Official Report: Minutes of Evidence
Committee for Agriculture and Rural Development, meeting on Tuesday, 8 December 2015
Members present for all or part of the proceedings:
Mr William Irwin (Chairperson)
Mr S Anderson
Mr Declan McAleer
Mr I McCrea
Mr O McMullan
Mr I Milne
Mr Robin Swann
Witnesses:
Mr Paddy Campbell, Department of Agriculture, Environment and Rural Affairs
Mr Mark McCaughan, Department of Agriculture, Environment and Rural Affairs
Mr John Terrington, Department of Agriculture, Environment and Rural Affairs
Mr Seamus Connor, Department of Culture, Arts and Leisure
Mr Liam Devlin, Department of Culture, Arts and Leisure
Fisheries Bill: DARD and DCAL Officials
The Chairperson (Mr Irwin): I welcome, from DCAL, Seamus Connor, chief fisheries official, and Liam Devlin, deputy principal of the inland fisheries group; and, from DARD, John Terrington, Fisheries Bill team, Mark McCaughan, chief fisheries officer, and Paddy Campbell, from sea fisheries policy. You are very welcome. We ask you to make your presentation, and we will then ask some questions.
Mr John Terrington (Department of Agriculture and Rural Development): Thank you again for the opportunity to address you on the Fisheries Bill. You have introduced my colleagues already. As certain aspects of the Bill cover inland fisheries, we are joined by two colleagues from DCAL.
First, I will say that it is unfortunate that the Bill took so long to get to this stage, having only been introduced to the Assembly yesterday. The Committee will be aware, however, that we consulted on proposals as long ago as the second half of 2014 and secured Executive agreement to draft the Bill in March. Unfortunately, drafting and clearances took longer than could have been anticipated. There are, however, a small number of provisions that we are under pressure to bring forward sooner rather than later. One such clause would allow the Department to enforce most EU fisheries legislation as soon as the regulation comes into operation. That is something that the EU Commission is insisting on, following inspection visits to Northern Ireland. Indeed, it has opened a pilot case related to this power. Failure to sort this within the Commission timetable could lead to infraction. In addition, recent missions have also expressed strong concern about the current lack of coordination of control throughout the regions of the UK. The adoption here of the enforcement powers afforded across Britain would significantly reduce the differences in approach between here and the rest of the UK and leave us less exposed to accusations from the Commission that the control and implementation are weaker here. The EU has also undertaken a recent mission here to look specifically at sanctions. The fact that penalties are considerably lower here than in Britain exposes the Administration to further criticism and potential punitive action. The Minister has written to the Committee to reflect these points.
I will provide the Committee with a short synopsis of the current legislative position before moving onto the Bill itself. On sea fishing, the main commercially exploited fisheries are regulated through the common fisheries policy (CFP). The Sea Fish (Conservation) Act 1967, which applies across the UK, regulates the commercial use of, fishing for, and landing of, sea fish. The Fisheries Act 1981 gave powers of enforcement to authorised fisheries officers, including the enforcement of most of the EU legislation under the common fisheries policy.
Inshore fishing, which covers fishing vessels that mainly target shellfish, such as crab, lobster and shrimps, by potting is regulated by the Fisheries Act (Northern Ireland) 1966. The 1966 Act also gives broad powers to DCAL to regulate for the conservation, protection, promotion and development of salmon and inland fisheries. These powers were with the Fisheries Conservancy Board but were transferred to DCAL in 2009 when the board was abolished.
The Committee will recall that we consulted on a number of key things in relation to inland fisheries, sea fisheries and aquaculture. As the consultation document shows, nothing in the underpinning policy was particularly controversial. Despite this, drafting and clearing took longer than expected. The consultation paper included a proposal to introduce a new single aquaculture licence to replace the two licences currently needed for marine fish farming and, in doing so, to review powers more generally. As these changes are desirable at this point but not essential, in order to give the Bill some chance of completing its Assembly stages in the short time available, the Minister decided to remove these provisions and set them aside, which reduces the size of the Bill by half. Hopefully, these can be brought forward again in the future.
The Bill, therefore, covers DARD provisions in relation to sea fisheries enforcement powers as well as DCAL fisheries enforcement matters. The provisions will help us to meet our EU commitments and statutory duties and ensure that the regulatory framework remains fit for purpose. The Bill amends the three separate pieces of legislation that I have mentioned, namely the 1966 Act, the 1967 Act and the 1981 Act, as well as including two stand-alone provisions relating to enforcement powers and fixed penalties.
I will move onto a brief explanation of each of the key clauses of the Bill. Clause 1 extends existing sea fisheries regulatory powers to specifically allow for regulations that would prohibit or restrict fishing for sea fish without a permit issued by the Department. Existing powers are quite wide and allow for the Department to make regulations on the management, conservation, protection, improvement or increase of sea fisheries in local waters. The change makes it clear that the Department can, by these regulations, specifically introduce permit schemes. This is necessary as there are likely to be occasions where marine environment or fish conservation requirements might only be delivered by limiting, for example, the number of permits. Without this, it is conceivable that fishing in specific places or for certain species, for example, might have to be stopped entirely or limited in terms of the catch that any individual can take, to the point where it becomes non-commercially viable for them.
The clause sets out in detail where and to whom permit regulations may apply and limits the matters that the Department can include in such regulations, including the sorts of activities that might be authorised by a permit and the conditions that may be attached to a permit. The clause also sets out that permits can be varied, revoked or suspended and provides for appeal against the decisions of the Department to refuse or to attach specific conditions to a permit or to revoke or suspend a permit.
Clause 2 relates to regulation on the size of sea fish. The 1966 Act, and parallel powers in the 1967 Act in Britain, which do not apply here, allow the Department to make subordinate legislation relating to the minimum size limits for sea fish. The 1966 Act does not does not allow for the maximum size or a size range to be set. This clause simply amends the 1966 Act in line with changes made elsewhere in the UK to extend the existing order-making powers to cover maximum size limits for sea fish. This might, for example, require larger sea fish to be returned to see to breed to allow for the protection of stocks.
Clause 3 amends existing licensing powers under the 1967 Act. Under the legislation, fishing by fishing boats can be prohibited in any specific area without a licence. The legislation applies across the UK and was amended in Britain recently to extend licence conditions to include environmental conditions. Currently, commercial sea fishery licences may authorise fishing and can be subject to certain conditions specifically related to fish quotas and stocks. However, in recognition that legislation may require restrictions on fishing vessels to protect the environment as well as fish stocks, the Bill extends what conditions can be included. That ensures that such restrictions can be introduced and, indeed, lifted quickly, where possible, if there is a seasonal issue, for example, through amending licensing conditions. The change aligns with the licensing powers that are already in place in Britain and with the regulating powers that we have for inshore waters.
Clause 4 provides authorised sea fisheries officers with the relevant enforcement powers included in chapter 8 of Part 2 and chapter 4 of Part 8 respectively of the UK's Marine and Coastal Access Act 2009. The change is necessary because enforcement officers have inadequate means to carry out their roles, including the enforcement of the common fisheries policy. The majority of fisheries legislation is EU-based. Failure to have proper mechanisms in place in respect of that legislation could be a breach of the EU obligations. Officers already have access to a range of powers over a number of pieces of legislation, with each of those tailored to each piece of legislation. Setting out the powers, as the Bill does, and having those available for enforcing all fisheries legislation will provide clarity to enforcers and the industry in providing consistency across all sea fisheries legislation. Furthermore, aligning those exactly with powers in Britain is important since the fisheries inspection vessel staffed by DARD fisheries officers takes part in joint deployment in various areas around Ireland and Britain.
Clause 5 sets out the definitions in clause 4. Primarily, they have been split because of the size of clause 4. The definitions cover the powers that I have outlined in the 2009 Act that apply and where they apply. In effect, they are the areas that DARD officers already have responsibility in and have powers to enforce by virtue of their role as British sea fisheries officers.
Clause 6 amends the 1981 Fisheries Act so that it applies to enforceable EU restrictions and enforceable EU obligations. For example, it may be an obligation for certain vessels to have a satellite on board or for an individual to register as a fish buyer. A restriction could include a restriction from fishing in a specific area, for example. Importantly, fishermen-related activities are already bound by both under the common fisheries policy. Therefore, this is a technical change where fishermen will see very little, if any, change. The change simply alters the legislative basis on which the contravention of EU law would be enforced. The Commission has expressed concern about that matter in recent audits.
Clauses 7 and 8 amend sea fisheries legislation in order to increase the maximum level of fine applicable to anyone found guilty of certain sea fisheries offences. The clause amends the maximum penalties available to courts in relation to sea fisheries offences in the 1966 Act, where it increases them from the statutory maximum, which is currently £5,000, to £50,000. Certain penalties under the 1967 Act are similarly increased, although a number already are at that level. The proposed changes are in line with amendments already made in the rest of the UK. We believe that those changes are needed, as penalties need to be sufficient to act as an appropriate deterrent. It is not appropriate if there is a difference between penalties available and, therefore, potential deterrent from committing the exact same offences, depending on where the offence occurs. As I have said, that is a matter that is likely to lead to criticism from the EU. Notably, during the consultation, no one disagreed with the need to considerably increase deterrents.
Clause 9 updates the Sea Fish (Conservation) Act to define offences by directors and partners, etc. The main aim is to align with changes already made in Britain.
The next few clauses relate to DCAL inland fisheries. Clause 10 amends the 1966 Act to remove the need for an application for a fish dealer's licence to be accompanied by a certificate from the Justice of the Peace, where the certificate will state that the applicant is a fit and proper person to hold such a licence. The current requirement would represent an interruption to the application process for a licence. That is in contravention of the EU services directive.
Clause 11 amends the 1966 Act to extend an existing restriction from taking material without DCAL's consent and moves to extend it to include lakes as well as rivers. That is to ensure the protection of spawn.
Clause 12 amends the 1996 Act in relation to the existing requirement for dam owners to provide and maintain fish passage for salmon, trout and eels. The clause extends to add lampreys to the list of protected species. Furthermore, the clause extends powers for DCAL to remove dams that are a barrier to fish passage, specifically where the dam owner cannot be identified.
Clause 13 amends the 1966 Act to require anyone taking water from a river to fit a grill of not more than 10 millimetres at the entrance and exit of the watercourses. That is aimed at protecting the entry of small fish into those watercourses. The requirement will apply only to new installations, and exemptions will be permitted where the Department is satisfied that sufficient arrangements will be made by means other than a grill of that size.
Clauses 14 and 15 relate to fixed penalties and empower DARD and DCAL to make regulations in connection with giving fixed penalties for sea fisheries and inland fisheries offences. The clause sets out the detail of the provisions that may be included in the regulations, including the content of the penalty notice, the minimum and maximum amount of the penalty and matters relating to payment.
Clause 5 is related to clause 14 and, in short, provides that if a fixed penalty is paid before the end of a given period, the person may not be convicted of the offence. Fixed penalties are now a widely accepted method of improving compliance. The European Commission has consistently reiterated its position that administrative penalties are a more effective means of ensuring compliance with fisheries policy in a cost-effective manner. The threat of such penalties will assist in deterring low-level offences, such as making late returns, which, although seemingly minor, can have a major impact on the ability to manage stocks or investigate wrongdoing. Fixed penalties, therefore, allow enforcers to concentrate efforts on worst or repeat offenders. The powers will also allow for step penalties for repeat offences to further discourage repeat offending. For fishermen and anglers, the advantages are clear: fixed penalties speed up procedures for dealing with infringements and therefore reduce the administrative burden and the cost of legal representation for offenders. Importantly, fixed penalties remove the risk of a criminal record.
Clauses 16, 17 and 18 interpret the terms used in the Bill and provide powers for the Department to make consequential amendments by regulation. Clause 18 relates to the commencement.
In conclusion, this legislation is important. It allows us — both Departments — to meet EU requirements to be able to directly enforce current fishery policy. It will demonstrate to the EU that we have adequate enforcement powers, sufficient deterrence to offending and adequate penalties for those who do offend. It ensures that DCAL can meet applications under the EU services directive and the water framework directive. As noted, we recognise the limited time available in the mandate for the Bill to become law and, we accept that if it does, we will ask a lot of the Committee.
I trust that members found the introduction helpful. We would, of course, be happy to take any questions at this point.
The Chairperson (Mr Irwin): OK. Thank you very much for your presentation.
I refer to the Minister's letter, which outlines clearly for the first time that there is a risk of infraction proceedings. Apparently, the first time DARD was aware of this was in January 2015. A pilot case opened in July 2015. We as a Committee are only receiving information at this stage. Why were we not told sooner? It seems strange that this is the first time that we have been made aware of the risk of infraction proceedings. The Committee has not been told of this. Why was that the case?
Mr Terrington: I will start, and Paddy may wish to add something. It only really became an issue when they looked at the timetable to take forward primary legislation. They accepted that we had set in motion a way to change it, and that was adequate in the early stages; but the file was opened when they saw how long it takes for primary legislation to come through, which is the timetable that we have. Notwithstanding the introduction, we are only at that stage now. The original timetable would have ended at the same time, that is, at the end of the mandate. It is their understanding that it takes too long to right the problem. As I say, it was only in the later stages that they moved from discussing it with us to opening the file.
Mr Paddy Campbell (Department of Agriculture and Rural Development): The issue arose from an inspection in January this year. It was not until June that we got a report of the inspection, when they first notified us that they were not happy with the absence of direct enforcement. We responded at that time. Then, as John said, we outlined what we had in mind. We have been developing the Fisheries Bill for a period, and we had included the provision to amend the Fisheries Act 1981 within it. We told them that we were aiming, at that stage, to bring the thing into operation by the end of April 2016. That is when they commented that they did not think that was quick enough; and that is when they opened the pilot case. We replied to them with more information. That went to them in October, and we have not heard anything from them since.
The Chairperson (Mr Irwin): It looks, from what we are reading into this, that they have not issued a formal notice, which means that we are at early settlement stage. We have not moved into formal infringement procedure. My understanding from the EU Commission website is that there are five steps to formal procedure. The first two steps allow the national government two months to reply plus the EU Commission response time, meaning that there is a possibility that EU litigation is months away — several months away, I would have thought.
Mr P Campbell: Well, we would hope that we do not get to that situation in the first place, but there is some time.
Mr P Campbell: Given that they have already raised concerns about the time period, we are worried that if we have to go back later on and tell them that it will be further delayed, it could put us in a difficult position.
Mr Swann: My question is along the same lines, John. This legislation — and the timeline that you are working to — has come forward because of the threat of EU infraction proceedings.
Mr Terrington: The Minister wanted to enact this legislation in this mandate. We had started the process of making a number of amendments, in part to align with the rest of the UK prior to the EU visit in January. Theoretically, we are still on that same timetable; it is just that it has been concertinaed into the end of the mandate.
Mr Swann: The importance of this legislation is because of the EU.
Mr Terrington: That is a major reason for the urgency at this point. That being said, there are other things such as the fixed penalties, particularly in DCAL, where there is a need to align with the rest of the island of Ireland, for example.
Mr Swann: But there is no penalty hanging over anybody if that does not happen in February.
Mr Swann: Of all the amendments and schedules that are included in this piece of legislation, what bits are needed to meet the EU requirements?
Mr Terrington: That one specific item — the one on which the case has been opened — is around one small clause. However, there are other clauses that will not help our case, such as the fact that we have no coordinated enforcement across the UK, which means that our penalties are considerably lower than those in the rest of the UK. My colleagues in DCAL may want to draw attention to the likes of the EU services directive and the water framework directive. They are not as urgent, but they are certainly things that we need to sort out sooner rather than later.
Mr P Campbell: We have had another mission since the one in January, where they were looking in particular at how sanctions were dealt with across the whole of the UK. Although that is not an immediate problem, it could be a problem down the line, if they come back in a year's time and are not happy with the sanctions that are available.
Mr Swann: One of my concerns is the complexity of the Bill. I am concerned that it is being "concertinaed" into that short time frame, to use your phrase, John.
Mr Terrington: I am going to regret that, aren't I. [Laughter.]
Mr Swann: Aye. I am looking at some of the legislation that you referenced there, especially the Fisheries Act (Northern Ireland) 1966. I sat in the CAL Committee and worked through salmon issues with Seamus a long time ago, when there was inflexibility to amend and work round the 1966 Act, because a major piece of work needed to be done on that. I am concerned that this Committee does not have the time to give this legislation its due time and regard, but from previous work and experience, I know the need for it. I would like to find that common ground. Is there a bit that you need to prevent you from EU infraction proceedings without taking forward the rest, which could be put off until the next mandate? When we come back after recess, we will have 11 weeks.
Mr Swann: That is the sort of guidance that the Committee should be looking at: how little of the Bill is needed to prevent EU infraction proceedings?
Mr Terrington: That is clearly something that I cannot specifically comment on. The Bill is as it has been introduced, and it would require agreement early on to bring forward amendments to remove the other things. If it helps, we would be quite happy to provide copies of those three pieces of legislation with the amendments in, which would allow them to be read. They would be unofficial copies, but they might provide some guidance.
Mr Swann: Have you produced a Keeling schedule for those amendments?
Mr Terrington: No, that is not really how it works. We have done our own informal version of it. You will see that they are not that complicated.
The two bigger bits outstanding are the permit powers, which are in clause 1 — it is pretty much what you see in the Bill, so it is easy enough to follow — and the fixed penalties, which stand alone in the Bill. We will be quite happy to let you see the other things unofficially. That is our take on it. It does not exist in any other form except that, but if it helps the Committee to read and follow the changes, we are happy to try to facilitate that.
On the DCAL provisions or the inland fisheries provisions, it is the addition of a word in one place and a sentence in another place. It is not an awful lot to follow and make a decision on one way or the other.
Mr Swann: John, the addition of a word or a comma in legislation —
Mr Terrington: Yes, but the word is "lampreys", which is a species of fish. We still think that the other things are important, and that is why they are included.
Mr Swann: I am not saying that they are not important, but they obviously need to be done right.
Mr Terrington: We do not know when we will get the opportunity again to bring them forward. As I say, that is not in my gift.
Mr Swann: I am just conscious that, in your introduction, you said that, on what you had been working for 2014, the Minister had taken out almost half to try to keep to the timeline. I am trying to see how much more of it can be taken out so that we can still keep to the timeline and get something done.
Mr Terrington: As I said, that is not in my gift, but we will certainly take that suggestion back.
Mr McMullan: I have looked through the Bill quickly today and listened to your presentation, which you went through pretty quickly because of time, and I appreciate that. I cannot understand what difference a man with a rod standing at the end of the rocks will make to fishing stocks. To me, that is legislation gone totally mad.
As I said to you outside, I cannot see why fish farming is being left out. I have my own thoughts on that. I will keep my counsel, but I certainly want to see it being put in again under environmental issues or for something to be written into the legislation to cover it.
I want to read out clause 9, but I have lost sight of it again. I am starting to dote. Here it is. Clause 9 states:
"Where a relevant offence has been committed by a Scottish firm".
Mr Terrington: Primarily, because we have open seas, that is literally just to align with the position taken in the 2009 Act in the UK. It reflects exactly what its Act states. Fisheries happen across the seas, so if it happens to be a company that is based in Scotland, it is its loss.
Mr Terrington: It is about the fishermen rather than the fish.
Mr Terrington: It is a quirk of Scottish law. That needs to be made clear. We can still use its —
Mr McMullan: Furthermore, under clause 11, which deals with the restriction on the removal of material from the bed of a lake, what do you classify as being a lake?
Mr Terrington: May I hand over to Seamus?
Mr Seamus Connor (Department of Culture, Arts and Leisure): A lake is completely enclosed on all sides, so it could be quite small or quite large. It really relates to the protection that is there primarily for mammals in rivers. There is not the same protection afforded to lakes, and many fish species are spawned in lakes. If somebody decides to remove that material, there is no protection there for them. The provision is extended to include lakes as well as rivers. From our perspective, it is seen as a reasonably common-sense approach to take to trying to protect fish stocks in rivers and lakes.
Mr Connor: Yes. It will take in Lough Neagh and Lough Erne.
Mr McMullan: You are talking about sand extraction and such things.
Mr Connor: We are potentially talking about those things, yes.
Mr McMullan: We went into the rivers issue on the Committee for Culture, Arts and Leisure. A lot of private companies own stretches of rivers. Are they in here? What are their responsibilities? We are talking about Scottish firms. English firms own lucrative stretches of rivers here, but they are not in here at all.
Mr Connor: They will be covered under existing fisheries legislation. It does not matter who commits the offence or whether it is a contractor or an individual. We have the powers to pursue those offences.
John may want to take up the issue more fully. That relates to fishermen from Scottish companies. That presents a slightly different scenario.
Mr Terrington: That is it, simply. It is to do with where the company is based. If we are taking a prosecution against it, we need to be able to access —
Mr Terrington: I am not sure that the Crown Estate does fishing.
Mr McMullan: No, that is quite correct, but it owns the seabed. You have the seabed in the Bill for fishermen but not for the Crown Estate. The Crown Estate lets out the seabed for the laying of cable, and so on, and that disturbs the seabed. Why is it not in the Bill?
Mr P Campbell: It will be covered under environmental and marine planning legislation.
Mr P Campbell: It will be in the marine planning Acts.
Mr McMullan: On that point, the Marine Act 2013 put in place exclusion zones in which you cannot fish. You already have those restrictions in the sea. If the Crown Estate is in environmental legislation, it should be in this Bill as well. We will have two pieces of legislation for fish in the sea: one piece of environmental legislation that imposes exclusion zones; and another piece of legislation for the man out in the boat or the man standing on the rock. Why are the two not together or one added to this Bill? The Crown Estate has to be in there, because it owns the seabed from the high-water mark to the limit out at sea. I cannot see why it is not in there.
The high-water mark refers to the height of the water at spring tide. There are parts of the coastline here where we have lost 15, 20 or 30 acres because of climate change and because the sea was reclaiming the land. There is nothing on that in the Bill either.
The amount of ground that we are losing to the sea is a relevant point to be taken on board. As the sea takes over the land, you will still be covered under the Bill by the high-water mark. We are losing land, but your high-water mark is encroaching further on to the land, which leaves the territorial water extended over its limit. Do you follow my point?
Mr P Campbell: I take the point that, over time, there will be climate change and that the sea area will increase. The Fisheries Bill will still cover fisheries —
Mr Terrington: If sea fishing goes on because of that, it requires —
Mr McMullan: We are talking about high-water marks and spring tides. Those are in your Bill.
Mr P Campbell: Those are definitions of where the sea stops. Those are accepted.
Mr McMullan: Yes, if you have your limit from the high-water mark to its limit out at sea, the North of Ireland —
Mr P Campbell: The territorial limit runs from the coastline to 12 nautical miles out.
Mr McMullan: That is correct. If the coastline is being eaten away and the high-water mark is getting further up the beach, the 12-mile limit will extend.
Mr P Campbell: It will be the same.
Mr McMullan: That does not matter. He has still lost 25 acres.
Mr P Campbell: Fish will still swim up to the high-water mark, and we need to have —
Mr McMullan: That is quite correct. Therefore, you are breaking the law in your Bill by extending the fishing limit to more than 12 miles, yet there is no compensation in there for the loss of ground.
Mr P Campbell: The 12 miles run from the baseline. The baseline will always be the high-water mark, wherever that is. It could be two miles inland tomorrow, because it is all falling into the sea.
Mr McMullan: There is nothing in there about compensation or coastal erosion.
Mr P Campbell: That is not to do with fisheries.
Mr McMullan: How can you leave that out? It is like leaving out salmon farming. You have left out the only salmon farming unit in the whole of the North of Ireland, because you have changed the licensing of it.
Mr P Campbell: It is not our fault that —
Mr Terrington: I have a couple of observations to make. You said that there will be two pieces of legislation. There is environmental legislation that covers the environment, and this is about fisheries, but it has to take cognisance of not allowing fishermen to do things that have a negative impact on the environment. There are two pieces of legislation already. Licensing rules are in place on the licensing of aquaculture. We have not amended them, but they still exist. I am sure that Mark will expand on the various requirements for any applicant or on the fact that any change to an aquaculture licence has to take on board environmental implications, including habitats assessments and environmental impact assessments. That legislation will stay as it is now and will not be changed by anything that we do.
Mr McMullan: You said at the very start that it was taken out of the Bill to create more time to get the Bill passed.
Mr Terrington: That would have amended the 1966 Act, which contains three major Parts relating to aquaculture. The proposal would have been to tidy the Act up a little bit and create one single, stand-alone licence. The existing power still exists, and, at this stage, we are not amending that to create a single licence. Indeed, if we were to bring an amendment forward, the existing environmental controls, environmental impact assessments, habitats directive controls and controls on planning would still stand, whether we changed those or not. Those control exist, aside from for our licensing regime, which remains in place and will remain in place until it is changed, at which point it will be an amended licensing procedure.
Mr Swann: That demonstrates what I was saying earlier. When we open this Bill, there is an awful lot that should be in it to do it right. That is what concerns me. To go back to Oliver's point about clause 9 and proposed new section 12(4) in the 1967 Act, which refers specifically to Scottish firms, why are firms from the Republic of Ireland, Latvia and elsewhere in Europe not mentioned? Why are the other nationalities that fish in our water not mentioned?
Mr Terrington: The requirement was purely to copy the 2009 Act in the UK, and that is what we have done.
Mr Terrington: Our aim was to have that. There is a link, in that there are a lot of Scottish companies in particular that fish here.
Mr Swann: There is also a link with Irish companies.
Mr Terrington: It is about company law rather than enforcing against the skipper or —
Mr Swann: Surely if you can bring in Scotland, which is another jurisdiction, and its law, you can bring in the Republic of Ireland and its law.
Mr Terrington: It is just a definition. I take your point, and we will come back to you on it. The aim was purely to make sure that we had the same powers to take proceedings against Scottish companies if an offence has happened. It is about the definition of a "company" rather than our ability to deal with an individual skipper, a charter or an owner. It is about company law in Scotland.
Mr Swann: John, the argument applies that it is the same for a company from the Republic of Ireland.
Mr Terrington: We would still be able to take proceedings against an individual and/or a skipper. It is about the definition of a "company". I accept your point, however.
Mr Swann: If we are going down the line of including Scottish firms, we have to include the Republic of Ireland as well.
Mr Terrington: It is not that you cannot deal with any of those people; it is just to do with the definition of a "company" in Scotland. I accept that entirely, and we will come back to you.
Mr Milne: Have you had any talks or consultation with the fishermen?
Mr Terrington: We consulted not on the detail of the Bill. We are not long in seeing that, obviously. At the end of 2014, we had 57 responses, including from one of the two fish-producing organisations. We met the other on a couple of occasions and offered it an opportunity when we were out to consult to talk again. It never took up that opportunity. I said that at the Committee the previous time, at the outset of the consultation.
I do not know whether that meant a lack of knowledge, interest or awareness on behalf of the organisation — we did our best to make it aware of it — or whether it was content with the provisions at that stage, which obviously were high-level. We recognise that the organisation will be interested in seeing the detail in the Bill itself. We have prepared a letter to go out to all who responded to the consultation to let them know where we are at and what is being included, and we will let them have access to that information. We will probably tie that in with the Committee's own call for evidence, I am sure, if the legislation goes forward.
Mr Milne: What was the content of the correspondence that you have had back?
Mr Terrington: On the outcome of the consultation, the only thing on which there was a lack of consensus was the level of penalties for sea fisheries offences. The environmental lobby and others, as you probably understand, agreed, in fact, that they should be higher than what we had tabled. The one fish producers' organisation that did answer agreed entirely with the concept of the deterrent being higher. However, it suggested a figure lower than had been published, primarily on the basis of the fear of perhaps bankrupting somebody.
The Department is of the view that we should align with the rest of the UK and that the ability to pay and other things will be part of the legislation. It may well be that, if an organisation has ruined the fishery for everybody else, its not being involved in active fishing may not be a bad thing, but that is not the aim. I am sure that Mark can demonstrate instances in which £50,000 would not necessarily be as much it could earn from the size of a take. Nobody had any great difficulty with the rest of it.
The Irish Fish Producers' Organisation (IFPO) said that it was not sure on permitting, but it was not the case that it turned that suggestion down specifically. It was more the case that it wanted there to be the ability to bring in emergency regulations. Bringing in emergency regulations, like by-laws, would perhaps mean leaving out consultation with the Committee and others, so we did not think that there would be any buy-in on that. The existing regulatory format and the licensing regime would allow for that if a bona fide case for rushing stuff through were made.
A number of things on inland fisheries were well supported. I think that 99·9% was dropped as a result. Is that a fair synopsis?
Mr Liam Devlin (Department of Culture, Arts and Leisure): Yes, that is correct. We made some amendments after the consultation following an analysis of responses, and we made a presentation to the CAL Committee at that stage. Of the 11 original proposals, only five were taken forward, because there were legal obstacles to us implementing all that we wanted to do.
Mr Terrington: They could be, or at least some of them could be. It will be an ongoing problem, because the EU's view in life is that we should be able to directly enforce them today because they are EU-wide regulations, and, as such, there should not need to be this extra step. On things such as penalties, however, no.
Mr McMullan: Very quickly. Thank you, Chair.
You have set out conservation zones, as well as other zones for drilling for gas and for tidal apparatus for renewable energy. On Rathlin, pot fishing is still allowed. Will pot fishing still be allowed along the coast under the same conditions that Rathlin has for its pot-fishing industry?
Mr P Campbell: I think that you are talking about the fact that there is an actual conservation area in Rathlin. We have proposals coming forward to limit mobile gear that might damage the seabed in the Rathlin special area of conservation (SAC), but potting will still be allowed.
Mr P Campbell: Yes. There are other SACs that we will be dealing with over the next couple of years, and each one will be consulted on separately. Proposals will vary slightly, depending on what has to be protected in those areas. Proposals will come forward and be consulted on, and people who fish in those areas will get a chance to comment on them. I cannot say at this stage what will be in or out for those new areas, because that will depend on the features that have to be protected and the reaction that we get from the stakeholders.
Mr McMullan: Bear in mind the drilling in Larne lough, where we allowed the residue from the underwater caves to be pumped into the sea. It was OK there. The environmental thing is not written into the Bill.
Mr P Campbell: This is fisheries legislation. Environmental legislation is separate.
Mr McMullan: Yes, but the protection of the fish and the spawning beds —
Mr P Campbell: Those will be in any proposal —
Mr McMullan: Crustaceans are one of the things in that area —
Mr P Campbell: If we and other stakeholders have concerns about a particular proposal, we will make our representations known and what state our concerns are.
Mr McMullan: Are we definitely going to consult local fishermen?
Mr P Campbell: If we are bringing forward proposals for more marine special protected areas (SPAs) or SACs, before we do so we will consult people.
Mr McMullan: That is the very point that I am making: how do we know in this Bill where those other conservation areas are going to be?
Mr P Campbell: The special areas of conservation are environmental issues.
Mr McMullan: We would need to know that for this Bill, because, as you quite rightly say, those are environmental issues. Before you can consult the fishermen, you have to know where those areas are. What chance have we got with the Bill?
Mr P Campbell: I am not quite with you.
Mr McMullan: You said a minute ago that special areas of conservation are environmental issues. You are waiting for them to be brought forward to see where they are going to be.
Mr P Campbell: We know the location of all the ones that have been proposed. Those have been published and are on the Department for the Environment's website, so you can go and look at them.
Mr McMullan: Will they affect the local fishing boats that fish along the coast for lobster and crab?
Mr P Campbell: They may do. Even if we did not have this Bill, under existing legislation, we would be bringing forward proposals to protect those areas.
Mr McMullan: Can we get a list of those areas so that we know where they are when we are considering them?
Mr P Campbell: I can forward you the links to where you can get that information.
Mr Terrington: One of the things that the Bill includes is permitting powers. As Paddy said, under existing legislation, we could put in regulations that specifically quote marine conservation zones (MCZs) and say, "You're not allowed to do this and you're not allowed to do that".
Permitting powers are the key. One of the aims of including them is to allow people to continue, for example, to fish in those areas while meeting certain criteria. That would make sure that they can continue their business but not have a negative impact on, for example, MCZs or SACs. That is one of the things that the Bill tries to future-proof so that guys can continue to earn their livings or carry out their recreational activity.
Mr McMullan: That may be beneficial, but that is exactly my point: those things will need to be known.
Mr Terrington: The details will be in each permit and each regulation. For example, when Strangford lough or, as you mentioned, Rathlin come up, that is when you consult the local fishermen or other local interests on what will be included. I assume that the same would apply for any regulations for inland fishing. The detail in each one will depend on what you are trying to do, what you are trying to protect and what you are trying to maintain. It is very difficult to map an MCZ — the regulations are higher-level than that — but, when an area is being covered, you want to make sure that the regulations and the permitting powers provide protections that allow guys to continue to fish in, for example, Strangford.
Mr McMullan: This is my very last question, Chair. I will be very quick. If there is a restriction on crab and lobster fishing because of those areas, will there be compensation for fishermen who go out of business, as was the case after restrictions were introduced on fishing in inland waters and when the no-nets policy was introduced?
Mr P Campbell: It is not policy to introduce compensation in such cases.
Mr McMullan: That is something that needs to be looked at, because there are people's livelihoods at risk.