FISHERIES (AMENDMENT) BILL
EXPLANATORY AND FINANCIAL MEMORANDUM
INTRODUCTION
1. This Explanatory and Financial Memorandum relates to the Fisheries (Amendment) Bill.
2. It has been prepared by the Department of Agriculture and Rural Development (and agreed by the Department of Culture, Arts and Leisure) in order to assist the reader in understanding the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
3. The Memorandum needs to be read in conjunction with the Bill. It does not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND POLICY OBJECTIVES
4. Changes to existing legislation are considered to be necessary to allow the use of fisheries regulatory powers to conserve and enhance the environment, to regulate the collection of wild shellfish on the foreshore and to permit trade in farmed salmon roe. In addition a number of measures within the existing legislation relating to the issue of permits and licences have proved to be restrictive.
5. This Bill proposes to amend the Fisheries Act (NI) 1966, as amended, to allow the Department to manage, protect and regulate fisheries on the foreshore around the Northern Ireland coastline, to provide for the regulation of fisheries for environmental reasons and to permit trade in farmed salmon roe. It also proposes to amend certain provisions of the Act relating to the issue of permits and licences.
CONSULTATION
6. A range of fishery and conservation interests has been consulted in relation to the regulation of the foreshore including the Environment and Heritage Service, Strangford Lough Management Committee and the National Trust. Consultation has also taken place with the Northern Ireland Office with regard to powers of entry. The consent of the Secretary of State has been obtained in relation to the regulation of the foreshore and the creation of criminal offences.
OPTIONS CONSIDERED
7. An amendment to primary legislation is the only means by which the objectives of the Bill can be achieved.
COMMENTARY ON CLAUSES
Clause 1: Regulation of sea-fisheries in or on the foreshore
Collection of wild shellfish for commercial purposes from the shores of Strangford Lough has been increasing in recent years and conservation interests have raised concerns about the likely impact of this on wildlife on the foreshore. Powers to regulate the foreshore are not currently available in Northern Ireland.
This clause amends section 124 of the Fisheries Act (NI) 1966.
Subsection (2) extends the area in which the Department has powers to make regulations in relation to sea-fisheries to include the foreshore and will enable the Department to regulate the collection of shell-fish on the foreshore.
Subsection (3) provides the Department with powers to regulate fishing from or by means of specified vehicles or equipment and will enable the Department to prohibit by regulation the use of mechanised harvesting equipment on the foreshore.
Subsection (4) inserts a new subsection 2A into section 124 of the Fisheries Act (NI) 1966 providing the Department with powers to make regulations in relation to sea fishing for environmental purposes. This amendment parallels the amendment proposed to section 26 of the Fisheries Act (NI) 1966 as described at the commentary on clause 5.
Section 124 (3) of the Fisheries Act (NI) 1966 provides that any person who contravenes a regulation made under section 124 shall be guilty of an offence. Subsection (5) provides that where a person commits an offence under section 124(2)(dd) of the Fisheries Act (NI) 1966 and a vehicle or equipment is used in the commission of the offence, any person who causes or permits the commission of the offence shall also be guilty of an offence. The penalty for such an offence is a level 5 fine.
Clause 2: Enforcement of regulatory powers in relation to sea-fisheries in or on the foreshore
Subsection (1) inserts a new subsection (1A) into section 174 of the Fisheries Act (NI) 1966 extending the powers available to authorised persons in relation to the boarding and examination of boats to cover the boarding and examination of vehicles and equipment which are being or have been employed in fishing.
Subsection (2) amends section 180 of the Fisheries Act (NI) 1966 by including the procedures for the disposal of vehicles and equipment seized under section 174 of the Act, and subsection (3) amends section 181(1) of the Fisheries Act (NI) 1966 by including in the procedures for the disposal of fish seized any fish seized under section 174 of the Act.
Subsection (4) amends section 183(2) of the Fisheries Act (NI) 1966 by extending the provision relating to the obstruction of authorised persons to cover persons in charge of or in or on a vehicle or equipment.
Subsection (5) amends section 206 of the Fisheries Act (NI) 1966 by extending the meaning of the term "sea-fish" to include fish of any kind found in or on the foreshore and extending the meaning of the term "sea-fishery" to include any fishery in or on the foreshore.
Clause 3: Disturbing spawning beds etc.
Section 48 of the Fisheries Act (NI) 1966 gives protection to young and breeding fish by making it an offence for a person to wilfully take, sell, purchase or have in their possession the spawn or fry of salmon, eels or trout. However these restrictions effectively prohibit trade in farmed salmon roe and are therefore considered to be restrictive to the marketing of a viable product.
This clause amends section 48 of the Fisheries Act (NI) 1966 by providing a defence for any person charged with an offence under this section in relation to the spawn of salmon if the spawn had been produced at a fish farm or if the person believed on reasonable grounds that it had been so produced. This amendment effectively removes the prohibition on trading in farmed salmon roe while retaining the protection for wild stocks.
This clause also provides the Fisheries Conservancy Board (FCB) with powers to control the removal of material from rivers by making it an offence to remove material from the bed of a river without the prior consent of the FCB. The penalty for such an offence is a level 4 fine. It also provides for the FCB to issue its consent to the removal of material subject to such conditions as it thinks fit and provides for a person who has been refused consent, or has been granted consent subject to conditions, to appeal to the Water Appeals Commission.
Clause 4: Charges for fishing permits
Section 7A of the Fisheries Act (NI) 1966 requires that the Department of Finance and Personnel (DFP) approve permit fees set by the Department for the use of fishing engines in those waters in which the Department owns the fishing rights. The Department no longer considers it necessary to seek DFP's approval for these charges and DFP has agreed subject to the Department making the appropriate administrative arrangements. This clause amends section 7A of the Fisheries Act (NI) 1966 by removing the requirement for DFP to approve permit fees.
Clause 5: Power of Board to make byelaws
The Foyle, Carlingford and Irish Lights Commission and the Fisheries Boards in Ireland have appropriate powers to facilitate the introduction of a salmon carcass- tagging scheme as a conservation and protection measure. In order for such a scheme to operate effectively throughout the Foyle and Carlingford Areas and the rest of Northern Ireland, the FCB requires similar powers in its area of control. The existing legislation authorises the FCB to introduce byelaws requiring identification tags to be attached to any captured salmon, but does not authorise the FCB to make byelaws to control the use and distribution of tags and to prohibit the sale of untagged salmon.
Paragraph (a) of this clause amends section 26 of the Fisheries Act (NI) 1966 by providing the FCB with powers to make bye-laws in respect of anything relating to the management and protection of fisheries. These powers will enable the FCB to make the appropriate byelaws to facilitate the implementation of a salmon carcass tagging scheme throughout the island of Ireland.
The existing legislation also provides the FCB with powers to make regulations for the conservation and protection of salmon and inland fisheries. However it does not provide the FCB with powers to regulate salmon fishing for environmental purposes. The Environment Act 1995 in Great Britain amended Great Britain fisheries legislation to empower fisheries regulators to protect the marine and aquatic environment to ensure compliance with the EC Habitats Directive (92/43/EEC).
Paragraph (b) of this clause amends section 26 of the Fisheries Act (NI) 1966 by providing the FCB with powers to regulate salmon and marine fishing for environmental purposes.
Clause 6: Reduced duties for Fisheries Conservancy Board licences
Section 37 of the Fisheries Act (NI) 1966 provides the FCB with the power to make byelaws to provide for the issue of licences at reduced rates to persons holding either a different class of licence or a licence issued by another authority. However it does not provide the FCB with powers to make byelaws providing for the issue of licences at reduced rates for particular classes of persons, such as people with disabilities.
This clause amends section 37 of the Fisheries Act (NI) 1966 to enable the FCB to make byelaws for the issue of licences at concessionary rates for persons of such class or description as is specified in the byelaws.
Clause 7: Reinstatement of polluted waters
Section 47 of the Fisheries Act (NI) 1966 provides that where a person is convicted of a pollution offence the FCB may carry out such restocking to restore the fish population as is reasonable in the circumstances and to recover the costs of restocking from the person convicted of the pollution offence. This has proved to be restrictive as it limits the action that the FCB can take to deal with the effects of pollution to the restocking of polluted waters.
Research has demonstrated that a more long-term and sustained improvement in productivity can be achieved by reinstating the in-stream habitat of rivers. Where reinstatement is carried out the survival and productivity of any surviving stock or stock migrating into the affected areas will be sufficiently improved to at least mitigate the losses as a consequence of pollution.
This clause amends section 47 of the Fisheries Act (NI) 1966 by replacing the term "restocking" with the term "reinstatement" and provides the FCB with the power to reinstate the habitat of a river following a pollution incident. It is intended that the term "reinstate" should include such restocking, restoration and enhancement of the habitat as is necessary to return the habitat to the level it was at prior to the pollution offence occurring.
Clause 8: Interpretation
This clause defines the term "principal Act" to mean the Fisheries Act (NI) 1966 when used in this Act.
Clause 9: Short title and commencement
This clause provides for the Act to be cited as the Fisheries (Amendment) Act (NI) 2000. It also provides for the Act to come into operation on such day or days as the Department of Agriculture and Rural Development may appoint.
FINANCIAL EFFECTS OF THE BILL
8. The Bill has no public sector financial implications nor has it any effect on public sector manpower.
EFFECTS ON EQUAL OPPORTUNITY
9. The Bill has no direct or indirect impact on Equal Opportunities.
SUMMARY OF THE REGULATORY APPRAISAL
10. The proposed amendments to section 124 of the Fisheries Act (NI) 1966 provide the Department with powers to make regulations prohibiting the commercial harvesting of shell-fish on the foreshore. The Bill itself does not have direct regulatory impact.
SECRETARY OF STATE'S CONSENT
11. In amending the Fisheries Act (NI) 1966 the Bill provides the Department of Agriculture and Rural Development with powers to regulate the collection of shellfish from the foreshore. As the foreshore is a reserved matter under paragraph 5 of Schedule 3 to the Northern Ireland Act 1998, and as the Bill also creates a number of new offences, the creation of which is a reserved matter under paragraph 9(b) of Schedule 3 to the Northern Ireland Act 1998, the Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.
12. The Minister of Agriculture and Rural Development has made the following statement under section 9 of the Northern Ireland Act 1998:
"In my view the Fisheries (Amendment) Bill would be within the legislative competence of the Northern Ireland Assembly."
CORRIGENDUM
The Department of Culture, Arts and Leisure is now of the opinion that the Fisheries Conservancy Board, if it opts to apply the permissive powers given to it in the Bill, will be unable to do so without incuring some additional cost. Paragraph 8 should reflect this and should now read as follows.
FINANCIAL EFFECTS OF THE BILL
8. The Bill has no significant public sector financial or manpower implications.