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Section 32(1) amends section 3(3) of the Sea Fisheries (Shellfish) Act 1967 to increase the maximum fine level for an offence under a Regulating Order to £50,000. A Regulating Order is secondary legislation made under the 1967 Act which provides a local management mechanism for agreed shellfish stocks in defined areas whereby a grantee may use a licensing system to manage stocks and effort in the fisheries. Subsection (2) amends section 4(7) of the Sea Fisheries (Shellfish) Act 1967 to provide that the discretionary revocation of a licence by the grantee can happen after the licence holder is convicted of one fisheries offence. Previously, this could only happen after a second offence.
This section amends section 30(1) of the Fisheries Act 1981 (Enforcement of Community rules) to apply the provisions of that subsection to enforceable Community obligations (for example, the obligation on certain fishing vessels to have a working satellite tracking device on board) as well as enforceable Community restrictions.
Section 34 inserts new section 2C into the 1937 Act. Section 2C(1) enables the Scottish Ministers, by order made by statutory instrument, to specify parts of marine waters adjacent to Scotland (which term has the same meaning as in new section 2ZB(6) of the 1937 Act, inserted by section 14 of the Act) as they consider appropriate. Section 2C(2) obliges the Scottish Ministers to consult such persons as they consider appropriate before making an order under subsection (1). Section 2C(4) makes it an offence to introduce into such a “specified area” any fish of a specified species which originates from outside that area and which has been in salt water in any area of UK waters designated by the Scottish Ministers, unless that introduction has the prior written consent of the Scottish Ministers. Section 2C(5) gives the Scottish Ministers power to make regulations in relation to the manner of applying for this consent, it being intended that applications should be accompanied by a risk assessment similar to that which is presently required under the industry’s own code of practice.
This section repeals section 24 of the 2003 Act (which prohibited the introduction of salmon into inland waters without appropriate consent) and introduces a new section 33A into the 2003 Act. Subsection (1) of inserted section 33A creates an offence of intentionally introducing any live fish or live spawn of fish into inland waters, and subsection (2) an offence of possession of live fish or live spawn of fish with the intention of introducing it into inland waters. The offences do not apply to introduction into the waters of a fish farm (subsection (3)(a)) or where the Scottish Ministers or, in the case of salmon, the relevant District Salmon Fishery Board have consented in writing. An offence under subsection (1) or (2) is punishable on summary conviction by a fine not exceeding level 3 on the standard scale (presently equivalent to £1000).
This section enables the Scottish Ministers to make payments in accordance with a scheme made by them by order in respect of any fish or shellfish destroyed in pursuance of the exercise of such of the Scottish Ministers’ disease control powers as may be specified in the order (for instance, the power to require the clearance of fish farms in terms of section 5C(1) of the 1937 Act, as introduced by section 16 of the Act). Subsection (2) gives the Scottish Ministers power in particular to include in an order provision regulating applications for payment, method of payment, the amounts payable and the basis upon which such amounts are to be ascertained, and conditions upon which payments will depend. Any order under section 36(1) will require to be laid in draft before the Scottish Parliament, and approved by a resolution of the Parliament before it can be made and come into effect (see section 43(3)(a)).
This section enables the Scottish Ministers to make funds available for the purposes of developing, promoting, organising or researching aquaculture, sea fisheries, the sea fish industry, salmon fisheries and freshwater fisheries.
Subsection (1) enables the Scottish Ministers to make an order for the purpose of obtaining information in relation to the economic, social and environmental aspects of fish farming and shellfish farming. The power to make orders under subsection (1) must be exercised by statutory instrument which is subject to annulment in pursuance of a resolution of the Scottish Parliament, by virtue of section 43 (Orders) of the Act.
Subsection (2) provides that orders under subsection (1) may require any person carrying on a business of fish farming or shellfish farming to provide such information as may be specified in the order; to compile such records as may be specified in the order; and to retain such records for such period as is specified in the order, subject to a three year maximum. Subsection (3) provides that an inspector may require the production of any record which a person is required to retain by virtue of an order under subsection (1), and may inspect or take copies of any such records (subsection (7) provides that “fish farming”, “inspector” and “shellfish farming” have the same meanings as in Part 1; so by virtue of section 12 (Interpretation: Part 1), an inspector is a person authorised by the Scottish Ministers to act as an inspector under the Act, whether generally or for a particular purpose.)
Subsection (5) makes it an offence to fail without reasonable excuse to comply with a requirement of an order under section 38, or to provide false information or falsify a record. Such offences are punishable on summary conviction by a fine not exceeding level 4 on the standard scale (presently equivalent to £2,500).
This section provides that the Act binds the Crown. Amendments to other Acts have the same application to the Crown as the other provisions of the Acts amended: for example, the Crown application of the 2003 Act is governed by section 67 of that Act. Subsections (2) and (3) provide that nothing in the Act renders the Crown criminally liable, but that the Court of Session may make a declaration, on the application of the Lord Advocate, of the unlawfulness of any contravention by the Crown of the Act’s provisions.
This section means that where an offence is committed by a body corporate (such as a company), by a Scottish partnership or by an unincorporated association, certain officers of the body corporate, partners or managers of the association may in certain circumstances be held to have committed the offence and are liable to be proceeded against and punished accordingly.
This section introduces the schedule to the Act, which contains minor and consequential amendments to other enactments.
This section permits the Scottish Ministers to make by order such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of this Act. It would permit amendments to be made to legislation which required to be amended in consequence of the provisions of the Act, but which had for whatever reason been omitted from the schedule.
This section specifies the Parliamentary process for Statutory Instruments made under this Act.
The schedule contains minor amendments and amendments consequential on the Act.
Paragraph 1 of the schedule makes a number of amendments to the 1937 Act, including amendments to the powers of inspectors to allow them to exercise powers of entry for inspecting land for the purposes of the Gyrodactylus salaris provisions introduced by Part 2 of the Act, and making it clear that inspectors may be accompanied by such persons as may be required and bring with them such equipment and vehicles as may be required.
The effect of the amendment to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 introduced by paragraph 2 of the schedule is to apply the procedure in Schedule 1 to that Act to any compulsory purchase which might be sought under section 5A(3) of the 1937 Act (as inserted by section 15 of the Act).
Paragraph 3 repeals subsections (9A) and (9B) of section 4 the 1967 Act, which required that any fish taken in an area specified by an order under that section as closed to fishing be returned to the sea forthwith, and made it an offence to fail to do so.
Paragraph 4 introduces a technical amendment, correcting subsection 5(b) of section 30 of the 1981 Act.
Paragraph 5 introduces a technical amendment to take account of the fact that section 32 changes the level of fine available under section 3(3) of the Sea Fisheries (Shellfish) Act 1967 from level 5 to £50,000. The original fine level is consequently repealed.
Paragraph 6 introduces a number of amendments to the 2003 Act, including modifications to the procedure relating to protection orders made under section 48 of that Act (sub-paragraphs (4) and (6) to (8)), including provision for such orders to be varied by a further order made by the Scottish Ministers without the need for an application to be made to them.
The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which the proceedings at that Stage took place, the references to the Official Report of those proceedings, the dates on which Committee Reports and other papers relating to the Bill were published, and references to those reports and other papers.
| Proceedings and reports | Reference |
|---|---|
| Introduction | |
| Bill as introduced , 29 June 2006 | Bill as introduced (SP67) |
| Stage 1 | |
| (a)
Environment and Rural Development Committee |
|
| 27th meeting, 27 September 2006 | cols 3487 – 3517 |
| 28th meeting, 4 October 2006 | cols 3523 – 3566 |
| 29th meeting, 24 October 2006 | cols 3569 – 3590 |
| 30th meeting, 1 November 2006 | cols 3617 – 3643 |
| 31st meeting, 8 November 2006 | cols 3665 – 3689 |
| Stage 1 Report on the Aquaculture and Fisheries (Scotland) Bill: | 14th Report (session 2), 5 December 2006 SP paper 690 (ERD/S2/06/R14) |
| (b)
Finance Committee |
|
| 22nd meeting, 19 September 2006 | cols 3907 – 3916 |
| Report to the Environment and Rural Development Committee, 5 October 2006 | Report on the Financial Memorandum of the Aquaculture and Fisheries (Scotland) Bill |
|---|---|
| (c)
Subordinate Legislation Committee |
|
| 24th meeting, 12 September 2006 | cols 1953 – 1957 |
| 26th meeting, 26 September 2006 | cols 1995 – 1997 |
| Report to the Environment and Rural Development Committee, 26 September 2006 | 14th Report, 2006 (SP Paper 690) Volume 2 - Evidence |
| Consideration by the Parliament | |
| Stage 1 Debate, date December 2006 | cols 30628 – 30657 |
| Stage 2 | |
| (a)
Environment and Rural Development Committee |
|
| 3rd meeting, 24 January 2007 | cols 3908 – 3918 |
| 4th meeting, 31 January 2007 | cols 3957 – 3972 |
| Bill as amended at Stage 2, 1 February 2007 | Bill as amended at Stage 2 (SP Bill 67A) |
| (b)
Subordinate Legislation Committee |
|
| 7th meeting, 20 February 2007 | cols 2307 – 2323 |
| 8th meeting, 27 February 2007 | cols 2346 – 2347 |
| Report on Aquaculture and Fisheries (Scotland) Bill as amended at Stage 2 | 16th Report, 2007 (session 2) (SP Paper 755) |
| Stage 3 | |
| Consideration by Parliament | |
| Stage 3 debate, 1 March 2007 | cols 32695 - 32752 |
| Bill passed, 1 March 2007 | Bill as passed (SP Bill 67B) |
| Royal Assent – 5 April 2007 | Aquaculture and Fisheries (Scotland) Act 2007 (asp12) |
Aquaculture and Fisheries (Scotland) Act 2007