Official Report: Minutes of Evidence

The Chairperson (Mr McCausland): We have with us Seamus Connor, the chief fisheries officer in DCAL. We also have Liam Devlin, who is from the inland fisheries group (IFG) in DCAL, and John Terrington, who is from the Fisheries Bill team in DARD. You are very welcome to the Committee. Please make your opening statement.

Mr Seamus Connor (Department of Culture, Arts and Leisure): Mr Chairman, I welcome the opportunity to update the Committee on the finalised amendments to the inland fishery provisions in the Fisheries Act, which are included in the new draft Fisheries Bill. We also want to extend a word of thanks to our DARD colleagues for all of their assistance in facilitating our requirements as part of this process. These new provisions have been widely consulted on and largely reflect the views of key stakeholders. It is our belief that the inland fisheries provisions will help to modernise enforcement activity and realign the Fisheries Act 1966 with its obligations under EU directives such as the water framework directive and the EU services directive. The overall aim is to ensure that the powers under the 1966 Act remain fit for purpose and that DCAL has the flexibility to respond to evolving fishery-management practice and its EU obligations. Liam Devlin is responsible for the processing of the IFG legislative programme, and I invite him to take the Committee through the detail of the finalised clauses.

Mr Liam Devlin (Department of Culture, Arts and Leisure): Thanks, Seamus. In developing the finalised inland fishery clauses that now form part of the draft Fisheries Bill that is before you, DCAL policy focused on three key areas: first, fixed penalties for minor fishing offences; secondly, the streamlining of fish dealer's licence applications; and, thirdly, the protection and free passage of fish. The proposals were widely consulted on between August and November last year, with over 1,800 individuals and organisations notified, as well as media advertisement, and 57 written responses were received. The clauses in the Fisheries Bill were finalised, incorporating views given during the consultation process.

I will now go through each of the inland fishery clauses in order and provide further detail on the context and impact. Clause 10 of the Bill amends section 114(1) of the Fisheries Act 1966, which currently requires anyone applying for a fish dealer's licence to obtain Justice of the Peace approval for the application. DCAL sees no reason to retain that requirement. It does not apply to any other category of licence. Moreover, taking forward this amendment will help to ensure compliance with the EU services directive by removing a barrier to service providers trading across borders and facilitating an uninterrupted online application system.

Clause 11 amends section 48 of the 1966 Act by extending the restrictions on the removal of material from the bed of a river to apply to lake beds as well. Anyone wishing to remove such material will have to seek authorisation from the Department before doing so. The purpose of the new power is to further protect spawning beds of fish, regardless of where that habitat may be.

Clause 12(3) amends section 54 of the 1966 Act to extend existing protections for salmon, trout and eels to lampreys as well. Current legislation places an onus on dam owners to provide and maintain fish passage in river dams for salmon, trout and eels. This onus will be widened to include lampreys, which also find difficulty in passing such barriers.

Clause 12(4) amends section 54, empowering the Department to remove dams that are a barrier to fish passage where an owner cannot be identified and where the construction of a fish passage is not considered feasible. The remaining subsections make consequential amendments allowing the Department to enter land for the purposes of dam removal if required.

Clause 13 amends section 59 of the 1966 Act to require anyone taking water from a river to fit a grille of not more than 10 millimetres at the entrance and exit of watercourses to protect the entry of small fish into those watercourses. This requirement will apply to only new installations, and exemptions will be permitted where the Department is satisfied that sufficient arrangements will be made by means other than a 10-millimetre grille size. In bringing forward the new power, DCAL has considered advice from the Agri-Food and Biosciences Institute (AFBI) and best practice in fisheries management.

Clause 14 empowers DCAL to introduce fixed penalties for inland fishery offences. This will be done by means of subordinate legislation. Specific offences will be determined and set out in regulations, which will also detail the penalty level for the offences, the issuing authority, the process for payment and the mechanism for reviewing the level of penalties. Essentially, if the penalty is paid on time and within a specified number of days, the person will not be liable for conviction and any criminal proceedings will not be taken before the period specified on the notice is over. This will have the effect of decriminalising angling activities so that angling errors need not need end up in the criminal justice system. This will free up invaluable resources to allow the Department to focus on the protection of wild fisheries, the management of commercial fishing activity and to extend its community outreach programmes.

DCAL's proposals have been subject to equality impact screening tests and are compatible with the European Convention on Human Rights and have no differential impact on section 75 groups. The partial regulatory impact assessment that accompanied consultation on the proposals concluded that there are no substantial financial implications from the policy proposals and that any minor costs are outweighed by the benefits. We appreciate the Committee's urgent consideration of the draft Bill and are now happy to take members' questions.

The Chairperson (Mr McCausland): Obviously, this spreads across two Departments and two Committees. The first few questions I will ask are pretty generic, because it is difficult for us to get straight into this and get our heads around all the detail. In general, it refers to non-compliance with EU obligations. One of the points that seem to be made is that if the Bill is not passed there will be non-compliance. There is concern about the speed with which we are being asked to deal with this — a matter of weeks — as we come to the end of the Assembly term. Which clauses could lead to non-compliance?

Mr John Terrington (Department of Agriculture and Rural Development): From a DARD point of view, clause 6 is a key one and relates primarily to sea fisheries and the enforcement of sea fisheries legislation, EU legislation and the common fisheries policy. We were aware that this was something that we needed to do and included it in the proposals for a Bill as part of the review with our colleagues in DCAL.

The Chairperson (Mr McCausland): So, only the absence of the provisions in clause 6 would lead to non-compliance.

Mr Terrington: In the short term. There are other things that will need to be amended on both sides — DCAL and DARD — if we do not sort them out now. However, there is not the same urgency with them.

The Chairperson (Mr McCausland): OK. If we take it that clause 6 is the crucial element, then, without it, there is a potential for non-compliance. Would that non-compliance lead to an infraction and, consequently, a fine?

Mr Terrington: That is theoretically possible. We consulted and made the Commission aware that it was included in an audit here in January last year. To all intents and purposes, we thought that that would be adequate and that the end date to which we were working would come within the current mandate.

The Chairperson (Mr McCausland): So, in January last year, which is two years ago —

Mr Terrington: Sorry, January this year.

The Chairperson (Mr McCausland): In January this year, it was said that it would come within this mandate.

Mr Terrington: Yes, and we had no reason to believe that that was not an adequate answer to their question.

The Chairperson (Mr McCausland): Were they happy enough with that?

Mr Terrington: They have now opened a case to say that they are content that this will deal with the issue but that they are not content with the timetable. The timetable we put in front of them is the same as that stated in most guidance for taking primary legislation through the legislative process. We could not have envisaged that, having got Executive approval for the final proposals in March, it would take longer to get the Bill drafted and seek the necessary clearances.

The Chairperson (Mr McCausland): Why did it take so long?

Mr Terrington: There were some complications in some of the drafting. Obviously, there is a raft of other legislative priorities that the Assembly has, which affects access to draftsmen, solicitors and the like. It has taken longer to get the clearances.

The Chairperson (Mr McCausland): Would it be possible to take out clause 6 and deal with that on its own in some way or other?

Mr Terrington: Obviously, we discussed this issue with the ARD Committee and that suggestion has been made. It is not within my gift to say that that will be the outcome, but the suggestion has been taken back to the Minister.

The Chairperson (Mr McCausland): The reason I ask this is that we are coming to the end of the mandate, and we have only got January, February and March until St Patrick's Day, so you are talking about 10 weeks. There is a huge amount of business still to deal with on all sorts of issues that we have been working on in the Committee. To suddenly have this thrust upon us at a very late stage is difficult. It is quite specialised as well, so it is difficult for members to give it the necessary attention and focus that is required. Giving it that attention and focus is only fair to all concerned, because rushed legislation quite often ends up being bad legislation as you have not scrutinised it properly and have not been able to do your job. Is there some way of dealing with clause 6 on its own, so that we avoid any potential fines? We do not want that. Other things that are not quite as urgent could pass into the next mandate and be dealt with there more thoroughly.

Mr B McCrea: Chair, are you considering an Order in Council, a legislative consent motion or something smaller, by way of regulation, to deal with this?

The Chairperson (Mr McCausland): I would ask them, because I am not sure. I will not be answering the questions on the legal processes.

Mr B McCrea: That is the question that you are asking. Is that under consideration?

Mr Terrington: We are looking at options to see what would be possible and what the implications of doing that would be.

Mr Cree: Is there comparable UK-wide —

Mr Terrington: Only Northern Ireland has this issue. The matter relates to what the EU would see as EU-wide legislation that should be applicable the moment it comes into the EU. There is a quirk in how the Fisheries Act 1981 was drafted in that it omits part of the common fisheries policy, so we are required to do more work to bring it in. So, it would only apply here. If there were an infraction case, which we would want to avoid, Northern Ireland would have to deal with it. The actual change in the Bill, which clause 6 deals with, with necessary modifications, is almost an exact lift from what is already in place in the rest of the UK.

The Chairperson (Mr McCausland): I thought it was the 1966 Act. It is the 50th anniversary celebrations or something.

Mr Terrington: It and me. We share a birthday. The 1966 Act provides for some sea fisheries in the inshore, the inland fisheries for which DCAL, particularly, is responsible, and aquaculture, but there are other pieces of primary legislation, because of the nature of the sea fisheries across our seas, which are UK-wide. Legislation was drafted in the UK but has been amended, individually or collectively, over the years. They include the Sea Fish (Conservation) Act 1967 and the pertinent Act, the Fisheries Act 1981.

The Chairperson (Mr McCausland): We will move to questions. Basil, was that your question?

Mr B McCrea: You have taken it, so that is OK.

Ms McCorley: I have a quick question. When is compliance with the EU legislation necessary?

Mr Terrington: Again, I apologise; it is a sea fisheries issue that has put the urgency on this. I am sure my colleagues will bear with me. We became aware that there might be an issue, so we included it in the timetable to bring forward to primary legislation. The Commission sets out a timetable when it becomes the next formal stage, but it is not there yet. We thought that they would be happy to say, "You are righting the problem. Here is what it is. Here is the timetable". They have opened a pilot case because they are not happy with the length of time it takes to make legislation, which is not entirely within our gift. I accept that we are at the end of that, but the timetable would have been the same had it been introduced before the summer or shortly after it, as hoped, rather than next week.

Ms McCorley: So, we are not in a position yet to know when penalties will become —

Mr Terrington: We have written to them. It will take some time for the process to go through, but it is not something that you want to have hanging over you. As I said, the Bill will include other things that we would, over time, if not in the short time available, need to bring forward to stop further things happening, but you would not want those hanging over you whilst you had a pilot case open, I imagine. We have written to them explaining why the timetable is around April 2016. We have told them about the Assembly's legislative programme, and so on, and we have not heard back from them yet as to how they have received that. Given that they think that is long, the assumption is that they would not be that keen if it became any longer and would, maybe, move to the next stage. If they moved to the next stage, you would have two months in which to comply, but we do not know whether it will ever come to that, because, as I said, we are in discussion with them.

The Chairperson (Mr McCausland): Clause 6, which is the crucial one, is not in the section that we deal with; it is really a DARD issue. If it can come to an understanding about how to deal with clause 6, it would make the situation an awful lot easier because it would take it off our plate.

Mr McMullan: You are talking about taking clause 6 out, and that would leave the rest there. Would there be a lot of work in the rest of those clauses? It is pretty straightforward.

Mr Connor: Our Minister would prefer those clauses to be put through as well. We have about 100 prosecutions a year. Potentially, those people would be prosecuted as opposed to having a fixed penalty applied for what is a very minor offence. We have an online service that is up and running and allows people from any new company to apply for a fish dealer's licence. The fact that they require a Justice of the Peace to say that they are fit to hold a licence is an impediment. It is a break in the service. Potentially, that could go down the infraction route at some stage because it is seen as a barrier.

There are some other key things around that in terms of protection. We have legislation that says that, to protect fish stocks, you must seek approval to remove bacteria from a riverbed. The logical extension is to apply that to a lake as well to protect fish stocks in lakes. From our perspective, we see these as reasonably straightforward. We have done a lot of stakeholder consultation on them. By and large, there is agreement on the majority of them. The one issue around grids and grilles is that the 1966 Act does not reflect current knowledge and scientific information on the different types of fish stocks, how they move, and the potential impact of that, particularly on eels. Eels are covered under EU eel management plans. We currently do not have protection for that species on hydro sites, which leaves us very exposed. We want to meet our 40% escapement target but, because eels are very long-lived creatures, it takes a long time before there is any cumulative effect. We are certainly very keen to see those through.

Mr McMullan: That will be a major thing for the conservation of the eel stock and the future of the industry.

Mr Connor: Absolutely. It would be further compliance with a EU regulation, yes.

Mr McMullan: Given what we have been told, I think that if clause 6 went back to DARD we could deal with the rest of the clauses pretty straightforwardly. There is not a major amount of work in that. I think we could do it. I listened to what you said, Chair, about sending clause 6 back to DARD. There is merit in that. I propose that we do that.

The Chairperson (Mr McCausland): Does anyone else want to make any points?

Mr Dunne: I must admit that I do not know a lot about this, but is there an issue for the Rivers Agency with inserting gratings in watercourses? We have been very much aware of gratings in the last week and the issues there.

Mr Connor: No, generally, these are intakes and out-takes. They take water away from the river, so they are not directly across a river.

Mr Dunne: Are the rivers all designated watercourses?

Mr Connor: No, there is a variety. Some are designated and some are not. This is, ostensibly, where you take water away from a river and down another channel to feed a hydro or some other operation. It is really at the point that you take the water away from the river. They are generally very small in comparison with the river overall. It is not that we will have a flooding issue or anything like that with them. There is provision for exemptions in the Act currently. We are saying, "Here is the worst-case scenario. If you have a vertical screen and want to protect against eels, then we need a certain spacing and a certain size. If you lower the angle or have an alternative, we can grant an exemption". We currently have about 20 exemptions granted under section 59 of the 1966 Act. We will generally work with operators. I will give you an example. People will come to us for advice, and, because this applies to only new hydros that are being put in place or new abstractions —

Mr Dunne: Does it apply to only new ones?

Mr Connor: It applies to only new ones. We advised people that this legislation may come in. They accepted that and installed 10-millimetre grilles, or factored them into their overall projects, so they will be compliant.

Mr Dunne: Ten millimetres is a small opening.

Mr Connor: Yes, very small. Currently, they have to provide a very small mesh for March, April and May. The issue for us is the definition of the word "fine". My definition might be slightly different to someone else's. They have to do use those meshes for three months. Because of the movements of species like lamprey and eel, we are asking that the meshes are there for the whole time. That would remove the need to put on a fine mesh and take it off, and, from our perspective, it makes enforcement easier. It provides the protection for eels and lampreys that we require.

Mr Dunne: Clause 13 states:

Mr Connor: Yes, that is just to add definition of where you are taking the water off.

Mr Hilditch: Can you tell me about the consultative process with the public on this so far? There has not been a consultation on the Bill, is that right?

Mr Devlin: There was no consultation on the Bill given the time frame. Last year, we carried out a consultation with stakeholders, which went out to about 1,800 people. We received 57 responses. We had meetings with the British Hydropower Association since then. There has been correspondence with consultees following the process. Issues raised led to an amendment of our original proposals. About 11 proposals went out to consultation and we are taking forward only about five of them because of legal impediments and concerns raised during the consultation process. So, there has been extensive consultation.

All our consultees should be fairly happy with what we are taking forward now, bar maybe the British Hydropower Association, which still has an issue with the 10-millimetre grille. That proposal is based on the latest scientific advice and good practice in fisheries management.

Mr Hilditch: When does the consultation close?

Mr Devlin: The consultation on the proposals was last year. Since then, we have been developing the Bill.

Mr Hilditch: Right, so we have not gone out to consultation.

Mr Devlin: Not on the actual Bill.

Mr Hilditch: So, as you are going through the process, is it a bit of a time-consuming issue?

Mr Terrington: To be fair to the CAL provisions, what was put out for consultation was fairly clear. There is very little that you can hide in amendments, and stakeholders would be very aware of what exactly we —

The Chairperson (Mr McCausland): In the consultation on the proposals that are relevant to our Committee, what was the breakdown of pro and against?

Mr Devlin: The proposals taken forward have widespread support. Even the issue of the 10-millimetre grille was raised by our stakeholder forum. That was a proposal it presented to the Department for us to take forward, so that has been widely discussed among stakeholders. As I said, the British Hydropower Association has issues with that because it is involved in the construction of hydros. We had several conversations with them and put across our arguments, which, as I said, are based on scientific advice from AFBI that is based on good fisheries management elsewhere.

Mrs McKevitt: We have a list of the consultation responses. Very few are from local government or councils.

Mr Devlin: They were certainly sent out. You have a list of what was received. The list of what we sent out would have covered local government. There is a local government representative on our stakeholder forum. That forum carefully considered the proposals and made its recommendations to the Department.

The Chairperson (Mr McCausland): Thank you for your presentation. We will give it some consideration.