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

Chapter 3: Part 1 - Administration & Management of wild fisheries

Wild Fisheries (Scotland) Bill

Introduction

25. The purpose of this Chapter is to describe in more detail the provisions at Part 1, and to explain those areas where further refinement may be required.

Detailed provisions of Part 1

26. Section 1 places an overarching duty on the Scottish Ministers to promote the conservation of freshwater fish and best practice in the management of wild fisheries. Section 1 should be read in conjunction with Section 43 which defines 'conservation' and 'management'. Section 2 requires the Scottish Ministers to prepare a National Wild Fisheries Strategy and lay the Strategy before the Scottish Parliament. Section 3 sets out the process by which the Strategy should be reviewed and revised.

27. These are new elements of the fisheries management system which, alongside the sections relating to FMOs, set out the overall balance of powers and duties between national and local functions. Such duties in part reflect the Scottish Ministers' international obligations under the Habitats Directive and the Convention for the Conservation of Salmon in the North Atlantic Ocean.

Q3. Do you agree with the proposed high level duties on Scottish Ministers?

28. Section 4 sets out the powers for the Scottish Ministers to undertake research or inquiries and obtain information. Section 5 allows the Scottish Ministers to sample or tag fish for scientific purposes or for ascertaining whether an offence is being or has been committed. These sections reflect s64 and s64A of the 2003 Act.

29. Section 6 places a duty on the Scottish Ministers to divide Scotland into areas, to be known as Fisheries Management Areas ( FMAs). This section allows FMAs to be identified by reference to a map. The number or geographical boundaries of FMOs will not be set in primary legislation.

30. We are working closely with our Stakeholder Reference Group and the wider sector to develop proposals for Fisheries Management Areas. This work is on-going, but we wish to give stakeholders a clearer idea of our current thinking. We recognise the importance of retaining local knowledge and buy-in, but equally we recognise that FMOs must be of sufficient size and capacity to deliver the ambitions of the sector and achieve economies of scale sometimes absent within the existing structures.

31. Current thinking suggest that this would result in a total number of FMAs in the region of 12 to 18. This is on the basis that below 12 is likely to result in over centralisation and loss of local input while above 18 is unlikely to deliver the rationalisation and critical mass that is both possible and required. These remain working numbers and in no way reflect final thinking. The numbers set out above take into account a number of criteria, including: catchment units; biological and geographic factors; capacity, skills, resources and assets; local engagement; and the number and type of fisheries requiring management.

Q4. Do you agree that the criteria set out in paragraph 31 are the correct criteria for identifying the number of FMAs?

32. Section 8 sets out the process by which Fisheries Management Organisations will be designated. The policy intention is to invite FMO applications for FMAs rather than impose a requirement for an FMO in all areas. The basis for this is that we believe that becoming an approved FMO will carry significant advantages for local fisheries management, including access to a range of powers in addition to a number of responsibilities, as set out in subsequent chapters. We believe that this approach is preferable to imposing an FMO on a particular area. We consider that this approach will result in stakeholders seeing benefit in forming FMOs, ultimately covering all of Scotland.

Q5. Do you agree that the legislation should not include a specific requirement to have an FMO in every part of Scotland?

33. It is intended that prospective FMOs should submit an application to Scottish Ministers including a range of information as described in section 8 and an outline draft of a local fisheries management plan. The application process is designed to ensure that the Scottish Ministers can be satisfied that the prospective FMO is suitably representative of local interests and has the capacity, skills and experience necessary to deliver the objectives, priorities and policies of the National Wild Fisheries Strategy and local fisheries management plan. This is intended to reflect the principle of 'approved body status'. 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. Section 8 uses the term 'person' which is defined in the Interpretation and Legislative Reform (Scotland) Act 2010 and includes a body of persons corporate or unincorporated and a partnership constituted under the law of Scotland.

Q6. Do you agree with the proposed approach to designation of FMOs?

34. Section 10 places a duty on FMOs to prepare a local fisheries management plan and to submit the plan to the Scottish Ministers for approval. We have suggested that this should be completed within 3 months of the FMO's designation. We are considering whether a degree of flexibility should be built into this timeframe but, because we consider the plan-led approach to be the cornerstone of the fisheries management system, we also consider that the plan should be prepared, agreed and approved as soon as possible after designation. We have also taken into account the fact that an outline draft plan will have been submitted as part of the original application process.

Q7. Do you agree with the proposed approach and timeline for approval of local fisheries management plans?

35. Section 9 describes the general duty of FMOs to promote the conservation of freshwater fish and best practice in the management of wild fisheries and to act in accordance with the National Wild Fisheries Strategy and the local fisheries management plan. This section places further emphasis on the plan-led approach.

36. Sections 11-17 set out the good governance requirements for FMOs and include a specific power for the Scottish Ministers to issue guidance. These sections largely mirror the good governance requirements detailed within the 2003 Act (introduced by the Aquaculture and Fisheries (Scotland) Act 2013). We believe that these requirements have been working well and reflect good practice.

37. Sections 18 and 19 set out the Scottish Ministers' powers to investigate the activities of an FMO and the action that the Scottish Ministers may take following such an investigation. Section 19 allows the Scottish Ministers to issue a direction to an FMO and, should the FMO fail to comply with that direction, Ministers may revoke the FMO's designation. Section 20 allows such a decision to be reviewed by an independent person.

Q8. Do you agree with the proposed approach to good governance and investigation of FMOs?

38. 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. There remains further work to do on this issue.

39. Section 22 sets out the framework through which we propose that the system will be financed in future. This will allow the detail of the system to be set out in regulations, which will be subject to further Parliamentary scrutiny.

40. Section 22 allows the Scottish Ministers to make provision for a wild fisheries levy on owners or occupiers of fisheries for all species. The purpose of the levy is to meet, or contribute towards expenditure incurred, or to be incurred, by the Scottish Ministers or FMOs in promoting the conservation of freshwater fish and their habitats, best practice in the management of wild fisheries and otherwise in performing functions under the Act. The intention is that the levy will be used to fund local fisheries management functions, and will not be diverted to national functions.

41. Subsection (5) will allow different provision to be made for different wild fisheries and different species of fish. Whether the wild fisheries levy will ultimately be extended to fisheries other than salmon fisheries has yet to be determined. We recognise the concern that salmon fishery proprietors should not be the sole source of funding for all-species management. We are also mindful of concerns raised by stakeholders that the potential income would not be significant, and that such an approach may have the potential to impact the ambition to increase angling participation, promotion and development. However, in recognition of the concerns expressed, particularly by angling clubs accessing fishing on minimal, peppercorn rents, subsection (4)(d) provides for additional flexibility in allowing exemptions, discounts, remissions or repayments.

42. Subsection (4)(j) allows functions relating to the wild fisheries levy to be delegated to FMOs. This will include determining the rates of levies and their administration, collection and enforcement. Sufficient safeguards remain within the draft legislation will be incorporated within any subsequent Regulations to address the management of such delegated authority.

Q9. We seek your views on the proposed approach to the wild fisheries levy.

43. The Scottish Ministers have an existing policy not to introduce rod licencing in Scotland. We recognise that Scotland is unusual in that there is no direct angler contribution towards management costs. This is in contrast to most other countries where anglers pay a fee directly to the management authority. These fees are usually in addition to a separate payment to the owner/manager of the fishery for permission to fish.

44. Whilst recognising that some stakeholders have previously expressed concern 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.

45. 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.

46. 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 in this respect 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.

Other Issues

47. One element of the designation of FMOs that we are still considering is whether the designation of FMO status should be reviewed from time to time to be sure of their effectiveness balanced alongside a degree of certainty required to make them an attractive proposition for would be applicants.

Q10. Should Scottish Ministers have the power to review the designation of FMO status?

Q11. If so, what would be an appropriate period for such a review?

48. During the consultation on broad principles, a number of respondents highlighted the importance of FMOs having an appropriate level of influence on planning of developments. In particular, concern was raised at the prospect of loss of the current statutory status that District Salmon Fishery Boards have in the planning process for fish farming. We are still exploring the issue of the role of FMOs in the wider planning process, but it is our intention to pursue an amendment to the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 to ensure that FMOs are statutory consultees for fish farming planning applications.

Q12. Do you agree that FMOs should be statutory consultees for fish farming applications?

Q13. Should we consider whether FMOs should be statutory consultees for any other types of development?