Shortly before Christmas the Scottish Government issued a Consultation Paper on aquaculture and fisheries, with a view to possible legislation later in the Parliament on what it calls “key issues and priority areas”.

Its primary objectives are “to build on best practice and voluntary arrangements, where appropriate, providing statutory under-pinning and a legislative back-stop, where necessary, to protect the interests of those who have invested in the highest standards of management and husbandry” and to encourage the promotion of “openness and transparency”, including in the collection and publication of information.

The consultation is of vital concern to all those involved in aquaculture (finfish and shellfish), freshwater fisheries stakeholders (river boards, proprietors, netsmen and anglers), sea fishermen, consumer organisations and all those with an interest in conservation, animal welfare and protection of the marine and freshwater environment.

The consultation document covers the following areas:-

• The sustainable development of aquaculture;
• Protection of shellfish growing waters;
• Fish farming and wild salmonid interaction;
• Salmon and freshwater fisheries management;
• The modernisation of enforcement provisions (including those relating to sea fishing).

The main proposals in each category are, in outline (detailed reasons for each proposal are contained in the 46 page document itself):-

1. Aquaculture (finfish and shellfish)

• A legal requirement that all marine finfish operators must participate in Farm Management Agreements (FMA);
• Appropriate sanctions for failing to enter into or breaching an FMA;
• Operators to continue to have primary responsibility for determining the boundaries (and other management arrangements) for Management Areas, but with Scottish Ministers given a fall-back power to specify alternative areas;
• An independent arbitration process (under-pinned by statute) to resolve disputes in relation to FMA;
• A review of unused consents (e.g. Seabed Licences, Planning Consents, Biomass and Discharge Consents and Marine Licences), including power to Scottish Ministers to revoke or require others to revoke such consents;
• What the approach should be to the collection and publication of sea lice data;
• To require operators to provide additional information on fish mortality, movements, disease, treatment and production;
• To give Scottish Ministers power to require SEPA to reduce a business consent, where necessary and appropriate;
• • Possible enabling legislation to give Scottish Ministers power to impose ditional controls on wellboats;
• A standard regulatory framework for seaweed farms through licensing;
• Additional powers for Scottish Ministers in relation to processing plants and commercially damaging native species.

2.  Shellfish

The introduction of provisions to protect shellfish growing waters and to support sustainable growth of the shellfish industry.

3.  Fish farming and wild salmon

New or improved powers to Scottish Ministers in respect of sea lice and escapes:-

• To determine a lower threshold above which remedial action needs to be taken in relation to sea lice, as part of a wider suite of protection measures;
• To require finfish farms to use equipment conforming to a “Scottish Technical Standard” (yet to be defined);
• To take or require samples of fish from fish farms for tracing purposes.

4. Salmon and freshwater fisheries

• To place a duty on Salmon Fishery Boards to act fairly and transparently;
• To introduce a code of good practice for fisheries (either statutory or non-statutory);
• Power to Scottish Ministers to introduce a statutory system of carcass tagging for wild salmon and sea trout;
• Power to Scottish Ministers to take or require fish and/or samples for genetic or other analysis;
• Power to Scottish Ministers to initiate changes to Salmon District Annual Close Time Orders;
• Power to Scottish Ministers to promote combined Salmon Conservation measures;
• Power to attach conditions to statutory conservation measures;
• The introduction of statutory provisions related to mediation and dispute resolution to help resolve disputes around salmon conservation, management and related compensation;
• A legal requirement on rod fisheries to provide comprehensive “effort” data;
• Collection and provision of additional information on fish/fisheries by proprietors and/or River Boards;
• Possible powers to Scottish Ministers to require Boards and/or proprietors or their tenants to investigate and report on salmon and sea trout and the fisheries in their district;
• Powers to Scottish Ministers to recall, restrict or exclude the jurisdiction of Boards in relation to fish introductions.

NOTE

• Views are invited (without any proposals being made) on the management of salmon fisheries in the interests of anglers (on the one hand) and net fishermen (on the other), preferably through voluntary, locally developed conservation measures.
• Scottish Ministers pledge to continue to work with all stakeholders on traceability and quality assurance as well as in support of the relevant Authorities in the enforcement of the existing criminal law on fishing for, the provision of, or attempted illegal sale of wild salmon and sea trout.

5.  Enforcement

Proposed improvements on wider marine enforcement:-

• To make some aquaculture offences strict liability;
• To provide for fixed penalty notices as alternatives to prosecution;
• To increase the minimum level of fixed penalty notices;

6.  Sea Fishing

Changes to Sea Fisheries Legislation including power to Sea Fisheries Officers:-

• To detain vessels in port for the purposes of court proceedings;
• The disposal of property seized as evidence when it is no longer required;
• The forfeiture of items which it would be illegal to use;
• To inspect objects in the sea and elsewhere that are obviously associated with a vessel, vehicle or relevant premises.

Unfinished business

An Environmental Assessment of the Scottish Government’s proposals is under way and a report is to be published during the consultation period.

Similarly, there is awaited a Business and Regulatory Impact Assessment (a tool used by Government to assess and present the likely costs and benefits and the associated risks of proposals which might have an impact on the public, private or third sector).

THE CLOSING DATE FOR RESPONSES TO THE DISCUSSION DOCUMENT IS FRIDAY 2 MARCH 2012. The consultation document is available from the Scottish Government’s website at www.scotland.gov.uk.

NB The consultation document covers a wide range of issues relevant to all those involved in aquaculture and fisheries. The Scottish Government has made it clear, in the past, that it is swayed not just by the strength but also by the number of representations made in response to consultation. All stakeholders and persons having an interest, or simply interested, in any aspect of the consultation document are encouraged to make representations. We, at Anderson Strathern, will be very happy to assist in the framing of representations.

For further information please contact Jim Drysdale, partner, Land Resources department.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.