Existing commercial fisheries closures and seasonal fishing inhibitions: EIR release
Information request and response under the Environmental Information (Scotland) Regulations 2004.
FOI reference: FOI/18/00059
Date received: 18 December 2017
Date responded: 26 January 2018
Information requested
Copies of all original Statutory Instruments/orders/legislative documents/procedural papers and relevant detailed paperwork appertaining to all existing commercial fisheries closures and seasonal fishing inhibitions put in place since the disbanding of the 'three-mile-limit' for the entire inshore waters area covered within the "Inshore Fisheries Pilots -Inner Sound Management Group" documented and defined area as currently published and mapped within the Marine Scotland web-site.
Response
There are a number of fisheries prohibitions in effect in the area of the Inner Sound that has been proposed as a site for an inshore fisheries pilot. I will address these prohibitions in turn:
Southern Inner Sound mobile gear fishing prohibition
Most of the information you have requested is available at:
The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 1985: http://www.legislation.gov.uk/uksi/1985/962/made
The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 1989: http://www.legislation.gov.uk/uksi/1989/2307/contents/made
The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Amendment Order 2001: http://www.legislation.gov.uk/ssi/2001/174/contents/made
The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2004: http://www.legislation.gov.uk/ssi/2004/276/contents/made
The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2015: http://www.legislation.gov.uk/ssi/2015/435/contents/made
Review of Controls on Inshore Fishing in Scotland, 2001: http://www.gov.scot/Publications/2001/06/InshoreFisheries
I also enclose copies of additional information which meets your request.
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under section s.29(1)(a) (formulation or development of Scottish Government policy), s.29(1)(c) (Law Officers' advice) ), s.30(c) (substantial prejudice to the effective conduct of public affairs), and s.38(1)(b) (personal data the disclosure of which would contravene data protection principles) of FOISA applies to that information. The reason why this exemption applies is explained below.
Lochs Duich, Long and Alsh MPA
Most of the information you have requested is available at:
Lochs Duich, Long and Alsh Designation: http://www.gov.scot/Topics/marine/marine-environment/mpanetwork/developing/DesignationOrders/DLADOrder
Lochs Duich, Long and Alsh NCMPA:
Marine Protected Areas (MPAs): http://www.gov.scot/Topics/marine/marine-environment/mpanetwork
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections s.29(1)(a) (formulation or development of Scottish Government policy), s.29(1)(c) (Law Officers' advice), s.30(c) (substantial prejudice to the effective conduct of public affairs) and s.35(1)(a) (the prevention or detection of crime) of FOISA applies to that information. The reasons why these exemptions apply are explained below.
Loch Carron MPA
Most of the information you have requested is available at:
The Loch Carron Urgent Marine Conservation (No. 2) Order 2017: http://www.legislation.gov.uk/ssi/2017/205/contents/made
Loch Carron MPA and Urgent MCO: Flame Shell Beds: http://www.gov.scot/Topics/marine/marine-environment/mpanetwork/developing/2017MPA
Loch Carron Urgent Nature Conservation Marine Protected Area (NCMPA):
Scottish Parliamentary Question S5W-08964: http://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-08964
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections s.29(1)(a) (formulation or development of Scottish Government policy), s.29(1)(c) (Law Officers' advice), s.30(b)(i) and 30(b)(ii) (free and frank exchange of views for the purposes of deliberation) and s.30(c) (substantial prejudice to the effective conduct of public affairs) of FOISA applies to that information. The reasons why these exemptions apply are explained below.
Cockle fishing prohibition
Most of the information you have requested is available at:
The Inshore Fishing (Prohibition of Fishing for Cockles) (Scotland) (No. 3) Order 2006: http://www.legislation.gov.uk/ssi/2006/487/contents/made
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the additional information you have requested. The reasons why we don't have the information are explained below.
Restrictions on fishing for cod, haddock and whiting in ICES sub-area VI
Most of the information you have requested is available at:
Council Regulation (EC) No 850/98: http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1488810598220&uri=CELEX:01998R0850-20150601
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the additional information you have requested. The reasons why we don't have the information are explained below.
Your request – scientific data / reports.
In addition to the above, you also requested "copies of all original, underpinning, and subsequent scientific data and reports compiled by Marine Scotland in conjunction with its statutory obligations in managing and monitoring this sea area in compliance with the original instruments / documentation for all the aforementioned commercial fisheries inhibitions."
Some of the information you have requested is available from the following sources:
Marine Scotland Science carry out regular stock assessments of Scotland's fish and shellfish stocks, which are published on an annual basis. These are available at:
http://www.gov.scot/Topics/marine/Publications/publicationslatest/farmedfish/fishandshellfishstocks
Marine Scotland publish annual statistics on the quantity and value of landings of sea fish and shellfish by Scottish vessels and landings into Scotland. These are available at: http://www.gov.scot/Topics/Statistics/Browse/Agriculture-Fisheries/PubFisheries
Marine Scotland's ScotMap project provided spatial information on the fishing activity of Scottish-registered commercial fishing vessels under 15 metres in overall length. Information on the project is available at:
http://www.gov.scot/Topics/marine/science/MSInteractive/Themes/ScotMap and https://www.sciencedirect.com/science/article/pii/S0308597X16305097
Marine Scotland holds commercial landings data for the ICES statistical rectangles that the proposed inshore fisheries pilot lies within (43E3 and 43E4). A copy of this data has been provided to you by email in Excel (.xlsx) format.
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have any of the original or underpinning scientific data and reports pertaining to the fisheries prohibitions, detailed in the previous section, that you have requested. The reasons why we don't have the information are explained below.
Information that is otherwise accessible.
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the websites listed throughout this response, then please contact me again and I will send you paper copies.
Reasons for not providing information
The Scottish Government does not have some of the information you have asked for because it was routinely destroyed, in accordance with our standard records management practice, before the date of your request. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.
An exemption applies.
An exemption under section 38(1)(b) of FOISA (personal data the disclosure of which would contravene data protection principles) applies to some of the information you have requested.
This exemption applies because it is personal data of a third party, i.e. names/contact details of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. This exemption is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.
Exemptions apply, subject to the public interest test.
The following exemptions are subject to the 'public interest test'. Taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying these exemptions. We have found that, on balance, the public interest lies in favour of upholding these exemptions.
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of Scottish Government policy.
We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy while it is still under discussion and development.
An exemption under section 29(1)(c) of FOISA (Law Officers' advice) applies to some of the information requested because it relates to the provision of advice by the Law Officers.
We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in maintaining the Law Officer Convention (reflected in the Scottish Ministerial Code /publications/scottish-ministerial-code-2016-edition/ )which requires that advice provided by the Law Officers should not be divulged except in exceptional circumstances and with the prior consent of the Law Officers. Parliament has also given particular statutory protection to the content of Law Officer advice or requests for their advice to ensure that the government is able to obtain frank and full legal advice in confidence from them (see for example the HM Treasury and the Information Commissioner case, 21 July 2009).
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation.
These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. These exemptions recognise the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of such advice/discussions will substantially inhibit the free and frank provision of advice and/or exchange of views in the future, particularly while discussions are on-going and decisions have not been taken, and/or if those discussions relate to sensitive or controversial issues. This in turn will undermine the quality of the policy making process, which would not be in the public interest.
An exemption under section 30(c) of FOISA (substantial prejudice to the effective conduct of public affairs) applies to some of the information requested because it relates to communications from and to MSPs and MPs.
MSPs and MPs usually communicate with Scottish Ministers on the understanding that this is intrinsically confidential. It is essential for MSPs/MPs to be able to write confidentially to Ministers, particularly on behalf of their constituents, and for Ministers to be able to communicate with MSPs/MPs on a range of issues across their portfolios. Disclosing the content of such communications, particularly without the consent of the MSP/MP, is likely to undermine their trust in Ministers and make them reluctant to communicate, or at least make them much more circumspect in what they say. This would be likely to prejudice the ability of both Ministers and MSPs/MPs to carry out their public duties.
An exemption under section 35(1)(a)) of FOISA (the prevention or detection of crime) applies to some of the information requested because it relates to law enforcement functions and activities.
We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government. However, there is a greater public interest in protecting the process of law enforcement and ensuring that the Scottish Government is able conduct this aspect of its business effectively. Disclosing the content of such processes would, or would be likely to, prejudice substantially the government's ability to prevent or detect criminal activity.
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