Wild Fisheries Reform: a response to the report of the Wild Fisheries Review

Chapter 4 - Local management bodies

36. The fundamental principles set out our intention to create a wild fishery management system which enables delivery of local, national and international priorities by local management bodies in a way which fosters local knowledge and reflects the landscape in different parts of the country. National and international priorities need to be delivered consistently across the whole of Scotland and in a way which facilitates transparent reporting and appropriate accountabilities for activity. However, in tandem, local management bodies need to have sufficient flexibility to determine local priorities and to develop innovative local delivery which best fits local circumstance.

37. As set out in chapter 3, any decentralised management system requires a clear understanding of the respective roles and responsibilities at a national and local level. The mechanisms for accountability should be set within an appropriate management framework within which activity is planned, delivered and reported. The WFR report proposed a plan-led approach, whereby a formal national strategy will provide strategic direction and better integration with wider cross-cutting agendas. This would enable a programme of work on wild fisheries to be developed and delivered at a national and local level, with responsibility for actions clearly identified and mechanisms established to monitor progress and report outcomes.

Proposal for local management bodies

Constitution

38. A number of options for the legal constitution of the local management bodies (referred to for the purposes of the remainder of this paper as FMOs) were identified in the WFR report, including statutory, charitable or private association bodies. In choosing which is the most appropriate it is important to consider the need to ensure a public interest focus within the management system and the limitations as well as the attractions of each model. While some may wish to see FMOs as statutory bodies the democratic accountabilities, responsibilities and oversight required for this type of body need to be considered. Equally, private companies or associations may not be best placed to deliver public interest objectives.

39. The WFR makes specific reference to FMOs being constituted as Scottish Charitable Incorporated Organisations ( SCIOs), rather than as fully constituted charitable companies, although the report notes that either would be appropriate. Detailed information is available on the OSCR website ^[5] , but in summary:

• The Scottish Charitable Incorporated Organisation is a legal form unique to Scottish charities and is able to enter into contracts, employ staff, incur debts, own property, sue and be sued. Like a charitable company, it provides a high degree of protection for trustees against liability.
• The SCIO also differs from other charities which are companies in that its existence is dependent upon its charitable status. The SCIO becomes a legal entity only when it is entered in the Register and ceases to exist if it is removed from the Register. The SCIO cannot choose to convert to another legal form, cannot amalgamate with a body which is not a SCIO and cannot seek removal from the Register other than by dissolving itself.
• It is possible to change to an SCIO from another form of charity.
• Companies that are also charities must comply with company law as well as charity law. SCIOs report only to OSCR.

40. We agree with the WFR panel that constitution of FMOs as charitable bodies has significant attraction. There are a number of advantages to this model not least the ability of bodies to retain a unique local character, spirit of voluntarism and sense of ownership. We also consider that charitable status is compatible with the delivery of local fishery management functions, including enforcement functions.

Q3. Do you agree that FMOs should be charitable bodies?

Q4. Do you have any comments about the WFR's view that FMOs should be Scottish Charitable Incorporated Organisations rather than charitable companies?

Membership & Governance of FMOs

41. In line with the principles of widening access, multi-species management and delivery of environmental, economic and social outcomes we also agree with the WFR report that FMOs 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. We agree with the WFR report that this should be underpinned by the development of a model constitution for FMOs to ensure appropriate governance and balance of interests, notably at board level.

Q5. Do you agree that in order to ensure appropriate governance and fitness for purpose, FMOs should operate to a model constitution?

Q6. What do you consider is an appropriate balance of interests on the board and wider membership of FMOs?

Approved Body Status

42. We envisage FMOs as a network of local management bodies which express interest in working under the national unit to deliver both the national strategy and a range of agreed local fishery management objectives.

43. The WFR report recommends that FMOs seek approved body status from the national unit in order to become a nominated local delivery body for the national strategy and to receive funding to deliver a fishery management plan. The process of conferring approved body status will provide assurance of the delivery bodies' capacity, competence, accountability and transparency. The concept of approved body status is a helpful mechanism through which fitness for purpose can be assessed, with appropriate monitoring and reporting delivered through the plan-led approach set out in paragraphs 44-45.

Q7. Do you agree that bodies wishing to become FMOs should do so through seeking approved body status from Scottish Ministers?

Plan-led approach

44. The next stage would be for Scottish Ministers to invite "approved local bodies" to develop local fishery management plans setting out (a) how the national strategy will be delivered at local level; and (b) the additional local management priorities for action. Plans would be subject to local consultation prior to submission to the national body for approval; it is anticipated that, within a 3 year framework agreement (3 years being consistent with other business planning and funding cycles), business plans would be updated on an annual basis and be linked to funding from the national unit.

45. As stated in Chapter 2, the development of the national strategy will be an inclusive, consultative process. The suggested approach to delivery of strategic outcomes is common within the public sector and will build on fishery management planning processes. Within the system there would be a responsibility at a national level to promote consistent outcomes, standards and methodologies through best practice co-ordination. This system would enable Ministers to have confidence that national and international objectives for fishery management are being delivered at a local level, enabling them to report on their obligations to the public and to the EU and NASCO. It would enable local bodies to work flexibly within a set framework to deliver fishery management objectives in their areas, including locally agreed priorities.

Q8. Do you agree that the cornerstone of the relationship between national and local management bodies should be the proposed plan-led approach? If not, why not?

46. The proposals discussed above relating to the constitution and governance of local management bodies, together with a plan-based approach, should not be viewed in isolation but rather are a package which taken together provide a framework to help deliver national and local fishery management priorities in a consistent and accountable way. We consider that this is a design which provides appropriate safeguards and is consistent with a decentralised and locally empowered delivery model.

Q9. Do you agree that the proposed package of measures in terms of constitution, governance and a plan-based approach provides an appropriate framework for decentralised delivery of fishery management functions?

Geographic coverage

47. The WFR did not make recommendations as to the number of FMOs in any new structure, but it is clear that FMOs will need to be of sufficient size and capacity to deliver the functions expected of them and achieve economies of scale sometimes lacking within the existing structure. There will be a need to retain local knowledge and buy-in from the membership and ensure that the delivery area is appropriate in terms of physical geography; equally, there needs to be critical mass in terms of staffing to deliver fishery management plans and operate the organisations.

48. Scottish Ministers' obligations on wild fish and fisheries extend to the whole country; it therefore follows that the system of local delivery - the FMO network - should extend to the whole country (all of Scotland including the Tweed District (including those parts of the Tweed that are geographically in England) but excluding the Border River Esk which is managed by the Environment Agency). We are aware that there are areas of Scotland not currently covered by a DSFB or a fisheries trust and acknowledge that in some parts of the country there has been little appetite to follow that particular model of management. However, gaps in coverage present risks to the delivery of the national strategy and therefore to national and international objectives and responsibilities. In such a case Scottish Ministers, via the national unit, would need to be able to step in to deliver fishery management in these areas. This would undermine the concept of decentralisation and local delivery and would divert attention and resource away from delivery of national functions and roles. We wish to minimise this confusion of roles and design a system which looks to achieve full decentralised delivery.

Q10. Do you agree that the FMO network should cover the whole of Scotland?

49. The WFR report envisages FMO areas emerging through discussion between the national unit and local stakeholders. In line with the proposal to ensure coverage across the country, we think that Scottish Ministers should develop proposals for a network of FMOs which achieves an appropriate balance of economies of scale with locally-based organisations. The need to ensure optimum scale in terms of geography and resourcing is key; there is potential to integrate fishery management with wider catchment management frameworks, specifically in response to the EU Water Framework Directive. In this context, Scottish Ministers, following discussion with stakeholders, would suggest boundaries for FMOs and invite interest from those wishing to fulfil functions in those areas through becoming approved bodies.

Q11. Do you agree that Scottish Ministers, following discussion with stakeholders, should set out the boundaries of FMO areas?

Q12. What factors should be considered in determining the number and optimal coverage of FMOs?

Analogous interests

50. In response to the WFR and its recommendations for FMO delivery bodies, some have asked whether there is potential for a body approved as an FMO to perform non-fisheries but analogous activities in line with wider eco-system and related land management. We consider that the principal purpose of a FMO should be to deliver fisheries management, and that its constitution should reflect this purpose. However, we also recognise that the health of the fishery is linked to the wider management of land within the catchment and that there may be opportunities to align delivery of related work where this is desirable. Examples include biodiversity benefits, land management and flood risk management. In many cases we would expect that there would be synergies between these wider issues and the specific needs of fisheries (e.g. habitat improvement schemes); consideration by the FMOs may also provide an opportunity to consider and resolve possible competing interests.

Q13. Do you agree that bodies designated as FMOs should be able to deliver analogous work on behalf of local or national interests?

Q14. Are there any potential conflicts of interest in this approach?