fish farms or fisheries from locations
"adjacent to a site important to seals"
might also have important implications for marine renewables, which present similar potential challenges. Surely it is more appropriate for the issue to be addressed through the wider marine planning process when genuine conflicts exist. In that way, decisions on the most appropriate location for any developments in the marine area will take into account a wide range of factors. Scottish Natural Heritage is already a statutory consultee on fish farm sites and often raises the issue of potential conflicts. For those reasons, I join Elaine Murray in urging members to resist amendment 121.
I turn to Elaine Murray's amendments 77 and 122 and Robin Harper's amendment 120. I appreciate from recent campaigns that the possibility of pregnant or nursing seals being killed is a highly emotive issue, but I must record that many of those campaigns are based on inaccurate information. The proposals in the bill will increase protection for pregnant and nursing seals. They will remove the so-called netsmen's defence, which has been exploited by some people to engage in unregulated killing of seals, including seal pups, during close seasons. The bill provides that all seal management will be carried out under licence and so will be properly regulated.
It was recognised during committee consideration that a complete ban on killing all seals during large portions of the year would leave fisheries and fish farms unable to defend themselves from seal predation. That is why I resisted the amendments that were lodged at stage 2. However, I appreciate that there is genuine concern about the possibility of pregnant and nursing seals being killed, so I am happy to restate the commitment that I made at stage 2 to monitor the new seal licence system closely and, if the monitoring suggests that there is a significant problem, to consider the introduction of close season restrictions. I am therefore content to accept amendment 77, which clarifies the relevant power in the bill.
Amendment 120 would prohibit the taking or killing of seals for any reason for three months of each year for common seals and for four months of each year for grey seals. It proposes an exception to that prohibition through what amounts to a shadow seal licence system, which will presumably duplicate the existing system and incorporate additional conditions. In effect, it would mean the development of two seal licence systems, one for the close season and one for the remaining period. I hope that members agree that that could result only in confusion and duplication for administrators, consultees, stakeholders and other people who had to use or monitor the new system.
I understand the intention behind amendment 120, which tries to protect pregnant and nursing females, but although its aim is entirely laudable, it could have important unforeseen consequences. It would seriously hinder the ability of the Scottish Government to meet its obligations to kill or take seals in an emergency—for example, to preserve public health or public safety, to prevent the spread of disease, to conserve natural habitats or species, or for other imperative reasons of overriding public interest—for significant parts of the year.
Amendment 120 would also hinder vital scientific research, including seal tagging and DNA sampling, during significant and particularly important parts of each year. Again, that could interfere with research that is vital to securing the future of Scotland's iconic seal populations. The amendment would significantly increase the bureaucracy and costs involved in any seal licence system by providing for the two parallel systems to which I have referred. That would be likely to result in either separate or more complex application forms, consultations, assessments, reports and monitoring. The new seal licence system will be complex enough without that extra layer of complexity. For those reasons, I urge members to resist amendment 120.
Amendment 122, in the name of Elaine Murray, seeks to provide an exemption to a seal licence condition under her amendment 77, which specifies periods during which seals may not be killed or taken—that is, close seasons. However, she fails to propose the necessary consequential amendments that would allow that exemption to offer a defence against the offence under section 95. For that reason, I ask her not to move amendment 122.
This group of amendments is one of the few that do not contain an amendment of mine.
The Liberal Democrats welcome and support all the amendments in the group that were lodged by Dr Murray and the cabinet secretary. Together, the proposed changes represent a marked improvement in the protection of seals. They focus on introducing more stringent licensing and reporting requirements while recognising that it may still be necessary, as a last resort and under strict conditions, to take or shoot a seal that cannot be deterred from attacking nets.
Unfortunately, despite his significant efforts to try to accommodate the concerns that I and other committee members had at stage 2, Robin Harper has not been able to go far enough. His amendments 120 and 121 leave open too many potential pitfalls, which Dr Murray and the cabinet secretary have articulated. I understand that, as things currently stand, SNH can, through the planning process, enter concerns or objections about the potential location of a fish farm. Perhaps the cabinet secretary can reflect on whether there is scope, through working directly with the Natural Environment Research Council, to establish whether more can be done to identify potential problems with particular locations and haul-out sites.
I welcome Elaine Murray's amendments 72 and 77 and the Government's amendments in the group. A balance must be struck in protecting the welfare of seals and farmed fish, and, together, those amendments achieve that.
Amendment 72 reasonably requires all possible information to be available about damage being done and preventive deterrent action being taken before a licence is granted. Amendment 77 is also welcome in going some way towards protecting seal pups.
The Government's amendments 73, 74, 76 and 78 will tighten up the conditions under which seals may be shot, and they put in place an enhanced reporting system. That is, of course, to be welcomed. Amendment 82 will create wide-ranging five-year reviews of the seal licensing regime, and is also to be welcomed.
I have concerns about Robin Harper's amendments 120 and 121. I understand what he is seeking to achieve, but believe that his amendments would produce a seven-month close season. I agree with Elaine Murray's comments on that. It is regrettable that amendment 121 is too non-specific, and I am afraid that the proposals are impossible to define in law, particularly the phrase
"a site important to seals",
notwithstanding Robin Harper's claim that such sites can be successfully defined scientifically.
As I have said, a balance must struck between the welfare of farmed fish and that of wild seals. Taken in conjunction with Elaine Murray's amendments 72 and 77, the Government's amendments achieve that balance. Far greater protection of seals will result from them, and I welcome the cabinet secretary's commitment to reviewing matters further in future if that is necessary.
I will say one or two things that result from what Robin Harper said. As a result of an amendment that I lodged being disagreed to this morning, fish farms will not come within the marine licensing system; they will remain within the terrestrial planning system. Therefore, will the cabinet secretary consider issuing guidance to planners on the siting of fish farms to overcome issues relating to the potential for fish farms to be sited in the vicinity of haul-out sites or other sites?
Robin Harper's amendment 120 allows—as my amendment 122 attempts to allow—for the shooting of seals in extremis when severe environmental concerns surround a possible escape of fish. Although it is clearly undesirable to shoot a pregnant seal or a seal with young pups, we do not have a close season for foxes, which can be shot during the breeding season even if they have young pups that are left without food. We behave in that way towards other predators on land, and I do not think that we should treat seals differently. I note that the cabinet secretary will review the situation. We will be interested in the results of that review and how the bill works in practice.
The cabinet secretary says that I have failed to lodge the amendments that would be required as a consequence of amendment 122 being agreed to. Amendment 122 was intended to supply a degree of comfort to the aquaculture industry in that, if an extreme situation arose in which a seal attacked a fish farm within a prescribed period, an application could be made for the prohibition to be lifted to deal with the situation before there was a mass escape of fish, for example.
I am pleased that the cabinet secretary has accepted my amendment 77. I hope that, when the prohibition conditions are being laid on a licence, some thought will be given to how things will be managed should an extreme situation arise in which the prohibition may no longer be appropriate. For example, a fish farm could be attacked by a rogue seal during the breeding season, with possible environmental consequences. The Scottish aquaculture industry has had great success in driving down the number of escapes over the years. There are far fewer escapes than there used to be, and we do not want the unintended consequence of any legislation to be an increase in the number of escapes from fish farms in the future.
Amendment 72 agreed to.
Amendment 120 moved—[Robin Harper].
The question is, that amendment 120 be agreed to. Are we agreed?
No.
There will be a division. As it is the first division this afternoon, I suspend the meeting for five minutes.
Meeting suspended.
On resuming—
We will proceed with the division on amendment 120.
For
Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) MacDonald, Margo (Lothians) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Alexander, Ms Wendy (Paisley North) (Lab) Allan, Alasdair (Western Isles) (SNP) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Brownlee, Derek (South of Scotland) (Con) Butler, Bill (Glasgow Anniesland) (Lab) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Curran, Margaret (Glasgow Baillieston) (Lab) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Eadie, Helen (Dunfermline East) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Foulkes, George (Lothians) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Goldie, Annabel (West of Scotland) (Con) Gordon, Charlie (Glasgow Cathcart) (Lab) Grahame, Christine (South of Scotland) (SNP) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harvie, Christopher (Mid Scotland and Fife) (SNP) Henry, Hugh (Paisley South) (Lab) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Johnstone, Alex (North East Scotland) (Con) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Kidd, Bill (Glasgow) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Lamont, John (Roxburgh and Berwickshire) (Con) Livingstone, Marilyn (Kirkcaldy) (Lab) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McGrigor, Jamie (Highlands and Islands) (Con) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMahon, Michael (Hamilton North and Bellshill) (Lab) McMillan, Stuart (West of Scotland) (SNP) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Paterson, Gil (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Scott, Tavish (Shetland) (LD) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Elizabeth (Mid Scotland and Fife) (Con) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stephen, Nicol (Aberdeen South) (LD) Stevenson, Stewart (Banff and Buchan) (SNP) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 3, Against 120, Abstentions 0.
Amendment 120 disagreed to.
Amendment 121 moved—[Robin Harper].
The question is, that amendment 121 be agreed to. Are we agreed?
No.
There will be a division.
For
Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) MacDonald, Margo (Lothians) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Alexander, Ms Wendy (Paisley North) (Lab) Allan, Alasdair (Western Isles) (SNP) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brown, Robert (Glasgow) (LD) Brownlee, Derek (South of Scotland) (Con) Butler, Bill (Glasgow Anniesland) (Lab) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Curran, Margaret (Glasgow Baillieston) (Lab) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Eadie, Helen (Dunfermline East) (Lab) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) FitzPatrick, Joe (Dundee West) (SNP) Foulkes, George (Lothians) (Lab) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Goldie, Annabel (West of Scotland) (Con) Gordon, Charlie (Glasgow Cathcart) (Lab) Grahame, Christine (South of Scotland) (SNP) Grant, Rhoda (Highlands and Islands) (Lab) Gray, Iain (East Lothian) (Lab) Harvie, Christopher (Mid Scotland and Fife) (SNP) Henry, Hugh (Paisley South) (Lab) Hepburn, Jamie (Central Scotland) (SNP) Hume, Jim (South of Scotland) (LD) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Johnstone, Alex (North East Scotland) (Con) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Kidd, Bill (Glasgow) (SNP) Lamont, Johann (Glasgow Pollok) (Lab) Lamont, John (Roxburgh and Berwickshire) (Con) Livingstone, Marilyn (Kirkcaldy) (Lab) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McConnell, Jack (Motherwell and Wishaw) (Lab) McGrigor, Jamie (Highlands and Islands) (Con) McInnes, Alison (North East Scotland) (LD) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMahon, Michael (Hamilton North and Bellshill) (Lab) McMillan, Stuart (West of Scotland) (SNP) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) Neil, Alex (Central Scotland) (SNP) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Paterson, Gil (West of Scotland) (SNP) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Robison, Shona (Dundee East) (SNP) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Russell, Michael (South of Scotland) (SNP) Salmond, Alex (Gordon) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Scott, Tavish (Shetland) (LD) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Elizabeth (Mid Scotland and Fife) (Con) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Somerville, Shirley-Anne (Lothians) (SNP) Stephen, Nicol (Aberdeen South) (LD) Stevenson, Stewart (Banff and Buchan) (SNP) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Tolson, Jim (Dunfermline West) (LD) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 3, Against 121, Abstentions 0.
Amendment 121 disagreed to.
Section 99—Methods of killing or taking seals under seal licence
Amendment 73 moved—[Richard Lochhead]—and agreed to.
Section 100—Seal licence conditions
Amendments 74 to 76 moved—[Richard Lochhead]—and agreed to.
Amendment 77 moved—[Elaine Murray]—and agreed to.
After Section 100
Amendment 78 moved—[Richard Lochhead]—and agreed to.
Amendment 122 not moved.
After section 103
Group 20 is on harassment of seals at haul-out sites. Amendment 79, in the name of Elaine Murray, is grouped with amendments 80 and 83.
At stage 1, the Rural Affairs and Environment Committee invited the cabinet secretary to consider the inclusion in the bill of an offence of intentionally or recklessly harassing seals. Other species are currently protected from disturbance and harassment: the list of European protected species includes citations for other marine animals such as sturgeon; dolphins, porpoises and otters are protected under the Conservation (Natural Habitats, &c) Regulations 1994; and section 9 of the Wildlife and Countryside Act 1981 makes the disturbance of specific animals an offence. Seals are not currently protected in that way.
I lodged an amendment at stage 2 on the offence of disturbance and harassment. The committee was concerned, however, that the interpretation of disturbance could be too wide, and might include people or their dogs who inadvertently disturbed seal colonies while walking on the beach and thereby committed an offence. I therefore did not press that amendment. Instead, I lodged amendment 79. It refers only to "harassment", which is a better-defined term, and it states that the harassment must be done
"intentionally or recklessly … at a haul-out site".
The term "haul-out site" is widely recognised by those who are cognisant of seals and their behaviour. Haul-out sites are areas on land that seals use for breeding, pupping or resting. When seals perceive a threat, they race into the water, which can result in mothers and pups becoming separated and aggressive behaviour among mothers when trying to return to their pups. However, "haul-out site" requires to be defined in a legal sense, so the amendment defines it as a place that is designated as such by the Scottish ministers consequent on consultation with the Natural Environment Research Council.
Amendment 79 would not prevent the use of any non-lethal method of deterring seals, which was another of the committee's concerns at stage 2. The committee was concerned that the use of acoustic devices, for example, might be considered as harassment of seals. However, amendment 79 would not cause the use of such devices to be considered to be harassment because it refers only to haul-out sites and not to parts of the marine area around fisheries or fish farms.
Amendments 80 and 83 are consequential to amendment 79.
I move amendment 79.
I welcome amendments 79, 80 and 83, which will make the harassment of seals at haul-out sites an offence, but the issue will have to be intelligently addressed when orders are made. If grey seal numbers continue to expand, areas that have not been used as haul-out sites may be used as such by the expanding seal population, which could pose a new threat to fish farms.
There is a fine line between scaring off potential predators, which is a legitimate thing to do, and harassment of the same animals. I hope that when orders are made, the legitimate right of fish farmers to protect their fish from predation and fear of predation will be taken into account.
Amendments 79, 80 and 83 will introduce a new offence of intentionally or recklessly harassing a seal at a designated haul-out site. They set the penalty for anyone who is found guilty of that new offence at up to six months' imprisonment or a level 5 fine, and they allow for the new offence to be enforced by marine enforcement officers.
I resisted the more general amendments on disturbance and harassment offences that were lodged at stage 2, because they carried the risk of effectively preventing the use of non-lethal deterrent measures against seals as an alternative to shooting, which could result in unintended consequences for wildlife tourism, public access and leisure activities. I appreciate, however, that there are genuine issues around the harassment of seals at their most important haul-out sites.
I consider that amendment 79 and consequential amendments 80 and 83 will provide seals with a suitable and proportionate measure of protection from harassment when they are at their most vulnerable. I am therefore content to accept amendments 79, 80 and 83.
I call Mr McArthur, but I ask him to press his button quicker next time.
It is not a red-letter day in the McArthur household.
I expressed concern at stages 1 and 2 about suggestions that we might legislate to outlaw the disturbance of seals. That was only partly due to a concern on my part to avoid making a rod for my own back and that of my boisterous, but ultimately harmless, black Labrador. I was also concerned to avoid, as the cabinet secretary said, implications for the non-lethal deterrence methods that I think we all support as a way of avoiding the need to take or shoot seals.
I am pleased that Dr Murray has been able to take on board those concerns. Her amendments focus very sensibly on the need to clamp down on deliberate and reckless harassment of seals at known haul-out sites. The amendments will help to enhance the protection of seals under the bill, so they command my support and that of my Liberal Democrat colleagues.
I give the Presiding Officer advance warning that I may also speak on the next group.
I ask Elaine Murray to wind-up and to press or withdraw her amendment.
I will respond briefly. I recognise the situation that John Scott describes; it is the case that, although common seal numbers are in decline, grey seal numbers are fairly constant in Scottish waters, and worldwide they are increasing.
Amendment 79 specifically refers to established haul-out sites. Those sites would be designated with reference to the advice of NERC and would not, for example, be designated at the whim of the minister. I think that if, for example, seals were attempting to create a haul-out site near an existing fish farm, deterring them from doing so would not be interpreted as intentional or reckless harassment, because the site was not already established. However, there are opportunities through the dialogue between ministers and NERC to keep that issue under review and to establish whether it causes problems.
I am grateful to colleagues for their indications of support for my amendments.
Amendment 79 agreed to.
Section 114—Penalties
Amendment 80 moved—[Elaine Murray]—and agreed to.
Amendment 81 moved—[Richard Lochhead]—and agreed to.
After section 114
Amendment 82 moved—[Richard Lochhead]—and agreed to.
Section 117—Enforcement of marine protection and nature conservation legislation
Amendment 83 moved—[Elaine Murray]—and agreed to.
Section 125—Powers of seizure, etc
Amendment 84 moved—[Richard Lochhead]—and agreed to.
Section 132—Power to direct vessel or marine installation to port
We move to group 21. Amendment 7, in the name of Liam McArthur, is grouped with amendments 85 and 86.
Committee colleagues will recall that I lodged a series of amendments at stage 2 reflecting concerns in the port industry in Scotland, including Orkney Harbours, about the implications of the use of the enforcement powers in the bill. Although I am pleased to say that some of the concerns have been addressed, legitimate concerns remain that there is no requirement on enforcement officers to communicate with or seek the views of a port authority prior to taking a decision to direct a vessel to that port.
I accept that, as the cabinet secretary suggested at stage 2, in practice such exchanges take place in most instances. However, I am concerned that enforcement officers could make decisions that are expedient for them in discharging their duties but which do not reflect the best interests of the affected port, other users of the port and even, conceivably, the environment. It would clearly not be acceptable for ports to refuse to accept a vessel without compelling reasons, but a policy on the part of enforcement officers of "don't ask, don't tell" does not appear to be satisfactory either.
Before deciding whether to press amendment 7, I will be interested to hear the steps that the cabinet secretary feels he might be able to take to address this underlying concern.
I move amendment 7.
First, I will address amendment 7, in the name of Liam McArthur. The power to direct a vessel to port is not new. It exists, for example, for investigating and enforcement officers under the Food and Environment Protection Act 1985, for wildlife officers under the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007 and for British sea-fishery officers under the Sea Fisheries Act 1968.
I recognise Liam McArthur's good intentions in lodging amendment 7. However, our compliance officers believe that it could introduce considerable difficulties for them. Importantly, they believe that it would seriously hinder their ability properly to enforce marine legislation. When a ship is directed to port, I believe that the convention is for those on the marine protection vessel to contact the port concerned and make the appropriate arrangements. However, I am advised that it is not possible to share enforcement policy instructions.
I am happy to write to Liam McArthur to set out our approach. With that in mind, I ask him to seek leave to withdraw amendment 7.
Government amendment 85 provides clarity concerning to whom evidence needs to be shown when enforcement officers are exercising powers under part 6. Section 136 was amended at stage 2 by a non-Government amendment in the name of Stuart McMillan. Prior to that amendment, there was a duty to produce evidence of authorisation on request before exercising any power under part 6. Mr McMillan's amendment brought about the change that marine enforcement officers must produce such evidence, regardless of whether or not they are asked to do so. That raised the question to whom the evidence must be shown and what would happen when no relevant person was present. Amendment 85 clarifies those matters.
Amendment 86 disapplies sections 136 and 137 in relation to the entry of marine enforcement officers into dwellings for the purpose of exercising enforcement powers under part 6. That is required because entry into dwellings by officers is covered by section 122, which requires that a warrant is needed for such entry. Paragraph 9 of schedule 3 has its own rules on production for evidence in this situation.
I hear what the cabinet secretary says about my amendment 7, but it was expressed to me that enforcement officers are having kittens over this—although the person put it in rather more measured terms.
I appreciate the cabinet secretary's offer to write to me with an explanation. However, given the concerns that have been expressed to me and the underlying problems that many in the port industry perceive in this regard, I will press amendment 7.
The question is, that amendment 7 be agreed to. Are we agreed?
No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Margaret (Glasgow Baillieston) (Lab) Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) Foulkes, George (Lothians) (Lab) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grant, Rhoda (Highlands and Islands) (Lab) Henry, Hugh (Paisley South) (Lab) Hume, Jim (South of Scotland) (LD) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McInnes, Alison (North East Scotland) (LD) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Scott, Tavish (Shetland) (LD) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Stephen, Nicol (Aberdeen South) (LD) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Tolson, Jim (Dunfermline West) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Allan, Alasdair (Western Isles) (SNP) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brownlee, Derek (South of Scotland) (Con) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) FitzPatrick, Joe (Dundee West) (SNP) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Goldie, Annabel (West of Scotland) (Con) Grahame, Christine (South of Scotland) (SNP) Harper, Robin (Lothians) (Green) Harvie, Christopher (Mid Scotland and Fife) (SNP) Harvie, Patrick (Glasgow) (Green) Hepburn, Jamie (Central Scotland) (SNP) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Kidd, Bill (Glasgow) (SNP) Lamont, John (Roxburgh and Berwickshire) (Con) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McGrigor, Jamie (Highlands and Islands) (Con) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Neil, Alex (Central Scotland) (SNP) Paterson, Gil (West of Scotland) (SNP) Robison, Shona (Dundee East) (SNP) Russell, Michael (South of Scotland) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 57, Against 62, Abstentions 0.
Amendment 7 disagreed to.
Section 136—Duty to provide evidence of authority
Amendment 85 moved—[Richard Lochhead] and agreed to.
After section 137
Amendment 86 moved—[Richard Lochhead]—and agreed to.
Section 141B—Modification of section 22A of Sea Fish (Conservation) Act 1967
We move to group 22. Amendment 87, in the name of the cabinet secretary, is grouped with amendments 88, 89, 89A, 89B, 89C, 89D, 99 and 100.
The Scottish Government sought leave to withdraw a number of our stage 2 amendments in response to the concerns of members of the Rural Affairs and Environment Committee. In the intervening period, further consideration has been given to those amendments and their impact. As a result, amendments have been lodged to the Scottish Government's amendment 89. Those are amendments 89A, 89B, 89C and 89D and I will speak to them shortly.
I remain convinced that the Scottish Government's amendments are necessary and appropriate, and I am of the view that concerns are unfounded. The Government's amendments will improve sea fisheries legislation without having a detrimental impact on fishermen and are appropriate in a Scottish context. They address a particular possible future difficulty with granting regulating and several orders under the Sea Fisheries (Shellfish) Act 1967. They also amend the long title of the bill and, at the same time, help to align the bill with the UK Marine and Coastal Access Act 2009.
Amendment 87 makes technical modifications to the Sea Fish (Conservation) Act 1967 that are required as a result of the insertion of section 141B at stage 2. Amendment 88 modifies the Sea Fisheries (Shellfish) Act 1967 in several ways. First, it removes the requirement for ministers to obtain the consent of the Crown Estate commissioners before granting a several or regulating order and replaces it with an obligation to have regard to the powers and duties of the Crown Estate. Secondly, it provides ministers with powers to vary or modify several or regulating orders to enable a development to take place. Thirdly, it enables ministers to make provision for the owner of an affected area to pay compensation to the grantee of a several order. Finally, it imposes on ministers an obligation to have regard to the powers and duties of the Crown Estate.
Amendment 89 modifies the Sea Fisheries (Shellfish) Act 1967 also. First, it enables moneys that are collected by way of tolls or royalties by the grantee of a several or regulating order to be used for purposes that are connected with the regulation of the fishery and not just for the cultivation of the fishery. Secondly, it extends liability for an offence under section 3 of the Sea Fisheries (Shellfish) Act 1967 to include the master, owner and charterer of a sea fishing boat. Thirdly, it enables restrictions and regulations that are made by the grantee of a fishery to be enforced by the relevant enforcement agency; in Scotland, that is Marine Scotland compliance.
Fourthly, the amendment requires the grantee of a regulating order to keep and make available a register of licence holders, and extends the current protection of private oyster beds to all privately owned shellfish beds. Fifthly, it gives ministers extended powers to specify in an order the type of fishing implements that can be used in areas covered by an order. Sixthly, it removes the obligation on ministers to appoint an inspector to carry out an inquiry into a proposed order and instead provides ministers with discretion as to whether to appoint an inspector to hold an inquiry. Finally, it applies an increased maximum fine level of £50,000 on summary conviction for offences relating to several or regulating orders under section 7 of the Sea Fisheries (Shellfish) Act 1967.
The modification that provides ministers with discretion as to whether to appoint an inspector is designed to avoid situations in which an expensive and time-consuming inquiry is triggered unnecessarily. However, I anticipate that in most cases an inquiry would take place. For example, the regulating orders in Shetland and on the Solway would be handled in exactly the same way under the new provisions as they were previously, as would the Highland regulating order application that was unsuccessful.
Amendment 89A, in the name of Karen Gillon, would remove the ability of a regulating order grantee to impose restrictions, to make regulations or to have those enforced by Marine Scotland compliance. Unfortunately, the amendment would result in such orders being unworkable. For that reason, I ask Karen Gillon not to move it.
Amendment 89B, also in the name of Karen Gillon, would retain the current obligation in the Sea Fisheries (Shellfish) Act 1967 to appoint an inspector to hold an inquiry in all circumstances where an objection is considered neither frivolous nor irrelevant. That could result in time-consuming and expensive inquiries being triggered unnecessarily. For that reason, I ask Karen Gillon not to move the amendment.
Amendment 89C, in the name of Liam McArthur, seeks to provide a statutory defence for a master, charterer or owner of a fishing boat that is used in an offence on the basis that they did not know or had no reason to suspect that the boat would be used in an offence. However, subsection (1)(b) of the new section created by Scottish Government amendment 89 creates a strict liability offence. That approach is commonly used in fisheries enforcement, because it is often difficult to show intent. Enforcement officers rarely observe an offence taking place, so they need to rely on strict liability attaching to persons where it can be shown that there has been a material breach of a rule. Liam McArthur's amendment could not extend to a master, who is responsible for what a vessel does and what happens on board, and is therefore unworkable. On that basis, I ask Liam McArthur not to move it.
Amendment 89D, also in the name of Liam McArthur qualifies the ministerial discretion that is provided by Government amendment 89 by providing that an inspector will be appointed to hold an inquiry where an objection raises a material concern. On the basis that the amendment describes what will happen in practice, we are willing to accept it.
Amendment 100 will simply add the words
"and regulation of sea fisheries"
to the long title. Amendment 99 will delete the word "and" from the long title, as it is misplaced as a result of amendment 100.
The purpose of the Scottish Government amendments in this group is primarily to address concerns relating to the granting of several and regulating orders in Scotland. The amendments have the support of those who operate regulating orders at present. In addition, the opportunity is being taken to make fisheries legislation in Scotland consistent, as appropriate, with that in the rest of the UK. The amendments will bring about improvements to fisheries management, they are appropriate in a Scottish context and they will not impact adversely on fishing.
I move amendment 87.
The Labour Party is happy to support amendments 87 to 89, 89D, 99 and 100. However, we cannot support amendment 89C in the name of Liam McArthur.
My amendments 89A and 89B seek to gain further information from the cabinet secretary in relation to amendment 89. There was considerable concern in the committee at stage 2 about the late introduction of the proposals. There is concern that section 15(3) of the Sea Fisheries Act 1968 permits the grantees of a regulating order to impose restrictions in regulations, which would be enforceable at the hands of Marine Scotland compliance and prosecutable in the criminal courts of Scotland. The only safeguard that the public would have against the introduction of such criminal offences would be that the prior consent of the appropriate minister would have to be obtained. Parliament would have no part in that, as it has no part in the making of such orders or the approval of such regulations.
It has been argued that protection is available in England and Wales in relation to the granting of regulating orders. As that is not the case in Scotland, there is concern that we will be left at a disadvantage. I welcome the cabinet secretary's comments on the issue, but perhaps in his summing up he will provide further clarification and detail.
On amendment 89B, I seek further clarification from the cabinet secretary. Recently, a group of people attempted to obtain a regulating order to manage the stocks of all permitted species of shellfish within the full extent of the coastal waters of Highland Council. Not only did the minister not reject the proposal, he adopted it, drafting and promoting the order. There was then an inquiry, which found against the order. We need clarity on how that kind of order will be handled. If the cabinet secretary cannot comment fully on that in the chamber, perhaps he will undertake to write to the Rural Affairs and Environment Committee to outline the procedure in more detail.
If I receive the assurances that I seek, I might be persuaded not to move my amendments.
I hope that I have redeemed myself by pressing my request-to-speak button in good time, Presiding Officer.
I am happy to accept the cabinet secretary's rationale for modifying the Sea Fisheries (Shellfish) Act 1967 and the Sea Fish (Conservation) Act 1967 and to support the substantive amendments in the group, which are 88 and 89. However, like Karen Gillon, I share some of the concerns that have been expressed by the Scottish Fishermen's Federation about a small number of important implications, although I am not persuaded of the need to go as far as Karen Gillon proposes in her amendments 89A and 89B, which would remove entirely subsections of Government amendment 89. I believe that changes in the provisions in relation to vicarious liability and appeals rights are necessary, or should at least be exposed to debate.
It is fair to say that seeking to amend the Government's amendment 89 has not been straightforward, but I hope that what my amendments 89C and 89D lack in elegance they make up for in addressing the substance of the fishing industry's concerns. As the cabinet secretary said, amendment 89C seeks to make it clear that a vessel owner cannot be held legally accountable for the illegal actions of a skipper or master where he or she did not know, nor had reason to suspect, that an offence was being committed. It is perhaps unlikely that a procurator fiscal would pursue an owner in such circumstances. In light of the cabinet secretary's comments, I am disinclined to move that amendment.
On amendment 89D, we debated this morning whether and how we might allow for new rights of appeal or rights to be heard. In this case, my concern is that the effect of the Government's amendment to section 214 of the Sea Fisheries (Shellfish) Act 1967 risks removing an existing right of appeal. That seems neither sensible nor desirable, although I accept that it is in no one's interest to allow vexatious or frivolous appeals to clog up the system. In that spirit, amendment 89D seeks to require material objections to be heard while allowing ministers the opportunity to filter out those that are deemed vexatious. That is a more proportionate response, and I am grateful for the cabinet secretary's indication of his support for the amendment.
We are dealing with a complex issue, and I appreciate the helpful and understanding way in which members have approached the amendments.
I reiterate that amendments 87 to 89 are designed to ensure that existing fisheries legislation works more smoothly and to ensure that the organisations that run regulating orders can carry out their duties. Indeed, many of the changes have been proposed at the behest of those organisations.
I take on board Karen Gillon's request for clarity on the Highland regulating order that was unsuccessful. I am happy to look into that and the points that she raised and, as she requests, to write to the committee with that clarification.
Amendment 87 agreed to.
After section 141B
Amendment 88 moved—[Richard Lochhead]—and agreed to.
Amendment 89 moved—[Richard Lochhead].
The question is, that amendment 89 be agreed to. Are we agreed?
Yes.
Amendments 89A, 89B and 89C not moved.
Amendment 89D moved—[Liam McArthur]—and agreed to.
The question is—I have already done this one. You agreed to amendment 89 earlier, didn't you?
Yes.
I am informed that the question is on the amendment as amended. It does not say that on my script, though.
The question is, that amendment 89, as amended, be agreed to. Are we agreed?
Yes
Amendment 89, as amended, agreed to.
I have an idiot's guide, and it ain't working. [Laughter.]
Section 145—Orders and regulations
Amendment 90 moved—[Liam McArthur].
The question is, that amendment 90 be agreed to. Are we agreed?
No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab)Baillie, Jackie (Dumbarton) (Lab)Baker, Claire (Mid Scotland and Fife) (Lab)Baker, Richard (North East Scotland) (Lab)Boyack, Sarah (Edinburgh Central) (Lab)Brankin, Rhona (Midlothian) (Lab)Brown, Robert (Glasgow) (LD)Butler, Bill (Glasgow Anniesland) (Lab)Chisholm, Malcolm (Edinburgh North and Leith) (Lab)Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)Curran, Margaret (Glasgow Baillieston) (Lab)Eadie, Helen (Dunfermline East) (Lab)Ferguson, Patricia (Glasgow Maryhill) (Lab)Finnie, Ross (West of Scotland) (LD)Foulkes, George (Lothians) (Lab)Gillon, Karen (Clydesdale) (Lab)Glen, Marlyn (North East Scotland) (Lab)Gordon, Charlie (Glasgow Cathcart) (Lab)Grant, Rhoda (Highlands and Islands) (Lab)Henry, Hugh (Paisley South) (Lab)Hume, Jim (South of Scotland) (LD)Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)Kelly, James (Glasgow Rutherglen) (Lab)Kerr, Andy (East Kilbride) (Lab)Lamont, Johann (Glasgow Pollok) (Lab)Livingstone, Marilyn (Kirkcaldy) (Lab)Macdonald, Lewis (Aberdeen Central) (Lab)Macintosh, Ken (Eastwood) (Lab)Martin, Paul (Glasgow Springburn) (Lab)McArthur, Liam (Orkney) (LD)McAveety, Mr Frank (Glasgow Shettleston) (Lab)McInnes, Alison (North East Scotland) (LD)McMahon, Michael (Hamilton North and Bellshill) (Lab)McNeil, Duncan (Greenock and Inverclyde) (Lab)McNeill, Pauline (Glasgow Kelvin) (Lab)McNulty, Des (Clydebank and Milngavie) (Lab)Mulligan, Mary (Linlithgow) (Lab)Murray, Elaine (Dumfries) (Lab)O'Donnell, Hugh (Central Scotland) (LD)Oldfather, Irene (Cunninghame South) (Lab)Park, John (Mid Scotland and Fife) (Lab)Peacock, Peter (Highlands and Islands) (Lab)Peattie, Cathy (Falkirk East) (Lab)Pringle, Mike (Edinburgh South) (LD)Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)Scott, Tavish (Shetland) (LD)Simpson, Dr Richard (Mid Scotland and Fife) (Lab)Smith, Elaine (Coatbridge and Chryston) (Lab)Smith, Iain (North East Fife) (LD)Smith, Margaret (Edinburgh West) (LD)Stephen, Nicol (Aberdeen South) (LD)Stewart, David (Highlands and Islands) (Lab)Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD)Tolson, Jim (Dunfermline West) (LD)Whitefield, Karen (Airdrie and Shotts) (Lab)Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP)Aitken, Bill (Glasgow) (Con)Allan, Alasdair (Western Isles) (SNP)Brocklebank, Ted (Mid Scotland and Fife) (Con)Brown, Gavin (Lothians) (Con)Brown, Keith (Ochil) (SNP)Brownlee, Derek (South of Scotland) (Con)Campbell, Aileen (South of Scotland) (SNP)Carlaw, Jackson (West of Scotland) (Con)Coffey, Willie (Kilmarnock and Loudoun) (SNP)Constance, Angela (Livingston) (SNP)Crawford, Bruce (Stirling) (SNP)Cunningham, Roseanna (Perth) (SNP)Don, Nigel (North East Scotland) (SNP)Doris, Bob (Glasgow) (SNP)Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)Fabiani, Linda (Central Scotland) (SNP)FitzPatrick, Joe (Dundee West) (SNP)Fraser, Murdo (Mid Scotland and Fife) (Con)Gibson, Kenneth (Cunninghame North) (SNP)Gibson, Rob (Highlands and Islands) (SNP)Goldie, Annabel (West of Scotland) (Con)Grahame, Christine (South of Scotland) (SNP)Harper, Robin (Lothians) (Green)Harvie, Christopher (Mid Scotland and Fife) (SNP)Harvie, Patrick (Glasgow) (Green)Hepburn, Jamie (Central Scotland) (SNP)Hyslop, Fiona (Lothians) (SNP)Ingram, Adam (South of Scotland) (SNP)Johnstone, Alex (North East Scotland) (Con)Kidd, Bill (Glasgow) (SNP)Lamont, John (Roxburgh and Berwickshire) (Con)Lochhead, Richard (Moray) (SNP)MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP)Marwick, Tricia (Central Fife) (SNP)Mather, Jim (Argyll and Bute) (SNP)Matheson, Michael (Falkirk West) (SNP)Maxwell, Stewart (West of Scotland) (SNP)McGrigor, Jamie (Highlands and Islands) (Con)McKee, Ian (Lothians) (SNP)McKelvie, Christina (Central Scotland) (SNP)McLaughlin, Anne (Glasgow) (SNP)McLetchie, David (Edinburgh Pentlands) (Con)McMillan, Stuart (West of Scotland) (SNP)Milne, Nanette (North East Scotland) (Con)Mitchell, Margaret (Central Scotland) (Con)Neil, Alex (Central Scotland) (SNP)Paterson, Gil (West of Scotland) (SNP)Robison, Shona (Dundee East) (SNP)Russell, Michael (South of Scotland) (SNP)Scanlon, Mary (Highlands and Islands) (Con)Scott, John (Ayr) (Con)Smith, Elizabeth (Mid Scotland and Fife) (Con)Somerville, Shirley-Anne (Lothians) (SNP)Stevenson, Stewart (Banff and Buchan) (SNP)Sturgeon, Nicola (Glasgow Govan) (SNP)Swinney, John (North Tayside) (SNP)Thompson, Dave (Highlands and Islands) (SNP)Watt, Maureen (North East Scotland) (SNP)Welsh, Andrew (Angus) (SNP)White, Sandra (Glasgow) (SNP)Wilson, Bill (West of Scotland) (SNP)Wilson, John (Central Scotland) (SNP)
The result of the division is: For 57, Against 63, Abstentions 0.
Amendment 90 disagreed to.
Schedule 1
Preparation, adoption etc of marine plans or any amendment
Amendments 91 and 92 moved—[Richard Lochhead]—and agreed to.
Schedule 2
Further provision about civil sanctions under Part 3 (marine licensing)
Amendments 93 to 98 moved—[Richard Lochhead]—and agreed to.
Long title
Amendment 5 moved—[Peter Peacock].
The question is, that amendment 5 be agreed to. Are we agreed?
No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab) Baillie, Jackie (Dumbarton) (Lab) Baker, Claire (Mid Scotland and Fife) (Lab) Baker, Richard (North East Scotland) (Lab) Boyack, Sarah (Edinburgh Central) (Lab) Brankin, Rhona (Midlothian) (Lab) Brown, Robert (Glasgow) (LD) Butler, Bill (Glasgow Anniesland) (Lab) Chisholm, Malcolm (Edinburgh North and Leith) (Lab) Craigie, Cathie (Cumbernauld and Kilsyth) (Lab) Curran, Margaret (Glasgow Baillieston) (Lab) Eadie, Helen (Dunfermline East) (Lab) Ferguson, Patricia (Glasgow Maryhill) (Lab) Finnie, Ross (West of Scotland) (LD) Gillon, Karen (Clydesdale) (Lab) Glen, Marlyn (North East Scotland) (Lab) Gordon, Charlie (Glasgow Cathcart) (Lab) Grant, Rhoda (Highlands and Islands) (Lab) Harper, Robin (Lothians) (Green) Harvie, Patrick (Glasgow) (Green) Henry, Hugh (Paisley South) (Lab) Hume, Jim (South of Scotland) (LD) Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab) Kelly, James (Glasgow Rutherglen) (Lab) Kerr, Andy (East Kilbride) (Lab) Lamont, Johann (Glasgow Pollok) (Lab) Livingstone, Marilyn (Kirkcaldy) (Lab) Macdonald, Lewis (Aberdeen Central) (Lab) Macintosh, Ken (Eastwood) (Lab) Martin, Paul (Glasgow Springburn) (Lab) McArthur, Liam (Orkney) (LD) McAveety, Mr Frank (Glasgow Shettleston) (Lab) McInnes, Alison (North East Scotland) (LD) McMahon, Michael (Hamilton North and Bellshill) (Lab) McNeil, Duncan (Greenock and Inverclyde) (Lab) McNeill, Pauline (Glasgow Kelvin) (Lab) McNulty, Des (Clydebank and Milngavie) (Lab) Mulligan, Mary (Linlithgow) (Lab) Murray, Elaine (Dumfries) (Lab) O'Donnell, Hugh (Central Scotland) (LD) Oldfather, Irene (Cunninghame South) (Lab) Park, John (Mid Scotland and Fife) (Lab) Peacock, Peter (Highlands and Islands) (Lab) Peattie, Cathy (Falkirk East) (Lab) Pringle, Mike (Edinburgh South) (LD) Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD) Rumbles, Mike (West Aberdeenshire and Kincardine) (LD) Scott, Tavish (Shetland) (LD) Simpson, Dr Richard (Mid Scotland and Fife) (Lab) Smith, Elaine (Coatbridge and Chryston) (Lab) Smith, Iain (North East Fife) (LD) Smith, Margaret (Edinburgh West) (LD) Stephen, Nicol (Aberdeen South) (LD) Stewart, David (Highlands and Islands) (Lab) Stone, Jamie (Caithness, Sutherland and Easter Ross) (LD) Tolson, Jim (Dunfermline West) (LD) Whitefield, Karen (Airdrie and Shotts) (Lab) Whitton, David (Strathkelvin and Bearsden) (Lab)
Against
Adam, Brian (Aberdeen North) (SNP) Aitken, Bill (Glasgow) (Con) Allan, Alasdair (Western Isles) (SNP) Brocklebank, Ted (Mid Scotland and Fife) (Con) Brown, Gavin (Lothians) (Con) Brown, Keith (Ochil) (SNP) Brownlee, Derek (South of Scotland) (Con) Campbell, Aileen (South of Scotland) (SNP) Carlaw, Jackson (West of Scotland) (Con) Coffey, Willie (Kilmarnock and Loudoun) (SNP) Constance, Angela (Livingston) (SNP) Crawford, Bruce (Stirling) (SNP) Cunningham, Roseanna (Perth) (SNP) Don, Nigel (North East Scotland) (SNP) Doris, Bob (Glasgow) (SNP) Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP) Fabiani, Linda (Central Scotland) (SNP) FitzPatrick, Joe (Dundee West) (SNP) Fraser, Murdo (Mid Scotland and Fife) (Con) Gibson, Kenneth (Cunninghame North) (SNP) Gibson, Rob (Highlands and Islands) (SNP) Goldie, Annabel (West of Scotland) (Con) Grahame, Christine (South of Scotland) (SNP) Harvie, Christopher (Mid Scotland and Fife) (SNP) Hepburn, Jamie (Central Scotland) (SNP) Hyslop, Fiona (Lothians) (SNP) Ingram, Adam (South of Scotland) (SNP) Johnstone, Alex (North East Scotland) (Con) Kidd, Bill (Glasgow) (SNP) Lamont, John (Roxburgh and Berwickshire) (Con) Lochhead, Richard (Moray) (SNP) MacAskill, Kenny (Edinburgh East and Musselburgh) (SNP) Marwick, Tricia (Central Fife) (SNP) Mather, Jim (Argyll and Bute) (SNP) Matheson, Michael (Falkirk West) (SNP) Maxwell, Stewart (West of Scotland) (SNP) McGrigor, Jamie (Highlands and Islands) (Con) McKee, Ian (Lothians) (SNP) McKelvie, Christina (Central Scotland) (SNP) McLaughlin, Anne (Glasgow) (SNP) McLetchie, David (Edinburgh Pentlands) (Con) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanette (North East Scotland) (Con) Mitchell, Margaret (Central Scotland) (Con) Neil, Alex (Central Scotland) (SNP) Paterson, Gil (West of Scotland) (SNP) Robison, Shona (Dundee East) (SNP) Russell, Michael (South of Scotland) (SNP) Scanlon, Mary (Highlands and Islands) (Con) Scott, John (Ayr) (Con) Smith, Elizabeth (Mid Scotland and Fife) (Con) Somerville, Shirley-Anne (Lothians) (SNP) Stevenson, Stewart (Banff and Buchan) (SNP) Sturgeon, Nicola (Glasgow Govan) (SNP) Swinney, John (North Tayside) (SNP) Thompson, Dave (Highlands and Islands) (SNP) Watt, Maureen (North East Scotland) (SNP) Welsh, Andrew (Angus) (SNP) White, Sandra (Glasgow) (SNP) Wilson, Bill (West of Scotland) (SNP) Wilson, John (Central Scotland) (SNP)
The result of the division is: For 58, Against 61, Abstentions 0.
Amendment 5 disagreed to.
Amendments 99 and 100 moved—[Richard Lochhead]—and agreed to.
That ends consideration of amendments.