Committee
Environment and Rural Development Committee, 28 Mar 2007
28 Mar 2007 · S2 · Environment and Rural Development Committee
Item of business
Subordinate Legislation
Inshore Fishing (Prohibited Methods of Fishing) (Firth of Lorn) (No 2) Order 2007 (SSI 2007/240)
Thank you very much, convener. Alastair Smith is from Scottish Executive Legal and Parliamentary Services, and Frank Strang and Eamon Murphy are from the sea fisheries conservation division of the Scottish Executive Environment and Rural Affairs Department. Frank Strang is head of that division and Eamon Murphy deals with inshore fisheries.The issue has a long history. Members will be aware that the Firth of Lorn has been a special area of conservation for some time. Some time ago, leisure users in the area sent a complaint to the European Commission, which was copied to the Scottish Executive. The substance of the complaint was that the fishing activities that were being undertaken in the area, particularly the scallop dredging activities, were not consonant with requirements under the habitats directive. The Commission requested that the Executive consider the matter, which we carefully did. Indeed, we invited our statutory body with responsibility for nature conservation, Scottish Natural Heritage, to provide us with advice on the nature and impact of the fishing activities, and we considered internally whether the requirements of the habitats directive were being fully complied with.The special area of conservation covers areas of a coral reef. The issue became quite difficult to deal with: fishing had taken place in the area for some time, but to comply fully with the habitats directive the Executive needed to be able to measure whether the scallop dredging activity was causing damage in a way that was inconsistent with the directive.After a long internal consultation between us and SNH, and following internal legal advice, we concluded that, to meet the directive's requirements, we would have to carry out some scientific investigation of the status and state of the SAC, particularly the coral structure. How the investigation would be conducted raised difficulties. Furthermore, the appropriateness of continuing with existing permits, particularly for scallop dredging, was called into question.After further consideration, we decided that permitting scallop dredging to continue would not be consistent with the habitats directive and the course of action that we were advised was more likely to meet its requirements was the promotion of a closure order.We then engaged in discussion with certain parties. We had not at that point promoted the order, but we knew that some parties would be affected and that a substantial proportion of one party's livelihood was engaged in scallop dredging in the area. Following representations about the nature of that practice, we went back to Scottish Natural Heritage to establish whether there was some prospect of delineating within the SAC an area in which one might properly continue the scallop dredging fishery without prejudice to the clearly established requirement to conduct the scientific investigation and, as an interim measure, to close the fishery. We asked SNH to examine carefully whether it was possible to design a plan to designate parts of the area as permissible for fishing and to concentrate its efforts on those more proximate to the coral structure. I regret to say that, reasonable though our request was, its advice was that it was simply not possible for it to come to such a conclusion.I proceeded on the basis of the advice I received, which was that the only course open to me was to consider the proposal and promulgation of an order for closure. However, we then faced the problem of the one party in particular whose livelihood was almost exclusively derived from that fishery, although other parties used it too. Our view was that the other parties who used the fishery had opportunities to fish elsewhere under their licence arrangements. The party who was particularly affected, however, did not have that opportunity.Although I invited my officials to begin drafting the order and commence the formal consultation process, we had discussions with some of the inshore fishing groups, the Clyde Fishermen's Association and the party involved in particular to see whether we could construct mitigating measures that would assist that party. Over the past nine months we have had some inquiries about whether we are taking action on the matter, but I have not been keen to rush into effecting the closure until I could put on the table a series of measures that would help to mitigate the impact of the closure. Following discussions with other fishing authorities—England and Northern Ireland have an interest in stocks and quotas—we were able to ensure that we had access to prawn quota and to days at sea. We were therefore able to offer the prospect of alternative fishing opportunities to the particular party involved.We are not claiming that what has been offered is a direct, like-for-like alternative, but we hope that it will have a substantial impact. After achieving that position through careful and patient negotiation, we continued to discuss the matter with the parties involved and we laid the order. I offer my profound apologies to the committee for the inconvenience and trouble that was caused as a result of the errors in the original order.The substance of the order that is now before the committee remains unchanged from that of the original. I hope that the closure will be temporary, but I cannot anticipate the outcome of the scientific investigation that is necessary to meet the requirements of the habitats directive.I hope that I have set out the background to the closure and the steps that we have taken in relation to other parties, particularly the party who will be most affected by the order.
In the same item of business
The Convener (Maureen Macmillan):
Lab
Good morning. I welcome members of the committee, the public and the press to the meeting and remind everyone to switch off their mobile phones so that they ...
The Minister for Environment and Rural Development (Ross Finnie):
LD
Thank you very much, convener. Alastair Smith is from Scottish Executive Legal and Parliamentary Services, and Frank Strang and Eamon Murphy are from the sea...
The Convener:
Lab
How long do you expect the closure to last? How long will the investigation take?
Ross Finnie:
LD
We have had preliminary discussions with SNH and parties who want to engage with us. The investigation could take up to 18 months to two years. We hope that ...
Mr Alasdair Morrison (Western Isles) (Lab):
Lab
In the final paragraph of his letter to Fergus Ewing, John Elvidge says:"In this instance, the distinction between consultation prior to the decision to intr...
Ross Finnie:
LD
Consultation is required under the Inshore Fishing (Scotland) Act 1984. I suppose that we should use the word "consultation" only in the context of the legal...
Mr Jamie McGrigor (Highlands and Islands) (Con):
Con
Do you agree that the consultation should have taken place before the order was laid, or before it was insinuated that there would be a closure?
Ross Finnie:
LD
The consultation was on the order. The technical requirement in the 1984 act is for consultation before an order is laid. The discussions that we had were on...
Alastair Smith (Scottish Executive Legal and Parliamentary Services):
The statutory requirement in the 1984 act is that, before making an order, ministers must consult with such bodies as they consider appropriate. On the decis...
Mr McGrigor:
Con
Section 1 of the 1984 act gives the Scottish ministers power to make such orders, but it states that they may do so only after consultation with such bodies ...
Ross Finnie:
LD
Indeed.
Mr McGrigor:
Con
On 26 June, you said:"The Scottish Executive proposes to close part of the Firth of Lorn to scallop dredging on a temporary basis while urgent research is ca...
Ross Finnie:
LD
The letter from Sir John Elvidge, the permanent secretary, to Fergus Ewing has been referred to. On the basis of internal advice, we came to a decision about...
Fergus Ewing (Inverness East, Nairn and Lochaber) (SNP):
SNP
As the minister knows, I represent the Mallaig area, and a deputation led by John Hermse is here to listen to the debate, such is the importance of the issue...
Ross Finnie:
LD
I do not know about the complainant, but the issue for me starts at the point at which I am asked by the European Commission whether I am satisfied that we h...
Fergus Ewing:
SNP
Can I carry on, convener? I wish to pursue the point. It is pretty important.
The Convener:
Lab
You may continue if you are brief. Many other members want to ask questions.
Fergus Ewing:
SNP
The minister has not disputed that SNH's information shows no evidence of deterioration, as is confirmed in minutes from 4 August. In addition, Mr Bill Turre...
Ross Finnie:
LD
I will deal first with whether a closure is needed. I do not wish to be awkward about this, but it seems to me that there are two ways of asking the question...
Richard Lochhead (Moray) (SNP):
SNP
How long do you estimate the research will take?
Ross Finnie:
LD
As I said in response to the convener, we expect that it might take up to 18 months.
Richard Lochhead:
SNP
You have been dealing with this issue for nine months and the fishermen have been fishing the area for more than 50 years. The committee is receiving conflic...
Ross Finnie:
LD
That is not what I said. Quite explicitly, I said that closure is not related to whether an investigation can be carried out. As Fergus Ewing quite properly ...
Richard Lochhead:
SNP
Why can you not ask Europe to allow you the opportunity to carry out the research to confirm whether closure is required?
Ross Finnie:
LD
Because Europe is already asking us whether we are satisfied that we are meeting the requirements of the habitats directive and the answer to that question i...
Richard Lochhead:
SNP
Are you honestly saying that if you told the European Commission that you are about to conduct research to confirm the status of the Firth of Lorn, it would ...
Ross Finnie:
LD
I am saying that we run a serious risk of putting the cart before the horse and ending up in a position in which we cannot permit activity anywhere—not only ...
Alastair Smith:
I would like to clarify the fact that, under article 6(2) of the habitats directive, a member state has an obligation to take appropriate steps to avoid the ...
Richard Lochhead:
SNP
Why can we not do what other states do and have an on-going debate with Europe about the definition of appropriate steps, while the Executive conducts the re...
Ross Finnie:
LD
We know that there is an inherent risk. As I understand it, the matters specified in the directive include scallop dredging, which is acknowledged as a poten...