Draft provisions for a Wild Fisheries (Scotland) Bill/Draft Wild Fisheries Stratgey: a consultation

Annex B: Scottish Government response to the consultation on broad principles underlying wild fisheries reform

In May 2015 we consulted on broad policy options for a new management system. We published a full analysis of consultation responses in January 2016 ^[7] .

Below we have detailed the key questions that relate to the development of the provisions for a draft Bill together with a brief summary of the responses we received, and an explanation of where we have taken these responses into account in the draft Bill provisions.

Please note that we have set out the questions in an order that corresponds to the clauses in Annex D, rather than the order they appeared in last year's consultation.

Wild Fisheries (Scotland) Bill

Part 1 - Administration and Management of Wild Fisheries

1. We asked: Do you agree that data collection priorities and processes for fisheries management at a local and national level should be predicated on a consistent approach and that this should be via a national research and data strategy?

You said: 23 respondents did not answer. The majority of respondents (73%) agreed with the proposal. Roughly equal numbers of respondents disagreed or were unsure/provided comments only (13% and 14% respectively).

We did: Section 2 of the draft provisions requires Scottish Ministers to prepare a National Wild Fisheries Strategy and lay the Strategy before the Scottish Parliament. The draft provisions will allow flexibility as to the content of the strategy. Annex C includes a draft National Fisheries Strategy, from which you will see that science and research is one of the four themes. In addition, Scottish national standards for the collection, storage, analysis, access, publication and use of data are one of the indicators within that theme. It is our intention that the Strategy will continue to be augmented both during and after the next consultation phase.

2. We asked: Do you agree that promotion of opportunities and access should be a central theme for the national strategy?

You said: 24 respondents did not answer. Just over half of the respondents (55%) agreed that promotion of opportunities and access should be a central theme for the national strategy. About 27% disagreed, with 10% unsure.

We did: Section 2 of the draft provisions requires Scottish Ministers to prepare a National Fisheries Strategy and lay the Strategy before the Scottish Parliament. The draft provisions will allow flexibility as to the content of the strategy. Annex C includes a draft National Fisheries Strategy, from which you will see that promotion is one of the four themes.

3. We asked: We are interested to hear views on how increasing opportunities and access to fishing can be embedded within the fisheries management system?

You said: Respondents provided a number of suggestions. Some noted that opportunities exist already: there is a significant number of schemes with these aims run by organisations such as angling clubs and SANA, and they suggested that knowledge of these should be shared with others. Several considered that it would be best delivered locally, but supported by funding from the national unit. Others felt that a cross-government approach would be more appropriate, with partnership working between the national unit, the FMOs, angling organisations, Sport Scotland and Visit Scotland.

We did: As stated above, promotion is a central theme in the draft strategy. The Stakeholder Reference Group ( SRG) has also identified fisheries development and promotion as a key aspect of the work of Fisheries Management Organisations ( FMOs). Section 10 requires FMOs to prepare local fisheries management plans, which must be approved by Scottish Ministers. This section also requires the plan to contribute to the pursuit of the objectives, priorities and policies of the National Fisheries Strategy. This is with a view to ensuring that angling participation, promotion and development is a key element of the plan-led approach to fisheries.

4. We asked: Do you agree that the FMO network should cover the whole of Scotland?

You said: 18 respondents did not answer. About 10% of respondents were unsure about the coverage of the network. Of the remainder, the majority (65%) agreed that the network should cover the whole of Scotland; 20% disagreed.

We did: Whilst we consider that it is desirable for all of Scotland to be designated within a Fisheries Management Area (Section 6), and indeed that the fisheries management system should cover all of Scotland, the draft provisions do not include a specific requirement for FMOs (as distinct from Fisheries Management Areas) to cover all of Scotland. We recognise the importance that stakeholders place on decentralised and locally empowered management, and therefore we hope that local stakeholders will see benefit in working together to form FMOs covering all of Scotland.

5. We asked: Do you agree that Scottish Ministers, following discussion with stakeholders, should set the boundaries of FMO areas? What factors should be considered in determining the number and optimal coverage of FMOs?

You said: 23 respondents did not answer. Just under 15% were unsure as to whether Ministers should set the boundaries. The remainder were divided: 48% in favour and 37% opposed.

We did: Section 6 allows Scottish Ministers to designate areas of Scotland as Fisheries Management Areas. Scottish Ministers are keen that where possible informed solutions should be developed by the sector and therefore we have asked ASFB and RAFTS to coordinate the views of existing management organisations and liaise with the SRG to consider a range of factors (including delivery of functions, available budgets, geographical factors, and collaboration on certain functions) in order to develop draft proposals for Fisheries Management Areas. As these proposals develop, they will also be discussed and considered in relation to delivery of national priorities with our partners across Government, SEPA and SNH. We view this as being an iterative process undertaken in close partnership with the fisheries sector.

6. We asked: Do you agree that bodies wishing to become FMOs should do so through seeking approved body status from Scottish Ministers?

You said: 28 respondents did not answer. About 20% were unsure or only provided comments. Of the remainder, the majority (52%) agreed, with 27% disagreeing. More than half of those who answered "don't know" were unsure of the definition of "approved body status", or felt that more information was required before they could respond.

We did: Whilst the draft provisions do not use the term 'approved body' we believe that the application process set out in section 8 captures the principle of this recommendation. Once a body has been designated as an FMO they will then have access to a range of powers, and gain a number of responsibilities, as highlighted in Annex D.

7. We asked: Do you agree that in order to ensure appropriate governance and fitness for purpose, FMOs should operate to a model constitution?

You said: 24 respondents did not answer (~20%). The majority of respondents (60%) indicated that they agreed with having a model constitution. However, 25% of respondents disagreed.

We did: We have not set out specific requirements in the draft provisions for a model constitution. This, in part, reflects the fact that we believe that there should be flexibility around the specific type of bodies that FMOs may be, as long as they can satisfy the application process set out in section 8. The SRG has been developing thinking on FMO structure and functions and has examined the model constitution for a Scottish Charitable Incorporated Organisation ( SCIO). Whilst the SRG do not believe that a SCIO is a suitable model for an FMO, they saw value in the two tier approach adopted in that constitution - a wide membership from which a Board of Directors (suitably representative of local interests) would be elected. We will further develop our thinking on this aspect of the reform process over the coming months and in light of the responses to this consultation exercise.

8. We asked: What do you consider is an appropriate balance of interests on the board and wider membership of FMOs

You said: Roughly 10% of respondents recommended that the model of the Tweed Commissioners and Tweed Forum should be followed. A few also suggested using the model of the Spey District Fishery Board.

Several respondents set out clear aims and objectives for the composition of FMOs that echoed those set out in the consultation document: they should be membership bodies representing the full range of interests in wild fisheries and their management at a local level, including local authority and other public sector interests in addition to the owners and users of fishing rights.

On the whole, in making their suggestions, respondents did not differentiate between who should be represented on the board and who should be included in the wider membership.

We did: This issue is not specifically covered in the draft provisions, but this work stream is being taken forward by the SRG - see above.

9. We asked: Do you agree that the cornerstone of the relationship between national and local management bodies should be the proposed plan-led approach?

You said: 19 respondents did not answer. The majority of respondents (60%) agreed with the proposal. About 23% disagreed, and the remainder did not know or made comments only.

We did: Section 2 sets out our proposals for a duty on Scottish Ministers to prepare and publish a National Wild Fisheries Strategy, and section 10 places a duty on FMOs to prepare, and submit to Scottish Ministers for approval, a local fisheries management plan. FMOs would also be required to act in accordance with the National Strategy and local fisheries management plan (Section 9) and report on the activities undertaken in pursuit of the objectives and priorities set out in the fisheries management plan (Section 11).

10. We asked: Do you agree that FMOs should be charitable bodies?

You said: 25 respondents did not answer (30%). The remainder of the respondents were divided in their views, with only a slight majority of respondents indicated that they agreed with the proposal.

We did: The draft provisions neither require, nor preclude, FMOs from being constituted as charities. We have considered the views of stakeholders and our Stakeholder Reference Group and the clear message is that form should follow function. The SRG has suggested that FMOs should be constituted as companies limited by guarantee - this model would allow FMOs to seek charitable status if desired. Analysis undertaken by the SRG suggests that a relatively small proportion of the resources currently available for fishery management across Scotland would only be available to charities. However, we also recognise that in some parts of the country, charitable funding is proportionally very significant.

11. We asked: Do you agree that the proposed package of measures in terms of constitution, governance and a plan-led approach provides an appropriate framework for decentralised delivery of fishery management functions?

You said: 20 respondents did not answer. Just over 20% of respondents were unsure. Many of these felt that they could not comment in the absence of detailed information about what is proposed for the constitution, governance and plan-based approach. The answers from the remainder of respondents were fairly evenly divided between agreement and disagreement (40% and 35% respectively).

We did: As set out above, the plan led-approach is set out in the Annex D and does not prescribe any requirement for FMOs to be constituted as a specific type of body. Section 9 sets out a general duty for FMOs, and sections 11-17 place a series of good governance requirements on FMOs. These largely mirror the existing good governance requirements on DSFBs which have existed since 2013. Section 18-19 set out powers to investigate FMOs and powers following investigation. These powers for Scottish Ministers also reflect the plan-led approach and the good governance requirements set out in the draft provisions.

12. We Asked: We asked a number of questions on finance in our consultation last year. We recognise that financing the fisheries management system was one of the key issues raised during the consultation and it remains one of the most important elements of this process. The questions we asked are set out below:

• Do you agree that funding raised from proprietors should continue to provide the core strand of revenue for local fishery management?
• Do you agree that we should explore the potential for extending the responsibility for paying the levy to the owners of all fishing rights?
• Do you agree that responsibility for collecting and distributing resources from fisheries proprietors for the purposes of delivering the national strategy at a local level should rest with the national unit?
• Do you agree that we should explore the recommendation that redistribution of funds should form part of the new management system?
• If not, what other means might be used for funding local fisheries management at appropriate levels across the country?
• Do you agree that we should explore the recommendation of a two-tier levy system?
• Should funding for Angling for All come from a rod licence?
• Do you agree that a rod licence should only be used to fund Angling for All, rather than also being used to support wider management activity?

13. You Said: The response to these questions is summarised below:

• The majority of respondents agreed that funding from proprietors should continue to provide the core revenue for fisheries management (about 70%), while about 20% disagreed. Many of those who agreed did so on the proviso that money raised must be controlled and spent locally in the FMO area. Many of those who disagreed did so because they felt that salmon proprietors should not bear the cost of managing both migratory and non-migratory species.
• Many respondents considered that the new management system would result in increased costs, as a result of its wider scope and increase in duties. There were therefore concerns that the levy alone would not be enough to support fisheries management and that other sources would thus be needed.
• There were concerns that increased levies would result in increased charges to anglers - either in the situation where existing levies increase or where the levy is a new charge because no DSFB currently exists in the area. Many considered that increased costs would deter anglers from fishing, which would lead to the loss of angling clubs/associations and/or the closure of fisheries.
• About 12% of respondents were unsure about extending the levy. There was a majority in favour (51%), but not a strong one: 36% of respondents disagreed. Those opposed to the proposal considered that it was not practical - there are too many riparian owners (many of whom are unknown), which would make the levy difficult to collect. Many felt that the administrative costs of collecting the levy would exceed the monies raised.
• Several respondents also noted that there are species of specific conservation value which have no commercial interest, but which will require resources to maintain and improve the status of these populations. They felt that this would increase costs overall.
• There was significant opposition to the idea that the national unit should collect and distribute resources, with nearly 60% of respondents disagreeing with the proposal. Only about 30% agreed; about 10% were unsure.
• A key concern was perceived centralisation. Some respondents were concerned that national collection and distribution would affect the harnessing of charitable and volunteer effort, and would result in the "drying up" of voluntary levy payments and donations. Several respondents considered that national collection would result in resources being diverted away from fisheries management into other uses.
• More respondents (48%) disagreed with the proposal to redistribute funds than agreed (36%); 15% were unsure. The key messages from those opposed to the proposal was that money raised locally should be spent locally; there is not and will not be a surplus of funds; the effectiveness of local fisheries management will be reduced; funders will disengage in general, and those paying a voluntary levy and/or charitable donations will cease to do so.
• The key message from those supporting the proposal was that the present system means that fisheries in the poorest health and in need of resources have the least to work with, and that the proposal would assist to redress this. Supporters felt that funding should be allocated on the basis of identified needs and priorities in the national strategy and local fisheries management plans
• Other means of funding local fisheries management were suggested and included a range of suggestions: national funding; EU/ SRDP; lottery, landfill tax; SEPA; and charity. Several felt that there should be no change to existing funding arrangements.
• The majority of respondents (about 60%) did not agree that funding should come from a rod licence. Of these, half stated that this was because they oppose rod licences. About 10% considered that existing local programmes could be continued, with their existing funding sources, including the use of volunteers. A few were opposed to Angling for All on principle.

14. We did: As stated above, financing the system is an important element of the reform process and there remains further work to do on this issue. The SRG has looked at this issue in some detail, and we now have a far better understanding of the current income and expenditure within the system. Section 22 sets out the framework through which the system will be financed in future. This will allow the detail of the system to be set out in regulations, and which will be subject to further Parliamentary scrutiny. The key features are:

• A levy on persons with rights in a wild fishery will remain a key source of income.
• The purpose of the levy is set out in subsection (3), partly in response to the concern of some stakeholders that the levy would be used for purposes other than fisheries management. This allows the levy to contribute to towards expenditure both by Scottish Ministers and FMOs - this is necessary in order to ensure that fishery management can continue to occur in the absence of an FMO (for whatever reason).
• We recognise the concerns about broadening the levy to proprietors of other fisheries. Subsection (5) will allow different provision to be made for different wild fisheries and different species of fish. However, subsection (4)(d) provides for exemptions, discounts, remissions or repayments. Whether the wild fisheries levy will ultimately be extended to fisheries other than salmon fisheries has yet to be determined. We will further develop our thinking on these issues, in conjunction with stakeholders, prior to introducing a Bill to Parliament.
• We recognise the concern about national collection and distribution of resources. Section 22 will allow Scottish Ministers to collect levy income, but subsection (4)(j) will also allow determination of the rates of levies and their administration, collection and enforcement to be conferred on FMOs. We recognise that there are a range of challenges in setting a single national levy, and therefore subsection (5) also allows different provision in relation to different Wild Fisheries Management Areas. We will further develop our thinking on these issues prior to introducing a Bill to Parliament.
• We have not taken forward proposals for a two-tier levy. We believe there is sufficient flexibility within the proposed approach
• Whilst recognising that stakeholders are concerned about the possibility of a rod licence, we have received a strong message across a range of stakeholders that they consider that the current level of finance within the system would not be sufficient to fully fund fisheries management across Scotland. The analyses undertaken by the SRG and the wider sector would support this assertion. We also recognise that there are parts of Scotland where the existing levy system (and probably a levy extended to fisheries for all species) would not adequately fund fisheries management.
• The stakeholder reference group has recommended that a 'management and development levy', raised from persons who fish in wild fisheries, should be considered as an additional funding mechanism. Support for such an approach is dependent on such a levy to be set at a level that represents 'good value for money' for all anglers while raising sufficient funds to make a meaningful and identifiable contribution to support the delivery of management and angling participation, promotion and development objectives.
• It is important to make clear that having identified that the current level of finance within the system would not be sufficient to fully fund fisheries management, the SRG have been looking at alternative means to fund the system. In recognition of the differing opinions on how this might be addressed we have not developed outline clauses for the Bill but instead will explore this issue further through an online dialogue approach. This is an area where we would wish to engage directly with those who may be impacted.

Wild Fisheries (Scotland) Bill

Part 2 - Regulation of Wild Fishing and Fisheries

15. We asked: Do you agree that Ministers should have powers to control killing of all fish species on the grounds of conservation and be able to do so in line with the precautionary principle?

You said: 18 respondents did not answer. The majority of respondents (58%) agreed with the proposal. However, this was not a strong majority: 35% disagreed. About 7% were unsure.

We did: Section 23 sets out powers for Scottish Ministers to make Conservation regulations, which may be made on the request of an FMO. Section 24 allows that these regulations may in particular make provision for or about fishing for, taking or killing freshwater fish, including by specified methods, using specified equipment, baits or lures, or in a specified area. Subsection 24 also allows specific provision to be made which would require mandatory catch and release, if appropriate.

16. We asked: Do you agree that annual and weekly close times should remain a key part of the management system for wild fisheries?

You said: 34 respondents did not answer. The majority of respondents (85%) agreed with the proposal to retain annual and weekly close times. Roughly the same number disagreed or were unsure (8% and 6% respectively).

Respondents from the netting sector wanted a change to the weekly close times for nets, citing that such a change would allow them to work around the weather as well as complying with modern health and safety obligations. In contrast, other respondents felt that it was important to keep weekly close times for nets and rods.

We did: Section 23 sets out powers for Scottish Ministers to make Conservation regulations, which may be made on the request of an FMO. Section 24 allows that these regulations may in particular make provision for or about fishing for, taking or killing freshwater fish, including during a specified period or periods. We have asked our Stakeholder Reference Group to consider the future approach to weekly and annual close times for all species, in the light of the wider themes of increasing access to fishing, the approach to conservation limits and the enforcement of any future regime, particularly in relation to coastal netting.

17. We asked: Do you agree that the proposed local management organisations should have responsibility for considering such close times in line with the national strategy and the local fisheries management plan?

You said: 27 respondents did not answer. The majority of respondents (81%) agreed with the proposal. Only 10% said no; 8% were unsure.

We did: Section 23 allows FMOs to request conservation regulations for their FMA. We expect that such considerations will be an important part of the fisheries management planning process.

18. We asked: Do you agree that the purpose behind protection orders can be achieved via the design of the new management system in line with the fundamental principles set out in Chapter 2?

You said: 37 respondents did not answer. The responses were fairly evenly distributed: 36% agreed; 30% disagreed and 30% were unsure. However, many noted that fishing without permission should be made a criminal offence for all species.

We did: We have not included protection orders within the draft provisions. We have taken a consistent approach to all species including, as set out in Section 33, providing equal protection for salmonid and non-salmonid fish species.

Wild Fisheries (Scotland) Bill

Part 3 - Enforcement

19. We asked: Do you agree that the principles of the existing bailiffing system should be retained, but with amendment to set compliance within an appropriate framework of accountability with warrants issued by the national unit?

You said: 26 respondents did not answer. The majority of respondents (65%) agreed with the proposal. About 12% disagreed and 15% were unsure.

We did: We recognise the importance of local enforcement of fisheries legislation and it is our intention to retain the principles of the existing bailiffing system. Section 35 will allow both Scottish Ministers and FMOs to appoint bailiffs. We believe that the framework of accountability set out in part one of the draft provisions will provide Scottish Ministers with sufficient assurance and safeguards, while at the same time reinforcing support for the existing framework and those who currently work within it. We wish to look at the powers of enforcement officers in parallel with the offences referred to in Chapter 4 of this consultation document.

20. We asked: Do you agree that, in the context of the wider proposals in this paper, the creation of an offence of reckless or irresponsible exercise of fishing rights should not be pursued?

You said: 31 respondents did not answer. The majority of respondents (70%) agreed with the proposal. About 17% disagreed; 12% were unsure.

We did: We have not taken this proposal forward. We consider that the proposed enforcement powers provide sufficient flexibility to address such concerns.