AQUACULTURE AND FISHERIES BILL – EVIDENCE FOR COMMITTEE

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1st September 2006

Jenny Goldsmith,

Dear Ms Goldsmith,

AQUACULTURE AND FISHERIES BILL – EVIDENCE FOR COMMITTEE

 I am submitting the attached paper by way of evidence concerning the current Aquaculture and Fisheries (Scotland) Bill to the Environment and Rural Development Committee on behalf of the Scottish Federation for Coarse Angling (SFCA).

 SFCA is the governing body for coarse angling in Scotland. Coarse angling is the sport of fishing for freshwater species other than salmonids. In Scotland, the most widespread coarse fish species are pike, perch, roach, carp, tench and bream; although there are also localised populations of other species such as rudd, dace and chub that are of interest to anglers where they exist.

 SFCA’s members include all the significant Scottish coarse angling clubs, covering the full spectrum of coarse angling pursuits. SFCA promotes and facilitates the coaching of young anglers; organises competitive coarse fishing in Scotland; manages the Scottish international match team; and maintains the Scottish record fish list for coarse species. Several of our member clubs run their own fisheries, and SFCA itself is also actively involved in fisheries management through participation in certain scientific Fisheries Trusts, and in the Lowlands Canals Angling Partnership which manages angling on the Forth & Clyde and Union canals. We represent coarse angling interests in dialogue with other stakeholders at national and catchment level, among other things by participating in the Freshwater Fisheries Forum Steering Group (and its management structures sub-committee) and in the Angling Tourism Development Group.

 SFCA has no objection to our submission being publicly available. I am happy to be the named contact point, but I would wish that my home address be kept confidential. We would welcome the opportunity to speak to the paper before the Committee, should they so wish.

Yours sincerely

Ron Woods
Policy Officer, SFCA

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INTRODUCTORY NOTE

SFCA submitted a full response to the consultation paper that preceded the Bill, commenting on all of the proposals put forward at that time. Our evidence for the Committee concentrates on the aspects of the Bill that have the greatest impact on coarse fish populations or coarse angling. Should the Committee wish, we will be happy to amplify our position on any of these or other matters contained in the Bill.

We have structured our submission to follow the order in which items appear in the Bill, and all references correspond to the relevant sub-headings and paragraph numbers in the text of the Bill.

PART 1 - FISH FARMS AND SHELLFISH FARMS

We do not propose to comment on this part of the Bill, which mainly concerns aquaculture carried out in the marine setting and primarily affects salmonid populations. We are aware of, and support, the views of the main angling and fisheries management bodies who have a direct interest in the issues concerned.   

PART 2 - GYRODACTYLUS SALARIS: CONTAINMENT AND TREATMENT

We do not propose to comment in detail on all aspects of this part of the Bill, but we would wish to voice our concern over the provisions that would allow for large scale eradication of all species in rivers or catchments where an infestation of GS is detected. We appreciate that the power to apply selective eradication of affected species may have to exist as a last resort. However, that power should not extend to the eradication of stocks of species that are neither affected by nor capable of hosting GS. Nor should it apply to waters within a catchment that are not connected to the river in which the affected salmonid population lives. Stakeholders – including coarse angling interests – must be fully consulted when deciding the measures to be applied in the event of a particular outbreak, and such decisions must start from a presumption that eradication will not be the default approach. The implementation of appropriate containment measures is infinitely preferable and we believe that this will suffice in most situations. Where collateral damage to unaffected species, whether wild or introduced, cannot be avoided altogether, it must be kept to an absolute minimum.

Para 19: Scottish Ministers’ power to make payments

We support this measure, but we submit that Ministers should not merely have the power to make in compensation for eradication carried out under the GS but be under a statutory obligation to do so. Such payments should be calculated by reference to the full current replacement value of the stocks destroyed, and must be available to angling clubs who manage waters on a voluntary basis as well as proprietors who operate fisheries for commercial purposes.

In this context we would wish to point out an inaccuracy in the Financial Memorandum. Para 142 of the Explanatory Notes indicates that the Executive does not envisage that eradication or containment activities would bring any additional costs to bodies, individuals or businesses over and above any costs they may already face as a result of the presence of GS. This may be true of migratory salmonid fisheries, but it is patently untrue in respect of coarse fisheries. Coarse fish are not susceptible to GS, and thus the only costs faced by coarse fisheries in the event of an outbreak would be those directly arising from the loss of fish through eradication and the loss of business through containment measures.

PART 3 - FISHERIES

Para 20: Use of gaff, tailer or landing net

We welcome the measures proposed. They provide essential legislative underpinning for the practice of catch-and-release, which we wholeheartedly support. We have no suggestions for amendments to the text of this part of the Bill.

Para 21: Rod and line

We particularly welcome the measures proposed to amend the statutory definition of ‘rod and line’. This is essential for coarse anglers in Scotland. To pursue our sport we need to be able to employ techniques that involve setting the rod in rests rather than holding it in the hand; and to be able to use more than one rod simultaneously where appropriate. These are appropriate methods for coarse angling and entirely legal in almost every country in the world. They pose no conservation risk.

We also welcome the new definition of ‘foul-hooking’ and support the Bill’s aim of eradicating this practice. It has no place in any legitimate form of angling.

We have no suggestions for amendments to the text of this part of the Bill.

Para 22: Prohibition against using pike gags and certain keepnets

We welcome the measures proposed. Pike gags are unnecessary and can be lethal – they have no place in modern angling practice. Properly constructed keepnets are essential to allow competitive coarse anglers to practice catch-and-release, but knotted or metallic mesh is damaging to fish and should rightly be prohibited. We have no suggestions for amendments to this Para.

In addition to the measures set out in Paras 20 and 22, we would invite the Committee to consider adding provisions to prohibit the sale, possession and use of monofilament gill nets (with the exception of tightly regulated use of properly designed multi-panel sampling nets by bona fide scientists in appropriate circumstances) in any freshwater context. These have absolutely no legitimate use in the freshwater environment, and are the “weapon of choice” for inappropriate culling and poaching alike.

Para 23: Close times for freshwater fish

We make no comment on whether the measures described in this paragraph ought to be implemented in respect of any salmonids for which such close times do not presently exist. Insofar as they affect coarse fish species, however, we do not support the measures presently set out in the Bill, and would urge the Committee to make substantial amendments.

The Bill would insert two new sub-sections into Section 17 of the 2003 Act. The first of these, proposed as Section 17A, would give Scottish Ministers the power to establish weekly close times in respect of fishing for freshwater fish, mirroring powers that already exist in respect of fishing for migratory salmonids. Weekly close times for migratory salmonids may be a logical and effective conservation measure. Angling and commercial netting for those species is largely based on intercepting fish as they move from the sea to spawning grounds some distance further up the river system. Weekly close times can allow a proportion of the fish entering the river to make that journey unhindered so that the spawning population is maintained. Coarse fish, however, do not migrate through river systems in this way to spawn. They tend to breed in still or slow-moving water, and only move onto their spawning grounds – generally in shallow or weedy water adjacent to where they live through the year – immediately prior to the act of spawning. As a consequence, coarse angling does not exhibit the ‘interception’ dimension that characterises most fishing for migratory species, and thus weekly close times are neither necessary nor likely to be effective as a means of preserving spawning populations. The powers described in the proposed Section 17A are therefore irrelevant to coarse fishing, and we submit that this part of the Bill should be amended to exclude coarse species accordingly. 

The proposed Section 17B of the 2003 Act would give Scottish Ministers the power to establish annual close times for freshwater fish other than trout. We have no view on whether such close times ought to apply for salmonids such as char or grayling, but there is no evidence of any conservation need for any national, regional, or species-specific close season for coarse fish in Scotland, and no benefit to be gained by such a measure.

Bearing in mind that all coarse angling is carried out on a catch-and-release basis, populations of wild coarse species such as pike and perch appear in general to be sustainable in the face of current and foreseeable levels of year-round angling, although localised pressure points may exist. On the other hand, stocks of species like carp that seldom reproduce successfully in Scotland need to be replenished periodically regardless of whether a closed season was in force.

Even if it was desirable to establish close seasons for some coarse fish, there is little chance of consistently identifying the appropriate time of year for this. Every coarse species spawns at a different time in the first six or seven months of the year, and in Scotland the time chosen by each species can be unpredictable - owing more to water temperatures than the conventions of the calendar. Spawning times for the same species often vary significantly between waters, even those in comparatively close proximity to each other.

With the benefit of detailed scientific data it may be found that there are grounds for localised restrictions to protect sensitive spawning sites for particular coarse species on some waters at certain times of year. However, national legislation is too blunt an instrument for that purpose. Conservation needs can more effectively be addressed by the adoption of appropriate rules by the individual fisheries concerned. We therefore submit that this part of the Bill should also be amended to exclude coarse species.

If the Committee is not minded to accept our submissions to exclude coarse fish from the provisions in one or both aspects of Para 23, we would nevertheless ask that consideration be given to amending item (6) of the new sub-para 17A and item (7) of the new sub-para 17B. Both of these items say “An order under subsection (1) may specify that the effect of the order is applicable only to a particular part or area of Scotland”. In each case we submit that the text should clearly provide for the restriction in question to be applied not just to an entire area or catchment but, where appropriate, to a single river or loch, or to a designated part of a single river or loch

Para 24: Exemption from certain offences

We have no comments or suggestions for amendments in relation to this Para.

Para 25: Freshwater fish conservation regulations

In principle, we welcome the provision for Scottish Ministers to make Regulations for the purpose of the conservation of freshwater fish. We do not however agree with the statement in Para 50 of the Policy Memorandum that suggests this can substantially be achieved by giving Ministers the ability to specify particular baits and lures that may be used for freshwater fishing in the same way as they can for salmon under Section 33 of the 2003 Act. It is not the use of particular baits and lures that poses a threat to freshwater fish conservation: it is the irresponsible actions of some fishery proprietors, and that is what the Regulations should seek to control. If any regulation of baits and lures is necessary, appropriate rules can easily be imposed by individual fisheries.

We appreciate that the Committee is not at this time considering the subject matter of specific Regulations that may be made in future. However, the Policy Memorandum mentions the Executive’s intention to introduce Regulations under this provision in respect of certain issues that are of particular concern to coarse anglers. As these matters have been highlighted, we believe it is appropriate to make representations on them.

The most important topic identified for Regulations is the provision of protection for freshwater fish species against removal or activities that adversely affect their environment. This must be a priority for action. Indiscriminate culling of coarse fish, generally by the use of nets, takes place on many waters in Scotland, yet at present the law exercises little control over the removal of freshwater fish by means other than rod and line. The use of electrofishing or poisons is regulated, but under section 2 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 a proprietor or occupier having a right of freshwater fishing may take any freshwater fish other than trout by means of a net or trap without the need for authority from any statutory body.

Section 2 of the 2003 Act should be repealed and replaced by appropriate Regulations controlling all removals other than by rod and line. Regulations should only be allowed where there is a need for selective eradication to eliminate parasitic infection, infectious disease, or newly introduced invasive species. An exception should be made for small-scale capture of fish in the course of bona fide scientific study. However, the system of regulation must not simply provide blanket exemption for any activity that purports to be conducted under any of these headings. Proposals must be subject to rigorous independent scrutiny to ensure that mortalities are kept to a minimum.

In addition, certain measures affecting the aquatic environment – such as lowering water levels at certain times, or installing gabions that obstruct weedbeds and shallow inlets – are carried out either deliberately or without regard to the consequences, and can impede coarse fish from spawning or interfere with the hatching and growth of recently-born juveniles. In some instances, small lochs have even been drained to eliminate native coarse fish before turning them over to commercial fisheries. The power must be provided, and applied, to prevent such activities.

The penalties for breach of these provisions should extend beyond the imposition of fines to include provision to order anyone convicted of such actions to meet in full the costs of replenishing stocks of all species to their pre-existing levels.

The other issue mentioned as likely to be banned by way of Regulations under this provision is the use of live fish as bait. We totally oppose such a ban. It would be both superfluous and disproportionate to the risks it purports to address.

It is claimed by some that discarded or escaped livebaits have been responsible for the introduction of certain species to a number of waters in Scotland. There is no hard evidence for this, but even if it is true it could only account for a tiny fraction of the spread of locally non-native species and the dilution of genetic identity among established species in Scotland. There are several far more significant sources for inappropriate introductions. Most important among these are deliberate stocking by clubs, proprietors or individual anglers, and escapes or discards from aquaculture facilities and garden ponds.

There is no necessary connection or causal link between the use of live fish as bait and the movement of fish between waters. These are two entirely separate issues. The appropriate way to prevent inappropriate introductions and transfers is by legislation directly regulating fish movements. Such legislation is proposed Part 4 of the Bill, and has the support of SFCA. No additional Regulation is required. If the Executive believes it is essential to strengthen this by regulating the use of live fish as bait, the appropriate step would be to bring in provisions analogous to those in Denmark which directly restrict the use of livebaits to fish caught on the same day from the same water where they are being used. Whilst probably still superfluous, this is workable and would reinforce the message the Executive seeks to convey without alienating the angling community it aims to regulate. SFCA would be happy to work with the Executive and other stakeholders to formulate the details of a Regulation along those lines, and to promote compliance.

Para 26: Enforcement of Community obligations

This Para relates to sea fisheries. SFCA has no locus to comment on that subject.

PART 4 – MISCELLANEOUS

Para 27: Unauthorised introduction of fish into certain marine waters

This Para relates to the marine environment. SFCA has no locus to comment on that subject.

Para 28: Unauthorised introduction of fish into inland waters

We welcome the measures proposed. They are an essential step to underpin responsible fisheries management practices.

We have concerns over the item proposed as sub-para (6) of the new para 33A, which says: “A person who commits an offence under this section may be convicted on the evidence of one witness.”. There seems no reason why this should be singled out for exemption from the normal Scots Law principle regarding the need for corroborative evidence, and we submit that the item in question should be struck out. With that exception, we are content with the text as presented.

Para 29: Payments in respect of fish destroyed

From the corresponding notes in the accompanying Policy Memorandum, it appears that this provision is primarily concerned with compensation to the operators of aquaculture facilities in certain circumstances. We have no locus to comment on that.

However, if the provisions in question are also applicable to compensation for the tenants or owners of freshwater fisheries in similar circumstances, we would make the same comment in this context as against Para 19 in Part 2 of the Bill. Ministers should not merely have the power to make in compensation for fish destroyed under statutory authority; but be under a legal obligation to do so. Such payments should be calculated by reference to the full current replacement value of the stocks destroyed, and must be available to angling clubs who manage waters on a voluntary basis as well as proprietors who operate fisheries for commercial purposes.

Para 30: Payments for certain purposes

We welcome the measures proposed, and look forward to seeing these powers being applied extensively and judiciously to the benefit of fisheries management for all species in Scotland.

Para 31: Information about fish farming and shellfish farming: economic, social and environmental aspects

This Para relates to the aquaculture industry. SFCA has no locus to comment on that subject.

PART 5 – GENERAL

We do not propose to make submissions on the items in this Part of the Bill, but we will address relevant items in the schedule of minor and consequential amendments to which Para 34 refers

Schedule of Minor and Consequential Amendments

We comment only on Para 5, which puts forward certain amendments to the 2003 Act that are designed to improve the application procedure and operation of statutory Protection Orders under Section 48 of that Act.

Whilst we welcome the measures in this part of the Bill as a step in the right direction, they fall short of the action necessary to remedy the fundamental flaws in the legislation governing access for angling. As it stands, the Bill misses a golden opportunity to address those flaws.  

Section 48 allows Ministers to make Protection Orders that give proprietors in designated areas the protection of criminal law against unauthorised fishing for freshwater species in return for granting increased access for angling. In deciding whether to make a Protection Order Ministers must, among other things, “have taken into consideration the need for conservation of any species of fish” (Para 3[d] of S48). These principles are essentially sound; but from a coarse angling perspective Protection Orders have signally failed in their objectives. They have neither opened up a wider range of access, nor protected the fish themselves. Only on Loch Awe does a current PO promote the coarse angling opportunities available in the fishery and encourage the conservation of coarse fish species. Conversely, on many waters covered by POs access to pursue coarse fish is either denied outright, tacitly discouraged, or made effectively meaningless by restrictions on baits, methods or seasons. In addition, there are protected waters where the proprietors cull coarse fish or make it a permit requirement that all coarse fish captured are killed. So, despite the 1976 Act, not only do coarse anglers still face widespread restrictions on the extent to which they can pursue their sport, but under some Protection Orders they are only actually allowed to fish if they are prepared to become complicit in the destruction of the resource they are paying to fish for.

A number of other changes beyond those in the current Bill are needed if Protection Orders are to serve their purpose. A further phase of legislation will be necessary to achieve the optimum linkage between responsible access and properly funded, sustainable management. However, more can and should be achieved at this stage. We invite the Committee to consider the following issues:

·     Para 3[b] of Section 48 obliges Ministers, when deciding whether to make a Protection Order, to consult “a body which in their opinion is representative of persons wishing to fish for freshwater fish in inland waters in Scotland”. Such a body has been formed, and is known as the First Minister’s Consultative Committee. This Committee is a crucial component of the system, but legislation does not specify its status, composition or functions beyond the phrase quoted above. To aid transparency it ought to have a formal constitution, and its make-up must be prescribed to ensure it reflects the appropriate range of interests. As it happens, SFCA was invited to put forward a representative around eight years ago, and we have participated ever since. But it is unacceptable that the Committee exists only by virtue of ministerial preference and that the inclusion of particular organisations lies in the gift of officials or the Chair of the Committee. Relevant interest groups must be able to participate as a matter of right.

·     If Protection Orders are to serve their purpose, constructive dialogue between proprietors and anglers must be maintained. In most areas this takes place through Liaison Committees. However, there are presently several Orders covering waters with substantial coarse fish populations in which the Liaison Committees lack representation from coarse anglers. It is no coincidence that access for coarse angling in such areas is more difficult than elsewhere, and is often impeded by unjustified restrictions on fishing methods. The legislation must make it obligatory for Liaison Committees to be formed, and specify their composition to encompass angling interests reflecting the full range of species in the water to be covered by the Order.

·    The Bill does not address two key anomalies in the current legislation. Firstly, under Section 11 of the 2003 Act, a person who fishes without legal right or written permission in a “proper stank or loch” (defined as ‘a stank or loch the fishing rights in which are owned by one person’) is guilty of a criminal offence. In effect, this affords the sole proprietors of such lochs the same protection as proprietors covered by a Protection Order, but without the quid pro quo of obliging them to offer any form of access whatsoever to anglers. The second is that S26 of the 2003 Act perpetuates long-standing legislation making it a criminal offence to fish without permission for freshwater species in certain rivers draining into the Solway Firth, again without any obligation on the part of proprietors to offer reasonable and responsible access. These anomalies are both inequitable and unacceptable. The protection of criminal law – no matter what the pattern of ownership or location of the fishery - should be afforded only where proprietors offer reasonable access for responsible angling. Sections 11 and 26 should be repealed or amended to correspond with the provisions relating to access that apply in Protection Order areas.

END